Categories
Law & Crime

Let’s Talk About It: Need To Exterminate The Rape Culture

LET’S TALK ABOUT IT!


Yea, it is high time we talked about this menace that has been in existence since time immemorial.
RAPE… What does it mean?
Rape according to Section 357 of the Criminal Code is an unlawful carnal knowledge of a woman or girl without her consent or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, or in the case of a married woman by impersonating her husband. Section 358 prescribes life imprisonment with or without caning for anyone found guilty of rape.


In the middle of the surge on news on rape, I said to a friend, one of the advantages of social media is that it helps to publicize this heinous crimes that have come to stay in our society. I remarked that there were several other cases going on and will continue until we do something, it is sad that most of some of these cases are been swept under the carpet by the parents, guardian, neighbors, the authorities,etc. More than the ones we see on social media, there are much more cases going on that we will never know of and until we are intentional about ending rape, it may forever haunt our society.
Would you be surprised if I say by my estimation, about 75-80% of females have either been raped, almost raped, molested, assaulted or harassed at once or several times. That most victims decide to keep a secret or only share among fellow females does not mean that it does not happen. Many more females and sadly males too are going to experience any of this dignity depriving crimes until we do something about it.


For the teenager that was raped severally by her uncle and the son till she died from complications.
For the 4 years old that was defiled by a security personnel.
For the 22 years old that was raped and brutally murdered in a church.
For the 18 years old raped and killed within her parents’ compound.
For the 12 years old that was raped by different men.
For the 18 years old that was raped by 5 men
For the 2 years old raped to death.
For the 14 years old that was raped severally and threatened by a neighbor.
For the other rape victims unknown to the world or the social media.
It is a lifetime of torture, distrust, shame, pain, hurt, brokenness, disappointed and anger. To rape a person is to kill that person psychologically and emotionally, the trauma is unimaginable.
RAPE CULTURE


A culture, environment or society where rape is common and in which social attitudes or practices work to trivialize sexual violence, make rape seem normal or shift responsibility to from the rapist to rape victims.
This rape culture is one major reason rape is rampant in our society, don’t be ignorant, rape has always been common event in our society, just that most go unreported due to the rape culture. Some of these rape culture are:

  1. That is her, the girl that was raped. The victim is usually tagged and stigmatized.
  2. What is she looking for at that time of the night.?
  3. Why did she go to his house, can’t she stay in her own house?
  4. She must have dressed half naked/ seductively, she deserved rape.
  5. She is a known prostitute, she deserves to be raped.
  6. Why didn’t she shout or fight, she must have enjoyed it.
  7. Why are you just saying it now after so many years, I don’t believe your story.
  8. You too, why are you so fine and curvy/sexy, “body no be wood na” and man must be man”.
  9. You should have allowed the rape instead of struggling.
    ….and the victim shaming and blaming goes on…
    Let’s quit pretending, our women and girls are not safe, we walk and move around in fear at the sight of a male figure especially when they are in groups. I still remember running most times in the night whenever I was sent on errand as a child and teenager, the fear is still there. I remember so many harassment from “brothers and uncles” in the neighborhood and compound back then, or what do you call a grown man talking trash to a child of 12/13 years and trying to touch in sensitive parts, asking to take a child out to have fun with her??
    What is the root of this rape culture? how did we get here?
    It’s time we agree to unlearn some of the bad things we learnt and condoned while growing up which have contributed to the rape culture.
    Please Note Some of them:
  10. Only the female child need “iron hand” so they will not “spoil” and bring shame upon the family, the male child is easy to train and so needs little or no “iron hand”.
  11. The topic of sex is forbidden in the home, sex education is a taboo in the home, never discussed and parents expect kids to learn on their own.
  12. The average male folk mostly think the thing there is to a female is the body and ultimately sex.
  13. Most male folks see nothing wrong in fantasizing over a lady’s body and ‘tapping current’ i.e touching sensitive parts of a female’s body intentionally.
  14. Some male folks believe women saying ‘No’ means she is forming and to show you are a man, you pester her or even force her.
  15. The believe that when a lady visits you in your home, she wants sex.
  16. The believe that a lady who dressed in a way “half-naked” or seductive to you wants sex or deserves to be raped.
  17. The believe that once a woman has “chop” your money, you must have sex with her even if it is rape or else you’ll be tagged a “maga”.
  18. The wrong mentality of bragging about “conquering” a woman to fellow males.
  19. The believe that once she agrees to date you, her body belongs to you.
  20. The practice of catcalling a lady on the street and cussing at her if she rejects such harassment, they say “you no even fine sef” “olosho”…
  21. Sex is natural, sexual urge must be satisfied, “if I don’t do it, I will fall sick or die”.
    ..and this believe and practice is passed from man to man and generations to generations..
    WHAT NOW??
    These are some of my suggestions:
  22. Learn that a child not trained will eventually destroy the one trained, who spoils the female child? The male right? Then we should teach the male child not to spoil the girl child. Teach the boy morals and respect for others and their bodies and choices. If you emphasize female virginity make sure to put emphasis on male virginity too.
  23. Start talking about body parts and privacy to children at an early age, teach them boundaries when playing and respect for others. Let’s have sex education at home as soon as they can comprehend the topic and deepen the conversation as they mature. Let them know about sexual violations and abuse, let them be better informed to make better decisions.
  24. Let’s talk about all there is to know about both gender, teach the male that there is more to a woman than her body/sex.
  25. Know that when you begin to lust after a woman’s body, you send some signal to your brain and the sexual organ picks it up which can lead to desperation to have that woman or any woman at all. Stop touching/tapping a woman’s body without consent. It is not acceptable to tap a woman’s bum, caressing her hand, face, hair on the street or anywhere else, it doesn’t make you a real man, it makes you a snatcher of human dignity.
  26. If a woman wants something, she knows, if she says no leave her alone, if she wants you let her say it. If she says you’re not man enough because you respected her no, it’s her loss, your manhood is not defined by violence or being forceful on a lady. Most important is you have your integrity intact.
  27. A lady coming to your home does not mean she wants sex, she may just want to hangout and talk. She is in your house is not license to rape her, if she wants sex let her say so, else control yourself not to land in jail. If you lack self control, meet with ladies in public until you have self control.
  28. That a woman dress in a way unacceptable to your moral standard does not mean she is soliciting to be raped. Even a sex worker whose work is paid sex standing on the street”half-naked” has the right to say no, if she doesn’t want sex with you. Look at it like this, when you see a mall, the goods are kept in open shelf for people to see, do you then break into the mall and pack their goods and run away? I bet No, because that is a crime of robbery. Same here, stop giving lame excuses to blame the victims. Just an analogy though. If you’re enticed by a lady’s dressing and she says no to you, then waka or better still lower your gaze and stop sexualizing a lady’s dressing.
  29. As long as she is not a worker who is into sex for money, that you gave her money or helped her is not a license to have sex with her. If she consents, fine, if not, leave her alone. You were not threatened or held to ransom for the money, if you can’t give money or help without expecting sex in return, then better you don’t help or give money out.
  30. “Conquering” a woman does not prove your manhood, stop molesting women and bragging to your friends. Whatever is the meaning of conquering a woman self, is she a colony, are you in a war? Give yourselves brain.
  31. No man owns another person’s body irrespective of the relationship between you, claiming ownership over another person’s body is pure slavery.
  32. Stop catcalling ladies, stop cussing at them when they ignore/reject you. You are harassing them publicly and violating their right to dignity. This is not right and should not and never be a guy thing.
  33. Sex is a natural thing, yes, sexual urge must be satisfied, no. Sometimes you have to control it, if there is no willing partner. And no, you will not fall sick or die if you don’t have sex.
    WHAT MORE??
    I will suggest the following:
    ✓ A review of the Criminal laws as it borders on rape and other sexual offences to include modern day realities, filling the loopholes, time lapse issue, properly defined consent age, marital rape?, inclusion of rape of an adult male after proper analysis of it’s possibility, etc..
    ✓ Strict and proper investigation by the enforcement agents.
    ✓ Rapid trial of the cases.
    ✓ Establishment of separate Courts to handle this cases speedily in all divisions in all states.
    ✓ Rape should be a capital offence with strict punishment.
    ✓ Punishment should be castration and life imprisonment.
    ✓ False rape accusations should be thoroughly investigated and punished.
    It is no longer right to turn the other way or mind our business on the issue of rape, it is now our collective responsibility to right this wrong and bring justice to all victims.

BLESSING O. JOSEPH ESQ.

Categories
Law & Crime

A Review Of the Supreme Court of Nigeria’s Recent Decision in Orji Uzor Kalu v. FRN.

I read with much pleasure, my learned friend, Uche Amulu’s commentary and the analysis contained therein, of the recent judgment of the Supreme Court of Nigeria (hereafter, “SCoN”) in the case of Orji Uzor Kalu v. FRN (hereafter “Orji Kalu”) . For purposes of brevity, I will adopt the facts of the case and his summary of the judgment in Orji Kalu as he laid them out. I may however add or proffer an alternative summary, which Mr. Amulu may have not included (for good reasons I believe). I have also read the said Judgment of the SCoN.
The relevant laws to this analysis are mainly (1) the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) which hereafter shall be referenced simply as “the constitution” and (2) the Administration of Criminal Justice Act 2015 (hereafter ACJA).
My review of the SCoN’s judgment is conducted from two main legal perspectives or methods, viz the black- letter or doctrinal method and the socio-legal methods. In acknowledgement of the divergent definitions that these two terms have lent themselves over the years, let me clarify what I mean in reference to the black-letter or doctrinal and the socio-legal methods.
For the purposes of this review, my use of the term “black-letter” method of analysis refers to an analysis or review of the judgment from a strictly legal perspective and on a correctness (as opposed to reasonableness standard). This is a method of analysis that will simply examine the SCoN’s judgment in the light of the “letter-of-the-law”. For that reason, I will simply seek to determine what the SCoN said the law is (viz-a-vis the relevant sections/provisions of the constitution and ACJA) and offer my opinion on whether or not they are correct in that their interpretation the those laws.
On the socio-legal analysis, I will seek to analyse the SCoN’s judgment from a reasonableness standard, taking into account, its impacts to and consequences for such things as:
i. The constitution
ii. Cost of Litigation and Access to Justice
iii. Integrity and Administration of the Criminal Justice system particularly


AND


iv. The integrity and administration of the overall litigation/court systems in general.
In conclusion, I offer some recommendations on how remedy the effects or consequences of the SCoN’s judgment.

THE BLACK-LETTER/CORRECTNESS ANALYSIS
It appears to me, that the central issue on the appeal to the Supreme Court was whether or not the trial Judge, M.B. Idris J (as he then was and now JCA) was a Judge of the Federal High court within the meaning of sections 249 (2) (b), 250, and 253 of the constitution, when he rendered judgment and convicted the defendants in the Orji Kalu case. Framed differently, the appeal was a direct challenge to the validity and constitutionality of section 396 (7) of the ACJA 2015. Again, Mr. Amulu has laid out these provisions in his initial commentary, and I adopt them as laid out for this rejoinder. However, just to put things into perspective, the said section 396(7) of the ACJA gives or (now more accurately) purported to give “a judge of the High Court, who has been elevated to the Court of Appeal . . .dispensation to continue to sit as a high court judge” so as to conclude “any partly-heard criminal matter pending before him at the time of his elevation”.
The undisputed fact in this case was that Idris J, had already subscribed to the oath of office as a Justice of the Court of Appeal at the time of rendering the judgment. Secondly, he received a “fiat” pursuant (purportedly) to the said section 396(7) of the ACJA, from the President of the court of Appeal (PCA) to go back and conclude the said Orji Kalu trial. I supplied the emphasis above for a reason to be addressed shortly.


I have read arguments that the defendants (or at least one of them) in the Orji Kalu case actually sought the dispensation of the PCA upon which Justice Idris returned to conclude the trial and that therefore it was ‘unconscionable” for them to benefit from the irregularity that they had themselves authored. In my opinion, this is of no moment because it is settled law from a long line of decided cases that neither the court nor parties can confer jurisdiction on a court that lacks one, whether by express agreement or by implied conducts.


The Supreme Court determined that Idris (JCA) ”having been elevated to the Court of Appeal, has ceased to be a Judge of the Federal High Court. Accordingly, he had been deprived of whatever jurisdiction he had as a Judge of the Federal High Court” to further adjudicate on the Orji Kalu trial and render judgment on it. Eko (JSC), delivering the unanimous Judgment, further held that section 396(7) of the ACJA was inconsistent with section 290(1) of the 1999 constitution. Applying section 1(3) of the constitution, he declared the said section 396(7) of ACJA void to the extent of its inconsistency.
I do not quite agree with a finding of inconsistency with the constitution, against section 396(7) of ACJA based on section 290(1) of the constitution. However and in any case, saddled with the same task, and on strict application of the black-letter method, I would have arrived at the same conclusion but on the basis of section 253 of the constitution, as opposed to section 290(1) of it. Section 253 of the constitution which established the jurisdiction by of the Federal High Court, states that the court shall be deemed to have been properly constituted “if it consisted of at least one judge of that court”. It follows therefore, again speaking strictly from a black-letter perspective, that at the time of rendering the judgement, M.B. Idris is a not a judge of the Federal High Court. And where once the SCoN has found section 396(7) to be inconsistent with the constitution, his status as a Justice of the Court of Appeal at the time of the judgment renders the said judgment to bereft of jurisdiction.
The question that needs to be considered, but perhaps not on a black-letter consideration of the judgment, is whether two things can be said to in conflict or inconsistent with each other if they are complimentary to each other. This line of thought will be considered in the socio-legal analysis of the judgment.
On a strict application of the principles of jurisdiction as laid down in the seminal case of Madukolu v Nkemdilim, the court in the Orji Kalu case, because it was not “properly constituted” is therefore bereft of jurisdiction , and the effect/consequence of any judgment delivered by a court without jurisdiction is, has always been and may well continue to be, a nullity .


While I may agree with Mr. Amulu in his analysis that “that that section 396(7) of the ACJA [was]enacted by the National Assembly with aim of giving the Federal High Court additional powers to more effectively exercise its jurisdiction”, I do not however believe that they effectively achieved that aim. Firstly, the power to grant dispensation to conclude a trial at the Federal High Court was vested in the President of the Court of Appeal, thereby negating the effects of section 19 (3) & (4) of the Federal High Court which vested the power of administration and assignment of cases in the Chief Judge of the Federal High Court. That, in and of itself alone, is problematic.
On the basis of the foregoing analysis, and having read the full transcript of the Supreme Court’s reason for its decision, this is surely not one of those judgments that you wonder what law exactly is the law applying or how they came to their conclusion. The Supreme Court, having approached its interpretation of the relevant sections of the constitution literally and rigidly (I may add), was entitled to the conclusion that it reached and can therefore, in my opinion, not be faulted on a strict black-letter based analysis of the extant laws.


THE SOCIO-LEGAL/REASONABLENESS ANALYSIS
As we all know, the effects and consequences of laws or judgments go beyond the immediate parties for who they were made/delivered. So much as there may be differing views on what exactly is the grand purpose of law, I don’t think that there may be any assessment or analysis of the purpose of courts that may not, one way or another, include its duty to do justice. Granted that there may not be a generally accepted/acceptable definition of justice, what is not justice is however not as controversial.
A court of law, and more so the Supreme Court that sets the tone of the law for other courts to follow, must always be guided by this primary purpose, as with the rules of law, in approaching its decisions. With respect, I feel like the SCoN, by its decision in the Orji Kalu case, sacrificed substantial justice on the alter of doctrinal affirmation or discipline. I say that because, this case, no matter the way you look at it, turns on constitutional interpretation, on a simple phrase on that constitution (i. e. “a judge of that court” in section 253) and finally turns on a balancing exercise between the competing rights/factors in this case.
As Mr. Amulu rightly noted, the constitution, though clearly states that the Federal High Court is only properly constituted when it has at least “. . . one judge of that court”: who or what ”. . . one judge of that court” means/refers to had not received any prior Judicial interpretation. This was an opportunity for the SCoN to render that interpretation, bearing in mind, the aims, purpose and objectives of the Administration of Criminal Justice Act 2015, as well as other equally poignant factors that will be outlined shortly.


In my opinion, a reasonable approach to interpreting or defining who/what “one judge of that court” means is not the literal rule that the SCoN seems to have adopted here. In the English seminal case of Dupont Steel v Sirs which seems to be the foundational precedent for statutory interpretation for most common law countries, Lord Justice Diplock had this to say about the interpretational role of the courts :
“When Parliament legislates to remedy . . . a defect or a lacuna in the existing law . . . the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it”.
A corresponding Nigerian authority in this regard is the case of Rabiu v State where the SCoN had this to say specifically about constitutional interpretation :
“In interpretation of the Constitution, mere technical rules of interpretation are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the constitution Where the question is whether the constitution has used an expression in the wider or narrow sense, the court should whenever possible and in response to the demands of justice, lean to the broader interpretation unless . . . narrower the interpretation would best carry out the object and purpose of the constitution”
Also, in AG Lagos State v. Eko Hotels Ltd & Anor, the SCoN restated this position when it held that :
“ . . . where the meaning [of the Constitution] is not directly obvious on the face of the language, the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention”.
From the purpose of ACJA 2015, it was clear that it set out to cure some defects/mischiefs in the administration of criminal justice. Its purpose was said to promote :
“efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim”.
Applying these authorities, I will submit that the phrase “one judge of that court” does not immediately lend itself to a clear and unambiguous meaning, especially when viewed in the light of said section 396(7) of ACJA, which until this judgment, was a valid law. It was therefore wrong (in the reasonableness standard) to have approached the interpretation from a literal perspective. It is my opinion, that the SCoN, should have approached their interpretation of both section 290(1) and 253 of the constitution in such a manner that would not defeat the central purpose of ACJA or metastasise the mischief or defect (viz unreasonably long periods of trial) that the said section had intended to cure/remedy. By its interpretation, I argue that the Supreme Court has rather than “save” the constitution (as many commentators were quick to assert), further endangered the constitution and the overall administration of Justice in the following ways:
Hampers the Actualization Fair Trial Within Reasonable Time and other Fundamental Rights
Section 37 of the constitution guarantees “fair hearing within a reasonable time” in the “determination of . . . civil rights and obligations” of all citizens. This is a right that is more on paper than attainable for most Nigerians encountering the criminal justice system. With no pun intended, Eko (JSC), had conducted a review of the instant section 396 of ACJA, particularly its subsection 2, and acknowledged that that section, as well as section 395(2) of ACJA and section 36(1) of the Constitution are “all about . . . speedy trial” .


It will sadly be the case, following this judgment, that criminal trials will continue to take longer (double the time) whenever the instance such as was the case in Orji Kalu arises where the trial Judge is elevated to the Court of Appeal. The aspect of this that undermines the fairness of such trial is in the case of a less wealthy defendant (or complainant). Assuming that the defendants in this case were not a former Governor with the financial wherewithal to prosecute his defence to whatever length required. The implication for a less wealthy defendant will be a doubling in expenditure, which could hamper the quality of representation wherein such defendant is no longer able to afford the services of a good/senior lawyer and is then forced to higher probably a new wig. On the reverse, the opponent is the Federal (or State) government, with ‘unlimited’ resources.
When considered further in the light of the fact that the prosecution viz-a-viz the government (and not the defendant) would have caused the elevation of the Judge, it becomes even more unconscionable and unfair that this would be the legal principle. Situate this within the context of malicious politically-motivated prosecutions that we all know, go on in Nigeria, then you will understand why this decision could very easily become a tool for oppression and persecution more than anything else; whereby defendants are arraigned on trumped-up charges, and on the eve of their acquittal, the trial charge is elevated to the court of Appeal so as to start their ordeal afresh.


The impact of this on personal liberty is best appreciated when liberty is viewed beyond the scope of physical liberty . Anyone who has been subject or part of litigation (whether criminal or civil) will understand the emotional and mental toll it takes on the participants. Recall that sometimes, the defendants may be on onerous bail conditions that places severe restrictions to a lot of things in their lives, including movement (travelling abroad is the most common). The Supreme Court itself agreed this much when it held that seizure of international passport of a citizen amounted to an incursion into that citizen’s freedom of movement in Director of SSS v Olisa Agbakoba .
On the basis of these analysis, I will adopt the words of the Supreme Court itself in Rabiu (supra) to submit that by this Judgment in Orji Kalu, it has defeated “the principles of government enshrined in the constitution” a la fair trial and within a reasonable time, liberty and freedom of movement.
Increases the Cost of Conducting Litigation and thereby Undermines Access to Justice
As I noted earlier, the implications of this judgment go beyond the immediate defendants and also beyond the prism of criminal Law system. In a country like ours where the justice system and the judiciary itself are known to be susceptible to influence or manipulations, elevation of trial judges could be the next tactics for obstructing justice and frustrating poorer litigants from accessing the individual justices in their case.
Imagine an influential defendant or plaintiff (including government or a government agency) who knows that his or her case is weak (whether criminal or civil), and just influences the elevation of the trial judge on the eve of judgment. Think about the proverbial case of the poor widow and the rich/influential man; where the poor widow strives with the last of her possession to try to reclaim a piece of land from this bullyish rich/influential man, and after about 5 years of trial, whether by the making of the rich man or not, the Judge is elevated to the court of appeal on the eve of rendering judgment. By this time, the widow is more probable than not to have run out of resources and may not be able to finance a whole new trial as a result of this.
On the basis of this Orji Kalu judgment, that widow, as with any other litigant that finds themselves in such similar situation, has had their access to justice practically undermined at best, if not totally denied.
Undermines the Integrity of Criminal Trials and Its Investigations
Cases such as the Orji Kalu case is one which perhaps the evidence is not time sensitive. However, there are trials and criminal investigations that its evidence and the underlying investigation may be best reliable in shorter periods of time (rape may be one of them). With this judgment and the consequence thereof a la trial de novo, this legal principle may have only contributed to denying the victims justice for no error or wrongdoing of their own.


Undermines the Integrity of Litigations Generally
One scenario by which this point can be illustrated is with our Election Petition (EP) cases. The constitution as we know, stipulates that the whole trial in EP cases must be concluded within 180 days. I would not think it is beyond what a desperate government in power could to to frustrate any given election petition matter in which it fears might not be favourable to it, by causing the elevation of a member of such tribunal on the eve of concluding the matter so as to begin a new hearing, by which the 180 days may either completely elapse, or no longer be enough to take the matter up till the last appellate court for review.
On the basis of these socio-legal considerations, I will submit that the decision of the Supreme Court in the Orji Kalu case is impeachable on a reasonableness standard.

THE WAY FORWARD
It still remains the duty and obligation of the legislature to make/amend laws. Truth remains that if the legislature had done its duty thoroughly and properly with respect to the vexatious section 396(7) of ACJA, the Supreme Court will have no issue giving effect to it.
Having said that, I am of the strong view that the durable and sustainable cure to this defect in the ACJA is a constitutional amendment, that would:


a. permit Justices of the Court of Appeal to serve as Judges of the respective High Courts from where they have been elevated to the court of appeal, on an agreement/arrangement between the President of the Court of Appeal and the Chief Judge of that High court, for the purpose of concluding “partly-heard” matters in the interest of Justice


OR


b. Alternatively, ensures that High Court Judges elevated to the Court of Appeal may not subscribe to the oath of office as Justices of the court of Appeal, to sustain their jurisdiction as High Court Judges, until such a time that they have concluded “partly-heard” and “imminently-ending” trials pending before them at the High Court. As an incentive, this could be done so that for the purposes of their rights and privileges as Justices of Court of Appeal, their time in office as JCAs would start counting at the date of their appointment as opposed to the date they actually subscribed to the oath, which could be a year later due to delays in concluding cases at the High Court.
I am of the view that achieving a speedier dispensation or administration of our justice system is fundamental to sustaining both its integrity and functionality, as well as restoring the diminished confidence of the public in the system. I am tempted to say that had the Supreme Court ever cared about these germane factors, it is difficult to see how they could come up with their interpretation and consequential judgment in the Orji Kalu case. As such, the necessary amendments to remedy the pitfalls of the Orji Kalu judgment ought to be done and very quickly too.
Ikenna Aniekwe writes from Toronto, Canada and apologises in advance to anyone for finds the length of this review unusually long.

Profile of the Writer
Ikenna Aniekwe holds a Bachelor of Engineering degree (Elect/Elect – Power Option) from Nnamdi Azikiwe University, Awka Nigeria; an LLB (Summer cum Laude) from the University of the West of England, Bristol UK, BL from the Nigerian Law School and most recently, an LLM in International Business and Human Rights Law (research) from the prestigious Osgoode Hall Law School of York University, Toronto Canada. He is currently undergoing the Law Licensing processes and hopes to be called to the Canadian Bar in 2021.

Ikenna is also a Senior Associate at NICCOM LLP (www.niccomllp.com) where he brings his wide breadth of experience into bear in advising on the firm’s most remarkable works.


Prior to his sojourn into Law, Ikenna was (and still retains a substantial interest as) a renowned filmmaker with skills in screenwriting, Directing and Producing with over 50 Nollywood Film titles to his credit.
He also has a hobby and a side career in football, with a certification and license from the Footballer Association of England and Wales in Adult football coaching. He is also a member of the Nigerian Referees Association for over a decade, a registered member of the Referees Association of England and Wales (Non-active) and of the Canadian Soccer Referees Association.


Ikenna is an avid researcher of law with a broad interest in International Law and Human Rights, particularly the effects of International Business norms and practices on Human Rights in the Global South.

Categories
Law & Crime

THE PRINCIPLES OF SELF DEFENCE IN THE NIGERIAN LEGAL SYSTEM

https://4.bp.blogspot.com/-Wn2ej7RPzEI/W5VGhAjFBaI/AAAAAAAADdo/xNFXbCIhXWQfzF8OOrwXkOBg-lHEoxwtgCLcBGAs/s320/images%2B%25284%2529.jpeg


A woman stabs the husband, to death in Ikorodu Lagos alleging it was self defence.

Now, the question that comes to mind would be: Self defence which may reduce the punishment for the offence of murder to manslaughter, will it avail her in a successful plea and other defences?

Definition of Self Defence

Self-defence according to Black’s Law Dictionary, 10th Edition is the use of force to protect oneself, one’s family or one’s property from real or threatened attack.

The principle states that a person is justified in using a reasonable amount of force in self-defence where he or she reasonably believes that the danger of bodily harm is imminent and that force is necessary to avoid this danger.

Section 286 of the Criminal Code Act states:

when a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm”.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using the force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.

According to report, the sobbing suspect was interviewed, she said “I didn’t kill him intentionally. He was always Battering me. Today, he pinned me down and started beating me again. I picked the knife to scare him, but I mistakenly stabbed him”.

From the statement above, one would be left to wonder if the intended plea would be “accident” or “self defense” or “provocation” or if conflicting defense are intended.

In the supreme court case of Peter Iliya Azabada V. The State Legal Pedia Electronic Citation (LER 2014) Sc. 367/2011. Onuoghen JSC had this to say:

‘ In criminal trial, the trial court should consider all defences available to an accused person irrespective of its merits or stupidity. I hold the view that the principles does not mean that the court can uphold conflicting defences.
Where the defences raised by an accused person conflicts with one another, the trial court, in my view, though obliged to consider all the defence applicable to the case having regard to the evidence on record. Where the facts disclosed in evidence support one as against the other as in this case the court will adopt the established defence.

On the other hand, one may be inclined to think of what provocation is. This is what Rhodes  – Vivour, JSC had to say on provocation; “Any act or words may be provocative” he went further to define provocation as an act or series of acts done by the deceased (when alive) to the accused person which would cause a reasonable person, a sudden a temporary loss of self control rendering the accused person to subject to passion as to make him for the moment not master of his mind.

What then happens in a successful defence of provocation in a charge of murder?


Rhodes-Vivour, JSC went on to say: “in a charge for murder, a successful defence  of provocation has the effect of reducing the charge to Manslaughter. Once the accused person is convicted for manslaughter, the trial judge has discretion on sentence”. Sentence can be a custodial sentence ranging from one day to day life imprisonment. Whereas, for a conviction for murder, there is no discretion. The sentence is death”.

On accident

Accident means that the action leading to the injury was unintentional. Accident as a legal defence applies as long as the defendant has no criminal intent, no evil design and did not engage in any culpable negligence. But it only applies where a defendant is engaged in a lawful conduct.

To assert accident as a legal defence, the burden is on the defendant to prove that he/she acted with no criminal intent or culpable negligence.

The defence of accident is available in any case that requires intentional criminal conduct as an element.

This means that in an offence whereby an accused picks up a knife to “scare” someone and eventually stabs the victim, the accused cannot (in my opinion) rely on accident.

Now let us look at the provision of the Law Section 24 of the Criminal Code states that “a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or an event which occurs by accident”. 
The question now is “at what point will an event or an act committed be deemed accidental?

In Maiyaki V. State, the Supreme Court held as follows “An event is said to be accidental where the act by which it is caused is not done with the intention of causing it and when its occurrence is as a consequence of such act, it is not so probable that a person of ordinary prudence ought in the circumstance in which it is done, to take reasonable precautions against it.

In conclusion, when one successfully pleads accident, it only makes the act not to fall within the provisions of Section 316 of the Criminal Code. 

OKOYE BRIAN C. Esq.