By Barrister Muideen Olalekan Olagunju
People have to know the law. They have to understand it for what it is. Law and justice are roller plates of the same chain. While they may sometimes be inadequate or even depart from the truth due to technicalities or burden of proof, they are the golden threads that sustain a less problematic society.
Nigerians dissipate too much negative energy arguing or, using a better word, pontificating about law they know very little about. The law and the court which is the Temple of Justice are hardly platforms for preconceived notions about the outcome of any matter up for determination. The process is designed to attain justice on the merits of evidence available in each case.
Those who have been to any court in Nigeria must have seen a statute called Lady Justice. Her right hand holds a sword and the left holds a scale. It epitomizes what constitute law and Justice. Law is made with no particular person in mind either for incriminatory or exculpatory considerations. Law respects no one (except you have immunity) and justice serves the purpose of righting wrongs no matter whose ox is gored.
The statute you see in courts is blindfolded against partiality. She doesn’t see the status or wish to lend sympathy for the person facing a criminal offence before her. She is blindfolded so that she will be oblivious of unnecessary emotions and mind games in the process of dispensing justice. She will strike with the sword once guilt is pronounced.
The scale in her hand is for weight and measure. The commodity placed on the scale is called EVIDENCE or PROOF. The scale must tip in a certain way to leave the symbol of justice without reasonable doubt about the guilt or culpability of a criminal.
It’s always a difficult venture to dissect and determine a case before it is heard in court. In fact, the law is always on the side of an accused person from the onset. The accused is PRESUMED INNOCENT until his guilt is proved beyond reasonable doubt. That is why police may grant a suspect administrative bail pending further investigation or preparation of a charge in a court of law. Why keep a suspect in custody when it is presumed that he might not be guilty? It is better for 9 criminals to escape Justice than punishing a man who may turn out to be innocent. Bail is not absolution from guilt. It is just a process in furtherance of the concept of presumption of innocence. Courts too do grant bail except for capital offences which may still be bailable in cases of exceptional circumstances. For example, a dying or very ill accused person may be admitted to bail on medical grounds even though he’s facing a charge that is punishable by death.
The emotional component of our hearts will say Baba Ijesha is as guilty as hell. For rape? No. There is no evidence of rape at all. For attempted rape? Possibly depending on what the CCTV captured. If he had set in motion actions that sufficiently suggest he would have had sexual intercourse with the girl in question, it is safe to slap a charge of attempted rape on him, particularly if he was touching the girl inappropriately and has himself demonstrated readiness for an intercourse (for instance, if the girl has been undressed and the predator’s P is already out). For indecent assault? Yes.
INDECENT ASSAULT is defined as “rubbing against someone for sexual gratification or groping someone for sexual gratification or touching an individual on any part of their body in a sexual manner”. As long as there is no penetration of the V by the P, it is not rape. Rape is defined as “having unlawful carnal knowledge (sexual intercourse) of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false act, or, in case of a married woman, by personating her husband” (Section 367 and Section 358 of the Criminal Code).
Facts that we know so far suggest that the foster mother of the girl child was watching Baba Ijesha on CCTV touching the girl inappropriately. She and others watching with her in a neighbour’s house could not wait until Baba Ijesha completed his act of gross indulgence (if they had waited till he raped that girl, they would definitely become criminally negligent to protect a child from rape). So Baba Ijesha’s lewd act is indecent assault. If that is the position of the police, it is the correct position. Section 360 of the Criminal Code prescribes two years imprisonment for the offence of indecent assault. The position of the Child Rights Act is stricter. It prescribes 14 years imprisonment for any form of sexual exploitation of a child other than rape.
I’ve read stuff suggesting Statute of Limitation has caught an earlier alleged unlawful act of Baba Ijesha on the girl when she was 7 years old. If a man has sexual intercourse with a girl under the age of 13, the offence is defilement which is punishable by life imprisonment under Section 218 of the Criminal Code. Except Baba Ijesha makes a direct and voluntary confession that he sexually exploited the girl back then or except the girl’s family kept forensic evidence of the defilement (doubtful if not impossible), the allegation will not stand.
Criminal offences are hardly affected by limitation statutes in Nigeria. In countries where it applies, it applies mainly to minor offences. If crimes are statute-barred, people can commit serious offences, disappear till the limitations kicked in and then come back as free men. No! You can be tried for any offence if evidence is available that you committed it, the period notwithstanding.
Even though Section 218 of the Criminal Code set a two months rule for prosecution in a case of defilement (a rare case of limitation), prosecutors in the public interest can abandon the criminal code and embrace the Child Rights Act which prescribes 14 years imprisonment for any form of sexual exploitation without the risk of the offence being statute-barred. Another way to circumvent the limitation is to opt for similar offence that is not statute barred.
Nigerians should not get carried away by emotions that may flow from Baba Ijesha’s release on bail. He’s entitled. The important thing is that the case is not covered up. He should have his days in court and if found guilty, be punished.
Another issue I’ll like to address is the evidence in the public space. Did Baba Ijesha confess? Yes. He confessed to molesting the girl. “What I did is bad…it’s very bad to molest her, I know”, he said at 3.41’ of the widely circulated video recording. That confession can be used to contradict him if he gave extra-judicial statement to the police denying the allegations. Was the confession made under duress? Hard to tell. Baba Ijesha did not bear any sign of beating but defence lawyers may point to his torn shirt to push a position that he must have been harassed prior to the video being recorded.
Take home: Nigerians should stop fighting themselves over this issue. Baba Ijesha did a disgraceful and reprehensible act. He deserves all the opprobrium and outrage. He deserves a stiff punishment. But unlike us, law is patient and will act a mechanism for determining the case on the merits.
Protect your children from predators. Pay more attention to their emotional well-being. Be a parent your child can open up to. The girl child is not the only one endangered. Boys too are molested.
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