‘BE THE VOICE OF THE VOICELESS VIOLATED PERSON’ – A PAPER PRESENTED BY TITILOLA AKINLAWON (SAN)

‘BE THE VOICE OF THE VOICELESS VIOLATED PERSON’
BEING A PAPER PRESENTED BY TITILOLA AKINLAWON SAN AT THE JDPC’S JOINT CELEBRATION OF THE 2015 INTERNATIONAL DAY FOR ELIMINATION OF VIOLENCE AGAINST WOMEN AND THE INTERNATIONAL HUMAN RIGHTS’ DAY.

INTRODUCTION

Violation against a person can take different forms.  Violent crimes and sexual offences cover a range of offence types. Violence can cover minor assaults, such as pushing and shoving that result in no real physical harm, through to serious assault and murder. Sexual assault can cover offences from indecent exposure to rape.

Through several laws and policies, the Government has tried to address and protect rights of person. Some of these laws are:

1.     The Constitution of the Federal Republic of Nigeria 1999 (as amended)

2.     Violence Against Persons Prohibition Act 2015: This new law prohibits female circumcision or genital mutilation, forceful ejection from home and harmful widowhood practices. It prohibits abandonment of spouse, children and other dependents without sustenance, battery and harmful traditional practices. It is said to provide maximum protection and effective remedies for victims of violence, and punishment of offenders.

3.     Child’s Right Act:

4.     Domestic  Violence Law of Lagos State 2007: Allows affected complainants to file an application before the Magistrate or High Court. The Court can grant a protection order and even grant monetary judgment.

5.     Some Sections of the Criminal Code and Penal Code

6.     Law Against Domestic Violence of Cross Rivers State: Prohibits domestic violence against women and maltreatment of widows.

7.     Domestic Violence and Other Related Matters Law of Jigawa State, 2006

8.     Protection Against Domestic Violence Law of Ebonyi State

We take some of these laws in detail:

The Constitution of the Federal Republic of Nigeria 1999 (as amended)

Chapter IV of the The Constitution of the Federal Republic of Nigeria 1999 (as amended) provides for Fundamental Human Rights.

Fundamental human rights are rights which by their very nature have become fundamental to existence. They are not just mere rights. The Supreme Court in Saude V Abudullah (1989) 4 NWLR Pt. 116 page 387@419 stated that:   “fundamental rights are important and they are not just mere rights. They are fundamental. They belong to the citizen. These rights have always existed even before orderliness prescribed rules for the manner they are to be sought.”[1]

These rights include[2];
1. Right to life – Section 33 (1999 constitution) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of a criminal offence of which he has been found guilty in Nigeria.
2. Right to dignity of human person – Section 34 (1999 Constitution) Every individual is entitled to respect for the dignity of person and accordingly no person shall be subject to torture or to inhuman or degrading treatment.
3. Right to personal liberty – Section 35 (1999 constitution) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty.
4. Right to fair hearing  – Section 36 (1999 constitution) In the determination of a person’s civil rights and obligations, every person shall be entitled to fair hearing.
5. Right to private and family life – Section 37 (1999 constitution) The privacy of citizens, their homes, correspondences and telephone conversations are guaranteed and protected.
6. Right to freedom of thought, conscience and religion – Section 38(1999 constitution) Every person shall be entitle to freedom of thought, conscience and religion, including freedom to change his religion or belief.
7. Right to freedom of expression and the press- Section 39 (1999 constitution) Every person shall be entitled to freedom of expression, including freedom to hold opinions.
8.Right to peaceful assembly and association – Section 40 (1999 constitution) Every person shall be entitled to assemble freely and associate with other persons or political party.
9. Right to freedom of movement – Section 41 (1999 constitution) Every citizen in Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof.
10. Right to freedom from discrimination – Section 42 (1999 constitution) No Nigerian shall be discriminated against on the basis of his community, ethnic group, sex, place of origin and political opinion or even by the incidence of his birth.
11. Right to acquire and own immovable property anywhere in Nigeria – Section 43 (1999 constitution) Every Citizen shall have right to own immovable property anywhere in nigeria.
12. Right against compulsory acquisition of property – section 44 (1999 constitution)

These rights are the exclusive preserve of every Nigerian Citizen and can only be derogated from as provided in the Constitution itself. The effect of this is that the rights are not absolute and allow for exceptions. An example is Section 34(1)(c)  which provides that ‘no person shall be required to perform forced of compulsory labour.’. Subsection 2 of that Section provides that:

(2) for the purposes of subsection (1) (c) of this section, “forced or compulsory labour” does not include –

(a) any labour required in consequence of the sentence or order of a court;

(b) any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such;

(c) in the case of persons who have conscientious objections to service in the armed forces of the Federation, any labour required instead of such service;

(d) any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life or well-being of the community; or

This shows that the Constitution itself puts some limit to the rights in appropriate instances.

Beyond this however, the rights of every Nigerian are clearly stated in this Chapter and can be enforced in the case of violation.

ENFORCEMENT OF RIGHTS UNDER THE 1999 CONSTITUTION.

Section 46 of the Constitution provides that:

46.(1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcement or securing the enforcing within that State of any right to which the person who makes the application may be entitled under this Chapter.

It is important to note that the wording of this section is ‘has been, is being or likely to be contravened…’. This means where a person has an inkling that is right would be infringed upon, he can rush to Court.

The current procedural rule for the commencement of an action for the enforcement of Fundamental Human Rights is the Fundamental Rights (Enforcement Procedure) Rules 2009 made pursuant to Section 46(3) of the 1999Constitution of the Federal Republic of Nigeria by the Chief Justice of the Federation.

By Paragraph 3(e) of the preamble to the rule, the Courts are obliged to encourage and welcome public interest litigation in the Human Rights field and no Human Rights case may be dismissed or struck out for want of locus standi.

This means we can help the cause of violated persons by instituting actions on their behalf when they cannot help themselves.

DOMESTIC VIOLENCE AND VIOLENCE AGAINST PERSONS GENERALLY.

One of the most common form of violation of rights in Nigeria, is domestic violence. Domestic violence (also domestic abuse, spousal abuse, intimate partner violence, battering or family violence) is defined as  a pattern of behavior which involves violence or other abuse by one person against another in a domestic setting, such as in marriage or cohabitation.

Domestic Violence can also involve violence against children in the family. It can take a number of forms including physical, verbal, emotional, economic and sexual abuse, which can range from subtle, coercive forms to marital rape and to violent physical abuse such as female genital mutilationand acid throwing that results in disfigurement or death.

Apart from the Constitution there are some laws that seek to protect persons from these kinds of violence acts. We examine some below:

Protection Against Domestic Violence Law No. 15 2007 Laws of Lagos State

In this Law Domestic Violence is defined in Sec 18(i) (g) as follows:

            “Domestic Violence means acts listed below against any person –

i.                    physical abuse;

ii.                 sexual abuse exploitation including but not limited to rape incest and sexual assault

iii.               starvation

iv.               emotional, verbal and psychological abuse

v.                 economic abuse and exploitation

vi.               denial of basic education

vii.            intimidation

viii.          harassment

ix.               stalking

x.                  hazardous attack including acid both with offensive or poisonous substance

xi.               damage to property

xii.             entry into the complainants residence without consent where the parties do not share the same residence; or

xiii.          any other controlling or abusive behaviour towards a complainant where such conduct harms or may cause imminent harm to the safety health or well-being of the complainant

xiv.          deprivation

it is important to examine further some of the definition of these terms so as to appreciate the effect of the law.

h.        Economic abuse includes:

i.                    the unreasonable deprivation of economic or financial resources to which a complainant is entitled under the law or which the complainant requires out of necessity, including household necessities for the complainant and mortgage bond repayments or payment of rent in respect of the shared residence; or

ii.                 the unreasonably disposal or seizure of household effects or other property in which the complainant has an interest including any equitable or legal interest.

j.          Emotional, verbal and psychological abuse means a pattern of degrading or humiliating conduct towards a complainant, including:

i.                    repeated insults, ridicule or name calling as to cause emotional pain

ii.                 repeated threats to cause emotional pain

iii.               the repeated exhibition of obsessive possessiveness or jealously which constitute a serious invitation of the Complainants privacy, liberty, integrity or security.

k.         Exploitation connotes taking undue and vantage of the complainant

l.          Harassment means engaging in a pattern of conduct that induce the fear of harm to a complainant including:

i.                    repeated watching or loitering outside of or near the building or place where the complainant resides, works carries on business, studies and place of recreation after studies

ii.                 repeatedly making telephone calls or inducing another person to make telephone calls to the complainant , whether or not conversation ensues;

iii.               Repeatedly sending, delivering or causing the delivery of letters, telegrams packages, facsimiles, electronic mail or other objects to the Complainant.

m.       Intimidation means uttering or conveying a threat or causing a Complainant to receive a threat, which induces fear, anxiety.

 p.       Physical abuse means any act or threatened act of physical violence towards the person of the Complainant.

z.         Violence includes denial of right.

Section 1 of this law says: ‘As from commencement of this law, no person shall commit any act of domestic violence against any person. This strictly prohibits all the acts listed under the definition of Domestic Violence.

REMEDY FOR BREACH UNDER THE PROTECTION AGAINST DOMESTIC VIOLENCE LAW OF LAGOS STATE 2007.

Under this law, anyone whose rights have been violated (called the complainant) may bring an application to the Court for a protection order (Section 2 (1)).

The complainant need not bring the application personally as the Law gives right to other persons such as a counselor, health service provider, member of the Nigerian Police Force, Social Worker, Organisation or Teacher, who has an interest in the well being of the Complainant.

The Court, under this law has powers to issue an interim order of protection where the Respondent has not been served.

 Upon the service of the Respondent, where he does not respond, Judgment can be granted against him and the Protection Order granted. Where he opposes, the Judge will listen to the case on the merit and decide one way or the other.

The Protection Order will contain various prohibition, conditions and obligation against the Respondent. (Section 7)

The offences provided under this law are contained under Section 15 of the Act. Anyone who contravenes any prohibition, condtions and obligation contained in the Protective Order is guilty of an offence and liable upon conviction to a fine of N100, 000.00 or imprisonment of not more than 5 years or both.

Section 16 also forbids any Police Officer from refusing to institute a prosecution or withdrawing an ongoing one without the authorization of the Attorney General of the State.

VIOLENCE AGAINST PERSONS (PROHIBTION) ACT 2015.

Similar to the Lagos Law is the Violence Against Persons (Prohibtion) Act 2015. This is however a federal law. This means for now it only applies in the Federal Capital Territory. Until it is domesticated by other States of Nigeria, it will remain in force only in Abuja.

The Act creates offences such as rape which carries life imprisonment under the Act (Section 1(2)), forcefully ejecting a spouse from his or her home, abandonement of spouse, children or any other dependant without any means of sustenance; stalking, spousal battery and harmful traditional practices. It also prohibits Female Genital Mutilation punishing it with imprisonment of not more than 4 years or a fine of not more than N200, 000.00.

The application for a protective order under this Act is similar to that under the Lagos Law.

There have been several calls for more States to domesticate this law.

THE CHILD’S RIGHT ACT (OR LAWS OF VARIOUS STATES)

Nigeria has signed both the United Nations General Assembly Convention on the Rights of the Child (CRC) and OAU Assembly of Heads of States and Governments and the African Charter on the Rights and Welfare of the Child (ACRWC) and ratified them in 1991 and 2000 respectively. Following these commitments, the Nigeria Federal government passed a comprehensive Child‘s Right Act 2003 into law. The Act incorporates all the right and responsibilities of children and consolidates all laws relating to children into a single law.

As at 2011, the Child Rights Act 2003 has been promulgated into Law (passed by the State Houses of Assembly and assented to by the State Governors) in 24 states: Abia, Akwa-Ibom, Anambra, Benue, Cross River, Delta, Ebonyi, Edo, Ekiti, Imo, Jigawa, Kwara, Lagos, Nassarawa, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Niger, Bayelsa, Kogi and Taraba.[3]

The Child’s Rights Act 2003 defines a child as a person who has not attained the age of 18. That means that any person from zero-year old to 17 years old is a child while a person 18 years and above is an adult.[4]

The Child’s Rights Act, first and foremost, has adopted all the fundamental human rights set out in the 1999 Constitution of the Federal Republic of Nigeria (as amended) and subsequent constitutional amendments thereto as rights also guaranteed the children. This means, therefore, that the Act protects the fundamental human rights of the children. In addition, the Act also has specific rights specially provided and protected for the children. These rights include:

• Right to a name

• Right to survival and protection

• Right to dignity

• Right to  parental care, protection and maintenance

• Right to free, compulsory and universal primary education

• Right to freedom from discrimination

• Right to private and family

• Right to leisure, recreation and cultural activities

• Right to health and health services

• Right of a child in need to special care and protection.

• Right of the unborn child to protection against harmful social and cultural practices

• Right not be imprisoned with the mother.

• Right to have his best interest considered paramount in any matter involving him.

• Right to protection against abuse and torture.

Denial of the Right to free, compulsory and universal primary education is an offence under the Act, even though with mild punishments.

Section 15 (6) provides that:

‘ Where a parent, guardian or person who has care and custody of a child, fails in the duty imposed on him under Subsection (2) of this section, he commits an offence and is liable— (a) on first conviction to be reprimanded and ordered to undertake community service ; (b) on second conviction to a fine of two thousand Naira or imprisonment for a term not exceeding one month or to both such fine and imprisonment; and (c) on any subsequent conviction to a fine not exceeding five thousand Naira or imprisonment for a term not exceeding two months or to both such fine and imprisonment.’

Some novel provisions of the Act includes the rights of an unborn child. Section 17 provides that:

17.—(1) A child may bring an action for damages against a person for harm or injury caused to the child willfully, recklessly, negligently or through neglect before, during or after the birth of that child. (2) Where the father of an unborn child dies intestate, the unborn child is entitled, if he was conceived during the lifetime of his father, to be considered in the distribution of the estate of the deceased father. (3) Where the mother of an unborn child dies intestate before the child is delivered, the unborn child is entitle, if he survives his mother, to be considered in the distribution of the estate of the deceased mother.

The Act seem to confer most of the responsibilities of enforcing the rights of the Child on the State Government and on ‘appropriate authority’. “Appropriate authority” is defined as the State Government or voluntary organization responsible for the management of a community home.

It will be suggested that this definition should be broadened to include persons who are closest to the Child and who can raise an alarm when the Child’s rights are been infringed upon.

CONCLUSION

It will seem like there are many laws yet unexplored that protect and guarantee the rights of individuals in Nigeria from violence against their persons. Laws, if untested, are of no good to the citizenry. It is high time the general populace will put the machinery of the law in motion to stop human right abuses and violence against persons.

The days of sitting at home and lamenting on domestic violence and other kinds of inhuman acts are over. It will be advantageous to initiate actions in Court for the enforcement of these rights.

[1] Adedunmade Onibokun Esq. Our Fundamental Human Rights (http://legalnaija.blogspot.com.ng/2012/09/your-fundamental-human-rights.[2] Ibid[3] UNICEF NIGERIA – FACT SHEET Child rights legislation in Nigeria Updated April 2011 http://www.unicef.org/nigeria/Child_rights_legislation_in_Nigeria.pdf[4] It is contended that some States have lowered this age in their own laws. Ozioma Onyenweaku – The Child Rights Act 2003: The rights, the benefits. http://dailyindependentnig.com/2013/10/24/the-child-rights-act-2003-the-rights-the-benefits/

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