By Daniel Akinwale
No one I repeat no one let alone a child deserves the unbearable trauma of sexual abuse. Baba Ijesha, a popular Yoruba movie comedian cum actor whose birth name is James Olayinka was recently alleged to have defiled a 7 year old child and reportedly caught on camera sexually assaulting the child- now 14 years of age. These allegations against the popular movie comedian are grave, weighty, despicable, reprehensible, indefensible, and should be condemned by all and sundry.
However, these allegations remain in the realm of allegations until the Court determines the guilt of the Yoruba actor hence Baba Ijesha is a suspect and not a criminal until the Court says so. The purport of this discourse is to discuss the legal issues present in the Baba Ijesha’s Saga.
The first is the privacy of a Child. Data not oil has been said to be the world most valuable asset. There are laws that protect the privacy of a child, and prohibit the disclosure of a child’s data. Section 39 of the 1999 constitution provides for the fundamental right of privacy of citizens. Invariably, a Nigerian Child enjoys similar protection as a Nigerian citizen. Section 8 of the Child Right Act – the applicable child right law protects the privacy of a child. Reg. 2.4 (a) of the NITDA Regulation – a specific body of rules protecting Data Privacy in Nigeria – prohibits consenting to the use of data that engenders child rights violation. Some Social Media users have opined that the video evidencing the alleged assault be publicly released. The public release of the said video will be a breach of the Child’s constitutional and statutory right to privacy. Furthermore, anyone who releases such video will be culpable of child pornography under S. 23 of the Cybercrime Act.
Secondly, the issue of the fundamental right of fair hearing. What is fundamental right? Fundamental right of fair hearing simply means a person is given an opportunity to be heard before any decision is made against him or her. This right is protected and guaranteed in the 1999 constitution; it is a constitutional right. See S.36(1) of the 1999 Constitution(CFRN), AG Rivers State v. UDE (2006) LPELR-626 (SC). This right is not peculiar to Nigeria, it is protected in the constitutions of several countries and different International conventions.
Many social media users have taken Baba Ijesha to the guillotine without hearing his side of the story, in fact they believe he should not be heard. The flip side of social media. This position is antithetical and incongruous with the fundamental right of fair hearing. It is possible to condemn the act without condemning the accused unheard. In the Court of public opinion especially on Twitter, this innate and intrinsic right that predates our constitution has been relegated to the background. Even God is a respecter of this innate and constitutional right. In the 18th Century English case of R v. Chancellor, Masters and Scholars of the University of Cambridge (1723) 93 ER 698 @704, Fortescue J. held thus:
“ The laws of God and man both gave the man the opportunity to make his defence, if he has any… even God himself did not pass sentence upon Adam, before he was called upon to make his defence .’Adam says God, where art thou? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat? … God did not also condemn Eve unheard:- ‘ The Lord said to the woman what is this that you have done ?”
In a sum, Baba Ijesha and every other accused has and enjoys this constitutionally and internationally recognised – guaranteed right. He should not be convicted unheard.
Third , the principle of presumption of innocence. Our constitution provides for the presumption of innocence. See S. 36(5) of the CFRN. Ogu v COP (2017) LPELR- 43832 (SC). This is a universally accepted legal principle. It means that any accused is innocent until his guilt is proven by the prosecution in the Court – not in the media – mainstream or social or any other forum other than the Court of law. This portends that Baba Ijesha is presumed innocent until the prosecution proves his guilt on the charges filed beyond reasonable doubt in the Court, and the Court convicts him of the charges filed against and proven by the prosecution. This is due process, my friends. I am not oblivious to the viral video on the internet showing Baba Ijesha admitting to the sexual molestation of the child or the Police statement confirming that the accused’s confession to sexually assaulting the child. This is one of the beauties of technology but it does not change the presumption of innocence, it is a constitutional principle. However, it makes the job of the prosecution easier in proving Baba Ijesha’s guilt beyond reasonable doubt.
The fourth legal issue is the issue of an action or offence being statute barred. An action or offence is statute barred when a law provides for time limit for the institution of the action or the prosecution of the offence and the offence or action was not instituted in the Court within that time limit, such action or offence is statute barred as the Court will lack jurisdiction to entertain same. The Police came under fire when it said in a statement that Baba Ijesha cannot be prosecuted for defilement not rape under the criminal law of Lagos because it was statute barred. Lawyers on social media have taken the pain to distinguish the offences of defilement and rape. The Criminal Law of Lagos provides that anyone who defiles a girl under 13 years is guilty of the offence of defilement while the criminal code Law provides that the offence of defilement must be brought within two months of the commission of the offence. This means that Baba Ijesha cannot be charged for the offence of defilement after two months of the alleged commission of the offence consequently it is statute barred. However, Baba Ijesha will be charged for other sexual offences to wit: sexual assault by penetration, attempted sexual assault by penetration, sexual Assault and indecent treatment of a child under the Criminal Law of Lagos. These offences are not statute barred.
The umbrage concerning the allegation is understandable as many alleged sexual predators have slipped through judicial net and are walking as free men today due to their social status but this umbrage should not encourage the disrespect of constitutionally provided rights. There was a campaign by prominent celebrities to prevent the release of Baba Ijesha’s on bail. This is wrong. We should not legitimise the police’s abuse of Nigerians’ constitutional rights. The constitution is clear on this. No one shall be unlawfully detained beyond 48 hours for any offence without been charged to Court. See 35 (5).
Many have argued that the Police have on umpteenth times detained people beyond 48 hours and thus it will be double standard to respect this constitutional right of personal liberty for Baba Ijesha. Two wrongs do not make a right. We cannot egg on the Police to detain Baba Ijesha beyond the constitutional period and turn around tomorrow to decry the detention of Nigerians particularly protesters. We can leverage our umbrage and peeve to ensure and demand that this case is not swept under the carpet but justice is achieved because as appositely espoused by one of Nigeria’s finest and revered Jurist, Oputa JSC, Justice is a three way traffic-Justice for the victim, accused and the society. I pray Justice prevails.
Daniel Akinwale is a Legal Practitioner. His areas of expertise are Commercial Dispute Resolution, Real Estate and Intellectual Property. He is an Associate of the Chartered Institute of Arbitrators (UK) and currently an Associate with City Law Firm, Abuja.
