In the Sexual Offences Bill- herein after referred
to as SOB- (I have refrained from identifying this
Bill by any particular year considering the controversy surrounding
its intended enactment as it relates to some of its provisions)
which is still in the legislative process of the National Assembly
of Nigeria, there is a provision in section
22 which provides thus ‘Any person who
intentionally exposes his or her genital organs, or a substantial
part thereof, with the intention of causing distress to the other
party, or that another person seeing it may be tempted or induced
to commit an offence under this Act, commits the offence termed
indecent exposure and shall be liable upon conviction to
imprisonment for a term of not less than five years or to a fine
not exceeding twenty thousand Naira or both.’. It is the view
shared by this paper that this provision and of course, the Bill,
will have a greater positive effect against
prostitution.
First and foremost, it must be emphasized that the
Constitution of the Federal Republic of Nigeria, 1999 (as
amended) 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. The purport of this submission is that the SOB when
passed into law, remains a binding law within the Federal Capital
Territory- Abuja, alone, as a State law unless adopted by any other
State of the Federation’s House of Assembly as a Law of that
particular State.
A clear observation of this section 22 of the
SOB shows that some ladies or women (married and or
unmarried) will very soon become suspects upon the passage of the
Bill into law by their indecent exposure and shall be
liable upon conviction to imprisonment for a term of not less than
five years or to a fine not exceeding twenty thousand Naira or
both. Though, in my humble view, with due respect,
this provision is truly a proper provision considering the rate of
cases of indecent sexual assault and rape (including gang-rape) in
Nigeria.
Finally, it is my belief that this Bill will be passed into law
in no time and that prostitution with its societal negative
consequences will be reduced in Nigeria.
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