Nigeria’s Criminal Code Act challenged

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The Incorporated Trustees of Women Empowerment and Legal Aid Initiative (WELA) has dragged the Federal Government to court over the discriminatory effects on women of certain provisions of the Criminal Code and Penal Code.

WELAWELA is challenging the constitutionality of some sections of the Criminal Code Act and Penal Code Act vis-?-vis the provisions of sections 34 and 42 of the Constitution of the Federal Republic of Nigeria 1999 as amended and Articles 2,3 & 5 of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act Cap. A9 Law of the Federation of Nigeria, 2004.

In the suit No: FHC/L/CS/1606/2014 filed before the Federal High Court Ikoyi by Mrs. Funmi Falana, Solicitor to WELA, the plaintiff contends that ?the Criminal Code Act Cap C38 and Penal Code Act Cap P3 were enacted to guide the investigation and prosecution of criminal offences in the South and the North respectively. However, Sections 221, 353 and 360 of the said Criminal Code and Section 55 of the Penal Code Act discriminate against women.?

WELA expressed concerns that, ?Section 221 of the Code provides that a person who rapes a girl above 13 years and under 16years of age cannot be convicted of rape ?upon the uncorroborated evidence of one witness?. By virtue of a judge made rule applicable in Nigeria; a person cannot be convicted of rape without the corroboration of the evidence of the victim.?

The plaintiff also stated that, ?Under sections 353 and 360 of the Code the penalty for assaulting male and female persons is 3 and 2years imprisonment respectively. Also, under section 55 of the Penal Code Act, a husband is allowed to chastise his wife like a child. Sexual offences are never committed in public places hence, the corroboration by at least one witness makes it totally impossible for girls and women who have been assaulted sexually to get justice.?

According to WELA, ?Cases of rape of girls and women are on the increase partly due to the requirement of corroboration in proving the offence of rape. Most of the cases of sexual assault in which the Applicant has held watching brief for victims, prosecutors have found it difficult to secure convictions of sex offenders.?

WELA also argued that, ?The fundamental right of every person against discrimination is guaranteed under section 42 of the 1999 Constitution of the Federal Republic of Nigeria as amended and Articles 2 and 3 of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act Cap. A9 Laws of the Federation of Nigeria, 2004.?

According to WELA, ?It is the duty and responsibility of the Respondent to protect every citizen of Nigeria including girls under sixteen and above thirteen years as well as women from any form of discrimination. Section 221 of the Criminal Code Act which requires corroboration of the evidence of the victim of rape of girls is discriminatory and illegal as corroboration is not required in male related offences. The requirement of corroboration before conviction is unfair to women and no longer a good law.?

?Section 360 of the Criminal Code Act which regards assault on a woman as a misdemeanor and punishable with two years imprisonment is discriminatory and illegal as Section 353 of the same Act regards assault on a man as a felony and punishable with three years imprisonment. Section 55 of the Penal Code Act provides legal support to violence and corporal punishment unleash on married woman by her husband. Section 55 of the Penal Code Act discriminates against women since they do not confer on them the same legal right of chastising their husbands,? WELA further argued.

WELA also argued that ?The courts have rejected some customary laws and practices that regard women as sub-humans. These customs and practices have been tested under the relevant provisions of the Constitution and have been found to be discriminatory against women. Courts in many African countries have found it expedient to rely on international instruments in upholding the rights of women.?

The plaintiff is seeking the following reliefs:

A DECLARATION that Section 221 of the Criminal Code Act Cap. C38 Laws of the Federation of Nigeria 2004 which requires corroboration of testimony of witnesses in cases of sexual assault of girls is illegal, and unconstitutional as it contravenes the provisions of section 42 of the 1999 Constitution of the Republic of Nigeria and Articles 2 & 3 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP. A9 Laws of the Federation of Nigeria, 2004.

B.??????? A DECLARATION that the Judge made rule which requires corroboration in rape cases is illegal and unconstitutional as it violates Section 42 of the Constitution.

C.??????? A DECLARATION that Sections 353 and 360 of the Criminal Code Act Cap. C38 Laws of the Federation of Nigeria 2004 is illegal and unconstitutional as they violate section 42 of the 1999 Constitution of the Federal Republic of Nigeria, 1999 as amended and Articles 2 and 3 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act CAP. A9 Laws of the Federation of Nigeria, 2004.

D.??????? A DECLARATION that Section 55(d) of the Penal Code Act Cap C45 is illegal, unconstitutional as it violates sections 34 and 42 of the 1999 Constitution of the Federal Republic of Nigeria, 1999 as amended and Articles 2, 3 and 5 of the African Charter of Human and Peoples Rights (RATIFICATION AND ENFORCEMENTS) ACT CAP. A9 Laws of the Federation of Nigeria, 2004.

E.??????? AN ORDER of the Honourable Court annulling Section 221 of the Criminal Code Act and Section 55 of the Penal Code Act forthwith.

F.???????? AN ORDER of the Honourable Court directing the redrafting of Sections 353 and 360 of the Criminal Code Act in a manner that is gender neutral.

No date has been fixed for the hearing of the suit.

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