A Research Into Whether ‘Incest’ Is An Offence In Nigeria
Over the happenings of such incidents of how it has become rampant how either a father has sexual intercourse with his daughter(s) or uncle having sexual intercourse with his niece or brother having sexual intercourse with his blood sister (or sister of same parents or half-sister) or even some of these categories even opt for having marriage to solemnize their sexual relationship. Nevertheless, society, culture, religion or morality has its reactions to this kind of relationship. According to the Matrimonial Causes Act, 2004 (as amended), such marriage is prohibited.
Also, according to Islamic Personal Law of Marriage, such marriage is prohibited. And both of Christianity and Islam as two prominent religions in Nigeria frown at this kind of relationship. The prevalent customs of the people too frown at this kind of relationship as abomination or taboo. The issue is how does the Nigerian law look at the issue of ‘incest’? Does the Nigerian law consider this kind of relationship (apart from being prohibited) as offence? More so, it is my humble consideration that ordinary prohibition is not enough to criminalise the act of ‘incest’. These are some of the considerations in this paper.
According to the Eighth Edition of the Black’s Law Dictionary, page 776, ‘incest’ among other meanings, means ‘Sexual relations between family members or close relatives, including children related by adoption’. Also, according to the On-line Webster dictionary, ‘incest’ is defined as ‘sexual intercourse between persons so closely related that they are forbidden by law to marry; also: the statutory crime of such a relationship’. And I may infer a more encompassing definition of ‘incest’ from the provisions of section 19 of the Sexual Offences Bill, 2019 (which according to my discovery in the course of my research, is a law undergoing legislative passage by the National Assembly of the Federal Republic of Nigeria at the moment) as an act of sexual intercourse by male which causes penetration with a female person who is to that male’s knowledge his daughter, grand-daughter, sister, mother, niece, aunt or grandmother. And mutatis mutandis in respect of any female person, an act of sexual intercourse which causes penetration with a male person who is to her knowledge her son, father, grandson, grandfather, brother, nephew or uncle.’. From the above definitions of ‘incest’, this brief research paper considers whether ‘incest’ is actually an offence in Nigeria. The concern of this paper is not on whether there is a marriage or not but rather whether the act of such sexual intercourse is an offence under the Nigerian Laws.
THE CONSTITUTIONAL CONCEPT OF OFFENCE IN NIGERIA
The Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- is the supreme law of the Federation. The relevant section to this paper is as provided in section 36(8) and (12) of the Constitution, which in my humble view, is the general concept or principle of what constitutes an offence or what can be termed as ‘foundational conceptualization of offence’, which are to guide the legal terminology of any act as an offence. Section (8) provides thus ‘No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed. (12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.’.
OFFENCE AS MATTER ON THE RESIDUAL LEGISLATIVE LIST
It is very important to state as stated earlier in this paper, that the Constitution is the supreme law of Nigeria through which the various organs and levels of Government derive the source of their powers and any variation from the Constitution is very unlawful, null and void. On this position, Ngwuta JSC has this to say ‘I wish to emphasise that the Constitution of the Federation, 1999 as variously amended, is the yardstick for determining the validity vel non of any act or decision in relation to any law in the country. Any derogation from one section is not only extraneous to the Constitution but a violation of the solemn oath undertaken by all Judges to defend and protect it’. See: Oni v Fayemi (2013) 12 NWLR (part 1369) 431 SC.
Worthy of note is that the powers of the National Assembly to make laws is exclusive on matters on the Exclusive List in the Constitution. This is because, the matters of crimes are generally in the Residual Legislative List of the Constitution which only the State House of Assembly of the Federation has powers to legislate on. On the ambit of the legislative powers of the National Assembly and the House of Assembly of a State, the Supreme Court in the case of A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC. Held thus: ‘Section 4 of the Constitution of the Federal Republic of Nigeria, 1999, divides legislative powers between the National Assembly for the Federation and the House of Assembly for the State in the exclusive and concurrent legislative list. The National Assembly has exclusive power to legislate for the Federal Republic or any part thereof in respect of matters in the exclusive list. The National Assembly also has power to legislate, though not exclusively, on matters in the concurrent legislative list set out in the first column of Part II of the Second Schedule to the Constitution and on any other matter with respect to which it is empowered to make laws. The House of Assembly of a State has power to make laws for the State or any part thereof on any matter not included in the exclusive legislative list, on any matter in the concurrent legislative list and on any other matter for which it is empowered to make laws. The House of Assembly of a State also has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists’. (Underlining is mine for emphasis). A voyage of discovery on the Exclusive and the Concurrent Legislative Lists of the Constitution confirms that the matter of crime is not on those lists explicitly. The House of Assembly of a State also therefore has exclusive power to legislate on residual matters; that is, matters that are not in the exclusive and concurrent legislative lists. Furthermore, Item 68 of the Second Schedule, Part I, of the Constitution, which is the Exclusive Legislative list, provides that the National Assembly has power on ‘Any matter incidental and supplementary to any matter mentioned elsewhere in this list’. The Part III of the Second Schedule of the Constitution provides for Supplemental and Interpretation and it provides that ‘In this Schedule, references to incidental and supplementary matters include, without prejudice to their generality, references to-(a) offences;… Also see: section 10(2) of the Interpretation Act, CAP.123, LFN, 2010, which provides that ‘ An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it’. In my humble view and submission, the National Assembly’s power to make certain acts as offences will only relate to those items in the exclusive legislative See: Oni v Fayemi (supra).
Also, exclusive jurisdiction has been conferred on the Federal High Court of Nigeria in respect of any of the offences relating to or incidental to items listed under the said section created under the section 251 (3) of the Constitution and section 3 of the Federal High Court Act, CAP F12, LFN, 2004. However, the jurisdiction in respect of any incidental offence in respect of items in the concurrent legislative list of the Constitution would then be conferred on the Federal High Court (considering the provisions of section 252(2) of the Constitution which provides thus (2) Notwithstanding subsection (1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court more effectively to exercise its jurisdiction.’. Also see the case of: A.G. Ondo State v A.G. Federation and 36 others (2002) 9 NWLR (pt . 772) 222, (2002) 6 S.C. (Pt. 1) 1.) and a High Court of a State (inclusive of those inferior courts established pursuant to the State’s Law(s)) subject to the respective Federal Legislation and the State Legislations on the said items on the concurrent legislative list (i.e. the State shall not legislate on any concurrent item, the subject matter of a Federal Legislation by virtue of section 4(5) of the Constitution which provides thus ‘(5) If any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.’, which is the doctrine of covering the field.). Nevertheless, and for the sake of emphasis, I humbly submit that the jurisdiction conferred on the Federal High Court and the powers of the National Assembly to make laws in criminalizing an act are subject to the provisions of the Constitution in section 4, which provides thus ‘4.—(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives. (2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution. (3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States. (4) In addition and without prejudice to the powers conferred by subsection (2) of this Section, the National Assembly shall have power to make laws with respect to the following matters, that is to say— (a) any matter in the Concurrent Legislative List set out in the first Column of Part II of the Second Schedule to this Constitution to the extent prescribed in the Second Column opposite thereto ; and (b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution’. Therefore, the issue of covering the field of the Federal Powers upon the States’ Power as provided in section 4(5) of the Constitution does not arise. Therefore, any matter in the residual list confers exclusive powers on the House of Assembly of the States of the Federation to legislate on. See: section: 4 (7) (a) of the Constitution which among other powers, provides thus ‘(7) The House of Assembly of a State shall have power to make Laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say— (a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution;…’. Also see: A.G. Federation v A.G. Lagos State (supra). Furthermore, it is therefore my submission that the position and status of the Federal Capital Territory –herein after referred to as FCT- is that the Residual Legislative List or power is applicable and exercisable by the National Assembly as if it were to be a State of the Federation. And it is generally submitted that the status of the FCT in relation to the Concurrent Legislative List is that the National Assembly makes laws for FCT on the matters on the Concurrent Legislative List and those matters on the Residual Legislative List as if it were to be a State of the Federation. So, such legislations even though it is an Act of the National Assembly, does not have a general application as though, it were a Federal Legislation.
INCEST UNDER THE MATRIMONIAL CAUSES ACT, LAWS OF THE FEDERATION OF NIGERIA, 2004 (AS AMENDED)
Under the Matrimonial Causes Act, marriage by incest is prohibited, null and void, but it allows judicial permission of such marriage under section 4 of the Act. So, it means that ‘incest’ under the Matrimonial Causes Act is not criminalised but prohibited and can also be legalized by judicial permission sought and obtained in accordance with section 4 of the Act. Incestual relations and marriages without the consent of a judicial officer pursuant to section 4 of the Act are voided and prohibited in the 1st schedule (section 3) of the Matrimonial Causes Act; where it lists the prohibited degree of consanguinity (of the same blood or origin) as follows;
Marriage of a man is prohibited if the woman is, or has been his-
Wife’s son’s daughter
Wife’s daughter’s daughter
Daughter’s son’s wife
Marriage of a woman is prohibited if the man is, or has been, her-
Husband’s son’s son
Husband’s daughter’s son
Son’s daughter’s husband
By Section 3 (b), (2) and (3) of the Act, it is provided thus ‘3. (1)Subject to the provisions of this section, a marriage that takes place after the commencement of this Act is void in any of the following cases but not otherwise, that is to say, where-
(b) the parties are within the prohibited degrees of consanguinity or, subject to section 4 of this Act, of affinity;
(2) The prohibited degrees of consanguinity and affinity respectively on and after the commencement of this Act shall be those set out in the First Schedule to this Act, and none other.
(3) A marriage solemnised before the commencement of this Act shall not be voidable on the grounds of consanguinity or affinity of the parties unless the parties were, at the time of the marriage, within one of the degrees of consanguinity or affinity set out in the First Schedule to this Act but nothing in this subsection shall make voidable a marriage that would not, apart from this provision, be voidable.
Furthermore, by section 4 of the Matrimonial Causes Act, it provides thus 4. (1)Where two persons who are within the prohibited degrees of affinity wish to marry each other, they may apply, in writing, to a judge for permission to do so.
(2) If the judge is satisfied that the circumstances of the particular case are so exceptional as to justify the granting of the permission sought and, may, by order, permit the applicants to marry one another.
(3) Where persons marry in pursuance of permission granted under this section, the validity of their marriage shall not be affected by the fact that they are within the prohibited degrees of affinity.
(4) The President may arrange with the Governor of a State for the performance by judges of the High Court of that State of functions under this section.
(5) In this section, “judge” means a judge in respect of whom an arrangement made under subsection (4) of this section is applicable.
(6) Rules made under section 112 of this Act may make provision for the practice and procedure in and in connection with applications under this section, and may include provision for or in relation to the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation, and the payment of expenses of witnesses.
From the above section 4 of the Act, it shows that incestuous relationship is permissible and not criminalized where the consent of a judge is sought and obtained to permit such marriage. Then, both the man and the woman in that relationship would not have committed any offence or incestual offence under the Act by virtue of the judicial consent.
I also observed that the sexual relationship of an adopted daughter or adopter son is not mentioned under this Act. Nevertheless, I am of the view that same prohibition would be applicable as such adopted daughter or son is regarded in law as the real daughter or son of the ones who adopt.
INCEST UNDER THE ISLAMIC PERSONAL LAW OF MARRIAGE
Under the Islamic Personal Law of Marriage, marriage of incest such as that which exists in a relationship between a man and: his mothers (including his grandmothers from both sides, and further up; his daughters and granddaughters (and further down); his sisters (both full and half-sisters); his paternal aunts (including his father’s, grandfathers’, mother’s and grandmothers’ paternal aunts, and further up); his maternal aunts (including his father’s, grandfathers’, mother’s, and grandmothers’ maternal aunts, and further up); his brothers’ (both full and half-brothers) daughters and granddaughters (and further down); his sisters’ (both full and half-sisters) daughters and granddaughters (and further down). These are prohibited based on blood relationships. Also, permanently prohibited for a man because of marital relationships are: the wives of his fathers (and grandfathers and further up); the wives of his sons (and grandsons and further down); his wives mothers (and grandmothers and further up); the daughters (and granddaughters and further down) of the wives with whom he performed intercourse (i.e. step daughters) (and in this regard of step daughters, most scholars were reported to hold the opinion that they are all prohibited, without exception- as soon as their step-father performs intercourse with their mother. They say that the ‘custody’ restriction in the Quran Chapter 4:23 is a description applicable in all step-daughters. There are also those permanently prohibited as a result of milk relationship. These category of women are: foster mother (counted as his mother); foster daughter (counted as his daughter); foster mother’s mother (counted as his maternal grandmother); foster father’s mother (counted as his paternal grandmother); foster mother’s sister (counted as his maternal aunt); foster father’s sister (counted as his paternal aunt); foster mother’s granddaughter (counted as his niece); foster sister (counted as his sister). See: the book ‘the Muslim Family, Volume 1, by Muhammad Mustafa Al-Jibali, Al-Kitab & As-Sunnah Publishing, Revised Edition, Chapter 8, pages: 139 to 151. Though, there are other categories of prohibited marriages under the Islamic Personal Law of Marriage, which I have not discussed under this paper and the reason is to avoid being verbose and departing from the objectives of this paper. Furthermore, Almighty Allaah says in the Holy Quran (which is the first Primary Source of Islamic Laws) on marriages that are prohibited in Quran 4:23 thus ‘Prohibited to you (for marriage) are your mothers, daughters, sisters, paternal aunts, maternal aunts, brother’s daughters, sister’s daughters, foster mothers who breast-fed you. Foster sisters, wive’s mothers, step-daughters under your custody and born of your wives with whom you have had intercourse- but if you have not had intercourse with them, there is no sin upon you (if you marry their daughters) –, the wives of your sons who are your own offspring, and that you simultaneously marry two sisters – except for what has already passed. Indeed, Allaah is Forgiving and Merciful’.
Furthermore, under the Islamic Law of Crimes and Punishment, the punishment for adultery or fornication (Zina in Islamic parlance) varies. If it is fornication, the punishment is 100 lashes as stated in the Holy Quran plus one year in exile (likelihood of imprisonment in the present time), which is added by the Holy Prophet Muhammad (may Allaah’s blessings and peace be upon him) as Allaah laid down the punishment in Quran Chapter 24:2 thus: ‘The woman and the man guilty of adultery or fornication, flog each of them with a hundred stripes. Let not compassion move you in their case, in a matter prescribed by Allaah, if you believe in Allaah and the Last Day: and let a party of believers witness their punishment’. But where it is adultery, the punishment is stoning to death i.e. rajm for married adulterer (male or female). For instance, Ubada Ibn As-Samit reported Allaah’s Messenger (may Allaah’s blessings and peace be upon him) as saying ‘Receive (teaching from me, receive (teaching) from me. Allaah has ordained a way for those (women). When an unmarried male commits adultery with an unmarried female (they should receive) one hundred lashes and banishment for one year. And in case of married male committing adultery with a married female, they shall receive one hundred lashes and stoned to death’. Though, Islamic scholars differ in respect of combination of lashes with stoning to death. See: Yahya Yunusa Bambale, Crimes and Punishments under Islamic Law Second Edition, 2003, Malthouse Press Limited, Lagos State, Nigeria, pages: 33-34.
What this means in my humble view, is that under Islamic Law (and for every Muslim-male and female), sexual relationship with opposite sex without a valid and legal marriage conducted according to Islamic Personal Law of Marriage is either an adultery or fornication depending on the marital status of either of the perpetrators. It is not only a moral wrong but also criminally punishable. What this means in my submission is that since any marriage of incest is void, it means that it is an adultery or fornication to have any sexual relationship under the acclaimed marriage (which is void) or where there is no marriage at all. Also, it has to be made clear that Islam does not permit any sexual relationship without a valid and legal marriage, else, any such sexual relationship is either adultery or fornication, which is capital offence in the case of adultery.
The purport of the above discourse and authorities is to the effect that such prohibited marriages are void ab initio and are not legal in Islamic Personal Law of Marriage. Therefore, any sexual relationship that exists in such relationship in my humble submission, will be regarded as adultery (where either of the parties are married or married before) or fornication (where none or either of the parties is not married). Therefore, in my humble submission, the Islamic punishment for adultery or fornication (as the case might be) would be applicable to this incestuous relationship. The constraints here is that Islamic criminal laws are not applied in Nigerian Criminal Justice System except those that have been passed into law as a Law of the particular State practicing the Islamic law in Nigeria and by its House of Assembly, as a State Law forming part of the Residual Legislative List.
INCEST UNDER THE PENAL CODE ACT OF THE FEDERAL CAPITAL TERRITORY, LAWS OF FCT, ABUJA, 2007
Under the Penal Code Act of FCT, there is no provision in the said Act that criminalises incest as an offence or where ‘incest’ is clearly mentioned as an offence or defined as such. However, considering the provisions of section 282(1)(e) of the Act, which provides thus ‘(1) A man is said to commit rape who, save in the case referred to in subsection (2), has sexual intercourse with a woman in any of the following circumstances- (e) with or without her consent, when she is under fourteen years of age or of unsound mind’, it is my humble submission that incest of a girl under the years of fourteen years of age can be termed as rape since consent is not a defence.
INCEST UNDER THE CRIMINAL CODE ACT
Under the Criminal Code Act (that is for those States that apply its provisions, except those States that have enacted their own criminal laws thereby departing from the Criminal Code and except those States in the Northern Part of Nigeria inclusive of the Federal Capital Territory, Abuja, that uses the Penal Code), by sections: 218 and 221, it is an offence to have carnal knowledge of a girl under the age of thirteen years and under the age of sixteen years respectively.
INCEST UNDER THE CHILD’S RIGHTS ACT, 2003
The Child’s Rights Act, 2003, is an Act of the National Assembly applicable in the Federal Capital Territory, Abuja (that is, it does not have a general application to other States of the Federation). Nevertheless, other States that have enacted Child’s Rights Law of their State have similar provisions as contained in the Child’s Rights Act except with some few differences. ‘A child’ by section 277 of the Child’s Rights Act -‘means a person who has not attained the age of eighteen years’. By section 31 of the Act, it is an offence to have sexual intercourse with a child. For the purpose of emphasis, the Act provides thus ‘(1) No person shall have sexual intercourse with a child.
(2) A person who contravenes the provision of Subsection (1) of this section commits an offence of rape and is liable on conviction to imprisonment for life.
(3) Where a person is charged with an offence under this section, it is immaterial that- (a) the offender believed the person to be of or above the age of eighteen years; or
(b) the sexual intercourse was with the consent of the child.’
INCEST UNDER THE CROSS-RIVERS PUNISHMENT OF INCEST LAW, CAP C24, LAWS OF CROSS-RIVERS STATE
In Rivers State, there has been enacted a law titled ‘Cross-Rivers Punishment of Incest Law, incest is an offence under section 1, 2, and 3. Section 1 provides thus ‘The provisions of this Law shall apply whether the relationship between the person charged with an offence under this Law and the person with whom the offence is alleged to have been committed is or is not traced through lawful wedlock.
By section 2, it is provides on incest by males thus ‘(1) Any male person who has carnal knowledge of a female person who is to his knowledge his grand-daughter, daughter, sister or mother is guilty of a misdemeanor and is liable to imprisonment for seven years.
(2) If the female person is under the age of eleven years, he is guilty of a felony and liable to imprisonment for fourteen years.
(3) It is immaterial that the carnal knowledge was had with the consent of the female person.
(4) If any male person attempts to commit any such offence as aforesaid he is guilty of a misdemeanor and liable to imprisonment for two years.
(5) On the conviction of any male person of an offence under this section or of an attempt to commit the same, the Court may divest the offender of all authority over the female person against whom the offence is committed, and, if the offender is the guardian of such female person, may remove the offender from such guardianship and in any such person during her minority or any less period:
Provided that the Court may at any time vary or rescind the order by the appointment of any other person as such guardian or in any other respect.
Also, by section 3 of this Law, it is also possible for a female to commit the offence of incest. The said section 3 provides thus ‘ Any female person of or above the age of sixteen years who with consent permits her grandfather, father, brother or son to have carnal knowledge of her (knowing him to be her grandfather father, brother or son, as the case may be) is guilty of misdemeanour and liable to imprisonment for seven years’. But I have observed that this Law only determines incest only in a limited form to grand-daughter, daughter, sister or mother and grandfather, father, brother or son only.
INCEST UNDER THE SEXUAL OFFENCES BILL, 2019
In the course of my research, I came in contact with the soft copy of a Bill of the National Assembly which provides for the offence of incest. This Act encompasses the offence of incest. Under the Act, both male and female are capable of committing the offence of incest. The relevant sections of the Bill which is not yet signed into law, are as follows: 19(1) Any male person who commits an indecent act or an act incest by male which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence called incest and is liable, upon conviction, to imprisonment for a term of not less than then years:
Provided that, it is alleged in the information or charge and proved that the female person is under the age of eighteen years, and the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
(2) If any male person attempts to commits the offence specified in sub-section (1), he is guilty of an offence of attempted incest and is liable, upon conviction, to a term of imprisonment for not less than seven years.
(3) Upon conviction in any court of any male person for an offence under this section, or of an attempt to commit such an offence, it shall be within the power of the court to issue an order removing or divesting the offender of all authority over such female, remove the offender from such guardianship and in such case appoint any person or persons to be the guardian or guardians of any such female during the period of her minority or less period.
20. The provisions of section 19 shall apply mutatis mutandis with Incest by respect to any female person who commits an indecent act female persons or act which causes penetration with a male person who is to her knowledge her son, father, grandson, grandfather, brother, nephew or uncle.
21. (1) In cases of the offence of incest, brother and sister includes half brother, half sister, and adoptive brother relationship and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.
(2) In this Act ——
(a) “Uncle” means the brother of a person’s parent and “Aunt” has a corresponding meaning;
(b) “Nephew” means the child of a person’s brother or sister and “Niece” has a corresponding meaning;
(c) “Half brother” means a brother who shares only one parent with another;
(d) “Half sister” means a sister who shares only one parent with another and
(e) “Adoptive brother” means a brother who is related to another through adoption and “adoptive sister” has a corresponding meaning.
(3) An accused person shall be presumed, unless contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.
(4) In cases where the accused person is a person living with the complainant, in the same house or is the parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of special care and protection and may give further orders as it may deem necessary.’
EFFECTS OF A VOID MARRIAGE UNDER THE MATRIMONIAL CAUSES ACT AND THE ISLAMIC PERSONAL LAW OF MARRIAGE
As said earlier in this paper, an incestuous marriage or sexual relationship is not only prohibited under the Matrimonial Causes Act and the Islamic Personal Law of Marriage but also, such marriage is ‘void’ no matter how flamboyantly conducted. Considering the use of ‘void’ or to say, ‘null’ and ‘void’ in a statute, the Nigerian Courts have decided on the effects of use of such words. For instance, the word ‘void’ has been defined by the Court of Appeal in the case of Buraimoh v Karimu (1999) 9 NWLR (pt.618) 310 C.A. as follows ‘void’ means ‘ineffectual, nugatory, having no legal force or binding effect, which is unable, in law, to support the purpose for which it was intended. In its strictest sense, it means that which has no force and effect, without legal efficacy and is incapable of being enforced by law or has no legal or binding force.
However, the word ‘void’ is used in Statutes in the sense of utterly void as to be incapable of ratification and also in the sense of voidable and recourse must be had to the rules of construction in many cases to determine in which sense the legislature intended to use it’. And in the case of Ishola v Ajiboye (1998) 2 NWLR (pt.532) 71 C.A., the Court of Appeal held thus ‘when a thing is void, it does not exist, you cannot put something on nothing, it will just not stand’.
The words ‘null and void’ was expressed by the Supreme Court in the case of Adefulu v Okulaja (1996) 9 NWLR (PT.475) 668 SC., in the following words ‘once an act has been declared ‘null and void’ by a court of law, the effect in law is that the act was never carried out. And in Ishola v Ajiboye (supra), the Court of Appeal held as follows ‘when an act or decision is declared ‘null and void’, it is meant to say that the act or decision binds no one and is incapable of giving rise to any right or obligation under any circumstance’.
And as an addendum, the words ‘void ab initio’ according to the Black’s Law Dictionary, Eighth Edition, page 1604, means ‘null from the beginning, as from the first moment when a contract is entered into. A contract is void ab initio if it seriously offends law or public policy, in contrast to a contract that is merely voidable at the election of one party to the contract’.
In my humble view, it means that any marriage conducted by incestuous relationship being void is assumed in law as having not taken place or conducted at all from the beginning. The only exception to this position is that of section 3 and 4 of the Matrimonial Causes Act which provides that a Judge can permit such prohibited marriages considering the circumstances of the situation. Nevertheless, considering the cultural and religious understanding of Nigerians, I doubt if any judge of Nigerian Courts would permit such relationship. For instance, how would a judge be able to permit a father to marry his daughter?! Or how will a judge permit a mother to marry her own son?! Or how will a judge permit brother and sister to enter into conjugal relationship to be husband and wife?! The Judge too being a parent or brother or uncle in his human capacity. At best, I would say that the time when such can be permissible has long been forgone and would only perhaps reoccur when the world is almost to come to an end being the reverse of what the beginning of life was during the existence of Adam and Eve (Adam and Hawaaw in Islamic law parlance), when such act was then permissible.
From the above discourse, it is my humble submission that ‘incest’ can only be an offence under each State Law and in relation to the Federal Capital Territory, Abuja, as legislated by the National Assembly. Also, as of the moment, incest can be termed ‘rape’ as there is no such law in force already in Nigeria which has termed ‘incest’ as an offence except as can be seen above in the case of Cross-Rivers State and except any other State of the Federation that legislates to criminalise incest. Furthermore, as said earlier above, incest can only be an offence under rape when it involves a girl child of under-eighteen years of age. But in a case where the incestuous act is committed against a person above the age of eighteen years, there is no law that criminalises such act in Nigeria, except as in the case of Cross Rivers State and any other State that legislates a law that criminalises incest. Also, it is doubtful whether a Court of law would consent to incestuous relationship between a father and a daughter etc., as provided for in sections 3 and 4 of the Matrimonial Causes Act. Therefore, the Bill undergoing legislative process in the National Assembly will stand a good idea in criminalizing incest in the Federal Capital Territory, Abuja. Also, under Islamic Law, incest is prohibited and is punishable under Islamic Criminal Law but such Islamic criminal law is not effective in Nigeria except those States of the Federation that make such criminal law as part of their criminal laws in the State.
The Sexual Offences Bill, 2019, should be given a speedy passage in order to criminalise incest in the FCT-Abuja.
I also recommend that all States of the Federation should adopt the Sexual Offences Bill of 2019, when passed into law or to pass same directly as Law of the State by the State’s House of Assembly.
From the above general discourse, it is shown that incest under the Nigerian Criminal Laws can be termed as rape as there is no such law that criminalises incest in Nigeria, except that the Cross Rivers State has criminalized same and any other State that criminalises same. I therefore hope that the National Assembly would make haste in passing the Sexual Offenses Bill of 2019, without any further delay and that States of the Federation would legislate similar law in those States for the betterment of the Nigerian civil society.