A MEMORANDUM SUBMITTED TO THE LAGOS STATE HOUSE OF ASSEMBLYTHE BILL FOR A LAW TO ENACT RULES ON CRIMINAL CONDUCT, REGULATE PUBLIC ORDER AND FOR OTHER CONNECTED PURPOSES.
COALITION FOR THE DEFENSE OF SEXUAL RIGHTS IN NIGERIA7/7/2010
A MEMORANDUM SUBMITTED TO THE LAGOS STATE HOUSE OF ASSEMBLY
COALITION FOR THE DEFENSE OF SEXUAL RIGHTS IN NIGERIA
JULY 2010 TO THE BILL FOR A LAW TO ENACT RULES ON CRIMINAL CONDUCT, REGULATE PUBLIC ORDER AND FOR OTHER CONNECTED PURPOSES.Introduction The Coalition for the defense of sexual rights in Nigeria, was formed in May 2005, and since its inception, has contributed to shaping policy dialogue and promoting laws that seek to protect the sexual health and rights of all people in Nigeria. it has a membership of over 30 civil society organizations This Memorandum is submitted by the coalition to the Lagos State House of Assembly in support of current effort of the Lagos State Government to review the Laws of the State towards improving its criminal justice system.
The submissions made herein are based on the basic human rights principles articulated in different international human rights treaties and conventions and upheld by the national Constitution of the Federal Republic of Nigeria, 1999 as well as other local laws. They are also drawn from the outcome of a one-day meeting of the coalition members held in Lagos on July 6th 2010. We hope that our submissions will be considered by the Lagos State House of Assembly towards ensuring that the criminal Justice system of Lagos State serves as a model for the whole of the Nation especially as it concerns the repeal of laws that are made based on wrong notions and assumptions around sexual health and rights issues and basic tenets of human rights issues enshrined in international laws and treaties
Ms. D’Orothy Aken’Ova Mr. Joseph Akoro sowedo INCRESE TIERFOR AND ON BEHALF OF THE COALITION FOR THE DEFENSE OF SEXUAL RIGHTS IN LAGOS
CONTACT INFORMATION International Center for Sexual and Reproductive Rights (INCRESE ) No 1 Atunrase Estate Gbagada, Lagos state. HYPERLINK “mailto:Increse2001@yahooco.uk”Increse2001@yahooco.uk The Initiative for Equal RightsNo 20 Olowu Street, Off Awolowo way Ikeja.Tipyouth2006@yahoo.ca
SOME OF THE PRINCIPLES UPON WHICH THE SUBMISSIONS HEREIN ARE BASED ARE:Men and Women are born equal and should therefore be equal before the lawElimination of all forms of discrimination based on attributes such as gender, race, ethnicity, religion, disability, sexual orientation, gender identity, or cultural stereotypes in all work-related privileges or activities, including wages, hours, benefits, job access and qualifications, and working conditions is a duty of allThe Childs Rights Act and the Child’s Rights law of Lagos affirm that anyone below the age of 18 is a child. This should therefore form the basis of punishment (especially sexual offences) for offences.Sexist language portrays women as something less in society. The general language of the law is considered sexist as it often ignores women through the use of masculine genetics. Maintaining this kind of language in the proposed review is to reinforce and perpetuate gender stereotypes that are often detrimental to the status of women. We therefore submit that the issue of language be addressed in order to introduce neutrality when both sexes are been referred to.
Chapter 7: Unlawful SocietiesThis Bill, among other benefits seeks to promote justice, peace and the rule of law, however beyond these benefits it presents some very alarming course for concern especially for civil society organizations and those who progressively seeks to promote equality, fairness and participation in Nigeria’s democracy. It is without doubt that any freedom of association and freedom of expression are essential to the development of civil society and thus to the strength of democracy, transparency and accountability.The Bill defines society thus;A society includes any combination of persons whether the society is known by any name or not.
Our particular concern is rooted in the definitions of unlawful society in section 40(2) (d) (f)(d) Subverting or promoting the subversion of the Government; or(f) Interfering with, or resisting, or encouraging interference with or resistance to the administration of the Law.
This section of the Bill establishes conviction of 1-7 years imprisonment for any person, persons or members of an unlawful society.
The Adverse Effect of Section 40(2)(D) (F)
The definition of an unlawful society as defined in chapter 7 section 40 (2) (d) (f) of the Bill, will indirectly have the effect of prohibiting and criminalizing any activities, associations, and interest groups who may be opposed to reform agendas or certain laws and legislations of the state, The fact of these oppositions by definition of section 40 constitute subversion of government, But in reality the subsections will result in violations of constitutional obligations of Nigeria which guarantees right to freedom of expression and the right to peaceful assembly and association which further integrates the formation of a participatory democracy and freedom. The Nigerian constitution further guarantees every citizen the right to make free political choices, including the right to form or choose a political party, trade union or any association for the protection of his interest.
These provisions of definition by section 40 and particularly its subsections contravene the right to freedom of opinion and expression sanctioned by article 19 of the ICCPR, which states that:Everyone shall have the right to hold opinions without interference.Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.(…) Article 9 of the African Charter, states that:Every individual shall have the right to express and disseminate his opinions within the law.Other International Obligations on the right of freedom of assembly and association which section 40(2)(d) (f) violate:Article 13 of the Convention on the Rights of a ChildArticle 21 of The Universal Declaration of Human RightsArticle 8 of The International Covenant on Economic, Social and Cultural RightsArticles 10, 11 & 13 of the African Charter on Human and People’s RightsArticles 25 of the International Covenant on Civil and Political RightsAs members of civil society organizations, we are hoping that this bill when passed into law will serve as a tool that will aid in our work to ensure a more informed citizenry, who make better voting choices, participate in politics and the democratic process and hold government more accountable.
DISCRIMINATIONWe notice that the bill lacks any provision on discrimination. Discrimination in our society is all pervasive in different populations for different reasons resulting in gross violations of rights weakening intervention strategies in public health, violence against women and HIV/AIDS. We therefore propose that this laudable law provides a section that prohibits discrimination on all grounds including but not limited to Discrimination on the grounds of tribe, religion, age, gender, sex, sexual orientation, gender identity etc.
Section 137: Defilement of a childAny person who has (unlawful) sexual intercourse with a child isGuilty of a felony, and is liable to imprisonment for life.
Comments and observation: the child rights act that pegs the age for consent does not make any exemptions where sexual activity can be lawful with a child. Therefore, we propose the deletion of “unlawful” from this provision. Apart from making the provision redundant, it is also opens the [provision to misinterpretations which may excuse child marriages and sexual activities within those marriages. We are agreed that there can be no Lawful or unlawful sexual intercourse with a child. ALL is unlawful30. Immature ageA person under the age of ten years is not criminally responsibleFor any act or omission.
Comments and observation: Age limits placed to exempt children from criminal responsibilities should be guided by the provisions in the Children and Young People’s Law
Comments and observation: We are concerned that the provisions in this section pre-disposes offenders to double jeopardy. We recommend top this esteemed House to Provide protection from double jeopardy: where in a situation offenders who have served a term or punishment in another state does not come back to the state to serve another term or punishment for the same offense or crime..
124. Insult to a religion Any person who does an act which any class of persons consider asa public insult on their religion, with the intention that they shouldconsider the act an insult, and any person who does an unlawfulact with the knowledge that any class of persons will consider it aninsult, is guilty of a mis-demeanour, and is liable to imprisonment
Comments and observation: We propose that this entire section be dropped. We are already living in a society where religious intolerance is at a boiling point. Slightest triggers often unleash social unrests. A law such as is proposed in this section will legitimize a lot of intolerance and cause conflicts at the slightest provocation, even those which may be currently borne by the faithfulls. Stand up comedians who make jests about religion, evangelists and preachers who seek to convert people from one belief system to another may be targets of intolerance and violence, these may also provoke social unrests resulting in loss of life and property. This provision may also provide basis for infringements on the rights to freedom of expression and opinion and religion and belief.179. Arrest of wrong person
(1) A person who, being duly authorised to execute a warrant toarrest one person, but arrests another, believing in goodfaith and on reasonable grounds that the person arrested isthe person named in the warrant, is not criminallyresponsible for doing so to any greater extent than if theperson arrested had been the person named in the warrant.
Comments and observation: the coalition duly submits that any person duly authorized to execute a warrant of arrest but makes a wrongful arrest, takes a measure of responsibility. Absolving this wrong doing to the person who has been wrongly arrested without any form of compensation provides a breeding ground for impunity and gross violation if the human rights of the person who is wrongly arrested. As a coalition for the defense of sexual rights, we propose the review of this section to protect the arrested person and NOT the institution or individual making the arrest. This will protect the weaker of the two, which is the true essence of human rights.
181. Force used in executing process or arrestIt is lawful for a person who is engaged in the lawful execution ofany sentence, process or warrant, or in making any arrest, and forany person lawfully assisting him, to use such force as may bereasonably necessary to overcome any force used in resisting suchexecution or arrest.
Comments and observation: We respectfully propose the following to strengthen the intention of the provision expressed above: The definition of force should be establishedDefinition of resistance of arrest should be established Measure of levels of resistance and commensurate force to be applied should also be definedA clause that will justify the protection of people who show no resistance in the case of applied force should be provided
(1) Any man who has unlawful sexual intercourse with a womanor girl , without her consent, is guilty of the offence of rapeand liable to imprisonment for life.
Comments and observation:
Based on the feminist belief that resonates with human rights principles of equal rights equal responsibility, we are suggesting that this sub-section 1 be rephrased to accommodate offenders without exemption to sex and or gender. We propose that it reads thus:
Any person who has unlawful sexual intercourse with another person, without his or her consent, is guilty of the offence of rape and liable to imprisonment for life
We also propose that we reflect same sense of equality in rights and responsibility to the section below (261) and should therefore read as thus:
261. Sexual assault(1) Any person who sexually touches another person without his (or her) consent is guilty of a felony and liable to imprisonment for three years.
136. Indecent practices
Any person who commits any act of gross indecency with anotherperson in public, or procures another person to commit any act ofgross indecency in public with him or another person is guilty of afelony, and is liable to imprisonment for three years.
The coalition humbly proposes to this esteemed house as follows:
Additional clauses are required which should provide a clearer definition of the termsindecencyIndecent activitiesIndecency with another personProcurementWe wish to avoid instances where definitions, interpretation, and definition of the elements of the law are provided at the discretion of the rights custodians
(c) to leave his usual place of abode in the State, with intentthat he (she) may, for the purposes of prostitution, become aninmate of a brothel, either in Nigeria or elsewhere,
Similar to the proposal of the coalition regarding the section on rape in section 258, we recommend that language be introduced to hold all accountable to rights and responsibilities rather than the language in the bill that insinuates that ONLY Men may abduct for purposes of prostitution and that ONLY WOMEN and GIRLS are victims in such instances.
We recommend the same to be applied to section 141 below. 141. Abduction of a girl (or boy) under eighteen years with intent to havesexual intercourse
(1) Any person who with intent that any man or woman may have sexualintercourse with a girl under th e age of 18, takes her orcauses her to be taken out of the custody or protection ofher father, mother, or other person having the lawful care orcharge of her, and against the will of such father or motheror other person, is guilty of a misdemeanour, and is liable toimprisonment for two years.
Comments and observation: the coalition for the Defense of Sexual Rights in Nigeria proposes as follows:
In spite of age and sex, the section has two ingredients; The fact of the abduction, and the intention to give out a boy or girl for sexual intercourse. The provision of section 141(2) only serves as a defense for sexual intercourse, but not for the second ingredient of abduction. We recommend for and additional clause to provide protection against abduction. Another issue is also the fact that consent in this situation is restricted to consent of the parent or guardian, and so it means that if a guardian gives consent then it is okay for this party to take a girl or boy away to have sexual intercourse. We strongly recommend that an additional provision be included allowing the child to also express their opinion (person under 18), especially considering the possibility of connivance from parents too abduct such a child; this should also provide a possibility for the child to testify in order to aid the judicial process.
145. Attempts to procure abortion146. Attempt to procure own miscarriage
Comments and observation:
We recommend that Section 145 and 146 should be deleted from this exemplary bill for the following reasons:
The past decade that has been recognized to be the decade of rights made unprecedented strides towards securing and guaranteeing women’s human rights. These include rights to bodily integrity and self determination. These are pillars in choice. The provisions as they stand in this bill contravene these provisions.
We are in the same breadth recommending that section 201. Medical abortion, should replace section 145, 146, and the indicators for permitting medical abortion should be expanded to include rape, incest, and congenital malformations since these sections were originally addressing issues related to abortion.
Section 199. Correction of child, apprentice, ward, and employee, etc.(1) Any application of force which does not result in grievous harmmay be justified for the purpose of correction in the following
Comments and observation: the coalition proposes as follows:
That “force” be expunged from section 199The essence of punishment is to correct and not to inflict harm of any kind.Force and force that may result in harm or grievous harm are negative to correction. Other measures for discipline should be employed. That the intention to prevent grievous harm be reviewed since there is no means of ascertaining the harm that may result from the use of force for correctionAdditionally, we propose that a section be provided to punish those who may INFLICT any force or harm during correction or discipline.
Section 142. Persons trading in prostitution
Comments and observation: The entire section 142 sub-section 1: should be dropped because it’s redundant. Otherwise, clear definition of those people who benefit and live of the proceeds of prostitution must be clearly stated as there are those who benefit from such proceeds (children, sibblings ) but cannot be held liable. We recommend that the language be revised if the provision must remain.
139. Allowing a child to be in a brothel(1) Any person having the custody, charge or care of a child whohas attained the age of four years allows that child to residein or frequent a brothel, shall be liable to a fine of NinetyThousand Naira or to imprisonment for six months or to both.
Comments and observation: The coalition believes that this provision is bogus and may be interpreted to affect the children of the sex workers themselves. Where it becomes pertinent to protect the children from the environment, we recommend that a provision be created to house the children with standard facilities and quality care as provided by the child rights act.
144. Unlawful detention with intent to defile, or in a brothelComments and observation: sub-section (2)
We also recommend a review of the language in this section to uphold the feminist and human rights principle of equal rights and equal responsibility for all regardless of sex and gender same as sections 258, 140, and 141
Chapter 17 – Obscene Publications149. Test of obscenity
The following terms obscenity, corruption and depravation should be properly defined and categorized to elicit what constitutes depravation and what specific materials can be viewed as obscene. The definition as provided in the bill are bogus