The Perspective Of The Law On Chrisland School Incident – By Bukky Shonibare
“Statutory rape” comes to play if a person (presumably an adult) engages in nonforcible (or consensual) sexual activities with a minor. It is “statutory rape” because one of the parties has not attained the statutory age of consent. By Nigeria’s Statutory Law, particularly section 31 of the Child Rights Act, 18 is the age of consent.
It should be noted Nigerian law does not explicitly define or provide for “statutory rape.” This means statutory rape can only be deduced from the provision on statutory age of consent.
What is covered by Nigerian law is the general case of “rape”, and no exemption under any of sections on rape explains Nigeria’s legal position when the perpetrator and victim are under the statutory age of consent.
Principally, see section 357 of the Criminal Code Act, section 282 of the Penal Code, and section 1 of the Violence Against Persons (Prohibition) (VAPP) Act.
In the Chrisland Schools case, both the perpetrators and the victim are under the age of consent. Hence, statutory rape cannot be said to have occurred.
In situations like this, countries like the UK and the US have the “Romeo and Juliet Laws” (also called the ‘close-in-age’ exemption). This law, or exemption, is used as the legal basis for preventing criminal prosecution in cases where both perpetrators and victims are underaged and are close in age – usually within four years apart.
Ideally, situations, where the perpetrator and victim are underage, should be covered as an exemption under the general law on rape; but, because none of Nigeria’s criminal laws have such exemptions, if a criminal suit is instituted, the closest law that may be used is what is currently covered as rape. If this is done, I’d argue that the drafters of the law did not contemplate nonforcible sexual activities between two minors.
Question is, has a crime been committed by the children (boys and girl) in the Chrisland Schools incident? No! This is because the Nigerian law is inchoate or silent in such situations, and it cannot be said that a crime has been committed by the children. Note that section 36(8) of Nigeria’s Constitution essentially provides that a person cannot be held to be guilty of a crime if at the time such action took place it was not provided in any law as a crime or offence.
Even if it’s believed that children have committed a crime or an offence, in this case, two laws must be borne in mind in relation to child offenders in Nigeria. First is section 30 of Nigeria’s Criminal Code Act where it is stated that “… a person under the age of twelve years is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.”
Second is the Children and Young People’s Act (CYPA), which essentially provides that a child between the ages of 7 and 12 cannot be held criminally responsible unless it can be proven that the child has the capacity to know that his/her actions or omission should not have been carried out, and that he/she has the capacity to understand the implications of the said action. Generally, the CYPA, in view of its mandate, defines a child as a person under fourteen.
Summarily, no crime has been committed by any of the children. Where an action may be brought is between the parents and the school, which is another conversation entirely.
Bukky Shonibare is the Founder/Executive Director of Invictus Africa
