• Prescribing Punishment For Suspects’ Parents Is Unconstitutional, Lawyers Warn
• Crime Is Personal, Says Ogu
• No Vicarious Liability In Our Criminal Jurisprudence, Effiong Insists
• It’s Repugnant To Natural Justice — Yusuf
• ‘Parents Of Juvenile Found Guilty Of Cultism Should Bear Liability’
• We’ll Challenge The Bill In Court If Passed — Ajulo
Lawyers have criticised punishment for parents of suspects found guilty of cultism, describing such as unconstitutional.
The Lagos State House of Assembly, while considering amendment of the Anti-Cultism Bill submitted to it by the Executive arm, in the Bill, titled, ‘Unlawful Societies and Cultism (Prohibition) Bill, 2020,’which scaled through the Second Reading via voice votes last Tuesday, seeks to punish parents for the offence of cultism committed by their children.
The Speaker of the House, Mudashiru Obasa, said such punishment was to further prohibit unlawful societies and cultism in the state and for other connected purposes, adding that parents of cultists found guilty in the state might be liable for punishment, if the Bill finally becomes law.
But reacting to the development, Deputy Director, Prisoners Rehabilitation And Welfare Action (PRAWA), Ogechi Ogu, said crime is personal, quoting Section 2 of the Criminal Code, which defines an offence as “An act or omission, which renders the person doing the act or making the omission liable to punishment under the Code or under any Act or law.”
Section 7 of the Criminal Code Act, she added, describes principal offenders as: “When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it‐
(a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids another person in committing the offence; (d) any person who counsels or procures any other person to commit the offence.”
Ogu said when the definitions above are combined with the element of proving an offence, which is intention to commit the offence, it becomes very clear that criminal responsibility is completely personal and it is clearly out of place to punish a parent because his/her child is a cultist.
She stated: “This is completely against our laws. The Administration of Criminal Justice Act 2015 and Administration of Criminal Justice Laws of States in the country clearly state that a person cannot be arrested in lieu of a person suspected to have committed the offence. See for example Section 7 of the ACJA2015.
“The Nigerian constitution also considers null and void, any law that is contrary to natural justice, equity and good conscience.
“Parents of cultists are also likely to be victims of their activities and mostly may not know the activities of these persons. It is against the law of natural justice to make them serve punishment for the actions of these children.”
Also, human rights lawyer, Inibehe Effiong, said if the proposed law purports to impose punishment on parents of cultists, it would be declared unconstitutional and void to the extent of its inconsistency with the constitution, because there is no vicarious liability in our criminal jurisprudence.
He stressed that there is no basis for such legislative proposal and such law is preposterous and offensive to justice.
“Most of these cultists in Lagos work for the politicians; they are recruited as political thugs and mercenaries during elections. Should members of the Assembly and other politicians who patronise them during elections be punished too?” he queried.
The Child Rights Law of Lagos State, he noted, has imposed obligations on the state government for the benefit of children, including provision of education and others, adding: “But the state government has failed to enforce the said law, thereby making young people vulnerable to cultism and other vices.”
Following the same line of thought, activist, Festus Ogun, believed the provision of the Bill stipulating the arrest and prosecution of parents for the offence committed by their wards is illegal, arbitrary and unconstitutional.
The positions of our extant laws, he said, are clear on the fact that arrest in lieu is unlawful, noting: “You cannot go ahead to arrest an entirely different person for the offence committed by another, for any reason whatsoever.
“Section 7 of the Administration of Criminal Justice Act made a clear provision in this respect. In fact, the Administration of Criminal Justice Law of Lagos State, by virtue of Section 4, made it absolutely unlawful and improper to arrest an innocent person in substitution for a suspect.”
Ogun said the Lagos State House of Assembly must resist the urge to make harsh laws that would encroach on the people’s human rights, as it is unfair and against the law of nature.
“The right to personal liberty of the people is at risk if the law is allowed to scale through and it would invariably violate Section 35 of the 1999 Constitution (as amended). Passing a law with a provision that is inconsistent with the constitution amounts to a nullity.
“Section 1(3) of the 1999 Constitution provides that any other law that is inconsistent with the provision of the constitution shall, to its extent of the inconsistency, be void. The law will not stand the test of legal and constitutional validity.”
University don, Dr. Fassy Yusuf, also a lawyer, described the Bill with such provision as unconstitutional, null, void and repugnant to natural justice, as you cannot visit the sin of somebody on another person.
“The Lagos State House of Assembly should repeal that Bill and come out with something that would be acceptable to all. Something must be wrong with our lawmakers to think that the parents of suspected cultists should be held accountable, unless the parents are accessory before or after the fact or accomplice of the offence. Otherwise, it is offensive to natural justice,” he emphasised.
Executive Director, Civil Society Legislative Advocacy Centre (CISLAC), Auwal Musa Rafsanjani, argued that if and when proper investigations are made and it is proven that the parents of cult members support their children, they should be held liable.
“On the other hand, I do not think it would be right to hold parents liable strictly when their children join cults, because most of these students join the cult groups as adults and they are no longer minors. Thus, they should be accountable for their actions and decisions.
“Section 40 of the 1999 Nigerian Constitution provides that ‘Every person shall be entitled to assemble freely and associate with other persons and in particular, may form or belong to any political party, trade union or any other association for the protection of his interests,” he said.
Rafsanjani, however, noted that the law frowns at unlawful assembly, association or society, saying: “Section 62 of the Criminal Code Act defines society and unlawful society, while Section 64 of the Criminal Code Act provides that any person who is a member of an unlawful society or knowingly allows a meeting of an unlawful society to be held in any house, building or place belonging to or occupied by him or over which he has control is guilty of a felony and is liable to imprisonment for three years.
“Penal Code Act, which covers the entire Northern Nigeria, also defines unlawful society in Section 97A, which provides that whoever manages or is a member of an unlawful society shall be punished with imprisonment for a term which may extend to seven years or with a fine or both.
“As a Nigerian citizen captured under Sections 25, 26 or 27 of the 1999 Constitution, the fundamental rights of such a citizen are guaranteed under Sections 33 to 46 of the same constitution.”
He argued that a Nigerian citizen under the provision of these laws should not be punished for the crime of cultism/unlawful society where he or she has not been found guilty of such by a competent court.
Notwithstanding, Rafsanjani explained that parents of juveniles below 18 years who are found guilty of acts of cultism should bear some form of liability for the actions of their wards.
He advised that the Bill should specify conditions under which a parent can be held liable as well as specify the kind of punishment such parents/guardians should receive.
“Parents of adults above the age of 18 should, however, be punished only if the child in question lives under their roof or they have been found guilty of having knowledge or supporting the cultist activities of the child.
“Furthermore, the Bill should provide for punishment for sponsors of cultism. There are influential and wealthy people in society outside parents who sponsor cult activities in schools and communities. Anyone found guilty of such should be held liable and made to face the punishment.”
Abuja-based constitutional lawyer and activist, Kayode Ajulo, described the Bill as a huge joke and vowed to challenge it in court, if passed, warning the state government not to allow its sense of judgment to be beclouded by unnecessary sentiments.
“I don’t think it can stand; it will affect natural consequence. It is so clear that nobody should be meant to suffer for the sins of another. We all have our lives to live, and again, I don’t need to warn the Lagos State government that they should not allow emotion to becloud their sense of judgment.
“It is the same way whereby no one can be punished or arrested for a crime of another. This Bill is the kind of laws we saw in the olden days; it is an ancient laws. It is not the law of this contemporary time. It is the kind of laws that operated before Christ, the time of Nebuchadnezzar and Herod.
“So, it should not be. If the Bill is passed, we will go to court and the court will strike out that provision of the law.
“Yes, one may want to understand their sentiments, but many children live with their parents. Unfortunately, it is good parents that often churn out bad children. Most of the time, it is not their making.
“So, I want to believe that is a joke. It is very a huge joke; it can’t work,” Ajulo insisted.
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