Sexual Offences and Public Nudity- Why Neither Bill Should be Passed
A Memorandum to the Senate Committee on Judiciary, Human Rights and Legal Matters
Public Hearing, Senate Hearing Room 1, National Assembly Abuja
Wednesday July 9, 2008
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Table of Contents Page
• Introduction 2
• Considerations before Proposing or Passing Legislation 3
• Sexual Offences Bill 2008 7
o Clauses 2, 3, and 9: Rape, Attempted Rape, Gang Rape 7
o Clause 4: Sexual Assault 7
o Clause 6: Rape or indecent act in view of family member etc 7
o Clause 7: Defilement of Children 8
o Clause 8: Attempted Defilement 8
o Clause 10: Indecent Act 9
o Clause 11: Promotion of Sexual Offences with a Child 9
o Clauses 12 to 14 and 21 9
o Clause 16: Exploitation of Prostitution 10
o Clause 17: Sex Trafficking 10
o Clause 18: Prostitution of the Mentally Disabled 10
o Clauses 19 and 20: Incest 10
o Clause 22: Indecent Exposure 11
o Clauses 23 to 24: Sexual Harassment 11
o Clause 26: HIV Transmission 12
o Clause 27: Administering to Stupefy 13
o Clause 29: Cultural and Religious Offences 13
o Clause 30: Failure to Disclose Sex Crime Conviction 13
o Clauses 31 to 47: Evidence and Administration 13
o Clause 50- Interpretation 14
o Clauses 48 to 49 and the Schedule- Transitional Provisions 14
o State of the States 14
• Public Nudity, Sexual Intimidation and other Related Offences (Prohibition and Punishment) Bill 2008 15
o Clauses 1(1) and 2(1) - Public Nudity 15
o Clauses 1(2), 3, 4, and 5- Sexual Intimidation 17
o Clause 9-Parallel Policing by Deans? 18
o Clause 11- Onus Probandi 19
o Standards not amenable to measurement 19
o Derogations from fundamental rights 21
• Right to Personal Dignity 21
• Freedom of Thought, Conscience and Religion 21
• Freedom from Discrimination 22
• Cultural Rights and Diversity 22
Nigeria is in transition. After decades of military misrule with its attendant rule by decree, a vital priority of the new civilian administrations should have been law reform. The first legislative order of business in 1999 ought to have been law review, for all the legislative houses. Instead, it seemed that the civilian administrations, at state and federal levels, have been comfortable with the dubious heritage of obnoxious laws remaining in our statute books 9 years after the advent of civilian democratic governance. Relevant state agencies like the ministries of justice, the legislative houses, and the Law Reform Commission have done precious little to address the problem of law reform.
Whether this has in the past been for want of political will, institutional weakness, ambivalence, sheer mischief, or malfeasance, the current agile leadership of the National Assembly cannot let the situation remain unchallenged. I have observed with patriotic delight the progressive, enlightened and inclusive leadership that Senator David Mark, a bundle of political energy, has provided to the highest and busiest legislative house on the African continent.
The leadership of this distinguished Senate should deploy and channel its enormous resources and human capital, with the assistance of able Nigerian legal talent, into such thorough legal research and development as would engender substantive and substantial reform in Nigerian law, especially review of extant legislation. If such travaux préparatoires had been carried out earlier, bills such as the Sexual Offences and Public Nudity etc bills would not now be pending before the National Assembly.
Research would have shown that these bills are unnecessary or undesirable or both.
Considerations before Proposing or Passing Legislation
I submit that relevant factors to be taken into account before or while proposing legislation have not been reckoned with in the case of the bills being discussed. I have articulated what I consider the most important of such criteria as follows:-
1. Are there existing statutes, rules or conventions governing aspects or the whole of the subject matter proposed for legislation? Research would reveal this. In the instant context, the Criminal Code at the Federal level and the Criminal Code Laws of the southern states, as well as the Penal Code at the Federal level and Abuja FCT and the Penal Code Laws of the northern states, contain ample provisions dealing with most of the content of the Sexual Offences Bill. I shall provide details below.
2. Irrespective of the answer to (1) above, the legislative body should test the subject matter of the proposed bill against criteria (3) (a) to (e) below.
3. Tests for Legislative Proposals:
a. The competence of the legislative body to pass laws on that subject- The aspects of the Public Nudity Bill dealing with dress codes are ultra vires the National Assembly, in light of section 4 of the Constitution and the Legislative Lists. The National Assembly has no power or legislative competence to regulate fashion trends or prescribe dress codes. Neither the Exclusive nor the Concurrent Legislative Lists contains these subjects or anything incidental or supplemental to them.
b. The suitability of the subject matter for legislative intervention- Again, in respect of the Public Nudity Bill, it might appear at first sight that state legislatures are competent to regulate dress codes and fashion trends by virtue of the residuary principle in constitutional law whereby subject matter not stipulated in either list may only be legislated upon by states. However, dress codes are not ordinarily fit for legislative, judicial, or any form of legal intervention. They belong to those aspects of human behaviour best left to the discretion and management of individuals, families, and voluntary organisations. With respect to children, it is left to their parents and guardians to regulate their dressing and discipline them in respect of it. Different parents will differ on standards, depending on varying viewpoints, religious and moral beliefs, background, experience, exposure, etc. The law cannot impose dress codes on the citizenry. As for adults, they are free to dress as they please. Dress codes and fashion trends are some of those areas of human life which, if they must be subject to control, should be submitted to means of social control other than the law. Social disapproval is a reasonably reliable check on indecent dressing. The deployment of the criminal law to the oversight of moral standards has been increasingly abandoned by legal civilisations all over the world. “The enforcement of morality, as such, by the criminal law”, wrote Smith and Hogan over two decades ago (Criminal Law, page 20) “is losing ground”. I recognise that decent dressing is desirable for our society, but the law is not the only mode of social control, and is definitely not the appropriate mechanism for control of fashion trends and dress codes. Moral suasion by parents, guardians, and teachers; churches, mosques and shrines; and private voluntary agencies, is a more appropriate device for pursuing such agenda.
c. The experience of the society and other societies with similar legislations- On the Public Nudity Bill, very few, if any, other jurisdictions have tried to regulate dress codes and fashion trends by law. Some do so by culture, custom, religion, or tradition. Not even the worst totalitarian regimes in history imposed any fashion codes by legislation. Even under theocratic regimes, dress codes are governed more by culture and social controls than by positive law.
d. The compatibility and logical coherence of the bill with extant statutes in the polity, in other words, its congruence with the legal system- The Public Nudity Bill is discordant with our general legislative scheme, legal system and socio-economic direction. It has no parent milieu in which to thrive. On the one hand we aggressively work to enhance Nigeria’s tourism potential; on the other hand we are considering a legislative proposal that if passed would discourage tourism. Tourist revenue would come mostly from Europe and North America, whose hottest summers are cooler than our climate. In their home countries Europeans and North Americans dress scantily in summer because of the heat; to enjoy their holidays in Nigeria they would need even less clothing. Shorts and spaghetti tops would be the norm for them in a clime like ours.
e. The availability of resources for implementing the statute vis-à-vis the competing demands for those resources (Or, where is the money going to come from?)- The police and other law enforcement authorities are too thinly spread, too weakly trained, too poorly funded and too ill-equipped to effectively attack armed robbery, arms smuggling, assassinations, child abuse and domestic violence, corruption, drugs, fraud, homicide, human parts commerce, human trafficking, illegal possession of firearms, rampant political violence, ritual killings, slavery and slave trade, the rising wave of kidnappings, and other grievous crimes plaguing Nigerian society. How reasonable is it, against this background and in these circumstances, for us as a society to deploy the police to arrest and prosecute girls showing off their belly buttons? The prisons do not have enough space to accommodate convicted rapists, murderers, drug dealers, armed robbers, ritual killers, dealers in human parts, mutilators and other violent and heinous violators of Nigerian life and limb. How reasonable is it for us as a nation to use what little space we might eke out in the prison halls for the incarceration of women with visible cleavages or G-strings? How much has been provided in the Federal Budget for building new prisons to accommodate the numerous offenders of the proposed bills? Legislative proposals should be accompanied with plans for funding the execution and enforcement of the law, factoring in all its clauses.
4. If the legislative proposal passes the tests in paragraph 3 above, the legislative house may then proceed to research, consult on, advocate for and prepare the necessary fresh bills.
5. If the answer to (1) above is yes, the legislative body proceeds to study in detail and in depth the provisions of those statutes, rules and/or conventions. As has been pointed out above, the answer re the Sexual Offences Bill in the context of these bills under discussion is indeed yes. There are in fact extant statutes and rules on sex crimes proposed for legislative regulation. The National Assembly should therefore conduct a study of the existing regime before proceeding further. But I have done the research and am happy to avail this august assembly with my findings. This I do below. I of course appreciate that further research may be necessary.
6. After (5), the legislative body should be able to identify the weaknesses, deficiencies, loopholes, or lacunae in those statutes, rules or conventions. Again, I can assist in this regard. I have found a few weaknesses and so forth, which I indicate below.
7. Against the background of (5) and (6), the legislative body should deliberate on how best (by amendment, modification, review, repeal + fresh legislation, codification?) those weaknesses, deficiencies, loopholes or lacunae should be addressed or redressed. From my research, I find little need for fresh legislation. Whatever deficiencies I have found are remediable by amendment of existing laws.
8. The legislative drafting should then commence in the format decided by the house at (7). The drafting work the National Assembly should confront is that of amending, and probably harmonizing, the Criminal and Penal Codes. That would give the legislature the opportunity to review the provisions on, not only sex crimes but criminality generally.
Sexual Offences Bill 2008
Virtually all the provisions in the Sexual Offences Bill 2008 have already been provided for in the Criminal and Penal Codes.
Clauses 2, 3, and 9: Rape, Attempted Rape, Gang Rape
• Rape (clause 2 of the Bill) is a felony punishable with life imprisonment under the Criminal Code (sections 357 and 358) and Penal Code (sections 282 and 283).
• Attempted rape (clause 3 of the Bill) is equally prohibited on pain of severe criminal sanctions under both the Criminal Code (sections 4 and 359) and the Penal Code (section 95).
• Gang rape (clause 9 of the Bill) is sufficiently dealt with by a community reading of sections 7, 357 and 358 of the Criminal Code, and a community reading of sections 79 to 81, 282 and 283 of the Penal Code.
Clause 4: Sexual Assault
Sexual assault (clause 4 of the Bill) is described as indecent assault in the Criminal Code and therein severely penalised (sections 353, 360) and qualifies as “serious assault” under section 356 of the Criminal Code. The conduct described in clause 4 of the Bill can be prosecuted under sections 353, 356, and 360 of the Criminal Code. Sections 268 and 285 of the Penal Code prohibit and punish sexual assault as per clause 4 of the Bill, even if the semantics may differ.
Clause 6: Rape or indecent act in view of family member etc
Clause 6 is absurd. If you commit rape in private, you get life jail; but if you commit it in the presence of a family member, child, or a mentally disabled person, you could get only 10 years. Apart from this incongruity, rape, whether in private or public, is already adequately penalised by other statutory provisions, with life imprisonment. So, to the extent that clause 6 relates to rape, it is tautological. Moreover, “indecent acts” are already prohibited on pain of punishment by section 231 of the Criminal Code and section 285 of the Penal Code in language that takes care of the mischief of clause 6.
Clause 7: Defilement of Children
Defilement of children (clause 7 of the Bill) is amply taken care of by sections 218 to 221 of Criminal Code, although the Criminal Code additionally protects idiots in 221. While the Criminal Code refers to girls, the Bill protects all children, which means both boys and girls. In this context, it should be noted that section 42 of the Constitution must be read into sections 218 to 221 of the Criminal Code and all other statutory provisions discriminating or purporting to discriminate between the sexes, so that “girl” in the Criminal Code provisions includes “boy”. No amendment is necessary to achieve this. Section 42 of the Constitution has the effect of reading the opposite sex into any provision of any Nigerian statute that is unfairly, unjustly or unnecessarily gender-specific.
Rape as defined in our criminal law, and even in the Bill, has no age restrictions. So the rape provisions of the Criminal and Penal Codes afford the protection intended by clause 7 of the Bill on “defilement” of children. This provision of the Bill is therefore unnecessary.
The age differentiation in sub-clauses 2 to 4 of clause 7 of the Bill serves no purpose, since the punishment is the same no matter the age of the victim.
Clause 8: Attempted Defilement
This clause is unnecessary, as the envisaged crime is amply taken care of by a community reading of sections 4 and 218-222 of the Criminal Code.
Clause 10: Indecent Act
Indecent act with an adult can have no conceivable meaning. Is the sexual behaviour of Nigerian adults behind closed doors to be the subject of legislation? The only imaginable intendment clause 10 could have is protection of children from sexual predators, child molesters and perverts. The reference to adults is egregious and intrusive.
Indecent act has been amply criminalised in the Criminal Code. (See sections 214 to 222, 231, 252 to 253, 351 to 360). The Penal Code criminalises “acts of gross indecency” in section 285.
Clause 11: Promotion of Sexual Offences with a Child
The use of the term “juristic person” in this clause and in other portions of the Bill is unnecessary and its differentiation from the simple term “person” in different parts of the Bill is of little value because by virtue of section 18 of the Interpretation Act, the term “person” when used in any enactment includes both “natural” and “juristic” persons. Besides, the use of the adjective “juristic” in the Bill is often erroneous. If the intention is to make separate provisions for corporate offenders, the way to distinguish them from natural persons, if necessary, is to say clearly “company”. But what of unincorporated associations or organisations? Are they free to promote sexual offences with children? “Juristic person” does not cover such groups. The drafting needs more professional input.
To the extent that the word “article” means or includes “article” in the sense in which it is used in section 233B of the Criminal Code (“anything capable of being or likely to be looked at and read or looked at or read, and includes any film or record of a picture or pictures, and any sound records”), the offence sought to be created in clause 11 of the Bill is already proscribed by section 233D of the Criminal Code.
Clauses 12 to 14 and 21 require further research, and the drafting needs a lot of improvement. The contents of these clauses should be factored into an urgent review and amendment of the Criminal and Penal Codes, which I urge the National Assembly to undertake. On this subject, it should be noted that while it is in order to propose bills on specific offences, the principle of codification in Nigeria’s criminal jurisprudence should as far as possible be respected. Unlike England where the criminal law can be found in the common law and in numerous statutes, Nigerian criminal law is largely codified. This makes for ease of access and reference for lawyers, law students, and even criminals who need to calculate their risks or conduct a cost-benefit analysis of their criminal career!
Clause 16: Exploitation of Prostitution
Clause 16 of the Bill on exploitation of prostitution is no different in law from section 225A of the Criminal Code.
Clause 17: Sex Trafficking
Clause 17 of the Bill on sex trafficking is contemplated under section 223 of the Criminal Code and sections 275 and 281 of the Penal Code.
Clause 18: Prostitution of the Mentally Disabled
Clause 18 on prostitution of the mentally unfit is unnecessary in view of the existing provisions on prostitution in the Criminal Code (sections 222A, 222B, 224, 225, 225A, 225B, 226, and 227. These provisions cover both mentally sound and mentally disabled victims and targets of prostitution.
Clauses 19 and 20: Incest
Clauses 19 and 20 on incest has long been taken care of by section 390 of the Penal Code. The Criminal Code appears to make no provision on incest. Rather than make new law, we should amend the Criminal Code to incorporate incest or harmonise both Codes into one Criminal/Penal Code for the country.
Clause 22: Indecent Exposure
This requires further reflection, particularly on punishment- a minimum of 5 years imprisonment!!? The punishment should fit the crime. Considering the varying degrees of turpitude that are possible, the penalty is too severe. The crime of indecent exposure comes from common law through the old Roman law and essentially and principally means exposure of the penis. Exposure of the vagina in public was never contemplated by the common law or any of the systems that derived from it, including the Nigerian Criminal and Penal Codes. Even today, exposure of the vagina is not a serious social risk and therefore not a mischief in the legislative sense of that word. It is not worth legislating against. To expose the vagina in public is a physically challenging feat for any woman, no matter how agile, and again, it is not a high moral risk. Exposure of the breasts is not necessarily lewd, nor is it indecent as such.
Clauses 23 to 24: Sexual Harassment
Sexual harassment is a tort, not a crime. It is part of Nigerian civil law by virtue of the reception statutes. English law received into the Nigerian legal system through principally the various High Court Laws of the states includes “the common law of England”. Unlike received English statute law (“statutes of general application in force in England on 1st January 1900”), English common law is received without any limitation as to date, so that the relevant English common law is the current English common law. Sexual harassment as a tort is part of the common law of England and part of our received law. Its treatment under tort law sufficiently deals with this essentially civil wrong. In tort, the victim of sexual harassment receives an award of damages against the tortfeasor. Sister common law jurisdictions like Australia, Canada, England and Wales, Gambia, Ghana, India, New Zealand, Sierra Leone, South Africa, United States, and Zimbabwe, to name a few, deal with sexual harassment under the law of tort. The social policy must be that the victim deserves compensation, and the best way to sanction the tortfeasor is to compel him to pay substantial damages to the victim.
To the extent that clause 24 of the Bill deals with malfeasance other than tortious sexual harassment, the contemplated offences are dealt with in the Criminal and Penal Codes, and in the ethical rules of the relevant professions. We must resist the temptation to criminalise every wrongdoing. The law is not the only, and often is not the best or optimal means of social control. A doctor sleeping with his patient, for example, generally belongs and should remain in the realm of professional misconduct, especially when there are no consent issues (in the absence of consent, rape may be indicated, and prosecution should be launched under the Criminal Code or the Penal Code). His professional peers should ordinarily deal with him according to their disciplinary rules. The Medical and Dental Practitioners Disciplinary Committee has over the decades suspended and expelled many doctors for breach of medical ethics. Sexual harassment is dealt with in rules of ethics and codes of conduct in different fields of human endeavour and those codes often contain severe disciplinary measures, quite apart from the tort repercussions.
The summary of sexual criminality can be couched in two sentences:
1. If all the parties are adults and they all consent to the act or acts in question, and nobody is hurt or harmed or threatened, and that act or those acts are done in private, there is no crime as a general rule.
2. If one or some of the participants are children, crime is indicated as a general rule, irrespective of consent, harmlessness, or privacy.
Or in one sentence: what adults do behind closed doors is nobody’s business but theirs.
Clause 26: HIV Transmission
The HIV virus is a “dangerous or noxious substance or thing” within the meaning and intendment of section 332(5) of the Criminal Code, which criminalises and penalises “any person who, with intent to maim, disfigure or disable, any person, or to do some grievous harm to any person … causes any (dangerous or noxious) substance or thing to be taken or received by any person.” A person who commits the crime proposed in clause 26 of the Bill can be prosecuted and convicted under section 332(5) of the Criminal Code. I am mindful that the draftsman of the Criminal Code could not have contemplated HIV since it did not exist when the Code was passed, but that is not relevant in statutory interpretation, especially in the interpretation of criminal legislation, where the Mischief Rule is often preferred. In other jurisdictions, drunkards in wheelchairs have been found guilty of dangerous driving.
Clause 27: Administering to Stupefy
The provision here is covered by section 331 of the Criminal Code.
Clause 29: Cultural and Religious Offences
Whoever commits any of the offences contemplated in this clause is guilty irrespective of this clause, and no matter whether he perpetrates the crime for religious, cultural or any other reason. This clause is therefore unnecessary.
Clause 30: Failure to Disclose Sex Crime Conviction
In the absence of specific extant provision creating a duty on a person with previous sexual offence conviction to disclose it in certain contexts, it cannot be an offence to fail to disclose. There must first be a duty to disclose, with details as to manner of disclosure and particulars to be disclosed. There should be provision for registration of sex offenders. Secondly, a person with a sexual offence conviction not relating to children should not be required to make the disclosure clause 30 requires. The idea of the disclosure is to watch out for child molesters.
Clauses 31 to 47: Evidence and Administration
These clauses are mostly in the nature of rules of evidence and would be relevant even in non-sexual contexts. They should therefore be utilised for an amendment of the Evidence Act. The feared vulnerability of a witness, for example, can be indicated in the context of various other crimes than these. The clauses also require further research, and the drafting calls for major improvement.
Clause 50- Interpretation
The clause is badly flawed. For example, the definition of “act which causes penetration” as “an act contemplated under this Act” has no explanatory value. There are so many acts contemplated under the Act, most of them unrelated to penetration. Besides, the definition commits the fallacy of circulus in probando (arguing in circles): Q- what is an act which causes penetration? A- An act contemplated under the Act. Q- What is an act contemplated under the Act? A- An act which causes penetration.
Including the anus and breasts in the definition of genital organs is a biological farce and an extreme absurdity.
Clauses 48 to 49 and the Schedule- Transitional Provisions
Clause 48 refers us to the Schedule, which purports to supersede previous statutory provisions on sex offences, though curiously, it says this Bill would apply “with necessary moderations”. The schedule also purports to move pending sexual crime prosecutions from previous statutes to the Bill.
Clause 49 is a blanket amendment of previous unnamed statutes to conform to the Bill. Such purported wholesale amendment without specificity is unknown to Nigerian law. Amendment must be specific and detailed, narrating the long titles of the statutes affected, details of the clauses to be amended, and how the amended law should now read.
State of the States
The big problem here is that the National Assembly cannot make law for the states. The National Assembly cannot amend the laws of the states. So even if this Bill is passed, the Criminal Code Laws of the southern states, and the Penal Code Laws of the northern states, remain in force, unchanged.
Now, all sex crime prosecutions are undertaken at state level, and the states will continue to apply their own Codes, in their own Magistrates’ and High Courts.
The Federal High Court has no jurisdiction to try sex offenders. And although federal statutes can be applied in state courts, the chances of any prosecution under this Bill if passed are very remote. The State Directors of Public Prosecution, as well as the police authorities, will continue to utilise the Codes, and of course in the state courts.
The draftsman of the Bill has not spared any thought for its implementation potentials, and for the officers who are expected to enforce it. Has the exercise been a giant waste of legislative energy because of inadequate research and preparation? No, lessons have been learnt.
Public Nudity, Sexual Intimidation and other Related Offences (Prohibition and Punishment) Bill 2008
Clauses 1(1) and 2(1) - Public Nudity
The proposed bill would be a wanton desecration of section 42(1) of the Constitution stipulating the right to freedom from discrimination on any grounds including sex or gender. The bill targets females, even if it mentions males, both in its conception, and necessarily in its application if it is passed. This would breach, in a wholesale manner, the protections installed in section 42(1). Not only does that clause safeguard all Nigerians against discrimination, it also prohibits the subjection of any group of Nigerians (for example, females), whether expressly or in the practical application of any law, to disabilities or restrictions (such as criminal sanctions and freedom of lifestyle and fashion choice) to which other Nigerians (say, males) are not subjected. The bill would violate gender equality, which is a constitutional principle by virtue of section 42(1), by rendering Nigerian females liable to disabilities and restrictions to which Nigerian males are not liable.
The mischief in clause 1(1)(a), complete nudity, is not an authentic social risk for Nigeria to make law against. If the police find a woman totally naked in the public, their duty will not be to arrest and prosecute her but to assist her to a psychiatric hospital. No sane Nigerian woman or girl will go completely nude in public.
The particularisation of the parts of the body which if exposed would amount to public nudity as per clause 1(1)(b) smacks of legislative levity. Deploying the poorly paid Nigerian police to go searching for exposed breasts, laps, bellies and waists, especially without a corresponding plan to treble police salaries, improve their accommodations, enhance their training, and increase their numbers insults law enforcement. Requiring the Nigerian judiciary to admit, assess, and rule on direct and cross evidence regarding how many inches below the shoulder a woman’s garment starts or ends from is a legislative distortion of the judicial function, and is vexatious, scandalous, and abusive of court process. The evidential difficulties that would be encountered would be insurmountable. Prosecution would be a tragic waste of government time, resources, and manpower. The law should be a living thing, not a dead letter. If it cannot be implemented or enforced, it should not be made. Legislation should never be passed in vacuo, or merely to express moral censure.
By the last paragraph of clause 1(1)(b), exposing one inch above the knee of a male Nigerian or Nigerian resident would be a criminal offence. P-p-p-leeease! Millions of shorts in Nigerian wardrobes and in the shops, and on board commercial vessels coming in from abroad, would be instantly banned. 99% of shorts stop above the knee. I have to clear my wardrobe: all my shorts fall short of this Bill!
Mindful that no criminal statute can ever attain full and total implementation, it is nevertheless interesting to marvel at the statistics if this Bill were to be passed and fully implemented. Clause 1(1)(c) would or might result in the arrest, prosecution, conviction, and imprisonment of some 20,000,000 Nigerian rural women who go about their businesses in wrappers not reaching the knees or showing the shoulders below the statutory threshold. This would require at least 500,000 additional police officers, 100,000 new judges, 100,000 new court registrars, 50,000 new lawyers for the Ministries of Justice, 5,000 new courtrooms, and 100 new large prison complexes. The undertaking would cost about N50,000,000,000,000 per annum. That’s 50 trillion naira! And for what? Not to stop corruption in high places, not to control the rising wave of kidnappings, not to tackle power supply, not to educate the masses, not to pursue Vision 2020, but to check “indecent dressing.” Give me a break!
The definition of “private part” in clause 1(3) to include “two inches below the shoulders level downward to the knee of a female person above the age of 14 years” and “from the waist to the knee of a male person above the age of 14 years” is frankly inane. Private parts are penises and vaginas, plus breasts in the case of females, period. Although ordinarily a woman’s breasts are private, in the context of the Bill it would be dangerous to include it in the definition, as that would outlaw breastfeeding in public. While special definition is recognised and often utilised in legislative drafting, this Bill carries it to an irrational extreme (“two inches below the shoulder level downward to the knee”!) not defensible in any school of linguistics.
Clauses 1(2), 3, 4, and 5- Sexual Intimidation
What the bill calls sexual intimidation is by definition the tort of sexual harassment. This is not a crime, but a tort, a civil wrong. It is already part of Nigerian civil law by virtue of the reception statutes. English law received into the Nigerian legal system through principally the various High Court Laws of the states includes “the common law of England”. Unlike received English statute law (“statutes of general application in force in England on 1st January 1900”), English common law is received without any limitation as to date, so that the relevant English common law is the current English common law. Sexual harassment as a tort is part of the common law of England and part of our received law. Its coverage under tort sufficiently deals with this essentially civil wrong. In tort, the victim of sexual harassment receives an award of damages against the tortfeasor. Sister common law jurisdictions like Australia, Canada, England and Wales, Gambia, Ghana, India, New Zealand, Sierra Leone, South Africa, United States, and Zimbabwe, to name a few, deal with sexual harassment under the law of tort. The social policy must be that the victim deserves compensation, and the best way to sanction the tortfeasor is to compel him to pay substantial damages.
Clause 9-Parallel Policing by Deans?
In the absence of specific extant statutory obligation on heads of educational institutions to perform specific tasks in compliance with the Bill, clause 9 of the Bill is nonsensical in so far as it purports to punish omissions of duties that were never imposed. The Bill’s reckless reference in clause 9 to non-existent independent certified professional educationists, without setting up any statutory apparatus or architecture for them, is a rather imprudent ambition. Who will employ and pay for the services of these educationists? Can you imagine how many of them we shall need, proficient in all subjects and fields of learning, at all levels of the educational system, to grade exams all over the country in light of clause 9(c)? On this ground alone the Bill is a ramshackle ritual, not deserving of the attention of any panel of lawmakers. For this Bill alone Nigeria would be the laughing-stock of the world. Tell it not in Gath! Publish it not in the streets of Ashkelon!! (2 Samuel 1:20)
Requiring heads of institutions and organisations to enforce criminal legislation would be incompatible with our criminal law administration by creating a parallel police force out of persons with no training in law enforcement, and who are already extremely busy with their statutory and other obligations. Under the regime proposed in the bill, vice chancellors would start to worry about their pension funds being carted away as fines for omission to strictly monitor campus fashions, or negligence in so doing. This is ludicrous. Indeed, requiring college presidents, as a matter of law instead of as a desirable social goal, to police dress codes would be incongruous with our rights regime and trigger numerous instances of clashes with Chapter 4 of the Nigerian Constitution. Turning our colleges into monasteries or seminaries would not necessarily improve our educational or even moral standards.
Again, the proposed imposition on school heads is incongruous with our legal system, under which it is no crime to fail to save a drowning child. Our law essays to avoid imposing sanctions for omissions, wherever possible. The sanctions proposed for non-compliant school administrators would punish them for omissions, not for active conduct. Ponder this: if a dean, though an agile swimmer, omits to save a drowning student who then dies, he has committed no offence; but if he omits to force her to dress modestly, he would face a hefty fine under the proposed bill. The bill would thus place a higher priority on the apparel of a student than on her life. “Is not the … body (more) than clothing?” queried the Lord Jesus Christ in the Sermon on the Mount (Matthew 6:25).
Clause 11- Onus Probandi
Clause 11 violates core principles of our constitutional, criminal and evidence laws as to the presumption of innocence and the burden of proof. It is the duty of the prosecution to prove not merely the actus reus (the observable physical fact or conduct), but also the mens rea (requisite mental element or guilty mind) of an offence.
Standards not amenable to measurement
The proposed bill defines “indecent dressing” to include attire that reveals breasts, laps, belly, waist, or trunk of females, and “transparent” raiment. “Transparent” is quite elastic: transparent as to what part of the body? Is Eme wearing transparent clothes if her vest has holes in them? Is Funmi wearing transparent dressing whenever she wears lace?
Appeals from conviction and sentences for the would-be crime of indecent dressing would inundate the appellate courts, owing to the inescapable imprecision of its clauses, and the non-susceptibility of its standards to measurements. I can well picture the discomfiture of their eminent lordships of the Supreme Court while considering appeals turning on skirt and blouse measurements and the appropriate fabrics (khaki, perhaps?) for bras. These are global-standard jurists accustomed to penning scholarly judgments full of jurisprudential wisdom reminiscent of the likes of Benjamin Cardozo CJ, Lord Denning MR, Oliver Wendell Holmes Jr, and Learned Hand J. They would certainly chafe at being reduced to fashion arbiters.
Will the Public Nudity Bill, with its provisions on “indecent dressing” apply in the rural areas, where women commonly go sparsely dressed and nobody is bothered?
Some poor girls own only short skirts. Will they be allowed a transition period to acquire longer skirts? Will the Federal Government budget money for fabrics and longer skirts for the poorest of those girls? Inquiries conducted by a church parish council in Ajegunle, Lagos revealed that most of their scantily clad parishioners were not being sexy but had been economising on clothing material. Some were forced by poverty to wear the same clothes they had worn five or more years ago, which they had outgrown and which were now too short for them. Not every family can readily afford to shop for right-size clothes for their fast-growing adolescents and teens.
Some of the conduct the Bill seeks to proscribe constitute socially unacceptable behaviour rather than crime and should remain in the realm of social regulation and not invade the field of positive law.
If the point of the Public Nudity Bill is to control sexual temptation of one sex by the “indecent” dressing of the other, then the Bill has ignored a vital sociological law- What is commonplace makes little impression. After seeing thousands of “sexily” dressed girls, a lot of men are now sexually tempted by women who cover themselves from head to toe. If research and surveys show that Nigerian men are “moved” to lust more by overdressed than by underdressed females, will the National Assembly amend the Public Nudity Bill to redefine “indecent dressing” as clothing that covers the whole body from head to toe, allowing only tiny peeping holes for the eyes? Already, while some men are attracted to scantily clad females, others are seduced by those in overalls or coveralls. Such full dressing would, for such men, amount to “indecent dressing” within the meaning of the mischief of the Bill. Men like these, and they are numerous, believe me, complain that feebly dressed girls leave nothing to the imagination whereas fully clothed ones engender rich fantasies that precipitate action.
Derogations from fundamental rights
Right to Personal Dignity
“Every individual is entitled to respect for the dignity of his person”, asserts section 34(1) of the Nigerian Constitution. Whether the person is male or female, young or old, modestly or immodestly dressed, he or she has a right to personal dignity. This right incorporates various liberties, including the right to be left alone, the right not to be harassed or molested, the right not to be unduly embarrassed, and the right to protection against torture, inhuman or degrading treatment, cruel or unusual punishment.
Freedom of Thought, Conscience and Religion
The policing of morality implicated in the proposed bill is a wholesale assault on the right to freedom of conscience as guaranteed under section 38(1) of our Constitution, which effectively leaves moral standards to the dictates of individual consciences. This is what the House of Lords had in mind when it held, in Shaw v DPP, that there must remain a realm of private morality and immorality which is not the law’s business.
Freedom from Discrimination
The proposed bill would be a wanton desecration of section 42(1) of the Constitution stipulating the right to freedom from discrimination on any grounds including sex or gender. The bill targets females, although it mentions males in passing, both in its conception, and necessarily in its application if it is passed. This would breach, in a wholesale manner, the protections installed in section 42(1). Not only does that clause safeguard all Nigerians against discrimination, it also prohibits the subjection of any group of Nigerians (for example, females), whether expressly or in the practical application of any law, to disabilities or restrictions to which other Nigerians (say, males) are not subjected. The bill would violate gender equality, which is a constitutional principle by virtue of section 42(1), by rendering Nigerian females liable to disabilities and restrictions to which Nigerian males are not liable.
Cultural Rights and Diversity
Article 17(2) of the African Charter on Human and Peoples’ Rights grants every individual in any of the member states (including Nigeria) a right to “take part in the cultural life of his community.” This right includes the freedom to dress according to traditional or cultural fashion or wear traditional garments, whether ceremonial or otherwise. Some of these traditional clothes would fall short of the standards set by the bill, as they allow exposure of the belly, back or other part of the anatomy in a manner not at all offensive to anyone, and not considered vulgar or indecent by any stretch of the imagination, but which this hazardous bill condemns as public “nudity”. Lots of cultural apparels from Afemai, Edo, Efik, Fulani, Hausa, Ibibio, Idoma, Igala, Igbo, Ijaw, Ikwere, Ishan, Isoko, Itsekiri, Kanuri, Ogoni, Tiv, Urhobo, and Yoruba, to name a few of the hundreds of exotic cultures that make up this blessed land, would instantly become illegal. All those items of clothing would have to be destroyed, a loss of trillions of naira, without any benefit for the Nigerian state or society.
Tuesday, July 08, 2008
Sexual Offences and Public Nudity- Why Neither Bill Should be Passed