14th February, 2020
His Excellency, The Governor of Akwa Ibom State,
Wellington Bassey Way,
RE: AKWA IBOM STATE VIOLENCE AGAINST PERSONS (PROHIBITION) BILL
The Civil Liberties Organisation (CLO’s) attention has been drawn to news reports that the Akwa Ibom State House of Assembly has passed the above mentioned Bill during its plenary session sometime last week.
In a letter addressed to the Chairman of CLO dated; February 3, 2020, and signed for the Chairman, House Committee on Women Affairs, Social Welfare & Co-operative by one Unwana P. Idungafa (Mrs.), CLO was invited to a stakeholder meeting on the Bill on Tuesday, February 4, 2020, in the Chairman/Deputy Speaker’s Office, Akwa Ibom State House of Assembly, Uyo. During the said meeting, CLO voiced out its grave concerns on the Bill, which are replicated in this Open Letter to Your Excellency.
The main object of this Open Letter is to urge Your Excellency to withhold assent to the Bill.
The long title of the Bill is “A Bill for a Law to Eliminate Violence in Private and Public Life, Prohibit all Forms of Violence against Persons and to Provide maximum Protection and Effective Remedies for Victims and Punishment of Offenders and for Other Matters Connected Therewith” while the short title of the Bill is “The Akwa Ibom State Violence Against Persons (Prohibition) Bill.”
The Bill has five (5) parts, forty-seven (47) Sections, and a Schedule with six (6) Forms.
Part I of the Bill deals with Offences and punishment.
Part II of the Bill deals with Jurisdiction
Part III of the Bill deals with Service Providers.
Part IV of the Bill deals with the Regulatory Body.
Part V of the Bill deals with Consequential Amendment, and treats such issues as general saving and repeal, interpretation, and citation and commencement.
The CLO having appraised the Bill, observes the following:
1. The legislature and the drafters of the Bill erred by ignoring a fundamental principle of Criminal Law, which is also enshrined in Section 36(8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in the drafting of Section 45(1) of the Bill. Section 45(1) of the Bill sates thus:
“Any offence committed or proceedings instituted before the commencement of this Law under the provisions of the –
(a) Criminal Code, Cap. 38, Laws of Akwa Ibom State, 2000
(b) Criminal Procedure Law, Cap. 39, Laws of Akwa Ibom State, 2000, and
(c) any other law or regulation relating to any act of violence defined by the law, shall as the case may require be enforced or continue to be enforced by the provisions of this law. “(Emphasis ours).
A fundamental principle of criminal law, encapsulated in the Latin maxim; “nullum crimen sine lege, nulla poena sine lege,” which means: “No person shall be held to be guilty of a criminal offence on account of ay act or omission that did not at the time it look place constitute such an offence; and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”
This fundamental criminal law principle, as we stated earlier herein, is also enshrined in Section 36(8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and guaranteed as a fundamental rights. It requires that every criminal law within the Nigerian Legal System shall apply only to offences committed after the enactment (or coming into force) of such law and not before.
2. CLO is worried by the emphatic mention of the Criminal Procedure Law, Cap. 39, Laws of Akwa Ibom State, 2000 in Section 45(1)(b) and Section 45(2) of the Bill as an existing law despite the notorious fact that the Criminal Procedure Law, Cap. 39, Laws of Akwa Ibom State, 2000 was repealed by the Administration of Criminal Justice Law, 2017, which entered into force on 21st March, 2017, upon Your Excellency’s assent.
CLO is worried because this same Akwa Ibom State House of Assembly passed the Administration of Criminal Justice Bill, which was assented to by Your Excellency. It calls for concern that even though Akwa IBom State is rated high nationally and internationally as one of the States that have adopted the Administration of Criminal Justice Act, 2015, the stark reality, sadly, is that the Administration of Criminal Justice Law of Akwa Ibom State strangely disappeared from circulation after assent while the Courts in the State are paradoxically applying the repealed Criminal Procedure Law, Cap. 39, Laws of Akwa Ibom State, 2000.
3. CLO notes that the definition of rape in Section (1) of the Bill conflicts with the definition of rape in Section 366 of the Criminal Code, Cap. 38, Laws of Akwa Ibom State, 2000. CLO is of the opinion that it is not enough that Section 45(2) of the Bill states that “The provisions of this Law shall supersede any other provision on similar offences in the Criminal Code and Criminal Procedure Law.” It is the view of CLO that Section 366 of the Criminal Code ought to be expressly repealed for the avoidance of doubt, as it is unhealthy for two conflicting laws on the same subject matter to co-exist at the same time.
4. CLO is of the opinion that Section 1(2)(a) of the Bill is open-ended, repugnant, and obnoxious. Section 33(1) of the Criminal Code states that “A person under the age of seven years is not criminally responsible for any act or omission.” But by Section 1(2)(a) of the Bill, it appears that any offender who is less than 14 years of age, to infinity, is liable on conviction to a maximum of 14 years imprisonment. Again, Section 1(2)(b) of the Bill appears to make no sense at all when it states that “in all other cases, to a minimum of 12 years imprisonment without an option of fine”. In the face of the provisions in Section 1(2) and Section 1(2)(a) of the Bill, one cannot but ask: What are the all other cases envisioned in Section 1(2)(b) of the Bill?
5. CLO notes that Section 1(3) of the Bill states that “The Court shall also award appropriate compensation to the victim as it may deem fit in the circumstance” but wonders who or what will be the source of the compensation.
6. CLO notes, with concern, that some of the offences, such as causing emotional, verbal and psychological abuse in Section 14 of the Bill and intimidation in Section 18 of the Bill, are subjective, and arrests thereupon will likely be subjected to abuse by the Police, who have been so generously mentioned and given key roles in the Bill. CLO wonders why such offences as causing emotional, verbal and psychological abuse should attract imprisonment.
7. CLO notes with concern that Section 38(5) of the Bill limits the number and classes of persons permitted to be present during any proceedings pursuant to the Bill. CLO views that provision as obnoxious and repugnant and against international best practices.
8. CLO is worried that Section 27 of the Bill appears to give exclusive jurisdiction for the trial of offenders in the Bill to the High Court. CLO advises against such exclusivity of jurisdiction, especially considering that most of the offences in the Bill are simple offences and misdemeanours, which the Magistrate Courts are structurally and lawfully competent to handle.
9. CLO is concerned and disturbed that in this age and time when the administration of criminal justice is geared towards restitution and reformation, the Bill spits the fire of imprisonment from the beginning to the end.
3.0 CLO’S POSITION
1. CLO views this Bill as conflicting with existing laws, such as the Administration of Criminal Justice Law of Akwa Ibom State, 2017 and the Criminal Code, (Cap. 38) Laws of Akwa Ibom State, 2000. Much as violence against persons is reprehensible and condemnable, CLO believes that imprisonment and exorbitant fines should be a last resort rather than a first-line measure in the administration of criminal justice at this age and time.
2. CLO, having painstakingly reviewed the contents of the Bill and weighed its consequential effects on the people, if the Bill eventually becomes Law, is of the strong opinion that the Bill will do more harm than good.
3. CLO advises members of the Akwa Ibom State House of Assembly to be more concerned in making good laws that will promote the image of the State both within and outside the State, as well as seek to leave behind good legislative legacies.
To ensure a paradigm shift, the Federal Government repealed the Criminal Procedure Act and the Criminal Procedure Code and enacted the Administration of Criminal Justice Act, 2015 in their stead. Last year, the Federal Government sustained the momentum by enacting the Nigerian Correctional Service Act, 2019 which replaced the Nigeria Prison Service with the Nigerian Correctional Service. The hard fact is that prison hardens rather than reforms. The Akwa Ibom State Government should make public and put to use the Administration of Criminal Justice Law, 2017, which came into force on 21st March, 2017 upon Your Excellency’s assent.
Finally, CLO urges Your Excellency to withhold assent to the Bill, as was done by Your Excellency to this same Bill which was earlier passed by the sixth Akwa Ibom State House of Assembly, and direct the Akwa Ibom State House of Assembly to rather amend other existing Laws that legislate on the areas contained in the Bill.
We thank Your Excellency.
Otuekong Franklyn Isong
Comrade (Barr.) Christopher Ekpo
Comrade (Barr.) Eyibio Okon
(Member, Law Research Committee)