adminREINVENTING MORALITY: THE FUNCTION OF LAW
Overview
Morality simpliciter, like ethics, deals with the absolute ideal or the universal good. Bodenheimer defines morality as a value-impregnated concept relating to certain normative patterns which is aimed at the augmentation of good and reduction of evil in individual and social life. Its first principle, according to Aristotle, is bonum faciendum malumque vitandum, or “good must be done and evil must be avoided”.
The aims of morality in its social signification are directed towards increasing social harmony by diminishing the incidence of selfishness, noxious conduct towards others, internecine struggle and other potentially disintegrative forces in societal life. According to Immanuel Kant, in his work titled ‘The Metaphysical Aspects of Justice’, the distinction between law and morals is to be found in the fact that law regulates the external relations of men while morality governs their inner life and motivation.
Nigeria which is seen as the giant of Africa has experienced a great degree of incessant rape cases, unjust killings and bloodbath and this begs the question, whether Nigerians have lost their morality or not? Well, Nigerians have not lost their good morality entirely; rather there has been a decay and decadence in morality. But the good news is that the decadence of morality can be rectified by the instrumentality of the law.
The position of the law should be, to wit:
1. Imposition of strict punishment for rape (sections 357 – 358 Criminal Code Act CCA) and defilement of minors (Section 218 CCA) from life imprisonment to death sentence.
2. The requirements of corroboration placed on the prosecution should be expunged. The repealed Evidence Act in section 179(5) provided thus: A person shall not be convicted for sexual offences mentioned in Sections 218, 221, 223, or 224 of the Criminal Code upon the uncorroborated testimony of one witness.
3. Sexual re-orientation.
4. Sexual Awareness.
5. Sex Education should be made a distinct and compulsory subject from primary to tertiary levels.
6. Human rights awareness.
Anchor: What is your perception of the concept of morality? And what do you think of our collective morality as regards recent events in Nigeria?
Aguocha Collins: Morality for me is a sense of right and wrong. Your conscience helps you decipher between right and wrong, while the law helps to regulate everyone in distinguishing between right and wrong, backed with sanctions of course.
Just as I had mentioned earlier, there has been deterioration in some people’s moral decency. There are people whose consciences are still intact. So, collectively, Nigerians have not lost their collective morality.
Anchor: The issues of sexual abuse and domestic violence are on a scary rise in Nigeria, do you think it is a consequence of the ‘stay at home’ order by the government, or the impotence of our laws, or due to a decline in morality?
Aguocha Collins: Although an idle mind is said to be the devil’s abode, the “stay at home” order is not the cause of the unprecedented rise of rape cases or domestic abuse. Some of the root causes of rape and domestic violence are poor sexual and societal orientation spiced with abysmal parental grooming. A child born into an abusive home has more likelihood of becoming abusive, whether male or female. A man born and bred in the Northern part of Nigeria into a religion or culture that promotes marriage of girls below ten years, will most likely frown at the resistance of a young girl from yielding to sexual intercourse.
From the foregoing, it may seem that men alone engage in sexual abuses against women and girls, it should however be borne in mind that boys are also victims of sexual abuses by both men and women, but these cases are not as rampant as that of the women.
Our law is not impotent, rather its implementation and enforcement are poorly executed.
Our law also makes it relatively impossible to prove a rape case. The requirement of proving beyond reasonable doubt is augmented by the heavy requirement of corroboration in sections 218, 221, 223 and 224 of the Criminal Code. The repealed Evidence Act in section 179(5) provided thus:’ A person shall not be convicted of the offence mentioned in sections 218, 221, 223 and 224 of the Code upon the uncorroborated testimony of one witness.
Corroboration has been defined in Adonike v State (2015) AELR 5629 (SC) to mean confirming or giving support to a person, statement or faith. The import is that for the court to convict on the sexual offences stated in the sections above, the evidence tendered by the prosecution must be supported by another or further evidence.
It is imperative to note that in Ogunbayo v. The State [2007] All FWLR (Pt. 365) 408, the Supreme Court per Niki Tobi JSC (of blessed memory) stated that:
“I am not comfortable with the case law that corroboration is necessary to secure conviction of the offence of rape. This is because I see no statute foisting on the prosecution, evidence of corroboration before convicting an accused. Section 350 of the Criminal Code Act, Cap. 77 Laws of the Federation of Nigeria, 1990, which is similar to the States Criminal Codes, does not provide that evidence of corroboration is necessary for conviction. And the Criminal Code specifically provides for offences where corroboration is necessary. Rape is not one of such.
The above apart, neither the Evidence Act nor the Criminal Procedure Act or Code provides for corroboration in the offence of rape. I therefore ask, where did we get that law?”
With this, it appears one does not need corroboration to prove a rape case. Maybe corroboration was made to discourage ambitious or hateful women from liquidating wealthy men through false and malicious claims.
Anchor: Nigerians are calling for stricter punishment for those who go against the supposed collective morality of Nigerians as regards rape, and sexual abuse. What should be the position of the law in striking a balance?
Aguocha Collins: This is hilarious. So long as child marriage and objectification of women remain legal in the some parts of Nigeria, any stricter punishment will be for just “some” people, and as such may not enjoy nor record nationwide implementation and execution.
Adultery and bigamy are silent forms of domestic violence. Adultery is a crime in the Northern part of the country section 387 to 390 of the Penal Code but is not a crime in the southern part of Nigeria where the Criminal Code applies. There can’t be a balance or understanding between two people with sharply distinct laws which guide them in the same country (Criminal Code for the South and Penal Code for the North). The Childs Rights Act has not been domesticated by some states yet.
Stricter punishment (death penalty) will be effective as a deterrent if many offenders were convicted. And offenders cannot be convicted when corroboration as a heavy requirement, clogs, delays, obstructs and hampers the process of justice. However, stricter punishment like death sentence is recommemded, coupled with publishing of the offender’s identity, may discourage and deter potential offenders.
Anchor: A people that have lost their morality are subsequently subjects of a failed system, the incidences of police brutality in our state are unfortunate, what must be done?
Aguocha Collins: Police brutality has been a celebrated error. But what must be done is re-orientation. Most police officers don’t know the deep intricacies and expectations of their work. They may not know or remember that there is something like the Police Act which is a primary legislation that regulates their acts. They don’t know the ethics of their profession. Some of them are even stark illiterates.
So they need constant orientation.
They need to be taught tolerance and observance of international best practices and procedures in effecting and carrying out their duties. But a police officer should be taught that his duty is to enforce the law and make arrest, not to pass judgment. Due disciplinary measures should be taken against any officer who goes beyond his legal boundaries.
Anchor: Von Savigny talking about the spirit of the people (Volksgeist) in the evolution of law stated that Law grows with the growth of the people, and strengthens with the strength of the people, and finally dies away as the nation loses its nationality. How do you perceive this narrative in the light of the Nigerian situation?
Aguocha Collins: Nigeria has made so many legislations in the country but our laws don’t grow with us. These long overdue laws and laws that can no longer serve its purpose, laws that are supposed to have been amended or repealed or laws, whose provisions need to be deleted, are rarely acted upon. Many provisions of the Penal Code need to be amended or deleted because they are discriminatory against women and should not be tolerated in a civilized world. There are lots of gender biased laws. There are so many provisions of the Child Rights Act which cannot be enforced because the personnel to do so don’t exist.
Most of the laws we have were just lifted word for word from foreign jurisdictions. Cumulatively, our laws do not grow with us, nor do we properly enforce them. I see our laws as songs of other countries been played in Nigeria.
Final Address
Men should not be oriented to see women as below standard and the gender discriminatory laws should be repealed. For instance, Section 127 of the Police Act prohibits married woman from seeking enlistment in the police force; Section 55 Penal Code permits a man to discipline his wife so long as it does not cause grievous bodily harm; Section 55 Labour Act abhors women from being employed to work at night, except for nurses. Provisions of this sort should be repealed because they appear discriminatory.
In the case of rape, sexual orientation and re-orientation should be embarked upon, stricter punishment should be imposed, and the requirement of corroboration be done away with. Through these ways, Nigeria will make a head way in checking and reducing the incidences of rape and sexual abuses in the country.
Aguocha Chinedu Collins is a radical final year law student of University of Nigeria, Nsukka. Beyond the legal pursuit, he was a freelance Columnist for ChoiceFlame Newspaper. He has particular interest in Online, Forensic and Technology laws.
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2 comments
Thank you for the observation and feedback. Indeed an organic informed law is better and more amenable to local circumstances
Good erudition. The article brought out the conundrums of our laws regarding rape and sexual violence. My reservation : one of the recommendation of the writer was that s.55 Labour Act should be repealed. But to me, if such section is repealed, the provision of the section will lose its flavour as far as Northern Nigeria is concerned. This is because, we shouldn't say that foreign law should be the yard stick of knowing that our laws are ARCHAIC rather our religions, cultures and our circumstances.