Litigation, Insights

Decriminalisation of Bigamy in Lagos State And its Legal Implications

The present Nigerian criminal justice system is part of Nigeria’s inheritance from colonial Britain. In fairness, it served the colonial power rather well. But with the transformation from colonialism to self-governance, democracy, military rule and now a hybrid of civilian rule and democracy, the inherited system had come under severe strain to the extent that it can safely be said to be non-functional or at least comatose.

Bigamy was introduced into the body of the Nigeria criminal legal regime by the colonial powers like other incongruous legislations that are alien to our culture and traditions as Africans and particularly as Nigerians. Since this law found its way into Nigeria it has not been tested by any court of competent jurisdiction in Nigeria, this underscores its inconsistency with our culture as a people.
Recently in view of the dormancy of the provision for the crime of bigamy in our Criminal Codes Act and laws of the various states, Lagos State in its proactive nature expunged the unexploited provision from its Criminal Code Law, this discuss is to examine the said step taken by the Lagos State Legislatures and the extent of its consistency or otherwise with the constitution of the Federal Republic of Nigeria 1999 (as amended) or any other relevant laws in force in Nigeria.

The word bigamy is defined by the Black’s Law Dictionary Ninth Edition as “the act of marrying one person while legally married to another” this definition is similar to what the Criminal code describes as bigamy when it provides thus:
“Any person who having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life time of such husband or wife, is guilty of a felony and is liable to imprisonment for seven years”.

The old Criminal Code Law of Lagos State Cap C17, Laws of Lagos State 2004 section 370 provides that:
“Any person who having a husband or a wife leaving, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife is guilty of a felony and is liable to imprisonment for seven years.
The implication of this provision is that any person who contracts a marriage under the Act will commit a crime if he goes ahead to contract another marriage under the Act during the subsistence of the first marriage. The question here is can a state expunge from its laws a provision contained in an Act made by the National Assembly? Section 370 of the criminal code Act provides for the crime of bigamy, the said provision is the same with what is contained above in the laws of Lagos State.

The power of a state to make law is as contained in section 4(6) of the Nigerian constitution where it provides thus: “the legislative powers of a state of the federation shall be vested in the House of assembly of the state” the constitution went further in sub-section (7) of the same section to provide that “the House of assembly of a state shall have power to make laws for the peace, order and good government of the state or any part thereof with respect to the following matters, that is to say-
(a) Any matter not included in the exclusive legislative list set out in part 1 of the second schedule to this constitution.
From the above provisions of the constitution, a state has power to make law for that state to the extent that the subject matter of such law is not included in the exclusive legislative list which only the National Assembly can legislate upon. Could the issue of bigamy be said to be included on the exclusive list in the constitution as to bring it outside the realm of the legislative powers of the state? To answer these questions we go back to the constitution…




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