By: Olokooba AbdulWasiu
Truth. When law and morality contradict each other, the citizenry has the the cruel alternative of either losing moral sense or respect for the law. In a bid to corroborate this proposition, the social contract theory regards the ultimate essence of law to be an instrument for turning a state of nature, where lives are brutish, harsh and short into a state of utopianism – where things are fair and just.
So, I have come to realize via my books that nothing should be called law unless it acts in conformity to the gravity of the title given to it, and of course – the last hope of common man. In every situations and circumstances, what law should be striving for is to give every man his due – justice.
In Section 218 of the Criminal Code Act 2004. Defilement as an offence is defined in a laconic but comprehensive way as a situation of having unlawful sexual intercourse with a girl under the age of 13years ; with or without the consent of the victim. It is even expressly stated in the section that its guilt is liable for a felony, a capital offence which ought – by nature of its gravity,to be non ordinarily bailable. With or without canning ; defilement attracts a punishment of 14years in incarceration.
Though Rape and Defilement are of similitude – birds of a feather. But they are heterologous because their victims differ. While rape is the sexual involvement of a 14years old girl or above — pinpoint on the ground of coarsion, defilement is for 13years old girl or below . Nevertheless, both are undoubtedly a capital offence.
Still on these two offences, and of course, a matter of law and practice. It is not ideal for a court of law to grant the accused bail without giving recourse to worthy considerable reasons. In fact, the reasons for granting bail application of any defendant in these two cases must be well explained and convincingly proved before the court.
Now in Nigeria. Regardless of the enactments by various states to protect the interest of girl-child and tackle the endemic of this animosity ; these vices are still issue given less concern in our society today and has been indifferently abandoned. The record of defilement cases has become so alarming that it has turned into a daily occurrence in our society.
For instance, on the 21st of June 2018, Vanguard Newspaper reported that a 36-year-old Olaitan Adewoye ; who resides at No. 10, Arogundade strt. Harmony Estate, Oke-Iran nla, Ajah in Lagos, is being tried at Lagos magistrate court – for defiling his own one-year old daughter.
But why? Since there are various laws proscribing any culprit of such offence. I reasonably believe it should suffice to deter the prospective offenders of the offence. Or perhaps, the punishments prescribe for the offence is not severe enough to discourage one from its commission? – Inquisitive. Till now, I am still wondering whether these are the reasons.
Though, it is judicially noticed that generally, criminal matter can neither be statute barred nor nullified because of the limitation of time to institute the action before the court. That is the usual rule, no limited time to commence criminal actions in court.
Against that background, the law mindlessly considers defilement as the most unjustifiable exception to the rule of statute bar. Section 218 of the criminal code provides among other things that cases of defilement of a child must commenced within two (2) months from the time it was committed. Contrary to this provision, the action will be barred in court. Gosh! Is law really fighting for justice or striving for technicality? Apparently, the fact is enough to speak for itself.
Another mischief begot by our law to the case of defilement was also occassioned last week; when the Niger State Magistrate Court granted the bail of a man who accused of defiling 11 year-old girl. The accused, a young man in his late twenties was learnt to have been having penetrative sex with the young Safiya for almost two years before the little girl developed Vesico-Vaginal Fistula, – otherwise known as VVF ; a health condition which results in the uncontrollable discharge of urine and faeces through a female’s vagina. Funnily enough, moment after he was granted bail, he began threatening the the girl’s family. Thus, if threatening can be the aftermath, then, how sure are we the accused won’t jump bail or disappear without any trace after the bail has been granted?
Well, it is quite lucid with legal backing, that every accused has a right to bail and should not be denied of such right. But there are some offences which are not bailable – for example : Treason ;perhaps because they are regarded as very grievous ones. But why defilement is not put in that category? Why does the law make it bailable ? — When it is very clear to being a serious offence against both humanity and the state?
Would it even be wrong if we choose to deny the accused of his right to bail when he has elected to deny someone’s right to dignity? With utmost hutzpah, I believe it shouldn’t be.
Now, let us shun the curative measures and employ the preventive ones. In my view, if we can change the punishment of defilement to life imprisonment and elevate its status to a non bailable offence; definitely, the sanction would be severe enough to deter any prospective offender. And by so doing, making it non bailable offence, which by no means worthwhile shall the dictates of the law go unprevailed.
Justice shall be done regardless of whether the heaven would fall or the an heavyweight toes would be trampled upon.
Olokooba Abdulwasiu is a 200level student of faculty of law; Usmanu Danfodiyo University, Sokoto.