TREASON under section 37 & 38 of Criminal Code

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Treason is a public order and safety offense and was historically
used to protect the crown from uprising, insurrection and usurpa-
What is treason?
tion. Treason is the crime of betraying one's country, especially by
attempting to kill or overthrow the sovereign or government.
Treason -Section 37 & 38 Criminal Code
Treasonable felony - Section 41 Criminal Code

TREASON AND TREASONABLE FELONY under CC The offence of treason and treasonable felony applies to citizens of
Nigeria and persons who are resident in Nigeria and have pledged
or deem to have pledged allegiance to Nigeria and therefore can
enjoy her protection.
Joyce V DPP illustrated=s this in UK
A person can be guilty of treason for acts done outside Nigeria
if, at the time, they were under the protection of the Nigerian William Joyce, an American by birth, lived in England and obtained
government e.g., by holding a Nigerian passport—which still binds a British passport by falsely claiming to be British. He later moved
them to a duty of allegiance. to Germany and worked as a radio announcer broadcasting Nazi
propaganda.
Any person who levies war against the State
in order to intimidate or overawe the President or the Governor of
a State, Section 37 (1) of CC.
is guilty of treason,
and is liable to the punishment of death.
Any person conspiring with any person,
either within or without Nigeria,
to levy war against the State
with intent to cause such levying of war Section 37 (2) of CC.
as would be treason if committed by a citizen of Nigeria,
is guilty of treason
and is liable to the punishment of death.
Any person who instigates any foreigner to invade Nigeria
with an armed force
Section 38 of CC
is guilty of treason,
and is liable to the punishment of death
a. Levies war
By virtue of Sections 37 and 38, the offense of treason is commit-
b. conspires with another to levy war
ted when a person
c. instigates the invasion of Nigeria
The offender need not be a member of the military or have military
training but that there be an assemblage of men for a purpose.

1.) LEVYING WAR: Also, the number of participants in the levying of war is not essen-
tial, 3 to 4 will do with the nature of advancement in technology,
i.e, nuclear weapons, weapons of mass destruction, biological
weapons etc.
It is arguable that just one person would be enough depending on
the weapon used. It is also not essential that they be armed with
How many people are needed to levy the war?
military grade weapons but that they be armed with whatever they
can use to engage in warfare. (they can be armed with sticks)
No, it is not essential that the offender be physically in Nigeria nor
is actual fighting necessary.
Does location matter? (Case)
Thus, In R v Vaughan, the Court held that enlisting and matching
are sufficient without coming to battle. But there must be force
accompanying the insurrection.
Also ,the purpose for levying war must be general and not private.
Purpose of levying war: General or Private? If private it can be deemed as a riot. Showing up armed for the
purpose of disposing the government is enough for treason.
It is an offense for any person to conspire with any person either
within or outside Nigeria to levy war against the state with the intent
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 TREASON under section 37 & 38 of Criminal Code
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to cause such levying of war as will be treason if committed by a
2.) CONSPIRE:
citizen of Nigeria.
In Enahoro v Queen, the court held that conspiracy to commit
Is conspiracy here the general offence under Section 516 of CC? treason must be charged under Section 37 (2) and not under Sec-
(Case) tion 516 of the criminal code which is the general provision. The
court said charging conspiracy under section 516 lacks precision.
Conspiring to commit treason and levying war are distinct of-
fences.
Actual levying of war + Conspiracy
There must however be an actual levying of war to be able to
charge conspirators of the offence of conspiring to levy war.
In Ex Parte Bollman, the court held that anyone involved—even in
Principle: To constitute levying war (a form of treason), there must a small or distant role—can be guilty of levying war if they are part
be a gathering of people intending to use force to achieve a of the general plan or enlisted in the purpose.
treasonable goal. (Case)
Donating money to buy weapons could pass as conspiracy
In Anthony Cramer v US, the defendant was accused of treason
for hanging out/hosting enemies of the US thereby giving aid and
TO establish conspiracy, an overt act must be proves. (Case) comfort to them. There was no evidence of what they discussed or
agreed during the meeting. The court therefore held that the overt
act was not proved.
Pursuant to Section 38, to instigate means to attempt to procure.
This will include calling out forces to invade Nigeria, visiting for-
eign governments, militant groups, terrorist groups and asking,
requesting, negotiating etc, for their help to do any of the acts
deemed as treason.
3.) INSTIGATING:
It will amount to treason even where no actual invasion of Nigeria
occurs because of the instigation as it need not be shown that an
invasion took place. But there must be an assemblage of persons
for the purpose of effecting the treasonable purpose.
The mental element of treason is:
- the intent to intimidate or overawe the President or the governor
of a state by such levying of war.
Mens Rea of Treason
However, it is important to point out that the government does not
have to shake or fear or be intimidated , so far it can be proved
that you had the intention, then it suffices.
In Boro v The Republic, it was held that the word "overawe" clearly
imports more than the creation of apprehension or alarm or even
perhaps fear. It appears to connote the creation of a situation in
Meaning of "overawe" (Case)
which the members of the government feel compelled to choose
between yielding to force or exposing themselves or members of
the public to a very serious danger.
It is not necessary that the danger should be the danger of assas-
sination or of bodily injury to themselves. The danger might as well
Nature of danger required.
be a danger to public property or to the safety of members of the
public.
To intimidate is to deter from some cause of action by threats. To
overawe is to put a person in such fear that he hesitates to do what
he has in mind to do and which he may lawfully do.
Professor Gledhill on meaning of "intimidate"
In this context, it implies creating a situation in which government
feels compelled to choose between yielding to force or exposing
its members or the public to very serious danger.
The accused declared the Niger Delta Republic, recruited fighters,
and planned to use violence for the region's secession from Nige-
ria.

The court held that

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TREASON under section 37 & 38 of Criminal Code
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- Levying war with the intent to intimidate or overawe the Head
Boro v The Republic of State is enough for conviction—actual intimidation need not be
proved.
Facts and Holdings - The Head of State represents the state, so to intimidate or
overawe him is the same as doing so to the state itself.
Section 40 of CC

A person commits an offence if they know someone intends to

CONCEALMENT OF TREASON commit treason and
- Fail to inform the President, Governor, or a peace officer promptly
using any possible means; or
- Fail to use reasonable efforts to prevent the treason.
Death penalty.

Exceptions (Section 39 of CC):

Where the offender is:

- below 17 years or
’ No death sentence’ Detained at the pleasure of the President’
PUNISHMENT FOR TREASON Criminal Procedure Act (Part 44) applies
Note: Judge must consider both Criminal Procedure Act and Child
Rights Act for proper sentencing of juveniles.

- a pregnant woman.
’ No death sentence until pregnancy is verified’ Procedure under
Section 376 of the Criminal Procedure Act must be followed. (This
in effect commutes her death sentence to life imprisonment.)
Section 410 of PC provides for the offence of treason.
Treason under PC
Section 411 stipulates the death penalty as punishment for trea-
son with the exception for juveniles and pregnant women. (The
Punishment
provision under the Penal Code is in Pari material with that of the
Criminal Code.)

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