A Season to Be Jolly

She crouched in a corner cowering like a frightened animal. Her chest heaved with sobs she dared not let loose, least he notice her, remember her, start hitting her. Listening to the soft thud of fist hitting flesh as the punches landed on her mother’s body. He never punched her face anymore. Didn’t want to leave obvious signs of a beating. Sometimes he used rolled newspapers, they left no external marks.

Silent tears poured down her face, her body quivered with raw emotion of fear. Her mind screamed in paralyzed protest “Stop it! Please stop” she begged silently. She put her hands over her ears but his punches and her mother’s fading sobs rang through her head like a broken record on high volume.

The week before she had called the police when the beating started, it wasn’t a fight. They came long after the beating ended. She had stood behind her father when he opened the door for them. Smiling urbanely. Still in his pink underwear. They said they had received a report of a domestic disturbance.  He laughed “Domestic disturbance? Not here” he said. They  had noticed her, the only child in the house.

“Were you the one that called the police?” they asked her over her fathers shoulder. Her eyes grew round with fear as her father looked towards her with surprise. His eyes quickly darkened with anger but he smiled as he turned back to the police. They didn’t come inside. She stood behind him pleading with her eyes. Begging them not to leave, to come inside and find her mother bloody and panting on the bed. But her father blocked the door, assured them everything was alright, not letting them in.

He turned to her “Tell them everything is fine” his eyes held hers commanding

“Everything is fine, it was just a mistake. I didn’t mean to call”

“How old are you?” one of the officers asked.

“Seven” she answered in a voice laden with fear. They were going away, they weren’t going to do anything and now she was in big trouble for calling the police.  As the police gave her father a warning and made to leave she shrank further into the wall. Terrified because she knew that her turn was next.

The next day the telephone was disconnected.

Now he was beating mother again and this time there was no one to help, there was no possibility of help.  This was her life. Her father grabbed her from the corner where she cowered and pulled her to her feet “Tell her how much you hate her!” her shouted as he shoved her towards her mother’s prostate body “Tell her!” he screamed when she hesitated. She quacked in fear and turned to her mother “ I hate you!”  she sobbed and for a minute she believed it too. She hated her mother because she let this happen to them, to her.  A blow landed on the back of her neck, she stumbled and the room spun round

“Tell her how much you hate her!”

“I hate you” she cried again and again and again her fear coalescing into hate for them both, for God, for the world and for the police that didn’t do anything.

Somewhere in the background church bells summoned the faithful  for Christmas mass.

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Adultery As Grounds For Divorce in Nigeria

Under the matrimonial cauases act there is only one ground for divorce. Under section 15(1) the marriage must have broken down irretrievably, Section 15 (2) goes on to give the ‘various species of the breakdown’ that would entitle a petitioner to a decree absolute dissolving a marriage.

Adultery by the respondent to a petition for the dissolution of a marriage will entitle the petitioner to a decree of dissolution. Adultery is the consensual sexual relationship between two people one of whom is married at the time.

The legal elements of adultery are sexual intercourse (penetration), consent and a subsisting marriage of one of the parties. Under the MCA ‘intolerability’ became a key element of adultery as a ground for divorce in Nigeria. Pre 1970 adultery simpliciter was sufficient grounds for divorce.  Now a petitioner relying on adultery as grounds to show that a marriage has broken down irretrievable must also prove that they find it intolerable to live with the respondent.

Adultery is usually established through circumstantial evidence. Proof of adultery  is rarely direct and the court has accepted undue familiarity coupled with opportunity , improper behavior and suspicious circumstances, confessions, admissions and general cohabitation as proof of adultery.

Infamously the Nigerian Court of Appeal ruled in 1997 that photographs showing a naked couple did not prove that intercourse took place between them and did not establish adultery.  Where the parties accused of adultery have cohabited  adultery will be presumed and bigamy is prima facie evidence of adultery.

The standard of proof for proving adultery is by a preponderance of evidence and not beyond reasonable doubt.

preponderance of the evidence n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Preponderance of the evidence is required in a civil case and is contrasted with “beyond a reasonable doubt,” which is the more severe test of evidence required to convict in a criminal trial. 

It has been held that there is no necessary link between adultery and intolerability in s.15(2)(b). The ‘fact’ is established if the petitioner genuinely finds it intolerable to live with the respondent, even if the adultery has not played any significant part in the breakdown of the marriage. In other words, the Court refused to construe the section as if it required proof that: ‘the respondent has committed adultery by reason of which the petitioner finds it intolerable to live with the respondent.

16Days: Prosecuting Rape in Nigeria (II) Expanding the Legal Boundaries

Since the ABSU Rape Video there have been many calls for new rape legislation and harsher penalties. Yet in Nigeria rape is a crime punishable with a maximum life sentence already and is clearly defined in our statutes.  When a colleague asked me how we can use litigation to get justice for rape victims like Ms. X in the video afore mentioned I did a little research. While overall the prospects for successful prosecution remain low I was pleased to discover that the Supreme court recently clarified the law on a very contentious issue about corroboration of a victims evidence.

In 1989 a SC decision held that it was a principle of law that an accused cannot be convicted on the uncorroborated evidence of the victim and accuser leading to confusion as to what was corroboration. In some cases it was interpreted to mean that there had to be another witness to the offence.

In Ogunbayo v. the State (2011) decided in March this year Fabiyi JSC in his supporting judgment upheld the Supreme Court ruling in Iko v. The State  (2001) that had reversed the 1989 decision and held  that it was a principle not a law and that the trial court need only caution itself before convicting on uncorroborated evidence of a rape victim. Fabiyi JSC noted that ‘there is nothing in law to prevent the court from convicting on the uncorroborated evidence of the complainant’.

He lamented that the decision had removed from victims of rape the protection of  s. 179 of the Evidence Act which specifically prohibits the mandatory imposition of  the number of witnesses to prove a crime. A month earlier the SC in Ndewenu Posu & Oke Segun v. The State  (2011) held that medical reports, clothing from the day of the incident and other evidence of the particular circumstances were acceptable corroboration of the victim’s allegations.

The two latest decisions of the SC show an expansion and growth in the law of prosecuting rape. It is not unreasonable to expect that they shall reverse the incomprehensible decision of the SC in 2002 in the Idowu Case where there was what I think is a dangerous misinterpretation of mens rea to reduce a rape/ murder conviction for manslaughter at their earliest opportunity.

Why Gay People Can’t Get Married in Nigeria

It’s all the buzz. What everyone is talking about. Nigeria’s Senate passed a bill prohibiting same sex marriage and slapping huge sanctions on homosexuality or even knowledge of homosexuality. Civil rights activists all over the world are fuming. ‘How dare they!’ Cut off their aid!’ (‘Off with their heads!’ Remember that one?) Well Nigeria is too rich to succumb to that type of blackmail.

I reminded some colleagues today that the gay rights movement is nonexistent in Nigeria. Well almost and pretty much. They’ve only started very timidly asking for non discrimination in access to health care particularly HIV/AIDS in the past decade and I’ve only heard of one underground underground underground safe space.  In Nigeria girls and boys don’t walk around holding hands much less boys and boys or girls and women or men and men. And it’s not going to happen any time soon.

People let’s take it easy on the hysteria. Most gay Nigerians live abroad because the society is so hostile. The only ones that can live safely here are the rich ones. Its only poor gay people that will be discriminated against through this law, the rich gays will go abroad if they want to get married. Back home they will spread the patronage and no one will bother them.  These are establishment people. They’re not about to start a movement.  Others seek asylum abroad.

There are more than a few elite Nigerians from all sections of the country that have been more or less openly gay. They met social obligations had wives and families and still lived their gay lifestyles. It’s those young men we hear gather in red light districts in certain towns and prostitute themselves because they have to that will suffer not the men that patronize them. It’s the elite that describe it as a lifestyle choice. To the illiterate ignorant suckers that sell themselves it might be nothing more than an economic choice.

This bill will discriminate against the poor! Na poor people go suffer! Na de poor people de argue for am pass. Ah ah. People wake up and smell the coffee or the roses if you prefer. It’s not about being for or against homosexuality it’s about equity and protection of human rights. What you think of homosexuality doesn’t matter. What matters is where you stand on human rights. Those saliva spewing overzealous homophobes come across more like repressed homosexuals terrified of some dark truth.

Like I said, there is no gay rights movement in Nigeria. There has been no demand for gay rights much less gay marriage. In case we all forgot the Prohibition of Same Sex Marriage Bill was first proposed shortly after South Africa passed its own law allowing gay marriage. The SA action sparked outrage among the Nigerian elite and ruling class and, I believe, marked a turning point in relations between the two countries. That was when the Nigerian elite recognized a divide between Us and Them. That’s when Nigeria decided that SA was more ‘white’ than ‘black’.

The proposal was like the throwing down of a gauntlet, a gesture declaring Nigeria would defend black African values which they insisted excluded homosexuality. This Bill is so much more than about gay rights. As a matter of fact it’s not about gay rights at all. Because you know what?  There is no gay rights movement demanding, protesting, or demonstrating for the right to get married and there is no legal or administrative or social advantage for them to gain if they could.

It took organized, sophisticated and well funded gay rights movements in America and Europe decades of activism to earn the right to get married and only after they had been able to show that they suffered. peculiar disadvantages and discrimination in economic entitlements. Their governments responded as best they could maybe because welfare based governments want to keep people off welfare and reduce their bill. (Yeah. I think they are right – it is the economy stupid!)

In Nigeria where I repeat there is no gay rights movement, how and why does the Nigerian gay community (which does exist at home and abroad) and David Cameron expect Nigeria to suddenly stop being homophobic?  On the other hand the National Assembly really can’t ban homosexuality from Nigeria for eternity, when the people are ready they will overturn whatever laws made today to suit their beliefs and values tomorrow.

As for all my colleagues out there speaking courageously in defense of gay rights and human rights  please tell me what we have done to advance gay rights in between our seasonal responses to this Bill? Because there is no gay rights movement to speak of nothing much happens. It’s the human rights movement that comes out each time to protest the anti same sex bill but no money or program time is devoted to the issue in between to support the growth of a gay rights movement.

This Bill is about power and influence on the continent and it all plays out to the disadvantage of the already exploited poor masses. I have heard that the House of Representatives will not give the Bill much time and isn’t likely to pass it. If they do I doubt Jonathan would sign it. So what’s the uproar? Did we only just discover that a large cross section of Nigerians are homophobic? Or do we seriously think our morale outrage alone, brought out on cue each time the Bill rears its head, will vanquish their homophobia?

I’m pretty sure we’ll hear of this Bill again and again and again till we tackle the issues that give it such broad based support, sort of like the Indecent Dressing Bill that taunts us every now and again and gets us all worked up. Could this be some sort of pattern? We best check what else they are doing during all the fall out and drama that captured our focus. What other Bills did they pass while we weren’t looking? But I’m frequently assured that the Nigerian elite lack that sort of sophistication by arrogant and cunning Nigerians that think they know it all.

Whatever the story is behind this bill one thing is certain, it will continue to plague the polity and incite tempers until the gay community organizes and starts a long term campaign to be accepted in society.