Introductory Note:
There is a slight amendment to the earlier article
published due to inadvertence on the part of the author in respect
of Section 390 of the Penal Code Law of Northern States and the
Penal Code Act of Federal Capital Territory- Abuja (which has
similar provisions as that of the Penal Code Law of the Northern
State). Upon further research, the author of this article
discovered that ‘incest’ is actually criminalized under Section 390
(though, still with limitation), hence, the need to amend the
earlier article on this topic in order to clear this inadvertence.
It was not intended to mislead the reader and the author accepts
the error as his.
ABSTRACT:
Over the happenings of such incidents of how it has become
rampant how either a father has sexual intercourse with his
daughter(s) or uncle having sexual intercourse with his niece or
brother having sexual intercourse with his blood sister (or sister
of same parents or half-sister) or even some of these categories
even opt for having marriage to solemnize their sexual
relationship. Nevertheless, society, culture, religion or morality
has its reactions to this kind of relationship. According to the
Matrimonial Causes Act, 2004 (as
amended), such marriage is prohibited. Also,
according to Islamic Personal Law of Marriage, such marriage is
prohibited. And both of Christianity and Islam as two prominent
religions in Nigeria frown at this kind of relationship. The
prevalent customs of the people too frown at this kind of
relationship as abomination or taboo. The issue is how does the
Nigerian law look at the issue of
‘incest’? Does the Nigerian law consider
this kind of relationship (apart from being prohibited) as offence?
More so, it is my humble consideration that ordinary prohibition is
not enough to criminalise the act of
‘incest’. These are some of the
considerations in this paper.
INTRODUCTION:
According to the Eighth Edition of the Black’s Law
Dictionary, page 776, ‘incest’ among other meanings,
means ‘Sexual relations between family members or close
relatives, including children related by adoption’.
Also, according to the On-line Webster dictionary,
‘incest’ is defined as ‘sexual intercourse between persons so
closely related that they are forbidden by law to marry; also: the
statutory crime of such a relationship’. And I may
infer a more encompassing definition of
‘incest’ from the provisions of
section 19 of the Sexual Offences Bill, 2019 (which
according to my discovery in the course of my research, is a law
undergoing legislative passage by the National Assembly of the
Federal Republic of Nigeria at the moment) as an act of sexual
intercourse by male which causes penetration with a female person
who is to that male’s knowledge his daughter, grand-daughter,
sister, mother, niece, aunt or grandmother. And mutatis mutandis in
respect of any female person, an act of sexual intercourse which
causes penetration with a male person who is to her knowledge her
son, father, grandson, grandfather, brother, nephew or
uncle.’. From the above definitions of
‘incest’, this brief research paper
considers whether ‘incest’ is actually an
offence in Nigeria. The concern of this paper is not on whether
there is a marriage or not but rather whether the act of such
sexual intercourse is an offence under the Nigerian Laws.
THE CONSTITUTIONAL CONCEPT OF OFFENCE IN
NIGERIA
The Constitution of the Federal Republic of Nigeria,
1999 (as amended)-herein after referred to as the
Constitution- is the supreme law of the Federation.
The relevant section to this paper is as provided in
section 36(8) and (12) of the
Constitution, which in my humble view, is the general
concept or principle of what constitutes an offence or what can be
termed as ‘foundational conceptualization of offence’,
which are to guide the legal terminology of any act as an offence.
Section (8) provides thus ‘No person shall be held to
be guilty of a criminal offence on account of any act or omission
that did not, at the time it took 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. (12) Subject as otherwise provided by this Constitution,
a person shall not be convicted of a criminal offence unless that
offence is defined and the penalty therefore is prescribed in a
written law; and in this subsection, a written law refers to an Act
of the National Assembly or a Law of a State, any subsidiary
legislation or instrument under the provisions of a
law.’.
OFFENCE AS MATTER ON THE RESIDUAL LEGISLATIVE
LIST
It is very important to state as stated earlier in this paper,
that the Constitution 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.
INCEST UNDER THE MATRIMONIAL CAUSES ACT, LAWS OF THE
FEDERATION OF NIGERIA, 2004 (AS AMENDED)
Under the Matrimonial Causes Act, marriage by incest is
prohibited, null and void, but it allows judicial
permission of such marriage under section 4 of the
Act. So, it means that
‘incest’ under the Matrimonial Causes Act
is not criminalised but prohibited and can also be legalized by
judicial permission sought and obtained in accordance with
section 4 of the Act. Incestual relations
and marriages without the consent of a judicial officer
pursuant to section 4 of the Act are
voided and prohibited in the 1st schedule
(section 3) of the Matrimonial Causes Act; where it
lists the prohibited degree of consanguinity (of the same blood or
origin) as follows;
Marriage of a man is prohibited if the woman is, or has been
his-
Marriage of a woman is prohibited if the man is, or has been,
her-
By Section 3 (b), (2) and (3) of the
Act, it is provided thus ‘3. (1)Subject
to the provisions of this section, a marriage that takes place
after the commencement of this Act is void in any of the following
cases but not otherwise, that is to say, where-
(b) the parties are within the prohibited
degrees of consanguinity or, subject to section 4 of this Act, of
affinity;
(2) The prohibited degrees
of consanguinity and affinity respectively on and after the
commencement of this Act shall be those set out in the First
Schedule to this Act, and none other.
(3) A marriage solemnised before
the commencement of this Act shall not be voidable on the grounds
of consanguinity or affinity of the parties unless the parties
were, at the time of the marriage, within one of the degrees of
consanguinity or affinity set out in the First Schedule to this Act
but nothing in this subsection shall make voidable a marriage that
would not, apart from this provision, be
voidable.
Furthermore, by section 4 of the Matrimonial Causes
Act, it provides thus 4. (1)Where two persons who are within the
prohibited degrees of affinity wish to marry each other, they may
apply, in writing, to a judge for permission to do
so.
(2) If the judge is satisfied that
the circumstances of the particular case are so exceptional as to
justify the granting of the permission sought and, may, by order,
permit the applicants to marry one another.
(3) Where persons marry in
pursuance of permission granted under this section, the validity of
their marriage shall not be affected by the fact that they are
within the prohibited degrees of affinity.
(4) The President may arrange with
the Governor of a State for the performance by judges of the High
Court of that State of functions under this
section.
(5) In this section, “judge” means
a judge in respect of whom an arrangement made under subsection (4)
of this section is applicable.
(6) Rules made under section 112
of this Act may make provision for the practice and procedure in
and in connection with applications under this section, and may
include provision for or in relation to the summoning of witnesses,
the production of documents, the taking of evidence on oath or
affirmation, and the payment of expenses of
witnesses.
From the above section 4 of the Act,
it shows that incestuous relationship is permissible and not
criminalized where the consent of a judge is sought and obtained to
permit such marriage. Then, both the man and the woman in that
relationship would not have committed any offence or incestual
offence under the Act by virtue of the judicial consent.
I also observed that the sexual relationship of an adopted
daughter or adopter son is not mentioned under this Act.
Nevertheless, I am of the view that same prohibition would be
applicable as such adopted daughter or son is regarded in law as
the real daughter or son of the ones who adopt.
INCEST UNDER THE ISLAMIC PERSONAL LAW OF
MARRIAGE
Under the Islamic Personal Law of Marriage, marriage of incest
such as that which exists in a relationship between a man and: his
mothers (including his grandmothers from both sides, and further
up; his daughters and granddaughters (and further down); his
sisters (both full and half-sisters); his paternal aunts (including
his father’s, grandfathers’, mother’s and grandmothers’ paternal
aunts, and further up); his maternal aunts (including his father’s,
grandfathers’, mother’s, and grandmothers’ maternal aunts, and
further up); his brothers’ (both full and half-brothers) daughters
and granddaughters (and further down); his sisters’ (both full and
half-sisters) daughters and granddaughters (and further down).
These are prohibited based on blood relationships. Also,
permanently prohibited for a man because of marital relationships
are: the wives of his fathers (and grandfathers and further up);
the wives of his sons (and grandsons and further down); his wives
mothers (and grandmothers and further up); the daughters (and
granddaughters and further down) of the wives with whom he
performed intercourse (i.e. step daughters) (and in this regard of
step daughters, most scholars were reported to hold the opinion
that they are all prohibited, without exception- as soon as their
step-father performs intercourse with their mother. They say that
the ‘custody’ restriction in the
Quran Chapter 4:23 is a description
applicable in all step-daughters. There are also those permanently
prohibited as a result of milk relationship. These category of
women are: foster mother (counted as his mother); foster daughter
(counted as his daughter); foster mother’s mother (counted as his
maternal grandmother); foster father’s mother (counted as his
paternal grandmother); foster mother’s sister (counted as his
maternal aunt); foster father’s sister (counted as his paternal
aunt); foster mother’s granddaughter (counted as his niece); foster
sister (counted as his sister). See: the book ‘the
Muslim Family, Volume 1, by Muhammad Mustafa Al-Jibali, Al-Kitab
& As-Sunnah Publishing, Revised Edition, Chapter 8, pages: 139
to 151. Though, there are other categories of
prohibited marriages under the Islamic Personal Law of Marriage,
which I have not discussed under this paper and the reason is to
avoid being verbose and departing from the objectives of this
paper. Furthermore, Almighty Allaah says in the Holy Quran
(which is the first Primary Source of Islamic Laws) on marriages
that are prohibited in Quran 4:23 thus ‘Prohibited to
you (for marriage) are your mothers, daughters, sisters, paternal
aunts, maternal aunts, brother’s daughters, sister’s daughters,
foster mothers who breast-fed you. Foster sisters, wive’s mothers,
step-daughters under your custody and born of your wives with whom
you have had intercourse- but if you have not had intercourse with
them, there is no sin upon you (if you marry their daughters) –,
the wives of your sons who are your own offspring, and that you
simultaneously marry two sisters – except for what has already
passed. Indeed, Allaah is Forgiving and
Merciful’.
Furthermore, under the Islamic Law of Crimes and Punishment, the
punishment for adultery or fornication (Zina in Islamic
parlance) varies. If it is fornication, the punishment is 100
lashes as stated in the Holy Quran plus one year in exile
(likelihood of imprisonment in the present time), which is added by
the Holy Prophet Muhammad (may Allaah’s blessings and peace be upon
him) as Allaah laid down the punishment in Quran
Chapter 24:2 thus: ‘The woman and the man
guilty of adultery or fornication, flog each of them with a hundred
stripes. Let not compassion move you in their case, in a matter
prescribed by Allaah, if you believe in Allaah and the Last Day:
and let a party of believers witness their
punishment’. But where it is adultery, the punishment
is stoning to death i.e. rajm for married adulterer (male
or female). For instance, Ubada Ibn As-Samit reported
Allaah’s Messenger (may Allaah’s blessings and peace be upon him)
as saying ‘Receive (teaching from me, receive (teaching) from me.
Allaah has ordained a way for those (women). When an unmarried male
commits adultery with an unmarried female (they should receive) one
hundred lashes and banishment for one year. And in case of married
male committing adultery with a married female, they shall receive
one hundred lashes and stoned to death’. Though,
Islamic scholars differ in respect of combination of lashes with
stoning to death. See: Yahya Yunusa Bambale, Crimes and
Punishments under Islamic Law Second Edition, 2003, Malthouse Press
Limited, Lagos State, Nigeria, pages: 33-34.
What this means in my humble view, is that under Islamic Law
(and for every Muslim-male and female), sexual relationship with
opposite sex without a valid and legal marriage conducted according
to Islamic Personal Law of Marriage is either an adultery or
fornication depending on the marital status of either of the
perpetrators. It is not only a moral wrong but also criminally
punishable. What this means in my submission is that since any
marriage of incest is void, it means that it is an adultery or
fornication to have any sexual relationship under the acclaimed
marriage (which is void) or where there is no marriage at all.
Also, it has to be made clear that Islam does not permit any sexual
relationship without a valid and legal marriage, else, any such
sexual relationship is either adultery or fornication, which is
capital offence in the case of adultery.
The purport of the above discourse and authorities is to the
effect that such prohibited marriages are void ab initio
and are not legal in Islamic Personal Law of Marriage. Therefore,
any sexual relationship that exists in such relationship in my
humble submission, will be regarded as adultery (where either of
the parties are married or married before) or fornication (where
none or either of the parties is not married). Therefore, in my
humble submission, the Islamic punishment for adultery or
fornication (as the case might be) would be applicable to this
incestuous relationship. The constraints here is that Islamic
criminal laws are not applied in Nigerian Criminal Justice System
except those that have been passed into law as a Law of the
particular State practicing the Islamic law in Nigeria and by its
House of Assembly, as a State Law forming part of the Residual
Legislative List.
INCEST UNDER THE PENAL CODE ACT OF THE FEDERAL CAPITAL
TERRITORY, LAWS OF FCT, ABUJA, 2007
Under the Penal Code Act of FCT and the Penal Code
Law of Northern States of Nigeria,
‘incest’ has been criminalized by virtue
of Section 390 of the Act/Law. Also,
considering the provisions of section 282(1)(e) of the
Act, which provides thus ‘(1) A man is
said to commit rape who, save in the case referred to in subsection
(2), has sexual intercourse with a woman in any of the following
circumstances- (e) with or without her consent, when she is under
fourteen years of age or of unsound mind’, it is my
humble submission that incest of a girl under the years of fourteen
years of age can be termed as rape since consent is not a
defence.
Therefore, ‘incest’ is an offence in
many Northern Part of Nigeria which practice the Penal Code Law,
including the Federal Capital Territory, Abuja (under its Penal
Code Act, which is similar in provisions of the Penal Code Law of
Northern States).
INCEST UNDER THE CRIMINAL CODE ACT
Under the Criminal Code Act (that is for those States that apply
its provisions, except those States that have enacted their own
criminal laws thereby departing from the Criminal Code and except
those States in the Northern Part of Nigeria inclusive of the
Federal Capital Territory, Abuja, that uses the Penal Code),
by sections: 218 and 221, it is an
offence to have carnal knowledge of a girl under the age of
thirteen years and under the age of sixteen years respectively.
INCEST UNDER THE CHILD’S RIGHTS ACT, 2003
The Child’s Rights Act, 2003, is an
Act of the National Assembly applicable in the Federal Capital
Territory, Abuja (that is, it does not have a general application
to other States of the Federation). Nevertheless, other States that
have enacted Child’s Rights Law of their State have similar
provisions as contained in the Child’s Rights
Act except with some few differences. ‘A
child’ by section 277 of the Child’s Rights
Act -‘means a person who has not attained the age of eighteen
years’. By section 31 of the Act, it is
an offence to have sexual intercourse with a child. For the purpose
of emphasis, the Act provides thus ‘(1) No person shall have sexual
intercourse with a child.
(2) A person who contravenes the provision of
Subsection (1) of this section commits an offence of rape and is
liable on conviction to imprisonment for life.
(3) Where a person is charged with an offence under
this section, it is immaterial that- (a) the offender believed the
person to be of or above the age of eighteen years;
or
(b) the sexual intercourse was with the consent of
the child.’
INCEST UNDER THE CROSS-RIVERS PUNISHMENT OF INCEST LAW,
CAP C24, LAWS OF CROSS-RIVERS STATE
In Rivers State, there has been enacted a law titled
‘Cross-Rivers Punishment of Incest Law, incest is an
offence under section 1, 2, and 3. Section 1 provides thus ‘The
provisions of this Law shall apply whether the relationship between
the person charged with an offence under this Law and the person
with whom the offence is alleged to have been committed is or is
not traced through lawful wedlock.
By section 2, it is provides on incest by males thus
‘(1) Any male person who has carnal knowledge of a female person
who is to his knowledge his grand-daughter, daughter, sister or
mother is guilty of a misdemeanor and is liable to imprisonment for
seven years.
(2) If the female person is under the age of eleven
years, he is guilty of a felony and liable to imprisonment for
fourteen years.
(3) It is immaterial that the carnal knowledge was
had with the consent of the female person.
(4) If any male person attempts to commit any such
offence as aforesaid he is guilty of a misdemeanor and liable to
imprisonment for two years.
(5) On the conviction of any male person of an
offence under this section or of an attempt to commit the same, the
Court may divest the offender of all authority over the female
person against whom the offence is committed, and, if the offender
is the guardian of such female person, may remove the offender from
such guardianship and in any such person during her minority or any
less period:
Provided that the Court may at any time vary or
rescind the order by the appointment of any other person as such
guardian or in any other respect.
Also, by section 3 of this Law, it is
also possible for a female to commit the offence of incest.
The said section 3 provides thus ‘ Any female person of
or above the age of sixteen years who with consent permits her
grandfather, father, brother or son to have carnal knowledge of her
(knowing him to be her grandfather father, brother or son, as the
case may be) is guilty of misdemeanour and liable to imprisonment
for seven years’. But I have observed that this Law
only determines incest only in a limited form to grand-daughter,
daughter, sister or mother and grandfather, father, brother or son
only.
INCEST UNDER THE SEXUAL OFFENCES BILL, (STILL UNDERGOING
LEGISLATIVE PROCESS IN THE NATIONAL ASSEMBLY OF
NIGERIA)
In the course of my research, I came in contact with the soft
copy of a Bill of the National Assembly which provides for the
offence of incest. This Act encompasses the offence of incest.
Under the Act, both male and female are capable of committing the
offence of incest. The relevant sections of the Bill which is not
yet signed into law, are as follows: 19(1) Any male
person who commits an indecent act or an act incest by male which
causes penetration with a female person who is to his knowledge his
daughter, granddaughter, sister, mother, niece, aunt or grandmother
is guilty of an offence called incest and is liable, upon
conviction, to imprisonment for a term of not less than then
years:
Provided that, it is alleged in the information or
charge and proved that the female person is under the age of
eighteen years, and the accused person shall be liable to
imprisonment for life and it shall be immaterial that the act which
causes penetration or the indecent act was obtained with the
consent of the female person.
(2) If any male person attempts to commits the
offence specified in sub-section (1), he is guilty of an offence of
attempted incest and is liable, upon conviction, to a term of
imprisonment for not less than seven years.
(3) Upon conviction in any court of any male person
for an offence under this section, or of an attempt to commit such
an offence, it shall be within the power of the court to issue an
order removing or divesting the offender of all authority over such
female, remove the offender from such guardianship and in such case
appoint any person or persons to be the guardian or guardians of
any such female during the period of her minority or less
period.
- The provisions of section 19 shall apply mutatis
mutandis with Incest by respect to any female person who commits an
indecent act female persons or act which causes penetration with a
male person who is to her knowledge her son, father, grandson,
grandfather, brother, nephew or uncle. - (1) In cases of the offence of incest, brother and
sister includes half brother, half sister, and adoptive brother
relationship and adoptive sister and a father includes a half
father and an uncle of the first degree and a mother includes a
half mother and an aunt of the first degree whether through lawful
wedlock or not.
(2) In this Act ——
(a) “Uncle” means the brother of a person’s parent
and “Aunt” has a corresponding meaning;
(b) “Nephew” means the child of a person’s brother
or sister and “Niece” has a corresponding
meaning;
(c) “Half brother” means a brother who shares only
one parent with another;
(d) “Half sister” means a sister who shares only one
parent with another and
(e) “Adoptive brother” means a brother who is
related to another through adoption and “adoptive sister” has a
corresponding meaning.
(3) An accused person shall be presumed, unless
contrary is proved, to have had knowledge, at the time of the
alleged offence, of the relationship existing between him or her
and the other party to the incest.
(4) In cases where the accused person is a person
living with the complainant, in the same house or is the parent or
guardian of the complainant, the court may give an order removing
the accused person from the house until the matter is determined
and the court may also give an order classifying such a child as a
child in need of special care and protection and may give further
orders as it may deem necessary.’.
EFFECTS OF A VOID MARRIAGE UNDER THE MATRIMONIAL CAUSES
ACT AND THE ISLAMIC PERSONAL LAW OF MARRIAGE
As said earlier in this paper, an incestuous marriage or sexual
relationship is not only prohibited under the Matrimonial Causes
Act and the Islamic Personal Law of Marriage but also, such
marriage is ‘void’ no matter how
flamboyantly conducted. Considering the use of
‘void’ or to say, ‘null’ and
‘void’ in a statute, the Nigerian Courts have decided
on the effects of use of such words. For instance, the word
‘void’ has been defined by the Court of
Appeal in the case of Buraimoh v Karimu (1999) 9 NWLR
(pt.618) 310 C.A. as follows
‘void’ means ‘ineffectual, nugatory,
having no legal force or binding effect, which is unable, in law,
to support the purpose for which it was intended. In its strictest
sense, it means that which has no force and effect, without legal
efficacy and is incapable of being enforced by law or has no legal
or binding force. However, the word
‘void’ is used in Statutes in the sense of utterly
void as to be incapable of ratification and also in the sense of
voidable and recourse must be had to the rules of construction in
many cases to determine in which sense the legislature intended to
use it’. And in the case of Ishola v Ajiboye
(1998) 2 NWLR (pt.532) 71 C.A., the Court of Appeal
held thus ‘when a thing is void, it does not exist, you cannot
put something on nothing, it will just not stand’.
The words ‘null and void’ was
expressed by the Supreme Court in the case of Adefulu v
Okulaja (1996) 9 NWLR (PT.475) 668 SC., in the
following words ‘once an act has been declared ‘null and void’
by a court of law, the effect in law is that the act was never
carried out. And in Ishola v Ajiboye
(supra), the Court of Appeal held as follows
‘when an act or decision is declared ‘null and void’, it is
meant to say that the act or decision binds no one and is incapable
of giving rise to any right or obligation under any
circumstance’.
And as an addendum, the words ‘void ab
initio’ according to the Black’s Law
Dictionary, Eighth Edition, page 1604, means
‘null from the beginning, as from the first moment when a
contract is entered into. A contract is void ab initio if it
seriously offends law or public policy, in contrast to a contract
that is merely voidable at the election of one party to the
contract’.
In my humble view, it means that any marriage conducted by
incestuous relationship being void is assumed in law as having not
taken place or conducted at all from the beginning. The only
exception to this position is that of section 3 and 4
of the Matrimonial Causes Act which provides that a
Judge can permit such prohibited marriages considering the
circumstances of the situation. Nevertheless, considering the
cultural and religious understanding of Nigerians, I doubt if any
judge of Nigerian Courts would permit such relationship. For
instance, how would a judge be able to permit a father to marry his
daughter?! Or how will a judge permit a mother to marry her own
son?! Or how will a judge permit brother and sister to enter into
conjugal relationship to be husband and wife?! The Judge too being
a parent or brother or uncle in his human capacity. At best, I
would say that the time when such can be permissible has long been
forgone and would only perhaps reoccur when the world is almost to
come to an end being the reverse of what the beginning of life was
during the existence of Adam and Eve (Adam and Hawaaw in Islamic
law parlance), when such act was then permissible.
GENERAL SUMMATION
From the above discourse, it is my humble submission that
‘incest’ can only be an offence under
each State Law and in relation to the Federal Capital Territory,
Abuja, as legislated by the National Assembly. Also, as of the
moment, incest can be termed ‘rape’ apart
from other legislations such as the Section 390 of the
Penal Code Act/Law in force already in Nigeria which
has termed ‘incest’ as an offence and as
can be seen above in the case of Cross-Rivers State and except any
other State of the Federation that legislates to criminalise
incest. Furthermore, as said earlier above, incest can only be an
offence under ‘rape’ when it involves a girl child of
under-eighteen years of age. But in a case where the incestuous act
is committed against a person above the age of eighteen years, the
Penal Code Law/Act is not restricted by age (meaning that ‘incest’
is incest regardless of the age). Cross Rivers State too has
criminalized ‘incest’. Also, it is doubtful whether a Court of law
would consent to incestuous relationship between a father and a
daughter etc., as provided for in sections 3 and 4 of
the Matrimonial Causes Act. Therefore, the Bill
undergoing legislative process in the National Assembly will stand
a good idea in criminalizing incest in the Federal Capital
Territory, Abuja. Also, under Islamic Law, incest is prohibited and
is punishable under Islamic Criminal Law but such Islamic criminal
law is not effective in Nigeria except those States of the
Federation that make such criminal law as part of their criminal
laws in the State.
RECOMMENDATIONS
- The Sexual Offences Bill, undergoing legislative process in the
National Assembly of Nigeria, should be given a speedy passage (but
after resolving all those controversy surrounding some of its
provisions) in order to criminalise incest in the FCT-Abuja. - I also recommend that all States of the Federation should adopt
the Sexual Offences Bill, when passed into law or to pass same
directly as Law of the State by the State’s House of Assembly most
importantly because, the incestuous acts have been expanded than
they exist in present legislations.
CONCLUSION
From the above general discourse, Nigeria under the Penal Code
Law/Act has provisions for ‘incest’ as an offence and it can also
under the Nigerian Criminal Laws be termed as rape, except that the
Cross Rivers State has criminalized same and any other State that
criminalises same. I therefore hope that the National Assembly
would make haste in passing the Sexual Offenses Bill, without any
further delay and that States of the Federation would legislate
similar law in those States for the betterment of the Nigerian
civil society.
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References
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