Spousal Privilege in Criminal Cases

Courtesy: Zawaj.com

The general principle of law of giving oral evidence in court is that every person is a competent witness. This is provided for under Section 175 of the Evidence Act 2011, Laws of Nigeria.

However, a person can be prevented from testifying in court if the court considers that such a person is incapable of understanding the questions put to him, or the person is unable to give rational answers to questions asked by reason of being a child, a person of extreme old age; such as in the case of senility, by reason of any disease of mind or body or any other cause of the same mind.




In Criminal cases, the Defendant, his wife or her husband, or any person jointly charged with such Defendant and tried at the same time, and the wife or husband of the person so jointly charged is competent to testify. This is provided for under Section 179 of the Evidence Act, 2011, Laws of Nigeria.

Our focus here is on the wife or husband. It is obvious from the legislation that the spouse of a Defendant is a competent witness in that criminal proceeding. However, the question is whether a spouse can be compelled to testify for or against the Defendant in that criminal proceeding.

The general rule is that every compellable witness is a competent witness but not all competent witnesses are compellable.

The spouse of a Defendant is not a competent and compellable witness for the prosecution or the Defence unless the Defendant applies that the spouse be allowed to testify. So also, a spouse cannot be compelled to disclose any communication made to him or her by the other during the marriage. Thus, the fact that a spouse is a competent and compellable witness on the application of the Defendant does not make such spouse compelled to disclose any communication during marriage.

However, there are certain circumstances which makes a spouse a competent and compellable witness for the prosecution or defence without the consent of the Defendant. These circumstances are:

1. Where the Defendant/male is charged with indecent practice with another male
2. The Defendant is charged with the defilement  of girl(s) under thirteen years
3. The Defendant is charged with -
(a) permitting the defilement of young girls on a premises
(b) defilement of girls under sixteen and above thirteen and of idiots
(c)  indecent treatment of girls under sixteen
(d) procuration
(e) procuring the defilement of women by threats or fraud or administering of drugs
(f) abduction of a girl under eighteen with intent to have carnal knowledge
(g) unlawful detention with intent to defile, or in a brothel
(h) indecent acts
(i) Failure to provide necessaries of life as the head of the family for a person under his charge or for a           member of a family under the age of fourteen
(j) Endangering the life or health of apprentices or servants
(k) abandoning or exposing children
(l)  rape
(m) abduction of females
(n) indecent assault on females
(o) abduction of girls under sixteen
(p) slave dealing
(q) bigamy
(r) child stealing
4.  The Defendant is charge with an offence against the property of the spouse
5. The Defendant is charged with inflicting violence on the other spouse

In New Jersey, a bill was presented to compel a newlywed to testify against the spouse. If passed into law, a spouse would be forced to testify against the other if before the marriage, the spouse was a witness in that criminal proceedings and was aware of any investigation in relation to that matter. Read more here.