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DURU Onyekachi Free Law Lecture Series: No. 16

TREASON AND TREASONABLE FELONIES *

1. Meaning & Nature of Treason

The offence of Treason is a capital offence which is defined by section 37(1) of the Criminal
Code Act as follows;

a. Any person who levies war against the state, in order to

intimidate or overawe the president or the governor of a state
is guilty of treason and is liable to the punishment of death.

b. Any person conspiring with any person, either within or without

Nigeria, to levy war against the state with the intent to cause
such leving of war as would be treason if committed by a citizen
of Nigeria, is guilty of treason and is liable to punishment of
death.

Again, by section 38 of the Criminal Code any person who instigates any foreigner to
invade Nigeria with an Armed Force is guilty of treason and is liable to the punishment of death.
Thus, the offence of treason has three arms.

Note that the word war in this context does not bear the restricted meaning which it bears
in international law. In order to constitute levying of war; it is not necessary that the accused
persons should be members of a military force or even trained in the use of arms and the type of
weapons used is not material. It is also immaterial that the no persons engaged in levying the war
are small: R. v. Gallagher. The war must be levied for a general and public purpose. If it is done
merely for a private purpose the offence may be simply a riot: R v. Hardie.

Under section 37(1) supra, it must be proved that there was actual levying of war against
the state. Also, in Boro v. The Republic – the court in interpreting section 37(1) supra held that
in section 37(1) of the Criminal Code, to overawe the head of state connotes the creation of a
situation in which government feels compelled to chose between yielding to force and exposing
its members or the public to very serious danger; it is not necessary that the danger should be the
danger of personal injury to the head of state. The head of state is the embodiment of the state and
to intimidate (or overawe) him is the same as intimidating (or overawing) the state.

In Enahoro v. R, it was held that conspiracy to levy war against the state which is
treason under section 37(2) supra should be charged under that section and not under section 516
of the Criminal Code which deals with conspiracies generally and is intended to apply to
conspiracies which are not specifically provided for under the code. In other words, section 37(2)
is defined to mean a mere conspiracy to commit the offence created by section 37(2), that is to

*
Onyekachi Wisdom Duru Esq. (Contact: Email: onyekachiduru@gmail.com; Tel.: +234-8037707496; +234-
8022148248)
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say, conspiracy to levy war at a future date is itself treason. Also, under this provision, a foreigner
can be charged for treason in Nigeria, if he enjoys the protection of the Nigerian Government.

Lastly, by section 38 supra, the offence of instigation of a foreigner to invade Nigeria with
an Armed Force is committed once the instigation is proved. Thus, the prosecution is not
expected to establish the actual invasion as a result of such instigation.

All in all, it is a person that owes allegiance to the state that can commit treason. Nevertheless,
a person who enjoys the protection of the state can commit treason be he an alien.

TREASONABLE FELONIES

2. Meaning & Nature of Treasonable Felony

The offence of Treasonable Felony is defined by Section 41 of the Criminal Code as

follows;

Any person who forms an intention to effect any of the following

purposes that is to say
a. To remove during his term of office otherwise than by
constitutional means the President as Head of State of the
Federation and Commander in Chief of the Armed Forces thereof;
or

b. To likewise remove during this terms of office the Governor of a

state or

c. To levy war against Nigeria in order to put any force or compel the
President to change his measures or counsels, or in order to put any
force or constraint upon, or in order to intimidate or overawe any
House of the National Assembly or any other legislative or
legislation authority or

d. To instigate any foreigner to make any armed invasion of Nigeria or

any of the territories thereof and manifests such intention by an over
act is guilty of a felony and is liable to imprisonment for life.
By Section 49 of the Criminal Code, an act of conspiracy with any person to do any of
the things in section 41 and every act done in furtherance of such things by any of the
conspirators is deemed to be an overt act manifesting the intention. Finally, under section 43 of
the Criminal Code, a person cannot be tried, for treason, treasonable felony or concealment of
treason; unless the prosecution is commenced within 2 years after the offence is committed:
Omisade v. The State. This is a classical exception to the general rule that criminal actions are
not subject to statutes of limitation.
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3. Concealment of Treason

Under section 40 of the Criminal Code, any person who; (a) becomes an accessory after the
fact to treason or (b) knowing that any person intends to commit treason, does not give
information thereof with all reasonable dispatch to the President or Governor of the state or a
Peace Officer, or use other reasonable endeavours to prevent the commission of the offence, is
guilty of a felony and is liable to imprisonment for life.