TREASON

This unit is an attempt to analytically examine the offence of treason and it will be treated against the backdrop of the following items:

1.0 INTRODUCTION

Treason is a felony and it is committed against lawfully constituted government of the State or the Federation of Nigeria. It is committed when the accused does everything possible to ensure the overthrow of a lawfully constituted government and begins to manifest same by some over acts.

2.0 OBJECTIVES

At the end of this unit, you should be able to: show what constitutes the offence of treason
show when it can be said that a person has committed the offence of treason or treasonable felonies explain what amounts to, waging of war in the offence of treason.

MAIN CONTENT

Criminalisation

The offence of treason is contained in section 37(1) of the criminal code. That section states that any person who levies/wages 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. Any person conspiring with another person, either within or without Nigeria to levy war against the State with the intent to cause such levying of war as would be treason if committed by a citizen of Nigeria, is guilty of treason and is liable to the punishment of death. See section 37(2) of the Criminal Code. In Enahoro v. R (1965) 1 All NLR 125, the court held that a conspiracy to levy war against the State, which is treason under section 37(2) of the Criminal Code should be charged under that section and not under section 516 which deals with conspiracies generally. This means that section 37(2) was the appropriate section on which the accused could be properly charged.

3.2 Levying War

In order to constitute a 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. The type of weapon used also is immaterial as the smallness of the number of persons engaged in levying the war.In R. v. Gallagher (1883) the court held that the phrase “Levying of war” is general and descriptive. It was obvious that war might be levied in different ways and by different ages of the world”.The above dictum was cited with approval in the celebrated case of R. v. Enahoro (1963) LL 91 at 312.

The war levied by the accused must be for a general and public purpose. If it is done merely for a private purpose, the offence may be termed as a riot. See R. v. Hardie (1821) 1 St. Tr 609.

The question now is whether upon a charge of treason under section 37(1) “it must be proved by the prosecution that the President or the Governor was personally intimidated or overawed”. The Supreme Court in rejecting this line of reasoning stated that there is no difference between intimidating and overawing the State and doing the same to the Head of State (President) for the President is the embodiment of the State and to intimidate him is the same as intimidating the State. See R. v. Boro (1966) 1 All NLR 266.


The decision of the apex court has been criticized on the ground that having regard to the wordings of the offence of treason under section 37(1) of the Criminal Code, the prosecution must prove in addition to other ingredients, that the President was personally intimidated and overawed. For example, the State Nigeria is a different person from whoever occupies the office of President. If the prosecution proves that war has been levied against the State and that person has intimidated and overawed the President, conviction will lie against the accused.


It seems plain that the above decision was predicated on policy with a view to guarding against the untoward conduct of treason against the State but was not based on the proper interpretation of section 37(1). Under section 40, of the Criminal Code, any person who becomes an accessory after the fact to treason or knowing that another person intends to commit treason, fails to give prompt information thereof to
the appropriate authority or fails to use other reasonable endeavours to prevent the commission of an offence is guilty of a felony and is liable to imprisonment for life.

3.3 Treasonable Felonies

If any person forms an intention for the purpose of removing the President of the Federation or the Governor of a State, otherwise than by constitutional means of for purpose of levying war against Nigeria in order to compel the President to change his measure (polices) or counsels in order to put any force or constraint upon or in order to intimidate or overawe the National Assembly or any other legislature or legislative authority or to instigate any foreigner to make any armed invasion of Nigeria or any of the territories (States) thereof, and goes further to manifest such intentions by an overt (positive) acts, such a person is guilty of a felony land is liable to imprisonment for life. See section 41 paragraphs (a)-(d) of the Criminal Code.

3.4 Limitation of Time

A person cannot be tried for treason, treasonable felony, concealment of treason and promoting inter-communal war (native war) unless the prosecution is commenced within two years after the offence is committed.
On the strength of evidence to be adduced by the prosecution against the accused for any of the foregoing offences see section 179(2) of the Criminal Procedure Act.

4.0 CONCLUSION

This crime is only committed if (in addition to the other requirements) the action of a person or group assume serious proportions. One of the reasons for the existence of the crime is to protect the state or lawful constituted authorities from intimidation and harassment. In this crime, intent is the form of culpability required. The individual accused must have been aware of the nature and purpose of the action of the group and her participation in the activities of the group must be intentional. You should be able to distinguish between treason, treasonable felony and inter-tribal wars.

5.0 SUMMARY

Treason or treasonable felonies are heinous crimes. In waging war, the accused need not be a member of a military force or trained in the use of arm. The war must be levied for a general or public purpose. The prosecution of an accused for the offences of treason, treasonable felony etc., must be commenced within two years after the offence is committed.

6.0 TUTOR-MARKED ASSIGNMENT

1.  Distinguish between treason and treasonable felony. 
2.  Can it be said that a person has committed treason if by his act. the President of Nigeria is not overawed or intimidated?What is the strength of evidence to be added by the prosecution before a conviction can be sustained on any of the foregoing offences?