Tuesday, 23 June 2015

Professor Soyinka’s “Open Letter” to President Buhari on the Sexual Offences Bill

Professor Wole Soyinka and Chief Femi Falana (SAN), are not ordinary Nigerians. They are two very distinguished senior citizens who are renowned both within and outside the shores of the country.
They have attained the apogee of their chosen professions by dint of hard work; one as a Nobel Prize winner in literature – the highest award in that field, and the other, a Senior Advocate of Nigeria – the zenith of the legal profession in Nigeria. I am sure a Senior Advocate in Nigeria can match the best lawyers anywhere in the world.

This is why when I read their “open letters” urging Mr. President not to sign the Sexual Offences Bill, 2015 recently passed by the out gone 7th Senate into law, I was truly demoralized, disoriented and disappointed. The reason for my disappointment was that these two eminent personalities appeared to have spoken too soon and as such, made grave mistakes. This faux pas is not customary with people who have attained their status in life, with a combined age of 137 years. Reading Professor Soyinka’s “Open Letter” to President Buhari on the Sexual Offences Bill, one would think the sage availed himself of a copy of the Bill and was seized of the facts he was commenting on. But he hadn’t read the Bill. If he did, he wouldn’t have written the President in the manner he did. Same goes for the learned silk. Sadly, the fallout of these unusual and uncharacteristic negligent misstatements is that the Sexual Offences Bill, 2015, one of the most profound, complete and innovative bills to be passed into law by the Senate is in danger of being washed away by the flood of misinformation.

The life of the Bill began in 2007 with the election of Senator Chris Anyanwu into the 6th Senate to represent Imo East Senatorial District. Irked by the rampant cases of rape (of both minors and adults), sexual harassment and other offences of a sexual nature, and the very weak nature of our extant laws which ensures that rapists and pedophiles are rarely brought to book, the Senator, (no doubt one of the finest legislators Nigeria has ever had), commissioned our law firm to research and come up with a draft of a bill that will bring all offences of a sexual nature under one roof. The aim was to address the shortcomings in the existing laws such as the Penal Code and the Criminal Code to meet with international best practices. We commenced work on the draft bill and same was presented to the 6th Senate in November, 2007 during the Senator’s first term in the hallowed chambers. The 6th Senate commenced work on the bill and it passed the 1st and 2nd readings and also a public hearing which was held on 15th May, 2008. The preponderance of opinion on the well attended public hearing was that the bill was a very timely and desired piece of legislation which would enhance our value system. Minor recommendations and amendments were proposed by interest groups, government agencies and NGOs who graced the occasion. However, work could not be completed on the bill before the life of the 6th Senate expired.

Enter the 7th Senate and having been re-elected by her people to continue to represent them in the red chamber, Senator Anyanwu re-presented the Sexual Offences Bill to the 7th Senate. Consideration of the bill, by the rules of the Senate, had to start de novo. The second reading was taken on the 21st of November, 2013 while the public hearing was held on the 30th of June, 2014. So when both Professor Soyinka and Chief Falana say that the bill “was hurriedly passed by the Senate during its valedictory session where the members did not pay any attention to its provisions”, they were wrong, flat wrong. Again, the Sexual Offences Bill, 2015 was not among the 46 bills “hurriedly passed by the Senate of the seventh National Assembly during its valedictory session”. The said 46 bills passed by the Senate were bills already passed by the House of Representatives and forwarded to the Senate for concurrence by mutual consent and legislative reciprocities. On the 3rd of June, 2015, the Sexual Offences Bill passed through the 3rd reading or ‘clause by clause’ consideration, which is the final stage of legislative process before a bill is passed into law. The Votes and Proceedings of the Senate for the said June 3, 2015 confirms this.

Again, I have searched through the draft of the bill presented to the Senate and also the final version passed and I cannot find any “odious provision of the Sexual Offences Bill, 2015 passed by the Senate which has criminalized the defilement of children under 11 years” as claimed by Mr. Falana. Mr. Falana went further to claim that “it was the Judiciary and Legal Matters Committee that illegally removed the age of 18 years and replaced it with 11 years. The inserted clause is inconsistent with Section 29(4)(a) of the Nigerian Constitution which provides that full age means the age of 18 years and above”. Reading this, I wondered which bill the learned silk was talking about. It was immediately obvious to me that he never saw the bill, neither the proposed version nor the version eventually passed by the Senate on the 3rd of June, 2015. He probably relied on social media rumor and hearsay to come to his hasty and misguided conclusion which is very unfortunate.

I shall now proceed to reproduce the sections of the bill as contained in pages 1366 and 1367 of theVotes and Proceedings of the Senate of Wednesday, 3rd June, 2015 for ease of clarity.

Clause 6: Defilement of children

(1) Any person who commits an act which causes penetration with a child is guilty of an offence called defilement.

(2) A person who commits an offence of defilement shall upon conviction be sentenced to imprisonment for life.

(3) It is a defence to a charge under this section –

(a) If it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence and had consented to the act; and

(b) The accused person reasonably believed that the child was over the age of eighteen years.

(4) The belief referred to in sub-section (3) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.

(5) The provisions of sub-section (4) shall not apply if the accused person is related to such child within the prohibited degrees of consanguinity or affinity.

Clause 9: Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term not exceeding fourteen years.

(2) It is a defence to a charge under this sub-section (1) if it is proved that such child deceived the accused into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen.

(3) The belief referred to in sub-section (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.

(4) The provisions of sub-section (2) shall not apply if the accused person is related to such child within the prohibited degrees of consanguinity and affinity.

From the foregoing, the following facts become as clear as daylight:

•        The Sexual Offences Bill, 2015 was passed by the Senate on the 3rd of June, 2015 after a meticulous, painstaking process which paid attention to the remotest detail, spanning over eight years and the lifetime of the 6th and 7th Senate. It was not “hurriedly” passed at the twilight of the 7th Senate as Professor Soyinka, Chief Falana and other ill-informed commentators and critics would want Nigerians to believe.

•        There are no “odious” provisions in the Sexual Offences Bill, 2015 which permit the defilement of children of 11 years with their consent or a child of any age for that matter. The age of consent as provided in the Bill is 18 years as provided in the Child Rights Act and the Constitution of the Federal Republic of Nigeria, which provides, by necessary implication that the full age means the age of 18 years and above.

•        The Infant Relief Act, 1874 a British statute of general application applicable in Nigeria, which features in the interpretation section of the Bill, defines a child as a person of twenty-one years and above.
•        The criticisms of the Sexual Offences Bill, 2015 are either predicated on ignorance or a product of outright mischief and this is very unfortunate.

Senior citizens whose opinions on issues of national concern are respected, cannot afford to speak too quickly without first cross-checking their facts. Their opinions should not be based on mere rumor or social media gossip. The Sexual Offences Bill, 2015 is a revolutionary law that aims to sanitize our society and arrest the current trend where pedophiles and sexual perverts are having a field day ravishing young and vulnerable children and even adults. A bill that has re-defined rape and enhanced its punishment, criminalized sexual harassment, child pornography, child sex tourism, sexual assault, gang rape, child prostitution, exploitation of prostitution, trafficking for sexual exploitation, prostitution of persons with mental disabilities, incest, sexual offences relating to positions of authority and persons in positions of trust, deliberate transmission of HIV or any other sexually transmitted diseases, administering substance with intent, registration and supervision of dangerous sexual offenders, medical treatment orders for offenders, etc, no doubt, ought to be supported as most of these offences are not currently provided for in our law books, but are being committed daily. All Nigerians disturbed by our prevailing abhorrent state of moral depravity have a national duty to prevail on Mr. President to sign the Sexual Offences Bill, 2015 into law. We truly cannot afford anything less

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