By Florence Ozor
The nation has followed the heartbreaking news yet again of the alleged sexual misconduct to a female, this time, a minor by the forty-eight (48) years old Nollywood actor Olanrewaju James AKA Baba Ijesha. He has since been apprehended and under the custody of the Lagos State police command. A rumored release of the suspect caused public outrage. Colleagues of the suspects in the movie industry staged a nonviolent protest to the police station seeking to get the assurances of the authorities that he will not get bail.
The Lagos State Commissioner of Police has stated that there are two issues petitioned;
- A 7-year-old allegation of DEFILEMENT was not reported at the time and would require scientific investigation.
- An allegation of SEXUAL ASSAULT caught on CCTV and confessed to by the suspect is a bailable offense, unlike rape.
The commissioner concluded that the command was not considering the suspect for bail yet. Informing the public also that the suspect’s case file had been forwarded to the office of the Directorate of Public Prosecution (DPP) in the Ministry of Justice for advice on the matter.
Public opinion has been trite on this matter. Section 221 of the Criminal Code Act, a federal law, has been quoted extensively with the said provision getting a battery for its inadequacy to address the prevalent issues of rape, its nuances, and other sexual related offenses, and particularly the limitation period of 2months for the crime of defilement of a child. I am happy that this section is receiving criticism, the Act and this specific provision have not evolved with society; its triviality and minimization of rape issues layered with patriarchal trappings have no place in a progressive society.
Several legal questions to unpack from this alleged assault;
- Applicable law: Federal or State law.
- Limitation Period for the allegation of defilement.
- The right of Bail.
1: In the instant case, the relevant provisions of the Criminal Code will not apply even where the Act provides for the crimes. The alleged crimes happened within the jurisdiction of Lagos State, and the Criminal law of Lagos state is not incompetent to accommodate these allegations. The suspect could be charged under any of the following provisions of the State law;
Section 135, Indecent treatment of a child
Any person who unlawfully and indecently deal with a child commits a felony and is liable on conviction to imprisonment for seven (7) years.
Section 137, Defilement of a child
Any person who has sexual intercourse with a child commits a felony and is liable on conviction to imprisonment for life.
Section 261, Sexual assault by Penetration
Any person who penetrates sexually, the anus, vagina, mouth or any other opening in the body of another person with a part of his body or anything else, without the consent of the person commits a felony and is liable on conviction to imprisonment for life.
Section 263, Sexual Assault
Any person who sexually touches another person without his consent commits a felony and is liable on conviction to imprisonment for three (3) years.
In the section, touching may be done with any part of the body or with anything else.
2: On the statute of limitation concern for the 7-year-old defilement allegation, under the Criminal Law of Lagos State, no limitation period is provided. Also, under the Limitation Law of Lagos State 2015, no limitation period is provided. Premise on these provisions, the allegation for defilement is not statute-barred.
The only difficulty will be discharging the burden of proof beyond a reasonable doubt owing to the lapse of time and the lack of documented evidence. Public trial will come to naught; the court will determine guilt based on the evidence before it, and the conviction and sentence of the suspect will be as provided by law without more. There have been reports that the suspect confessed to the commission of the crime in addition to one caught on camera, should this be the case, the law is clear that where the suspect voluntarily confesses to the crime, it is sufficient. Held in ACHABUA V. STATE;
“It is settled law that confession alone is sufficient to support conviction without corroboration so long as the court is satisfied of the truth of the confession.”
3: Bail, a conditional release from custody, is a right guaranteed in the 1999 Constitution of the Federal Republic of Nigeria (as amended). The police must arraign a suspect in court within 24 hours where the court of competent jurisdiction is within a forty kilometers radius from the police station and within 48 hours where the court is farther. It is therefore illegal for the police to withhold administrative bail where the offense is bailable and refusing to charge the suspect to court within the reasonable time provided by the constitution. This will be against the fundamental right of Liberty and contrary to the Presumption of Innocence.
However, a suspect can be deprived of the right to bail on grounds such as the suspect being a flight risk, preventing the commission of the same crime if released on bail, or tampering with evidence or witnesses in his case.
Where any of these considerations find merit, in this case, bail can be denied for sexual assault. Defilement is not bailable.