The media – Social media inclusive – has lately been awash with
news of incidents of clampdown, harassment, arrest, “rape”,
prosecution and ‘conviction’ of hundreds of women alleged to be
prostitutes across the country. Between the nights of Wednesday,
the 24th day of April, 2019 and Friday, the
26th day of April, 2019, officers of the Nigerian Police
ransacked the entire streets, pubs and entertainment houses in the
Capital Territory; arresting about “Sixty-five women…” in the FCT
alone who, according to the FCT Police spokesman, Gajere Danjuma
Tanimu, “were hanging around night clubs”.[1]
Sahara Reporters published statements from some of the
women arrested during the incident in the FCT. In the words of one
of the girls, “they picked us from Banex; when they picked us from
Banex, they took us to Utako, but the police station was empty;
there was no policeman inside, so they told us to pull off. When we
pulled off, they started… some of us they used condoms, some of us
they didn’t use.”[2] One other lady who alleged she
was raped by policemen when she could not pay the money they
demanded in exchange for her release narrated: “I was held down by
three policemen while one of them raped me; he didn’t wear a
condom. We were three in all that were raped by the same policemen.
The three of us were all brought out of the van and raped by the
policemen because we had no money to give them. We were raped
behind the National War College. The other girls were also raped by
two others; one of them used a pure water sachet as condom but the
other one did not.”[3]
Further news reports alleged that some of the ladies arrested
were “convicted” by an Abuja Mobile Court “for alleged
prostitution”.[4]
On the FCT incident, Paul C Nwabuikwu wrote:
“No effort was made to determine the identity of those accused
of soliciting. On the streets, in gardens, in “joints”, in
nightclubs and lounges, these women and girls were accosted and
whisked away, protesting their innocence. I read the heartrending
story of a distraught couple who kept screaming “We are married!
See our rings!” as the woman was being dragged away. Mercifully,
the man refused to let go of his spouse and the “law enforcers”
eventually left them, bruised but relieved, to search for more
“prostitutes” to throw into their buses.”[5]
In another operation, the State Security Service, which goes by
the alias ‘Department of State Security’ (DSS), on Saturday, the
4th of May, 2019, through the Director of its
Cross-River State Command, disclosed the Agency’s clampdown and
arrest of Fifty-nine commercial sex workers in Calabar in the wee
hours of that day.
Considering the nature of the statutory duties of the DSS, one
would think the Agency was merely having a spare time relishing on
the ease that comes with menial duties – as against its obviously
tough job – in the absence of, or having exhaustively dispensed
with all national security issues for which it was commissioned. It
is however surprising that amidst serious national security
challenges – killing of thousands of Nigerian citizens and the
displacement of communities, the priority of the Nigerian Police
and the DSS is enforcing against prostitution.
Section 2(3) of the National Security Agencies Act, 1986 (which
is the principal Act that established the DSS) clearly states the
responsibility of the SSS; to wit, prevention and
detection within Nigeria of any crime against the internal security
of Nigeria; the protection and preservation of all non-military
classified matters concerning the internal security of Nigeria; and
such other responsibilities affecting internal security within
Nigeria as the National Assembly or the President, as the case may
be, may deem necessary. It is obvious that by the provisions of the
Statute, the duty of the DSS is restricted to issues of national
security.
On the part of the Police, Section 4 of the Police Act, CAP P19
LFN, 2010, saddles the Force with general duties of “…prevention
and detection of crime, the apprehension of offenders, the
preservation of law and order, the protection of life and property
and the due enforcement of all laws and regulations with which they
are directly charged…”, including the performance of “such military
duties within or outside Nigeria as may be required of them …”
Thus, assuming, but not conceding that the several women
arrested, detained and prosecuted by the Police and the DSS were
indeed prostitutes – We believe they are not –, the questions that
would therefore arise are: What is the legal implication of the
arrest, prosecution and ‘conviction’ of persons for alleged
engagement in prostitution? Is prostitution a punishable offence
under the Nigerian law?
Section 36 (12) of the Constitution FRN 1999 (as amended)
provides that “…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”.
Subsection (8) of the same Section directs that “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”.
In the whole of Nigeria, there is no written law which forbids
or penalizes prostitution. Prostitution is merely an issue of
morals, and no matter how much any culture, religion or morals may
forbid or frowned at it, it can never wear the face of law. To the
religious, prostitution may be sin; to the traditionalist, it may
be a taboo or an abomination; and to the morally upright it may be
serious depravity; none of these attributes can by any means,
otherwise make it an offence. This is because, crime is not created
by morals or religious beliefs. And just as night is different from
day, law is different from morals; and must at all times be
eschewed from morality.
Undoubtedly, the Christian religion, as well as the Islamic
religion – which are the prevalent religions in Nigeria – forbid
sexual immorality, debauchery and profligacy of all sorts. However,
Nigeria is a circular State guided by statute and not religious
injunctions. Section 10 of the Constitution FRN 1999 (as amended)
guarantees against the adoption of any religion as State Religion,
either by the Government of the Federation or of a State.
Over the years, Islamic scholars have evolved core religious
injunctions enshrined in the Quran and Hadith into codes known as
the Sharia law.[6] In Northern Nigeria where Islam
is prevalent, Sharia law has been in operation for many years; and
until 2000, its scope was limited to personal status and civil
law.[7] From the year 2000 till date however,
twelve States have added criminal law to the jurisdiction of the
Sharia Courts amidst controversies and serious human rights
concerns.[8]
It is imperative to underscore that by the Sharia Court Laws of
the Northern States, the Sharia Judicial System confers original
jurisdiction in all civil and criminal matters in Sharia Courts.
Thus, the Court would have jurisdiction to hear and determine civil
matters and Causes where all the parties are Muslims.[9] In civil cases, where one of the
parties is a non-Muslim, no jurisdiction is to be exercised unless
he gives a written consent.[10] In criminal cases
however, the jurisdiction of the Court is limited to only Muslims
in the circumstance the accused persons are jointly Muslims and
non-Muslims.[11]
The present author opines, therefore, that having regard to the
fact that the Sharia law – which is binding only on non-Muslims –
is the only ‘penal law’ that forbids and penalizes prostitution
in
Nigeria, it follows that non-Muslims Nigerians cannot be liable
for the ‘offence of prostitution’.
The corollary is that no non-Muslim Nigerian citizen can be
lawfully arrested, prosecuted and convicted for the offence of
prostitution. To do so would amount to a brazen disobedience and
affront on the Constitution, from which all authorities and persons
– including all Government – draw their existence, authority and
validity.
The Constitution which forbids the adoption of State religion by
any Government is the grundnorm and mother of all laws in our legal
system. It is the fon et origo upon which the Nigerian
government, the legal system itself, all bodies and persons draw
their authority. Ipso facto, the Constitution is supreme
and its provisions have binding force on all authorities and
persons throughout the Federal Republic of Nigeria.[12] Where any other law is inconsistent
with the provisions of the Constitution, the Constitution shall
prevail, and such other law shall, to the extent of the
inconsistency, be void.[13]
It is noteworthy also that the provisions of Section 36 (12) of
the Constitution which forbids the conviction of a person of any
criminal offence not defined with the penalty prescribed by a
written law made by the National Assembly or State House of
Assembly, comes as part of the fundamental human rights guaranteed
all Nigerian citizens in the Constitution.
On the overall, since prostitution is not prescribed as an
offence under any written law against nonMuslims in Nigeria, any
indiscriminate arrest, prosecution and purported conviction of
persons would not only be illegal and unlawful; it would also
amount to a nullity. One therefore wonders under what law the
alleged Abuja prostitutes were arraigned, prosecuted and sentenced
to jail term of one Month before the purported ‘Abuja Mobile
Court’. It is hoped that future opportunities would arise when
superior Courts of record may finally pronounce on the legality or
otherwise of such arrest, prosecution and conviction.
[1] Sahara Reporters, ‘Arrested Abuja Prostitutes
Narrate How They were Raped By Policemen Who Wore ‘Pure Water
Sachets’ as Condoms’ 2nd May, 2019,
<http://saharareporters.com/2019/05/02/arrestedabuja-‘prostitutes’-narrate-how-they-were-raped-policemen-who-wore-‘pure-water>
Accessed Thursday, 9th May, 2019.
[2] Ibid
[3] Ibid
[4] Ibid
[5] Paul C Nwabuikwu, ‘The War Against Women In
Abuja’, 30th April, 2019 at 10:30am,
<https://m.facebook.com/story.php?story_fbid=10156528422566387&id=667691386>
Accessed on Thursday, 9th May, 2019.
[6] Blessing Odimayo, ‘Sharia Law in Nigerian
Constitution’, Legit,
<https://www.google.com/amp/s/www.legit.ng/amp/1092383-sharia-law-nigerian-constitution.html>
Accessed 7th May, 2019.
[7] Human Rights Watch, ‘“Political Shari’a”?: Human
Rights and Islamic Law in Northern Nigeria’,
<https://www.hrw.org/report/2004/09/21/political-sharia/human-rights-and-islamic-law-northern-nigeria>
Accessed 6th of May, 2019.
[8] Ibid.
[9] Abdullateef Kamaldeen, ‘An Overview Of The
Jurisdiction Of Sharia Courts’
<https://www.google.com/url?sa=t&source=web&rct=j&url=http://nji.gov.ng/images/Workshop_Papers/2017/Ar
ea_Sharia_Customary_Judges/s1.pdf&ved=2ahUKEwiuopudi5DiAhXMRxUIHfBvAckQFjAAegQIARAB&usg=AOvVaw
25GvvT18Q6wfRfJw4sjHkd> Accessed Friday, 10th May,
2019.
[10] Ibid
[11] Section 5 of the Sharia Courts Law.
[12] S. 1(1) Constitution FRN 1999 (as amended)
[13] S. 1(3), ibid.