By Stephen Azubuike
We are well acquainted with the news of a Sex Party proposed to hold at an undisclosed location in Kaduna State. The alleged promoters of the event have since been under the net of the authorities and the alleged hotel building (Asher Hotel) for the ‘big occasion’ has seen the teeth of excavators. The demolition of the hotel building has been received with mixed reactions especially after learning of the version of the story by Aisha Yakubu (the owner of Asher Hotel/Restaurant) where she denied knowledge of any such proposed event. We have considered the legal exposure of the Kaduna State Government (KASG) here, and concluded that it appears the Government has opened its lap against the law by the demolition act.
Meanwhile, it has been reported that the KASG has arraigned some persons including Abraham Alberah, the Publicity Secretary of the Peoples Democratic Party (PDP) in the State and the husband of Aisha Yakubu, for “Violation of partial lockdown order of the Kaduna State Government 2020, criminal conspiracy and attempt to commit an offence to wit public nuisance, obscene or indecent act, gross indecency and adultery.”
The question
The question on the lips of an average Nigerian, especially from the South, is whether the KASG is obsessed with sex and/or sexual offences. This is more so as he or she does not contemplate that adultery and/or attempted adultery is a crime. It is important to clarify that there are two main legal regimes of criminal codification in Nigeria: The Criminal Code which operates in the Southern part of Nigeria (and adapted by States) and the Penal Code which operates in the North. This is not to say that these two legal regimes are the only pieces of criminal legislations. We have various statutes in Nigeria containing criminal offences and their penalties. This is in keeping with the provisions of Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which states that no person shall be prosecuted for a crime in Nigeria unless the offence is contained in a written law and the penalty for the commission of the offence specified.
Under the Penal Code, attempted adultery is an offence. Adultery itself, standing alone, is an offence. This is unlike the Criminal Code which has no such provisions. Sections 387 and 388 of the Penal Code criminalize adultery by both a man and a woman respectively. The punishment is imprisonment for a term which may extend to two years or with fine or with both.
The meaning of adultery is neither in dispute nor subject of any ambiguity. The court has defined adultery as:
Consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse during the subsistence of the marriage.
See Atansuyi v Gbadamosi (1969) All NLR 66; Ibeabuchi v. Ibeabuchi (2016) LPELR-41268(CA).
The Penal Code defines the offence of adultery basically along the above line but with all its inelegance.
Attempt itself is a crime. Put in another way, the attempt to commit an offence is a crime on its own, both under the Criminal Code and the Penal Code. Attempt is known as an inchoate offence. Another example of an inchoate offence is the offence of conspiracy. Conspiracy is committed once there is a proof that two or more people agreed to commit an offence. It is immaterial that the offence they agreed to commit was not committed ultimately. The law simply punishes the act of reaching the agreement. In the same way, the law moves against the attempt to commit an offence, even if the offence attempted was not committed eventually.
Under Section 95 of the Penal Code, an attempt to commit an offence is an offence. By a joint reading of Section 387 (or 388), and Section 95, a person may be charged with the offence of an attempt to commit adultery. There are other provisions on attempt such as Sections 229, 230 and 231 which provides for attempt to commit homicide and suicide. The underlining point is that before you can be charged for attempt, the act you have been accused of attempting must be a crime. Thus, since adultery is not a crime under the Criminal Code, one cannot be charged with an attempt to commit adultery under the Criminal Code. Importantly, we must note that one does not need to hail from the North or South before the person can be charged accordingly under both Codes.
The task
Without prejudice to the authority of the Court to determine the pending charges brought before the named persons in connection with the alleged Sex Party, it is safe to state that the KASG has a huge task ahead to establish the ingredients of the alleged offences, especially the alleged attempts, in a fair trial. The inconsistent narrative by the Kaduna State Urban Planning and Development Agency (KASUPDA) is worrisome. In one breath, the Agency claimed that the hotel was demolished due to the alleged violation of Covid-19 protocol. In another, it claimed immorality; and in yet another, it stated that the demolition of the hotel was because the building had no approval. What is apparent is that the KASG was bent on justifying its rash decisions at all cost.
Conclusion
The quest of the KASG to nail the persons accused with offences relating to the alleged Sex Party at all cost raises the question as to whether the KASG has expressed the same level of “Executive Activism” against other more disturbing criminal activities such as kidnapping, and insecurity issues ravaging the State and its environs.
This post was first published on Stephenlegal.ng January 8, 2021 by Stephen Azubike, legal practitioner, consultant and social entrepreneur.
