The Nigerian Senate has passed a Bill for an Act to amend the Criminal Code Act 2004. The passage of the bill followed consideration of the report of the Senate Committee on Judiciary, Human Rights and Legal Matters. It also acknowledged that the male gender can also be victims. The passage of the Bill prescribes life sentence for persons found guilty of kidnapping as against the provisions of section 364 of the Act, which proffer the punishment of imprisonment for a term of ten (10) years, where the offence of kidnapping is established”.
Rape and sexual offences The legislation, if assented into law by President Muhammadu Buhari, will broaden the definition of rape and sexual offences. Amendment to Section 357 of the principal Act, specifically substitutes the words ‘woman or girl, without her consent, or with her consent’, with the words, ‘any person, without consent, or with consent. The bill also seeks ‘to protect mentally challenged persons from sexual defilement and rape through an amendment to section 221 of the principal Act.
An attempt by Senator Uche Ekwunife to effect an amendment to section 357 to define persons susceptible to rape to accommodate ‘married and unmarried persons’ was rejected by lawmakers during the clause-by-clause consideration of the bill. The Senate, while retaining the provision of Section 364 of the principal Act, however expunged the gender-specific term ‘him’ and substituted same with “such person” in defining the punishment for the offence of kidnapping.
The Chairman of the Committee, Senator Opeyemi Bamidele in his lead debate on the bill, said it “will address the lingering issues of status of limitation in the prosecution of rape/defilement cases and the incessant kidnapping menace, which are on the rise, in recent times.” Senator Bamidele stated that contrary to views by those opposing the passage of the bill by the National Assembly, on the ground that its passage would usurp the powers of the states to legislate on the subject matter, the bill seeks to amend the Criminal Code Act of 1916 and not Criminal Code of the States.
KIDNAPPERS …. Senate recommends life imprisonment for CRIMINALS. Section 218 of the Criminal Code Act (amended) removing the statute of limitations implies that the defilement cases can remain open for as long as possible against the earlier limitation of two months. The Criminal Code Act Cap. C38 Laws of the Federation of Nigeria, 2004 (Amendment) Bill, 2019 (SB.02) was sponsored by Senator Oluremi Tinubu
Addressing his colleagues, Senator Bamidele explained that criminal law and criminal justice system is not only for punishment but also for deterrence, retribution, restoration and rehabilitation of offenders. “And where the law fails to achieve any of these objectives, it becomes inherently defective, hence the need for the amendment/review of such law(s) to bring them into conformity with best practices. “This amendment is a response to these anomalies and is also within the legislative powers of the National Assembly, to make laws that are responsive to the yearnings and aspirations of the people and to also amend obsolete laws that will enhance effective justice system and ensure good governance.
“Therefore, the amendment to the Criminal Code Act that is being proposed, is a welcome development to our criminal justice system. He added that “There is no gainsaying the fact anyone who has carnal knowledge of a girl under the age of thirteen (13) or a girl being of or above the age of thirteen (13) and under the age of sixteen (16) or attempts to commit same offences, may not be punished, as the prosecution of such offence is barred after the expiration of two (2) months from the commission of the offence by virtue of the statute of limitation. Finally, they submitted that the frequency of kidnapping across the Federation and the resultant trauma, not to mention the number of lives lost to the crime, makes it imperative to review our laws with a view to ensuring appropriate punishment for perpetrators as well as serve as deterrence to would-be perpetrators.
REPORT OF THE SENATE COMMITTEE ON JUDICIARY, HUMAN RIGHTS AND LEGAL MATTERS ON A BILL FOR AN ACT TO AMEND THE CRIMINAL CODE ACT CAP. C.38 LAWS OF THE FEDERATION OF NIGERIA, 2004 TO DELETE THE STATUTE OF LIMITATION ON DEFILEMENT, INCREASE PUNISHMENT FOR THE OFFENCE OF KIDNAPPING, REMOVE GENDER RESTRICTIONS IN THE OFFENCE OF RAPE; AND FOR RELATED MATTERS.
1.0 BACKGROUND
The Criminal Code Act Cap. C38 Laws of the Federation of Nigeria, 2004 (Amendment) Bill, 2019 (SB.02) was sponsored by Distinguished Senator Oluremi Tinubu (Lagos Central Senatorial District). The Bill was read for the First Time on Tuesday, 24th September 2019. On Tuesday, 26th November 2019, the Senate deliberated on the general principles of the Bill. After extensive debates, it was read the Second Time and referred to the Senate Committee on Judiciary, Human Rights and Legal Matters, for further legislative action, (vide Order of Referral dated Tuesday 26th November, 2019), to report back with its recommendations.
2.0 METHOD OF WORK
After the referral, the Committee held a series of meetings and agreed on the following legislative framework:
(a) to consult widely and seek views of stakeholders on the justifications for the passage of the Bill; and
(b) to resort to any other matter incidental thereto, which would assist the Committee in the discharge of its assignment.
3.0 OBJECTIVES OF THE BILL
Mr President, Distinguished colleagues, the objectives of the Bill, among others, are: to delete the statute of limitation on defilement in Sections 218 and 221 of the Criminal Code Act Cap. C.38 LFN, 2004 and amend the definition of rape in Section 357, and provide stringent punishment for the offence of kidnapping in section 364 of the Criminal Code Act.
4.0 LEGISLATIVE ACTION
In furtherance of this assignment, the Committee relied on the legislative framework, earlier agreed upon as the way forward. Accordingly, in addition to the wide consultations that were made with relevant stakeholders in order to elicit their inputs on the proposed legislation, the Committee also considered divergent views expressed by Distinguished Senators on the merits of the Bill during the Second Reading stage.
Mr President, Distinguished Colleagues, I wish to state here for the avoidance of doubt that, from views expressed on the Bill, there were opposing arguments on the passage of the Bill by the National Assembly. It will interest Distinguished Senators to note that the Committee subjected all the views canvassed for and against the passage of the Bill, taking into account, extant Laws on the subject matter. Below, are the highlights of the views expressed by stakeholders on the proposed legislation.
4.1 Highlights of Views
Mr President, Distinguished colleagues, let me commend once again, the Sponsor of the Bill for this laudable piece of legislative proposal. It is apposite to state that an effective criminal justice system, is fundamental to the maintenance of law and order and since criminal justice addresses behavioural issues, it must be dynamic and proactive.
The aim of criminal law and the criminal justice system is not only for punishment but also for deterrence, retribution, restoration and rehabilitation of offenders. And where the law fails to achieve any of these objectives, it becomes inherently defective, hence the need for the amendment/review of such law(s) to bring them into conformity with best practices. This amendment is a response to these anomalies and is also within the legislative powers of the National Assembly, to make laws that are responsive to the yearnings and aspirations of the people and to also amend obsolete laws that will enhance effective justice system and ensure good governance. Therefore, the amendment to the Criminal Code Act that is being proposed, is a welcome development to our criminal justice system.
Firstly, it should be noted that the proposition to delete statute of limitation on the prosecution of offences under section 218 and 221 of the Criminal Code Act, is a welcome development as the statute of limitation, placed on defilement and rape, negates the principles of natural law, equity and good conscience. There is no gainsaying the fact anyone who has carnal knowledge of a girl under the age of thirteen (13) or a girl being of or above the age of thirteen (13) and under the age of sixteen (16) or attempts to commit same offences, may not be punished, as prosecution of such offence is barred after the expiration of two (2) months from the commission of the offence by virtue of statute of limitation.
Secondly, the stakeholders contended that the use of the words “idiot or imbecile” in Section 221 of the Act, has pejorative connotations, which have become derogatory and obsolete. As such, their usage should no longer exist in our laws, hence the need for this amendment. This is also a welcome development and a modern trend in legislative drafting and best practice world over.
Furthermore, section 357 of the Criminal Code Act, defines rape as an offence against women. However, in recent times, there are incidences of non-consensual sex, perpetrated against the male gender. Therefore, the passage of this Bill will ensure that our laws and jurisprudence evolve in tandem with the rest of the world.
Finally, they submitted that the frequency of kidnapping across the Federation and the resultant trauma, not to mention the number of lives lost to the crime, makes it imperative to review our laws with a view to ensuring appropriate punishment for perpetrators as well as serve as deterrence to would-be perpetrators. Thus, the passage of this Bill would proffer a life sentence for persons found guilty of kidnapping as against the provisions of section 364 of the Act, which proffer the punishment of imprisonment for a term of ten (10) years, where the offence of kidnapping is established.
Mr President, Distinguished colleagues, at this juncture, we wish to state that a cross-section of stakeholders opposed the passage of the Bill, based on the substantive and procedural laws on the subject matter, hence, they submitted as follows:
Firstly, they stated that the statute of limitation, regarding the prosecution of the offence of defilement that must commence within two (2) months from the date the offence was committed, which is the absurdity that this Bill seeks to address, has been cured by virtue of section 45 (1) and (2) of the Violence Against Persons (Prohibition) Act, 2015, as such, the amendment should be discountenanced. For the avoidance of doubt, the section provides as follows:
“(1) Any offence committed or proceedings instituted before the commencement of this Act under the provisions of the –
(a) Criminal Code, Cap. LFN, 2004
(b) Penal Code, LFN, 2004
(c) Criminal Procedure Code, Cap. LFN, 2004
(d) Any other law or regulation relating to any act of violence defined by this Act shall as the case may require to be enforced or continue to be enforced by the provisions of this Act.
(2) Any provision of the Act shall supersede any other provision on similar offences in the Criminal Code, Penal Code and Criminal Procedure Code”.
Secondly, it was contended that since the Violence Against Persons Act, 2015, has addressed the gender neutrality issue on rape or defilement, as there is no longer distinction regarding the classification of all acts of sexual penetration of persons, such as rape or defilement in this Act, it is needless to amend the Criminal Code Act in that regard. Thus, section 1 (1) (a) of the Act, states as follows:
“1. (1) A person commits the offence of rape if –
(a) he or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else”
From the standpoint of this provision, they argued that it is clear, gender neutrality introduced in the definition of rape in this Bill, has already been addressed, as such, the Criminal Code Act should not be amended. Thirdly, they argued that the passage of the Administration of Criminal Justice Act, 2015, has, in no small measure, helped in the administration of justice generally in the Federal Capital Territory and Federal Courts, across the country, which is the uniform procedural law that applies in these Courts.
Therefore, stakeholders unanimously emphasized the urgent need to comprehensively and holistically review all obsolete existing criminal laws, including the Criminal Code Act and the Penal Code Act to pave way for uniformity and suitability in our country instead of embarking on a piecemeal amendment, as is being sought by this Bill; and
Finally, it was posited that in as much as the National Assembly has the power to make laws for the peace, order and good government of the Federation, it does not have the constitutional competence to legislate on crimes that do not fall within the contemplation of the Exclusive Legislative List. Hence, the National Assembly cannot amend the Criminal Code and Penal Code for the States.
5.0 OBSERVATIONS/FINDINGS
Flowing from the analysis of submissions made by the stakeholders on the Bill and based on our subsequent consideration of the Bill in our mark–up session, the Committee hereby makes the following observations and findings:
- That the introduction of the Bill is laudable and commendable as its passage into law, will address the lingering issues of status of limitation in the prosecution of rape/defilement cases and the incessant kidnapping menace, which are on the rise, in recent times;
- That even though the statute of limitation has been deliberately omitted from the VAPP Act, 2015, which is the prevailing law on the subject matter, intended to give room for the prosecution of offences of this nature, it is not of general application. As such, this proposed amendment is a welcome development;
- That by virtue of Section 315 of the Constitution of the Federal Republic of Nigeria 1999, as amended, dealing with savings and transitional provision, the National Assembly has the legislative competence to amend the Criminal Code Act as an Act of the National Assembly by its virtue of being in existing law;
- That the National Assembly can amend the Criminal Code Act in line with the aforesaid provision, which gives it power to take over all existing laws, made prior to its existence, and subject such laws to necessary modifications in order to bring them into conformity with the Constitution;
- That contrary to views canvassed by those opposing the passage of the Bill by the National Assembly, on the ground that its passage will usurp the powers of the States to legislate on the subject matter, it should be stated for the avoidance of doubt, that the proposed Bill seeks to amend the Criminal Code Act of 1916 and not Criminal Code Law of the States; and
- That the Bill, when enacted, will be applied by the Federal High Court, in the southern part of the country, where the Criminal Code Act, is applicable and operational.
6.0 RECOMMENDATION
The Senate Committee on Judiciary, Human Rights and Legal Matters, to which this Bill, was referred, having considered same, recommends as follows:
“That the Senate does pass the Criminal Code Act Cap. C38, Laws of the Federation of Nigeria, 2004 (Amendment) Bill, 2020”.
WE SO MOVE.
7.0 CONCLUSION
On behalf of members of the Committee, I wish to express our gratitude for this opportunity to serve you, our colleagues and our nation, Nigeria.
