By Ozioma Izuora
PREAMBLE
Recalling that ‘Violence Against Persons Prohibition Act, 2015’ was birthed through a compromise made to accommodate men and boys who are also susceptible to violence, the law remains an inclusive document that addresses violence in a wholesome manner. Many NGOs, Development Partners and other Stakeholders have invested so much in promoting the law and have achieved far-reaching results in these times when violence, especially of a sexual nature has been on the rise.
Granted, a lot of lapses have been observed in the law, leading to proposals for amendment of same, there is no logical reason for seeking to repeal it. A lot of work went into the formulation of the 2015 Act. In fact, a 2012 publication of the Institute for Advanced legal Studies titled The Law of Domestic Violence, Chapter Three of which this writer contributed, is a collection of works all of which proposed the bill for an Act to enact the ‘Violence Against Women Prohibition Act’. Many other well-researched works that studied the effects of violence on the society were also part of the groundswell, that combined with a lot of advocacies before it finally saw the light.
Read Also: Limiting the Age for admission into tertiary institutions is ill-advised
A coalition of NGOs and other stakeholders kept pushing for the law until it became necessary to make the comprise for an inclusive law. The current proposal for a repeal of this groundbreaking law can only lead to trivialization of the work that went into its making – especially now that it has been adopted in most states of the Nigeria. If this repeal is allowed to go through, it will be a matter of time before the states will follow suit.
Besides, what can be the problem with the title of the law, if Senator Jibrin Isah, the proposer of the repeal, is content to enact the long title of the 2015 Act?
Finally, I observe that the bill is a copy of the proposal for amendment of the law which has already been debated and for which a public hearing was conducted by the Senate. A little matter of ‘defilement’, an outdated construct in criminal has bee surreptitiously sneaked in. This must be removed like the cancerous cell that it will prove to be.
Why this repeal bill?
A careful reading of the purported repeal bill reveals the following:
Part I – Offences:
- Definition of rape remains unchanged in s.1(a)(b) and (c). A new s. 1(2), the bill has added a minimum punishment of 12 years, to the maximum life imprisonment of the old law for rape. The same provision was provided for in s.2(b) of the old law. The is an acceptable amendment as it is better drafting.
- Another useful amendment by this bill to the old law is the provision for attempted rape in s.1 (3). This has also been flagged in the proposed amendment before this Hallowed Chamber.
- The bill also creates the offences of conspiracy to rape (s.1(4)); inciting, aiding, abetting, or counseling (s.1(5) – these are included in the amendment bill before the hallowed Chamber too. The numbering of the old law thus increased because of the new subsections. Everything else remains unchanged.
- However, and quite disappointingly, in spite of not having altered the new definition of rape, the bill went back to the old criminal law provisions for ‘defilement’. This is replicated below:
2.-(1) A person who causes penetration into the private part of a child is guilty of the offence of defilement. (2) A person who defiles a child aged eleven years or less shall on conviction be liable to imprisonment for a term of not exceeding 14 years. (3) A person who commits an offence of defilement with a child between the ages of twelve and fifteen years is liable on conviction to imprisonment for a term of not exceeding 12 years. (4) A person who commits an offence of defilement with a child between the ages of sixteen and eighteen years is liable on conviction to imprisonment for a term of not exceeding 10 years. (5) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence of attempted defilement, and liable on conviction to a term of imprisonment not exceeding 7 years
v. The inclusion of the above provision should be vehemently condemned by all for indirectly reverting to the old understanding of rape as a crime that could be committed only against the female gender. Who says a child can only be defiled, and not raped? The 1958 Criminal and Penal Codes?? Why should someone who totally destroys a child get a lesser sentence than the one who did the same act to and adult?
Then, again, by talking of penetration of the private part, clearly only the girl child can be defiled, going by the proposed bill! Or how does one penetrate the private part of male child?
Further, why the age differentiation that makes it more acceptable to ‘defile’ an older child? This new insertion is totally retrogressive and should be tossed out of our laws.
vi. The bill seeks to increase fines payable on the different heads of offences. That is a welcome development. Nothing else is altered in the provisions for offences under the old law.
vii. The bill replicates ‘Part III: Establishment and Management of Survivors of Violence Support Fund’ from the amendment proposal that is already before this Hallowed Chamber.
OBSERVATIONS AND RECOMMENDATIONS
Having gone through the proposed bill, including the interpretation section, there appears to be NO good reason for departing from the original intent of all the interested parties involved in the making, propagating and application of the 2015 Act, to amend the law and preserve that which the public already recognizes as the Violence Against Persons Prohibition Act (VAPP Act) 2015. Frankly, the absurdity of merely repealing a title and proposing to enact the long title is unexplainable. This will be a wasteful needless exercise.
Above all, the insertion of ‘defilement’ as a crime is not useful and achieves no reformative objective. It has the effect of excluding children up to the age of 18 from the protection of the new definition of rape. That is not acceptable. It is no secret that children are among the most sexually molested in the world. If it is agreed that rape is non-consensual sex, who should be better protected by the law than the child, who because they are underaged, lack the ability to give consent? Why does this bill seek to remove them from the broad definition of rape that includes penetration of the ‘anus, mouth or any other part of the body of another person with any other part of the person’s body or anything else’? Or does the bill purport that these incidents do not occur? Where is the protection of the boy child for which the 2015 Act has been applauded? Is the promoter of the bill oblivious of the recent case of the National Hospital male staff that is currently serving a jail term for sexually molesting a young boy?
Distinguished Senators, I urge you to continue with the move to amend the 2015 Act, where necessary, but resist the evil provision on defilement sought to be reintroduced into our laws. Above all, discountenance the meaningless attempt to repeal a law that is already widely accepted and working in Nigeria. An amendment is welcome. A repeal is not.
Thank you.
Ozioma Izuora,
Lecturer, Faculty of Law, Baze University, Abuja;
Co-Chair, Parliamentary Committee,
International Federation of Women Lawyers (FIDA) Nigeria Abuja branch.
