The bias nature of the penal code

Continued from last week

Last week, we talked about how some legislation enables violence against women and works against gender equality. In particular, the Penal Code is one that does not support the cause of women in its provisions and has been identified over time as an enabler of violence towards women.

The Nigeria Penal Code Act is basically a legislation that thrives in the northern states of Nigeria and the act is grounded in tradition, customs and beliefs that preach that women are inferior to men and operates on a double standard basis in prescribing punishment for being found guilty of alleged offences.

In the Penal Code, there are many obviously biased provisions against women and in many cases; the punishment for offences for women is more than that of the men for the same offences.

The provision of that law concerning abortion is found in Section 232.  And it stipulates conditions on causing miscarriage. It states that abortion is only legal to save the life of the mother. Any person, including the mother, can be guilty of the offense of causing miscarriage and will be punished with up to 14 years in prison, a fine, or both. Sections 233 to 235 however highlight the issue of causing a miscarriage intentionally or unintentionally through acts against the mother but not the man. These offences also carry a penalty of imprisonment, fines, or both.

Section 282 discusses rape and specifies that sexual intercourse by a man with his wife is not rape if she has gone through puberty. Consequently, the issue of consent which is lawful and criteria to identify rape has been legally eroded. This creates a platform for men to sexually abuse their partners without any penalty and is one of the reasons that advocacy for equality had failed over the years.

In addition, while Nigeria has a legal system that stands on a tripod; common law, customary law and the Islamic law, it has been established that the application of the three legal systems is flawed with contradictions and inconsistencies. This makes it difficult to harmonise the provisions of legislation and remove the clauses that encourage discrimination.

As a result of this, the changes brought about by International Conventions and legislation have been weakened by the application of customary and religious laws which are discriminatory against women and have continued to create a negative impact. The culture in the Nigerian society is against the principles of natural justice, equity and good conscience and while the judiciary is becoming revolutionised to pronounce on the illegality of these discriminatory laws, it has made little difference.

Before women can get adequate protection under the law in Nigeria, there must be an amendment of the constitution to expressly protect women’s rights and remove the various ambiguities in its provision while there must also be conscious attempts to domesticate international conventions promoting women’s rights.

These discriminations in the law are responsible for failed equality bills in the country. Indeed, many bills were not effective because of this; the Gender and Equal Opportunities Bill (GEO) proposed in 2010 to eliminate discrimination as well as prejudices influenced by stereotypes, traditional beliefs and cultural expectations met a similar fate as the CEDAW Bill, lawmakers voted against it during its second reading because they believed it was against their culture and religious beliefs.

The seeming unwillingness to amend the laws to remove the discriminations against women makes it difficult for various advocacies on gender equality, sexual harassment and violence against women to have any effect.  And this is why there is always the argument that the Nigerian law makes it easy for women to be harassed without repercussions by applying legislations that enable abuse of women and allow women’s fundamental rights to be legally eroded continually.

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