Is the Sexual Offences Bill Against ‘Indecent Exposure’ a Coming Law Against Prostitution?

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Austria police bust a Nigerian run prostitution ring. Above, a Nigerian lady in Italy

In the Sexual Offences Bill- herein after referred to as SOB- (I have refrained from identifying this Bill by any particular year considering the controversy surrounding its intended enactment as it relates to some of its provisions) which is still in the legislative process of the National Assembly of Nigeria, there is a provision in section 22 which provides thus ‘Any person who intentionally exposes his or her genital organs, or a substantial part thereof, with the intention of causing distress to the other party, or that another person seeing it may be tempted or induced to commit an offence under this Act, commits the offence termed indecent exposure and shall be liable upon conviction to imprisonment for a term of not less than five years or to a fine not exceeding twenty thousand Naira or both.’. It is the view shared by this paper that this provision and of course, the Bill, will have a greater positive effect against prostitution.

First and foremost, it must be emphasized that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the supreme law of Nigeria through which the various organs and levels of Government derive the source of their powers and any variation from the Constitution is very unlawful, null and void. On this position, Ngwuta JSC has this to say ‘I wish to emphasise that the Constitution of the Federation, 1999 as variously amended, is the yardstick for determining the validity vel non of any act or decision in relation to any law in the country. Any derogation from one section is not only extraneous to the Constitution but a violation of the solemn oath undertaken by all Judges to defend and protect it’. See: Oni v Fayemi (2013) 12 NWLR (part 1369) 431 SC.

Worthy of note is that the powers of the National Assembly to make laws is exclusive on matters on the Exclusive List in the Constitution. This is because, the matters of crimes are generally in the Residual Legislative List of the Constitution which only the State House of Assembly of the Federation has powers to legislate on. On the ambit of the legislative powers of the National Assembly and the House of Assembly of a State, the Supreme Court in the case of A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC. Held thus: ‘Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, divides legislative powers between the National Assembly for the Federation and the House of Assembly for the State in the exclusive and concurrent legislative list. The National Assembly has exclusive power to legislate for the Federal Republic or any part thereof in respect of matters in the exclusive list. The National Assembly also has power to legislate, though not exclusively, on matters in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution and on any other matter with respect to which it is empowered to make laws. The House of Assembly of a State has power to make laws for the State or any part thereof on any matter not included in the exclusive legislative list, on any matter in the concurrent legislative list and on any other matter for which it is empowered to make laws. The House of Assembly of a State also has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists’. (Underlining is mine for emphasis). A voyage of discovery on the Exclusive and the Concurrent Legislative Lists of the Constitution confirms that the matter of crime is not on those lists explicitly. The House of Assembly of a State also therefore has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists. Furthermore, Item 68 of the Second Schedule, Part I, of the Constitution, which is the Exclusive Legislative list, provides that the National Assembly has power on ‘Any matter incidental and supplementary to any matter mentioned elsewhere in this list’. The Part III of the Second Schedule of the Constitution provides for Supplemental and Interpretation and it provides that ‘In this Schedule, references to incidental and supplementary matters include, without prejudice to their generality, references to-(a) offences;… Also see: section 10(2) of the Interpretation Act, CAP.123, LFN, 2010, which provides that ‘ An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it’. In my humble view and submission, the National Assembly’s power to make certain acts as offences will only relate to those items in the exclusive legislative See: Oni v Fayemi (supra).

Also, exclusive jurisdiction has been conferred on the Federal High Court of Nigeria in respect of any of the offences relating to or incidental to items listed under the said section created under the section 251 (3) of the Constitution and section 3 of the Federal High Court Act, CAP F12, LFN, 2004. However, the jurisdiction in respect of any incidental offence in respect of items in the concurrent legislative list of the Constitution would then be conferred on the Federal High Court (considering the provisions of section 252(2) of the Constitution which provides thus (2) Notwithstanding subsection (1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court more effectively to exercise its jurisdiction.’. Also see the case of: A.G. Ondo State v A.G. Federation and 36 others (2002) 9 NWLR (pt . 772) 222, (2002) 6 S.C. (Pt. 1) 1.) and a High Court of a State (inclusive of those inferior courts established pursuant to the State’s Law(s)) subject to the respective Federal Legislation and the State Legislations on the said items on the concurrent legislative list (i.e. the State shall not legislate on any concurrent item, the subject matter of a Federal Legislation by virtue of section 4(5) of the Constitution which provides thus ‘(5) If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.’, which is the doctrine of covering the field.). Nevertheless, and for the sake of emphasis, I humbly submit that the jurisdiction conferred on the Federal High Court and the powers of the National Assembly to make laws in criminalizing an act are subject to the provisions of the Constitution in section 4, which provides thus ‘4.—(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives. (2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution. (3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States. (4) In addition and without prejudice to the powers conferred by subsection (2) of this Section, the National Assembly shall have power to make laws with respect to the following matters, that is to say— (a) any matter in the Concurrent Legislative List set out in the first Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the Second Column opposite thereto ; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution’. Therefore, the issue of covering the field of the Federal Powers upon the States’ Power as provided in section 4(5) of the Constitution does not arise. Therefore, any matter in the residual list confers exclusive powers on the House of Assembly of the States of the Federation to legislate on. See: section: 4 (7) (a) of the Constitution which among other powers, provides thus ‘(7) The House of Assembly of a State shall have power to make Laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say— (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;…’. Also see: A.G. Federation v A.G. Lagos State (supra). Furthermore, it is therefore my submission that the position and status of the Federal Capital Territory –herein after referred to as FCT- is that the Residual Legislative List or power is applicable and exercisable by the National Assembly as if it were to be a State of the Federation. And it is generally submitted that the status of the FCT in relation to the Concurrent Legislative List is that the National Assembly makes laws for FCT on the matters on the Concurrent Legislative List and those matters on the Residual Legislative List as if it were to be a State of the Federation. So, such legislations even though it is an Act of the National Assembly, does not have a general application as though, it were a Federal Legislation. The purport of this submission is that the SOB when passed into law, remains a binding law within the Federal Capital Territory- Abuja, alone, as a State law unless adopted by any other State of the Federation’s House of Assembly as a Law of that particular State.

A clear observation of this section 22 of the SOB shows that some ladies or women (married and or unmarried) will very soon become suspects upon the passage of the Bill into law by their indecent exposure and shall be liable upon conviction to imprisonment for a term of not less than five years or to a fine not exceeding twenty thousand Naira or both. Though, in my humble view, with due respect, this provision is truly a proper provision considering the rate of cases of indecent sexual assault and rape (including gang-rape) in Nigeria.

Finally, it is my belief that this Bill will be passed into law in no time and that prostitution with its societal negative consequences will be reduced in Nigeria.
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e-mail: hameed_ajibola@yahoo.com 

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