It was
Grant Gilmore famous American
law Professor and statesman
who stated that Law
reflects but in no sense determines the moral worth of a society. The values of
a reasonable but just society will reflect themselves in a reasonably just law.
The better the society, the less law there will be. In heaven there will be no
law, and the lion shall lie down with the lamb. The values of an unjust society
will reflect themselves in an unjust law. The worse the society, the more law
there will be. Grant was no doubt right.
This is because those who benefit from
the status especially the aristocracy and the ruling elites use the instrument of the law as means of
maintaining the status quo and control of those
they intend to exclude from participation in the
commonwealth of the society, in such society the aim of law
is not to ensure justice , but to ensure
that the less fortunate and under privileged are prevented from becoming
riotous to ensure the wealthy in society will enjoy their wealth undisturbed.
Societies with
institutionalized injustices promulgate laws that tend to exclude a certain
section of the society on the bases of gender, religion and ethnicity. Example
of such laws is the Laws enacted by the Nazi regime lead by Adolf Hitler which
legitimatized the mass murder of Jews , the Jim crow laws in America that placed African Americans in the same
class as animals, the Apartheid laws in South Africa that legitimatized the
exclusion and discrimination of Black
South African in their own ancestral
land and Section 55(1) of the Penal Code which legalized the ill
treatment of children, wives, and servants. It is perhaps
important to reproduce
the said obnoxious
section of the
Law verbatim to appreciate
where we are
coming from. Specifically,
section 55 states that:
“Nothing is an offence
which does not amount to the infliction of grievous hurt upon any person and
which is done- (a) by a parent or guardian for the purpose of correcting his
child or ward such child or ward being under eighteen years of age;
“(b) by a schoolmaster
for the purpose of correcting his child under eighteen years of age entrusted
to his charge; or (c) by a master for the purpose of correcting a child servant
or apprentice such servant or apprentice being under eighteen years of age; or
(d) by a husband for the purpose of correcting his wife such husband and wife
being subject to any native law or custom in which such correction is
recognised as lawful”.
reacting to the said
section 55 of the penal code, Speaking on behalf of the CSOs, the Executive
Director of Centre LSD, Dr. Otive Igbuzor, insisted that there are many laws in
Nigeria that needs to be changed. He regretted that under the aforementioned
section, bodily
harm was defined as a harm that could lead to someone being hospitalized for at
least 21 days.
“The ugly implication
here is that when
the victim is hospitalized for 20 days; the law does not regard the case as one
that resulted to grievous bodily harm. Besides, what happens to those that were
not taken to the hospital?
“We as CSOs are
therefore using this platform
to beg that you people must not leave the parliament and allow that law to
remain”.[1]
How then
did we get to the
point where by Violence Against women
was legitimatized in
our society? How
did we get to the point
where our legislators
could be so comfortable as
to enact Section 55
of the Penal
Code, and why did it
take us so long
to repeal that
obnoxious section of the
law that sanctioned
the cruel and in
human treatment of women
and children.
That this
section was ever
in our law books
shows how far we had
gone to exclude women
from social participation, no
wonder we have
one of the
lowest rates of
Gender Parity in
the world. No
wonder we celebrate
every token appointment
that is given
as compensation to the women to appreciate and curry
their support in future elections. To be sure, no society can develop
that relegates women to the Kitchen and the “other room”. No society that
celebrates violence against women as a mark of masculinity can develop. The development of every society is more often
than not, tied to the development of the
women, Societies that are highly
developed and sophisticated have
highly educated and sophisticated
women, while those that have relegated women to
the kitchen and the bedroom have
always remained retrogressive.
The reason is simple, Apart from the fact that women are the gateway of human
existence being responsible for child birth. The woman is also very close to
the child and plays a very crucial and pivotal role in character formation and
upbringing of the child. Section 55 of
the Penal Code is
reflective of the
mindset of the Nigerian society ,
as the years went by, violence
against persons especially
in a domestic
context instead of decreasing assumed
very alarming proportions.
Spousal abuse became
widespread and as society further evolved, the role of women
in urban areas began to transcend homemaking to breadwinning and
with the enhancement her economic position,
the “city woman” became emboldened and we had role reversals whereby the
man became the receipt of physical and verbal abuse from women. So today, both side of the divide
(Men and Women) suffer various forms of abuse. CLEEN FOUNDATION reports that 1
out of 3 women have suffered domestic Violence, The survey also found a
nationwide increase in domestic violence in recent years from twenty one
percent in 2011 to thirty percent in 2013. The Foundations 2012 National Crime
and Safety Survey demonstrated that thirty one percent of persons surveyed
confessed to being victims of domestic violence.
The writer here, attempts to provide
a background of the
situation before the
enactment of the
Act and also thoroughly
examine its content
to see whether
, it has the possibility of being
successfully implemented .
It should be stated
from the onset that
the traditional African
society placed a lot
of value and
respect on womanhood,
women like Queen
Amina, Princess Inikpi and a host
of others served as
beacons in pre colonial African
societies. Mrs. Ransome Funmilayo Kuti , Margret Ekpo
also played prominent
roles in the
struggle for Nigerian
Independence. It is
worthy of note
that the first Nigerian to
win an Olympic
Gold medal for
Nigeria is a
woman. This demonstrates the
fact that women have
always shown their ability
to advance the
progress of society whenever they
are given the slightest
opportunity. All the prominent religion in Nigeria also celebrates women
and womanhood. One of the most
respected indivual that was closest
to the Holy Prophet was
his First wife Khadijat , who in fact
became the first person to
be converted to Islam. Islam
as a religion promoted
womanhood and protected
women so much
that it made
adequate provision for
the women during the life time
of her husband
and even when
she loses her
husband. Adequate provision is provided for her.
IMPORTANT
ADVANCEMENTS IN THE NEW ACT
In the twilight of
President Goodluck Jonathan’s administration, several bills were hurriedly passed
by the National Assembly and signed into law by the president, for them it was
a parting gift that was meant to stand as both their legacy and testimony of
their commitment to advancing the frontiers of the law to meet current
challenges. However discerning minds questioned the utility of hurriedly
enacting so many laws at the same time, when they had four years all along to do a thoroughly good job. Regardless of
the motive of the enactors of the new law, the Act contained several sections
that were meant to address the issue of domestic violence in our society. Some
of the sections are listed below:
S.14 criminalizes abuse
of emotional, psychological and verbal nature and punishes offenders with one year
imprisonment or a fine of 100,000.00
S. 15 protects widows
from harmful traditional practices
S.16 criminalizes
abandonment of spouse or neglecting to provide for them.
S.19 prohibits battery
of spouses. It punishes the Act and the attempt with 3 year imprisonment. Unlike
in the past where the law only contemplates the woman as the victim of spousal
abuse and violence. The Act uses the word “His or Her Spouse” Therefore
allowing a man to sue under the Act where he is the victim of Acts of violence
from his spouse.
The Act also expands the
scope of persons who can institute or initiate proceeding under the
act. This is very crucial as it
empowers neighbors , police officers and other persons who may not necessarily be related to the victims to institute the action
on their behalf as the victims
most of
the times are overwhelmed
by their abusers who may
have intimidated them to a point
where they are too afraid of
reporting them to prosecutorial
authorities . Very Importantly the Act repeals any previous provision in the
Criminal Code, Penal Code or Criminal Procedure Code that is inconsistent
with the Provision of the new Act. What this means
in effect is that Section 55 of the
Penal Code which is
directly inconsistent with
S.19 of the Violence Against Persons ( Prohibition ) Act
2015 stands repealed . This is a welcome development as it erases
from our law books that obnoxious section that stood as a relic of the
injustice committed by our society against women in the past, it also indicates
our attempt to rewrite the wrongs of the past.
GREY
AREAS
S. 27 give’s only the
high court of the federal capital territory the power to hear and determine any
application under this act. It appears the Act confers exclusive jurisdiction
on a single court. It is difficult to fathom the true
intendment or the utility of conferring
the High Court of the Federal Capital Territory with the sole Jurisdiction. It appears that the
legislature is taking with one hand what it has given with the other hand.
What is the
possibility of a wife who is violently treated beaten up by her
husband in a rural community in Bayelsa State or Akwa Ibom
travelling all the way to Abuja to file an application or
obtain an Order of protection in a High Court in Abuja. Rather than confer Jurisdiction solely
on the court in Federal Capital Territory , The Act should rather have conferred
jurisdiction on magistrates courts in the
south or district
court’s in the north .
Also S. 29 of the Act
could be problematic as the word “As soon as possible is open to the subjective
interpretation of indivual courts seised with the application. The Act should have rather followed the
footsteps of the Fundamental Rights
Enforcement Procedure Rules which stipulates 5 days within which a respondent
is to file his counter affidavit and 4 days in turn for
the Applicants to file either his Reply on points of Law or a further affidavit as the case may be.
It appears the only remedy available to the
victim under the Act is a protection order, this is grossly insufficient as abuses most of the
times are persons of authority : Husbands, Employers or
Guardians who are also responsible for
the upkeep of the indivual abused, in that light
therefore the court should
also in addition to its
protection order also make a mandatory
provision order requiring the
Abuser to continue to provide for the
victim in an amount reasonable
enough to sustain him in
his station in life.
POST
LEGISLATIVE COMPLIANCE AND ENFORCEMENT OF THE NEW LAW
Laws and institutions
are tending to gravitate. Like clocks, they must be occasionally cleansed and
wound up and set true to time. Thus it is important that laws move along with
the time, laws are expected to regulate the affairs of men not enslave. Where
therefore the people perceive a law as oppressive and unreasonable, they would
always find a way to break the law or better still find a way around those
laws. They is nothing objective about reasonability, what is reasonable and
acceptable in one community may be abhorred in another. “Polyganism” is
celebrated in Africa while Homosexuality is detested, while the west abhors
“Polyganism” but embraces homosexuality. By and large community moral standards
may differ from place to place. Somehow at some point most African communities
have come to accept violence against the weak, vulnerable and dependent (Women,
Children and employees) as normal, this occurred as our society became more
Patriarchal. The woman, for example upon
payment of her bride price by her husband becomes no more than the property of
the man. In Yoruba culture, the woman refers to her husband as “OLOWO ORI MI” which if literally
translated means he who owns me. In Tiv culture, the wife sees beating by her
husband as a sign of his love and acceptance. Thus it is commonly said amongst
married women in Tiv society that if your husband has not beaten you, then you
have not experience the joy of marriage
. New legislations no matter how punitive
the laws become, the ill of
domestic violence will not be curb unless and until the media and civil
societies join hands to ensure a process of value reorientation amongst the populace. This is because as long
as the victims and the perpetuators of this actions see nothing wrong in their
actions it will be difficult to curb the growing trend, this becomes even more
evident in the fact that incidences of domestic violence are rarely ever
reported and even when bold indivual summon the audacity to pursue legal
redress, they are cowed into withdrawing them as it is seen as a family matter
that ought to be settled in family
circles and not in the glare of the public eye. The fears of such families are not unfounded as most
law enforcement officer do not take serious reports of domestic violence and
the victim leaves with the stigma
instead of the abuser bearing the shame and reprieve for his
actions.
To remedy the situation,
there must be a concerted collaboration between the judiciary, law enforcement
agencies, the media, religious organisations
and last but certainly , importantly
civil society organisations in reorientating the minds of the public about the subject matter. Civil
society agencies can most especially sponsor public interest litigations and
the media should make such trials headline so as to bring the public attention
to the occurrence of this evil amongst us, ours is a society that lives in denial,
such collaborations will force the society to discuss the situation not just
more openly but take more practical steps to correct the anomaly.
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