CRITICAL ANALYSIS ON THE GENDER BASED PROVISIONS IN THE VIOLENCE AGAINST PERSONS (PROHIBITION) ACT, 2015.

1.0 INTRODUCTION

It is a truism that law is fluid save it is Divine. This is as a result of man’s dynamic nature and the evolving signs of time. By way of contextual backdrop, Nigeria before the Violence Against Persons (Prohibition) Act (hereinafter referred to as VAPP Act) used sections in both the Criminal Code and Penal Code to address issues concerning violence, sexual and physical assaults (except states like Lagos that have state criminal law). The loopholes pinpointed in the above pieces of inherited legislations speak volumes of patriarchalism and male-chauvinism in the society. This led to agitations that predated Nigeria’s 4^th Republic. The laws in the VAPP Act were first presented to the National Assembly by the Legislative Advocacy Coalition on Violence Against Women in 2002. This process culminated in what we have today as VAPP Act signed into law on 25^th of May 2015.

The Act is generally partitioned into six parts, namely- offences, jurisdiction of the court, service providers, regulation body, consequential amendment, and interpretation. It addresses, inter alia, issues around rape, battery, coercion, forceful ejection from home, harmful traditional practices, widows’ maltreatment and female genital mutilation. A good look at the list will easily decode that these are gender-based issues, especially against women who are mostly at the receiving end. For instance, 2014 report from research carried out by Women At Risk International Foundation (WARIF) revealed that 24.8% of females experience some sorts of sexual abuse before turning 18years. While about 5.0% look for help, only about 3.5% receive any service, perhaps owing to the requirement of certain elements that ought to be proved beyond reasonable doubt in both criminal and penal codes. Hence the need for the reforms that birthed the VAPP Act

2.0 GENDER RELATED OFFENCES IN THE VIOLENCE AGAINST PERSONS (PROHIBITION) ACT, 2015

The Act made many provisions that are gender based which provides room for analysis here. Such provisions bother around the following:

2.1 Rape: According to the National Bureau of Statistics, women are mostly volatile and susceptible to the crime of rape. But this is not to rule out that men are also affected, even if lesser than the number of women.In the reasoning of scholars like Cheluchi Onyemelukwe, rape is the most pervasive gender based violence.

VAPP Act tries providing a more comprehensive definition of rape. Hitherto, S. 357 of Criminal Code defines rape as unlawful carnal knowledge of a girl or woman without consent while S.282 of Penal Code makes use of the phrase ‘sexual intercourse’. Both had the requirement of penetration of the vagina with the penis. The word unlawful is explained in S.6 of the Criminal Code as involving unmarried persons. In other words, a married man could not commit rape with the wife and there were outrageous elements to establish beyond reasonable doubt in the court before justice could be granted. This not only deterred many victims from speaking up but caused depression to those that sought for justice but never found it. On the contrary, S. 1 of VAPP Act uses ‘a person’ to indicate that any of the sexes is capable of committing rape. S. 1 (a) brought the innovation of penetrating not just vagina, but mouth or anus with, not just penis, but any part of the body or anything else. Again, instead of using a controversial phrase ‘carnal knowledge, it used ‘intentional penetration’. Other appreciable innovations are the provisions for minors in subsection (2), although some still critique it from the angles of Child Rights Act and the offence register in subsection (4).

2.2 Domestic Violence: No law is made and promulgated in vacuum. S. 55 (1)(d) of Penal Code permits a man to chastise and discipline the wife without it amounting to an assault or battery. Several sections in the VAPP Act not only completely expunged beating of spouse in any disguised form but went further to criminalize it. For instance, S. 19 provides that “a person who batters his or her spouse commits an offence and is liable on conviction to a term of imprisonment not exceeding 3 years or to a fine not exceeding N200,000 or both”. S. 9 also provide that forceful eviction of any partner from home is a crime. And S. 14 (2)(3) and (4) punishes the crime of attempting, aiding or abetting these crimes with 6 months imprisonment or fine N100,000

2.3 Female Genital mutilation: This entails complete or partial removal of the female external genitalia. In some cultures, the aim of doing so is to prevent the girl child from being sexually hypersensitive or immoral. Statistics has it that one in every ten girl child in Nigeria is mutilated. The Child Rights Act and the Constitution of the Federal Republic of Nigeria point towards the rights of children in this regard, although not in any specific manner. It must be appreciated also that about 13 out of 36 states of the federation have enacted specific laws banning female genital mutilation. However, S. 6(1) of VAPP Act was specific when it provides that “the circumcision or genital mutilation of the girl child or woman is hereby prohibited.”

2.4 Harmful Traditional Practices: some of these practices include forced marriage, humiliation at husband’s death, denying the girl child right of inheritance, desertion etc. Again, many sections in Chapter 4 of CFRN, especially S.42 condemn discrimination of all sorts. Courts in cases like Mojekwu v Mojekwu and Essien v Edet have exposed the irrationality in some of these practices. However, VAPP Act is the only federal law that has condemned them in specific terms. For instance, S. 15 states- “a person who subjects a widow to harmful traditional practices commits an offence and is liable on conviction to a term of imprisonment not exceeding 2 years or to a fine not exceeding N500,000 or both.”

2.5 Economic Abuse: Akin to provisions on harmful traditional practices is the balanced provision on economic abuse found in S. 46 of VAPP Act. It condemns in totality any forced financial dependence of any form, denial of inheritance, unreasonable deprivation of economic resources and unreasonable destruction of household effects by any of the partners.

3.0 CRITICAL EVALUATION

Despite being a beautiful piece of legislation that should be rapturously applauded when compared to hitherto existing criminal laws in the light of gender based provisions, there are noticeable gaps in the VAPP Act that would require further consideration.

First, some scholars have noted that the Act veered off from categorically presenting women as its focus. There is suspicion and speculation that patriarchalism played out here in seeking gender neutral language. It is said that the Bill leading up to the Act before the National Assembly was first titled Violence Against Women Bill, but was heavily kicked by men that constitute majority in the National Assembly while giving assent to VAPP. While this may be acceptable for now, it is however suggested that a particular legislation on women in the area of violence should be considered because they are largely at the receiving end.

Second, there are vague words and expressions used in some sections. Example here is S.26 (1) on the offence of indecent exposure and the distress it may cause another person. This sounds obnoxious because there should not be any legal excuse for one that uses the dressing of another as shield for indiscipline, pervasion or criminal tendencies. This obvious gap yawns for review before it is explored by sexual predators.

Third critique bothers on the hitches with regard to the implementations or execution of this piece of legislation. For instance, while it is commendable that sections 39(1), 42, 44 and some others stated the role of the service providers, protection officers, regulatory bodies like NAPTIP, the police in the facilitation and execution of the legislation, however the provision in S. 27 allowing only the High Court of FCT the jurisdiction to entertain matters under it constitutes a clog to the wheel. It will not only lead to congestion of matters in the court but delay in justice delivery. Besides, the drafters should have taken cognizance of the fact that criminal laws should ordinarily belong to the residual list. Akin to this point is the fact that most states have not domesticated the VAPP Act since it is a federal legislation.

Fourth, the Act in S.45 (1)(d) asserts the superiority of this legislation with regard to other hitherto legislations on violence against persons. The veracity of this section is yet to be tested and ascertained in the court of law.

4.0 CONCLUSION

The Violence Against Persons (Prohibition) Act, 2015 is a good legislative piece that seeks to ensure and enhance safe co-habitation in both private and public sectors of life as well as protect women and children who are mostly victims of violence. Nevertheless, the will-power to put it into practice appears to be lacking. An instance here is the violent way in which police (especially their SARS unit) harass and violate citizens’ rights, mostly the youths. Even when the youths came out to protest in 2020, they were even further violated by those who should ordinarily uphold the law. Every hand needs to be on deck to uphold the rule of law in Nigeria.

Again, some suggestions made above may need to be implemented going forward for the sake of making the Act better with particular reference to women and children. The strength of a country is measured not by how it is able to protect the strong, but how the weakest in the societal cadre are given protection and succor.

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