Daily Law Tips (Tip 593) by Onyekachi Umah, Esq., LLM. ACIArb(UK)
CHILD MARRIAGE/ABUSE IS NOW A CRIME (RAPE) IN NIGERIA.
INTRODUCTION:
There seem to be a misconception that Nigeria has gaps in her laws that allow pedophiles (persons that are sexually attracted to children) to get away with rape in the name of customary or Islamic marriage. In the contrary, there are adequate laws to fight child marriage and all forms of sexual abuse. Although, it appears law enforcement agencies and prosecuting institutions are not enforcing our laws while parents, families, religions and communities are complicit and now the muted beneficiaries of rich pedophiles.
To prove the existence of adequate legal framework against child marriage and sex in Nigeria, states and federal laws will be analyzed. The laws to be analyzed include the Constitution of Nigeria, the Trafficking In Persons (Prohibition) Act, the Child’s Right Act, Violence Against Persons (Prohibition) Act, the Penal Code and the Criminal Code. The lack of cases where parents and families are prosecuted for consenting to child marriage and wealthy politically exposed pedophiles win elections in Nigeria are disturbing baseline indicators.
Where the victim of rape is a child or a person of unsound mind the act is known as Defilement. Whether consent was obtained from the child or not is immaterial. Whether consent of the guardian or parent of the child was obtained is immaterial. Whether religion, tradition, society and rituals allow such is immaterial. Rape and defilement are criminal offences irrespective of the status, class, wealth and might of the offender or the location of the crime in Nigeria.
SOUTHERN NIGERIA:
The criminal law in operation in the southern part of Nigeria is the Criminal Code. Going by the Criminal Code, having sexual intercourse with a girl under the age of 13 years by any person (including so called husbands) is a criminal offence and the maximum punishment for it is life imprisonment with or without caning.
Merely attempting to commit the crime is also an offence but punishable with imprisonment for maximum period of 14 years with or without caning. However, prosecution for such offences must be started within 2 months after the commission of the offence and aside the testimony (evidence) of one witness, corroboration (confirmation of crime by the testimony of a third party/another witness apart from the victim) is needed. It must be mentioned that the age is 11 and not 13 years in some western state and eastern states in southern Nigeria.
Furthermore, still in the southern Nigeria, it is a crime for any person (including so called husbands) to have or attempt to have sexual intercourse with an idiot, imbecile or a girl that is 13 years old or above but under 16 years. The maximum punishment for this crime is 2 years imprisonment with or without caning. It is a defence to believe that the girl here was 16 or above 16 years old. Aside the testimony (evidence) of one witness, corroboration (confirmation of crime by the testimony of a third party/another witness apart from the victim) is needed. Note also that the age is 11 and not 13 years in some western state and eastern states in southern Nigeria.
Owning, occupying or managing of any property where a girl is defied is a crime punishable with a maximum of 2 years imprisonments with or without caning where the girl is above 13 years but below 16 years old. Where the girl is less than 13 years old, the maximum punishment is life imprisonment, without caning.
Also, it is a crime for any person to abduct or detain any female of any age against her wish for marriage or sexual intercourse. It is punishable with imprisonments for a maximum period of 7 years. The punishment will be 2 years where the abducted girl is unmarried, under the age of 16 years and was abducted without her parent’s or guardian’s consent notwithstanding the consent of the girl or a mistake as to her age.
There is need for the punishments to have minimums that courts cannot pass, since some courts give punishment that are quite below the maximum punishments set for the offences. They often make mockery of the maximum punishments set by the laws. Unless punishments are punitive enough, it will not discourage criminals.
NORTHERN NIGERIA:
In this part of Nigeria, the criminal law in operation is the Penal Code. Having sexual intercourse with a girl that is less than 14 years of age or of unsound mind is a crime, punishable with life imprisonment or lesser period with or without fine.
It is a crime for any person to induce a girl that is less than 18 years old to go from any place with him/her or to do anything that leads to sexual intercourse with another person. It is a crime punishable with imprisonments for maximum period of 10 years and with fine. Apparently, this covers the parents and other actors in a child marriage and abuse.
Also, any person that helps and assist in enticing and leading a woman or a girl for immoral purposes even with the consent of the woman or girl has committed a crime punishable with 7 years imprisonments and fine.
There is need for the punishments to have minimums since some courts give punishment that are too far away from the maximum punishments set for the offences. Hence, the punishments are not punitive enough to deter criminals. Imagine sentencing an offender to 3 years imprisonment for an offence with a maximum punishment of life imprisonment.
ACROSS NIGERIA:
The National Assembly makes laws for the entire country on issues in the exclusive legislative list. Among the relevant laws made by the National Assembly, are;
A.) VIOLENCE AGAINST PERSONS (PROHIBITION) ACT 2015:
In 2015, the National Assembly made an Act against violence against persons. This law defines rape to include penetration into any opening in a human body by any person. So, this means that there can be rape between couples and that boys and men can be victims of rape unlike in the earlier laws (Penal Code and Criminal Code). It also made the minimum punishment for rape to be 12 years imprisonment without fine and maximum to be life imprisonment.
However, where an offender is less than 14 years old his maximum punishment is 14 years imprisonments and where there is group/gang rape, the offenders are jointly liable to a minimum of 20 years imprisonment. Also, names of sexual offenders are to be kept in a register and made public. Victims are entitled to compensation as the court deems fit. This means that pedophiles or any person that marries any person below 18 years old and has sexual intercourse with her/him has committed rape.
This law operates only in Federal Capital Territory, Abuja. Some other states in Nigeria, have adopted or enacted similar laws, including Anambra State, Ebonyi State and Oyo State while more states are being urged to genuinely join this fight against child marriage and rape.
B.) CHILD’S RIGHT ACT, 2003:
This federal legislation defines “child” to be a person that is less than 18 years. The law declares the age for marriage to be 18 years and declares any marriage contracted with any person that is less than 18 years a nullity. It mandates that everything concerning a child must be in the best interest of the child(obviously child marriage and abuse is never in the best interrupt a child). It also prohibits betrothal of a child and nullifies all betrothals.
Punishments for child marriage, child betrothal or promotion of child marriage is fine of #500,000.00 or imprisonment for 5 years or both. Truly there is need to increase the period of imprisonment to be a minimum of 14 years and maximum of life imprisonment, because child marriage leads to open continual (statutory, systematic and institutionally condoned) child rape. Also, there should be no fine since fine is never enough punishment for wealthy pedophiles. Arguably, bride price and monies spent on child marriage are quite higher than the fine of N500,000.00.
Under this law it is also an offence to have sexual intercourse with a child, it is rape and it is punishable with life imprisonment. The consent of the child or her parents or a mistake as to the age of the child is immaterial. Any other sexual abuse apart from rape is punishable with 14 years imprisonment.
While there are arguments that this federal law cannot operate in states in Nigeria, some states have enacted similar laws and titled it Child’s Right Law. However, many states reduced the age of child to be below 18 and some even tagged it to be age of puberty. States are encouraged to amend this and stay true to the fight against child abuse and early marriage.
C.) TRAFFICKING IN PERSONS (PROHIBITION) ENFORCEMENT AND ADMINISTRATION ACT, 2015:
Originally enacted in 2003 but amended in 2015, the federal legislation is designed to create legal framework for prohibition, prevention and punishment of human trafficking and related offences. It also created the National Agency for Prohibition Trafficking in Persons (NAPTIP).
Abuse of power or position of vulnerability, abduction, deception or fraud for the exploitation of a person is a crime punishable with imprisonments for not less than 2 years and fine of not less than N250,000.00. This covers child marriage, since a child is a victim of exploitation in every child marriage.
Also, procurement of persons for sexual exploitation including a person that is less than 18 years old is a crime, punishable with 5 years imprisonments and fine of N500,000.00. Where the sexual exploitation includes prostitution, the punishment is 7 years imprisonments and fine of not less than N1 Million Naira.
There is need to increase the minimum imprisonments period to 14 years and remove options of fines, looking at the spike in such cases and the often high financial status of offenders or their cronies and families. This federal law applies to all parts of Nigeria, so the argument that Child’s Right Act and the Violence against Persons (Prohibition) Act do not operate in some states, does not affect it.
D.) THE CONSTITUTION OF NIGERIA:
The greatest of all laws in Nigeria, is the Constitution of the Federal Republic of Nigeria, 1999. The constitution overrides all other laws and even international conventions and religious books/rules made by international bodies, federal government, state government, local governments or any religious/communal organization. Any law, rule, custom or practise that attempts to contradict the constitution of Nigeria is on itself invalid, nullified and dead on arrival.
Among the inalienable rights of person (including children) in Nigeria, that are enshrined (contained) in the constitution, is Right to Dignity of Human Person. Child marriage is on its own torture, inhuman and a degrading treatment to any child victim. Hence, any religion, custom, marriage or rite that allows child marriage and sex is contrary to the constitution of Nigeria and is consequently invalid and nullified. It is an infringement of fundamental human rights of the child victim and serious financial damages can be awarded against the offenders including parents and families of the victim. The constitution is operational in all parts of Nigeria, so the argument that Child’s Right Act and the Violence against Persons (Prohibition) Act do not operate in some states, does not apply to the constitution.
I am not unaware of the argument that customary and Islamic marriages are not subject to federal laws since there are excluded from the exclusive legislative list, by item 61 of Second Schedule to the constitution of Nigeria. However, the basic rule of the constitution is that any law, custom or practise in customary or Islamic marriages that conflicts with any fundamental human rights or provision of the constitution is self destructive and nullified. By the way, there is no derogation or grounds for suspension of right to human dignity. Also, according to the Supreme Court (in the case of MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL V. OKONKWO), the right to freedom of thought, conscience and religion must be exercised in a way that it will not to conflict with the rights of others or the welfare of society and public health. Hence, one is not allow to perform religious practices (including child marriage and other forms of child abuse) that infringe on human rights of others, welfare of society or public health.
CONCLUSION:
It is obvious from the laws analyzed above that there are adequate laws to arrest, prosecute and convict offenders for child marriage. What seem lacking is WILL and KNOWLEDGE amidst corruption and institutional failure.
Man is naturally selfish and people will not stop rape, child marriage or crime generally, because they care but will stop crimes for fear of law. Laws will not be known and obeyed after being enacted no matter how harsh the punishment therein may be, unless there is measurable constant awareness. So there is more to be done above and beyond enacting and amending laws. Legal Awareness must be prioritized having in mind the education gap in Nigeria. Most families support and promote child marriage not even knowing it is a crime.
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My authorities are:
1. Sections 1, 34, 38, 45 and Item 61 of the Second Schedule of the Constitution of the Federal Republic of Nigeria 1999.
2. Sections 1, 47 and 48 of the Violence Against Persons (Prohibition) Act, 2015 and other similar laws in states of the federation.
3. Sections 13, 18, 82 and 83 of the Trafficking In Persons (Prohibition) Enforcement and Administration Act, 2015.
4. Sections 21, 22, 23, 31, 32, 277 and 278 of the Child’s Right Act, 2003 and other similar laws in states of the federation
5. Sections 1, 6, 221, 218, 219, 222A, 353, 357, 358, 360, 361, 362 and 363 of Criminal Code Act, 1916.
6. Sections 218, 268, 272, 275, 281, 282, 283 and 285 of the Penal Code Act, 1960.
7. The Supreme Court’s judgment in the case (on how to prove rape) of NDEWENU POSU & ANOR v. THE STATE (2011) LPELR-1969(SC).
8. The Supreme Court’s judgement (where rights to freedom of thought, conscience and religion stops) in the case of MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL V. OKONKWO (2001) 7 NWLR (Pt 711) 206
9. Cyprian Okonkwo, Okonkwo and Naish: Criminal Law In Nigeria (1st ed, Sweet and Maxwell 1980) 276
10. Enyinna Nwauche, ‘Child marriage in Nigeria: (Il)legal and (un)constitutional?’ [2015] 15(2) African Human Rights Law Journal accessed 27 April 2020.
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