Is Alcohol Consumption a Crime in the North? By Inuwa Fari (@InuwaFari)

Ever wondered whether the Penal Code Law makes drinking alcohol a crime, considering the fact that the Law is applicable to the Northern States? I have. And I used to think it did, taking into consideration the historical nature of the Penal Code Law, and the late Sir Ahmadu Bello's famous statement on how the North cannot make legal what God has made illegal. I've been in the North all my life and I've barely been to the south. So I usually get curious when I see people drinking openly in public places, not to mention the number of bars and night clubs we have here. So I thought drinking was a crime, but I thought it was one of those crimes that are just swept under the rug, you know like the ones no one has the time to prosecute. I seriously thought so.
But then it hit me that I had never actually come across any provision in the Penal Code Law which makes drinking alcohol a crime. So I tried asking some of my colleagues to see if they had come across any such provision. But it turned out that we all had the same presumption. In fact besides Section 44 of the Penal Code Law which deals with Presumption of knowledge of an intoxicated person, we had never really come across any provision which is related to alcohol consumption. Section 44 provides that "a person who does an act in a state of intoxication is presumed to have the same knowledge as he would have had if he had not been intoxicated." Although the word "voluntary" is not mentioned in the section, it is agreed amongst jurists that the provision refers to voluntary intoxication. Section 44 is to the effect that a person who gets himself intoxicated voluntarily cannot use such intoxication as a defence against criminal liability. But the provision does not state whether mere drinking of alcohol or being intoxicated, voluntarily or not, is a crime. It should be noted that drinking alcohol and being intoxicated do not necessarily mean the same thing. Either could occur independent of the other, and Section 44 only deals with intoxication. I'm only mentioning Section 44 because it is in fact related to drinking alcohol as we all know that alcohol consumption can cause intoxication.
So in essence we thought it was there, but we had never seen it before. Out of curiosity I decided to find this 'ghost' provision which makes drinking alcohol a crime in the Penal Code Law… and I did! It turns out that drinking alcohol is indeed a crime under the Penal Code Law but not in the way we all thought it to be.
The first provision I came across which directly and unequivocally deals with being drunk was Section 401 which deals drunkenness in a public place. Section 401 states that "Whoever is found drunk in a public place or in any place by entering which he committed a trespass, shall be punished- (a) with imprisonment for a term which may extend to three months or with fine which may extend to two hundred Naira or with both; and (b) if the person so found conducts himself in such place in a disorderly manner or is incapable of taking care of himself, with imprisonment for a term of six months or with fine of one hundred pounds or with both.
If anything, the above provision does not make drinking alcohol consumption a crime; it only regulates it with regards to being drunk in a public place. It also goes to show that against what I consider to be 'popular belief' amongst many of my colleagues, mere drinking of alcohol is not a crime after all, at least not under the Penal Code Law, though it could lead one to commit a crime under Section 401 of the Penal Code Law.
The Second provision on drunkenness, Section 402, deals with drunkenness in a private place. It states that "whoever being drunk in any private place there conducts himself in a disorderly manner to the annoyance of any person having the right to exclude him from such place or fails to leave such place when requested to do so by such person, shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to two hundred Naira or with both." Another provision which clearly shows that mere drinking of alcohol is not a crime under the Penal Code Law.
As clearly illustrated, based on sections 401 and 402 of the Penal Code Law, mere drinking of alcohol is not a crime under the penal code law. But then I went further to check on Section 403, and for the first time, I came across a provision which clearly but strangely, makes drinking "anything containing alcohol" a crime. Section 403 of the Penal Code Law provides that "whoever being of the Moslem faith drinks anything containing alcohol other than for medical purpose shall be punished with imprisonment for a term which may extend to one month or with fine which may extend to ten Naira or with both." Section 403 may seem to be clear and uncomplicated on the surface, but going deeper, certain points can be drawn out which would not only point out the fragility of the provision, but may also go ahead to completely nullify the provision. The first point that came to my mind was how the prosecution would be able to prove that the defendant was a Muslim at the time he/she committed the 'crime'. Not that it seems entirely impossible to me, in fact in some cases it would be very easy to prove, but in some other cases, it would seem almost impossible. But I won't go into details on what the prosecution has to prove, or what defences are open to the defendant. One may understandably say that I only have a limited understanding of the provision as I haven't been able to find any judicial decision on the matter. But I still think that the section could be interpreted easily without necessarily seeking judicial decisions to support one's interpretation.
I'm a Muslim, I don't drink, and I don't encourage others to drink, but the truth of the matter is that Section 403 of the Penal Code Law is, strictly on a point of law, unconstitutional, null, and void, as it is in direct violation of Section 42 of the 1999 Constitution which gives citizens of Nigeria the right to freedom from discrimination. Below is the full provision of Section 42 of the 1999 Constitution:
42(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion, or political opinion shall not, by reason only that he is such a person:-
Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
Be accorded either expressly by, or in the practical application of, any law in force in Nigeria, or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
(3) Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the state or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria.
Section 42 of the constitution is to the effect that a law cannot be made to affect only Muslims while it does not affect non-Muslims, as is done (or attempted to be done) per Section 403 of the Penal Code Law.
As we all know, the Constitution is supreme, and going by Section 1(3) of the constitution, "if any other law is inconsistent with the provisions of this Constitution, this constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void."
The question most people would be asking is why did the drafters of the Penal Code Law include such a provision when they ought to have been aware of its inconsistency with the constitution? Well, what most people don't know is that the Penal Code Law actually pre-dates the existence of the provision Section 42 of the 1999 Constitution in any Nigerian constitution. The Penal Code Law was enacted in 1959, while the fundamental human rights chapter (chapter IV of the 1999 Constitution) under which section 42 is found was introduced for the first time into the Nigerian Constitution in 1979, under the 1979 Constitution. The intentions of the drafters as at the time the Penal Code Law was enacted is clearly seen through the fact that the Penal Code Law was introduced to account for the differences between Muslim and non-Muslim laws, and to make the region's laws applicable to everyone. Perhaps this is why Section 403 of the Penal Code Law is meant to apply to only those of the Muslim faith. No doubt, one cannot say that the provision is illogical in any way. But as I mentioned earlier, strictly on a point of law, Section 42 of the constitution nullifies the provision.
The problem of the archaic nature of the Penal Code Law does not end with Section 403. I decided to use Section 403 as an illustration because it is a provision which I just recently discovered; on an issue which most people I've met have a misconception about. But there are many other provisions in the Law which need to be reviewed for amendment in order to meet the changing social and economic situation in the region today, and most importantly in order to be in conformity with the Nigerian Constitution. Laws are meant to be constantly reviewed and amended as time goes on to meet the inevitable changes in the society if need be. Looking at sections 401 and 402 of the Law for example, one would wonder what effect a fine of two hundred Naira could possibly have on a person found guilty of the stated offences in Nigeria today.
The issue of the application of the Sharia in some northern states could also be questioned going by the provisions of Section 42 of the Constitution, as the Sharia Law supposedly applies only to persons of the Muslim faith. But perhaps that's another issue entirely.
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