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Tuesday, September 13, 2011
To him, this reform therefore is the first of its kind in Southern Nigeria. Although the law has different sections, it rises stoutly in the defence of women and children in the society. Section 276 for instance, makes it a criminal offence for a man to desert a woman he impregnates. Furthermore, intimate offences including those against the child were brought together under Chapter 25. Also included in the chapter are offences which under the Criminal Code are categorised as offences against morality and unnatural offences. New intimate offences were created to expand the protection of the law.
These are: (a) intimate assault by penetration (Section 259) - this differs from violation in that it covers all forms of intimate assault which entails non-penile penetration of the womanliness, violation having been limited to its traditional understanding of penile penetration of the womanliness; and (b) intimate assault (Section 261) - this replaces the offence of indecent assault. The new law comes against the back drop of violence against women which has become very rampant in the society. Tola Rotimi, Director, Office of the Public Defender (OPD), in an interview with National Mirror in January this year said that the incident of violation cases in the state had reached an epidemic degree. She said :” We have discovered that violation is rampant in all these face-me-I-face-you apartment, especially in high density areas.
In such areas you would often find a woman leaving her girl child in care of another neighbour who would turn out to be the defiler of that particular child. It has become epidemic, in this office we treat intimate abuses or related cases of nothing less than ten in a day, you can now imagine the other units too, so all added together, we are talking of about 20- 25 intimate abuse cases in a day.
That is on the high side”. Francis Famoroti, a lawyer and Deputy Head, Judiciary desk, National Mirror believes that proving violation cases in court is usually a hard task for lawyers. “There must be evidence of penile penetration which must be total and complete. Besides, an examination that must be conducted by a qualified medical doctor, it must be proved that there is actual spermatozoa discharge into the womanliness before a violation case could be said to have taken place” This may explain why most cases are inconclusive in court.
Could this then be why the intimate abuse law was split into two viz: intimate assault (section 261), and intimate assault by penetration? Another lawyer, Jiti Ogunye believes that the new laws will make it easier to prove intimate assault, while proving intimate abuse by penetration could still be difficult. “ It means that even if an offender escapes conviction on intimate abuse by penetration, he may not escape being punished for intimate assault”. However, the law that has generated heated debate among lawyers and non lawyers alike is section 276 which makes it a criminal offence for a man to abandon or desert a woman he impregnates.
Although details of the law still remain sketchy, it has drawn flaks from people who believe relationships are moral issues that cannot be criminalised. In her view, the Executive Director, Women Advocate Research and Documentation Centre, Ms. Abiola Afolabi- Akiyode, said the law was a misnomer despite the fact that its sponsor might have had good intentions. She added that it has the potential for adverse consequences that would rubbish the good intention. She said: “I know the intention behind this law is apparently to checkmate irresponsible behaviour on the part of those who would like to take advantage of young women. But I don’t see a good piece of legislation. I have not got a copy of the law to study it in detail, but to the extent of the reported essence of the law, I can say it won’t work.
As a matter of fact it will create more problems than it will solve. Criminalisation of such thing would lead to a situation where people would impregnate women and run away with a view to avoid prosecution. Thus it will even promote the very thing it is trying to curb; the law is certainly one that ought not to have been made.” In a similar vein, the Chairman of the Ikeja branch of the Nigerian Bar Association, Mr. Adebamigbe Omole said “I know the intention is to protect pregnant women against desertion and by extension, protect the family life. But there are times people go into relationship with the agreement that this relationships is meant for mere friendship, although I do not encourage that.
But what if in the course of such mere friendship, pregnancy comes in and the two parties have realised that they are not compatible? “There is no way you can force unwilling people to go and marry just because there is pregnancy. I know that those behind the law have good intentions. But when you make a law you have to look at the workability of the law. I don’t know how you are going to force a man who is not ready to marry a woman to marry her. Marriage relationship is a contract and you cannot foist relationships on people.
Nobody should be forced to enter into agreement that will not be beneficial to him. In law, we say a contract or agreement is a matter of consensus ad idem” In his own view, the Executive Director of Advocacy for Democratic Dividend International, Chief Sola Ojeriakhi, condemned the criminalisation of abandonment of pregnant women on the grounds that the law does not take a critical look at the socio-cultural problems in Nigeria. Ojeriakhi said “There are certain issues which should belong to the moral parlance brought under the criminal law. We cannot criminalise everything we frown upon in the society.
We should leave certain areas of social behaviours to home and parental control. “ The issue of impregnation and desertion is a moral issue and we should employ the institutions like churches and mosques to educate and orientate our young ones on the right cause of action to take rather than throwing young people into jail for moral laxity. “I think there should be some re-thinking on this law”.
However, Ipaye, giving a general overview of the new criminal laws, believes that the state will be better off. He pointed to new features like suspended sentence, and community work as examples. He said: “The Law is a departure from old Criminal Code Law that only focused on imposition of custodial sentence and fines on the offenders. The Law now pro- I KNOW THE INTENTION BEHIND THIS LAW IS APPARENTLY TO CHECKMATE IRRESPONSIBLE BEHAVIOUR ON THE PART OF THOSE WHO WOULD LIKE TO TAKE ADVANTAGE OF YOUNG WOMEN An attorney passed on and found himself in heaven, but not at all happy with his accommodations.
He complained to St. Peter, who told him that his only recourse was to appeal his assignment. The attorney immediately advised that he intended to appeal, but was then told that he would be waiting at least three years before his appeal could be heard. The attorney protested that a three year wait was unconscionable, but his words fell on deaf ears. The lawyer was then approached by the devil, who told him that he would be able to arrange an appeal to be heard in a few days, if the attorney was willing to change venue to Hell.
When the attorney asked why appeals could be heard so much sooner in Hell, he was told, “We have all of the judges.” vides for other forms of punishment which include compensation, restitution, community service orders and probation; Under this new Law, the Court may in addition to or in lieu of custodial sentence impose a non- custodial sentence like community service order.
This creates an opportunity for those convicted of minor offences to be useful to the society by engaging in acts like sweeping the streets; Another reason for change is that the old Criminal Code Law had become inadequate to address the challenges of contemporary criminality. Besides, the use of more contemporary language was adopted eliminating legal jargon, archaic language and drafting styles to make the law more user-friendly. Several sections of the Code that were found to be convoluted were redrafted and broken down into sub-sections for simplicity and clarity.
As the law comes into practice, time will determine its workability and acceptability. However, if the experience of the state on the reforms on the administration of Justice is anything to go by, the entire country may have to take a clue from the state again.
In 2001, the state increased the renumeration of judicial officers with 300 per cent. For months, this generated controversy with many questioning the intention of the state. Within a year, other states and even the Federal government implemented the Lagos reforms. Lagos may just have blazed the trail agai
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