Marital Assault and the Rights of a Nigerian Woman: A Concise Critique of the Penal Code

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By Olakunle Bamisile

It is incontrovertible that, in the past couple of years, cases of gender-based violence have escalated, with multiple reports attesting to the high rate of abuse — physical, sexual and in other ways — meted out on our women. Every now and then, undesirable stories of one form of violence or the other against women and girls are heard, including stories of women being battered by their partners. The Government — and NGOs and concerned Individuals alike — has however risen up to fight these dastardly and vile acts of violence against our women by providing legal frameworks against abuse on women. It is however catastrophic that Marital assault still enjoys unenviable legality in one of the laws of the federation. A critical but concise examination of this ghastly legality will therefore follow suit in subsequent paragraphs hereunder.

Human Rights, being rights that we enjoy simply because we are humans, are to protect humans against exploitation, and these rights must be protected. Human rights have been encapsulated in many laws — domestic, regional and international — across the world, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), African Charter on Human and People’s Rights (ACHPR), Universal Declaration of Human Rights (UDHR) and Chapter of the Constitution of the Federal Republic of Nigeria, 1999.

The African Charter on Human and People’s Rights, which is duly recognized in Nigeria having been domesticated in accordance with Section 12 of the Constitution, and rated next only to the Constitution by virtue of the ruling of the Supreme Court in the case of Abacha v. Fawehinmi, provides in Article 2 that: “Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, SEX, language, religion, political or any other opinion, national and social origin, fortune, birth or any status” (emphasis is mine) while Article 3 of the same Charter provides that: “Every individual shall be equal before the law”. Calls for gender parity have been on since yesteryears and the law is in full-fledge support of these calls. The ACHPR, in article 18 (3), further provides that: “The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions”. This is a crystal-clear prohibition of discrimination against women, including marital assault.

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However, and perhaps unfortunately, Section 55 (1) (d) of the Penal Code of Northern Nigeria provides that an assault by a man on a woman is not an offense if they are married, if native law or custom recognizes such “correction” as lawful, and if there is no grievous hurt. This is indubitably a manacle on the fight against gender inequality and gender-based violence. The deluxe ninth edition of the Black’s Law Dictionary, at page 130, defines assault as: “The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery”. Therefore, the purport of this provision of the penal code is that use of force by a man on his wife is not an offense if native law or custom recognizes such correction as lawful, and if there is no grievous hurt. By so doing, the Penal code has legalized marital assault — which invariably means assault on wives (women) — provided that it does not cause grievous hurt or if it is recognized as a form of correction under native or customary law. This is ultimately inconsistent with the Provisions of Chapter 4 of the Constitution.

Section 34 (1) of the Constitution of the Federal Republic of Nigeria, 1999, provides unequivocally that: “Every individual is entitled to respect for the dignity of his person, and accordingly no person shall be subject to torture or to inhuman or degrading treatment”, and It must be noted that it is inhuman and degrading to assault anyone, including women. In furtherance to this, Section 42 (1) of the constitution provides that: “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject”. Shall a married woman then, by reason only that she is a married woman, be subjected to assault?

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In order to successfully eradicate gender-based violence, the proportion of hurt caused on women must be rendered immaterial. Use of force, no matter how less painful, must be condemned in the strongest terms for constituting assault and violation of fundamental human rights. Likewise, any form of native law or custom that recognizes assault as a form of correction must be expunged for being inconsistent with the provisions of the constitution in line with Section 1 (3) of the Constitution, and the said native law or custom must be declared invalid in line with Section 315 (b) of the constitution. Laudably, the invalidity of such barbaric native laws or customs that backs discrimination against women (including marital assault) have received judicial baptism by the court in a plethora of decided cases, including Mojekwu v. Mojekwu and Ukeje v. Ukeje. Additionally, Opinions — in an attempt to justify this discriminatory law on women — that Islam recognizes ‘symbolic’ beating are absurd and should fall like the biblical walls of Jericho as the Holy Prophet Muhammad (SAW), in his lifetime, never beat his wife. The Prohet (SAW) instead set direct examples of the ideals of a marital relationship in his personal life and also, in his response to questions on a husband’s responsibility, said: “Give her food when you take food, clothe her when you clothe yourself, do not revile her face, and do not beat her”. Moreso, religious interference with the law should hold no water as Section 10 of the Constitution of the Federal Republic of Nigeria, 1999, already provides that the Government of the Federation or of a State (including Northern States) shall not adopt any religion as State Religion; and, though the North is dominated by Muslims, the Christian Minorities are bound by the same law as the Muslims.

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These barbaric laws that threaten gender equality and stimulate gender-based violence must be extirpated, and such laws — like the Violence Against Persons (Prohibition) Act — that prohibits violence of all kinds must be embraced. The rights of women are non-negotiable, and should not be violated under any guise whatsoever.

Olakunle “Cardinal” Bamisile is a student of Law at the Lagos State University and may be reached via bamolakunle003@gmail.com and 07087263472

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