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Category Archives: Sexual and Reproductive Health Rights

INTERNATIONAL DAY FOR THE ELIMINATION OF VIOLENCE AGAINST WOMEN

By Innocent Doris U ESQ

Capture-1

This day was declared on December 17, 1999, by the United Nations (UN), 20 years ago, but the history of this day, dates back to 1981. This day is very relevant as the world seeks to bring Gender Based Violence and injustice against women to an end. This year’s theme is Generation Equality stands against rape. As we celebrate the International day for the elimination of violence against women, I am caught in a dialogue within, a reality check on the import of this day and the difference in the prevalence of violence against women in Nigeria 20 years ago and in our present day.

The present glaring reality of Gender Based Violence in Nigeria is quite alarming. The prevalence of Gender Based Violence is at an all time high with minors and babies at risk of becoming rape survivors. We must speak up against this endemic evil that is beginning to eat into the fabrics of our society; we must do all we can to avoid it from becoming a norm. We must protect our women and children from this terrible act. Movies like Ovys voice, alter ego, Code of Silence amongst other numerous Nolly wood movies depict the after math of rape and the different psychological trauma that victims of rape go through.

Rape is a Crime, not a civil matter that can be settled. In my line of work I have seen mistakes that victims and guardians make when a rape incidence occurs. These costly mistakes end up affecting the victim and eventually the case.

Rape has been defined by Section 1(1) of the VAPP Act 2015.

A person commits rape if –

  • He or She intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else;
  • The other person does not consent to the penetration Or
  • The consent is obtained by force or means of threat or intimidation of any kind or by fear or harm or by means of false and fraudulent representation as to the nature of the actor the use of any substance or additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.

It is important to know what to do when a rape incident has occurred:

  • Report to the nearest Government Hospital immediately for tests and a detailed test report.
  • Get a professional counselor to help the victim heal emotionally and mentally.
  • Get a lawyer

 

At this point, it is important to reiterate that parents and guardians should keenly watch their children and take reports made to them about harassment or suggestive words very seriously. A lot of child rape would have been prevented only if the parents or guardians of the victims had taken the cues their children had given them, listened to them or even acted on the reports they were given. Studies have shown that Child rape or violations are perpetuated mostly by familiar people or people the children trust. So parents are enjoined to be extra careful of who they allow to have access to their children or wards.

 

In conclusion, Lawyers Alert is always here for you to make reports of any violation of human rights. If you are aware of anyone whose rights have been violated, please contact us through any of our platforms, our numbers are on the website. We look forward to hearing from you.

HAPPY INTERNATIONAL DAY FOR THE ELIMINATION OF VIOLENCE AGAINST WOMEN FROM ALL OF US AT LAWYERS ALERT

 

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CAVEAT

Lawyers Alert hereby puts our readers on notice that this article is based on the writers opinion and do not necessarily represent the views of the organization except otherwise stated.

 

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THE PARODY OF FREEDOM OF ASSOCIATION AND THE LGBTIQ COMMUNITY IN NIGERIA

By Victor Eboh Esq, Reproductive Right Officer

blacklgbt

 

Sometime in 2018, one PAMELA ADIE, a citizen of the Federal Republic of Nigeria, approached the Corporate Affairs Commission of Nigeria, for the registration of an organization with the name, (LESBIAN EQUALITY AND EMPOWERMENT INITIATIVE), whose goal was to advocate for the rights of female sexual minorities. The Corporate Affairs Commission contended that the name could not be approved because it was misleading, offensive, contrary to public policy and violates an existing law that prohibits same sex unions and associations in Nigeria.

Many adherents and sympathizers have wondered and questioned the veracity and otherwise behind the sentiments of the commission.

This piece, seeks to draw a line of contrast and spell out the parody between the constitutionally guaranteed right of freedom of Association, and the plight of the LGBTIQ community in Nigeria. But before we get down to brass tacks, let us first consider a general overview of the concept….. Freedom of Association.

 

CONCEPT OF FREEDOM

The word Freedom, has been succinctly rendered by Oxford Advanced Dictionary, as ‘the condition of being free, the power to Act or Speak or Think, without externally imposed restraints.’

FREEDOM OF ASSOCIATION on the other hand, encompasses both an individual’s right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interest of it’s members and the right of an association to accept or decline membership based on certain criteria.

According to the Human Rights House Foundation, Freedom of Association is one of the most basic rights enjoyed by humans. It ensures that every individual is free to organize and to form and participate in groups, either formally or informally.

Freedom of association involves an individual’s right to come together with other individuals to collectively express, promote, pursue and/or defend common interests without interference, and the right of the group to take collective action to pursue the interests of its members.   The right to freedom of association protects associations formed to undertake any activity or pursue any objective that an individual can undertake or pursue alone, provided that those activities or objectives are lawful. Freedom of association is a fundamental human right that is crucial to the functioning of a democracy and an essential condition for the exercise of other human rights. It provides space for the development of civil and political society, an arena for people to express different views, values or interests and a platform for such views, values or interests to be heard. Freedom of association complements and consolidates other individual freedoms and without it, individuals may not express themselves as a group, defend their common interests and positively contribute to the development of their societies.

 

BACKGROUND TO THE PRINCIPLE OF FREEDOM OF ASSOCIATION

The principle of freedom of association constitutes one of the basic tenets of the International Labor Organization (ILO) that was established by the TREATY Of VERSAILLES Of 1919, (source: Initiative for Strategic Litigation in Africa)  in the wake of the first world war to improve the condition of workers and achieve universal peace through social justice.  The ILO conventions on freedom of association were, and continue to be, primarily focused on the protection of the right to organize and bargain collectively.

 

Freedom of association is closely linked with the freedom of assembly and both are protected by Article 20 of the Universal Declaration of Human Rights (UDHR). The right is interrelated with other human rights and freedoms, such as the rights to freedom of expression and opinion and freedom of thought, conscience and religion. Giving the freedom of association protection in national and international law was not primarily to protect individual interests, but rather to seek to secure a more equitable distribution of power within the working environment and society as a whole. But individuals do deserve legal protection in this as other contexts so that their conscience, religious beliefs, freedom of expression, bodily integrity and so forth are safeguarded.

Consequently, freedom of association is both an individual and a collective human right.

 

LEGAL FRAMEWORK GOVERNING THE CONSTITUTIONALITY OF FREEDOM OF ASSOCIATION

The combined efforts of both the Domestic, Regional and International frameworks, all ensure equality of all persons regardless of their sexual orientation and gender identity.

DOMESTIC LEGAL FRAMEWORK

The Constitution of the Federal Republic of Nigeria(1999) as amended, remains the ground norm of the land, and it is sacrosanct. The extent of its supremacy is spelt out in Section 1(3) to wit: ‘if any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void’

Of specific interest to the subject matter are the unambiguous provisions of Sections 38, 39 & 40

Section 38(1) ‘ Every person shall be entitled to freedom of thought, conscience and religion…..”

Section39(1) “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impact ideas and information without interference.”

Section 40 “ Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest

 

REGIONAL LEGAL FRAMEWORK

Article 10(1) of the African Charter on Human and Peoples’ Rights provides that “everyone shall have the right to free association provided that he abides by the law.”

Articles 12(3), 27(2) and 28 of the African Charter on Democracy, Elections and Governance guarantee the right to freedom of association.

ACHPR/Res. 5(XI)92: Resolution on the Right to Freedom of Association (1992)

  • The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the Constitution and international standards;
  • In regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom;
  • The regulation of the exercise of the right to freedom of association should be consistent with state’s obligations under the African Charter on Human and People’s Rights.

 

INTERNATIONAL LEGAL FRAMEWORK

Article 20(1) of the Universal Declaration of Human Rights provides that “everyone has the right to peaceful assembly and association.”

Similarly Article 22(1) of the International Covenant on Civil and Political Rights (ICCPR) states that “everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”

The second paragraph of Article 22 of the ICCPR states that no restrictions may be placed on the exercise of this right “other than those which are prescribed by law and which are necessary in a democratic society.”

Article 5(ix) of the International Convention on the Elimination of All forms of Racial Discrimination also provides for the right to freedom of peaceful assembly and association.

Article 7(c) of the International Convention on the Elimination of All forms of Discrimination Against Women obligates states to ensure participation, by women, in non-governmental organisations and associations concerned with the public and political life of the country.

Article 29 of the Convention on the Rights of Persons with Disabilities has similar provisions to the ICEDAW.

“States have an obligation to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, including persons espousing minority or dissenting views or beliefs and human rights defenders… seeking to exercise or to promote their rights and to take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.”

– UN Human Rights Council Resolution 21/26 (2012)

 

  • Article 11(1) of the European Convention for the Protection of Human Rights provides that “everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

Article 11(2) of the European Convention states that “no restriction shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protections of the rights and freedoms of others.”

The European Convention no. 124 on the Recognition of the Legal Personality of International Non-Governmental Organisations gives recognition to the formation of associations, foundations and other private institutions

The American Convention on Human Rights Art 16(1) states that “everyone has the right to associate freely for ideological, religious, political, economic, labour, social, cultural, sports, or other purposes.”

 

DUTIES AND OBLIGATIONS OF THE STATE IN ENSURING FREEDOM OF ASSOCIATION

It is the responsibility of the state to respect, protect and facilitate the exercise of the right to freedom of association.

States have a negative obligation to refrain from any interference with the right to freedom of association. It is responsible for violations of this right when the infringement occurs as a result of state interference or its failure to secure the right in domestic law and practice.

In Civil Liberties Organization v. Nigeria, Comm. No. 101/93 (1995), ACHPR, the Commission held that “freedom of association is enunciated as an individual right and it is first and foremost a duty for the state to abstain from interfering with the free formation of associations. There must always be a general capacity for citizens to join, without state interference, in associations in order to attain various ends.”

In International Pen and Others (on behalf of Ken Saro-Wira) v. Nigeria, ACHPR Comm. No 154/96 (1998), the African Commission found a violation of the right to freedom of association where the government took action against an association due to disapproval of its actions.  “Communication 154/96 alleges that Article 10.1 was violated because the victims were tried and convicted for their opinions, as expressed through their work in MOSOP. In its judgment, the Tribunal held that by their membership in MOSOP, the condemned persons were responsible for the murders, guilt by association, it would seem furthermore that, government officials at different times during the trial declared MOSOP and the accused guilty of the charges, without waiting for the official judgment. This demonstrates a clear prejudice against the organization MOSOP, which the government has done nothing to defend or justify. Therefore the Commission finds a violation of Article 10.1.” (at para 108).

 

The state has a positive obligation to ensure respect for the right to freedom of association. This includes an obligation to protect associations from interference by third parties and non-state actors.

Further, the state has a positive obligation to enact legislation an/or implement practices to protect the right to freedom of association from the interference of non-state actors, in addition to refraining from interference itself. The principle extends to cases of infringement committed by private individuals that the state could or should have prevented.

The positive obligation of the state to facilitate the exercise of the right includes creating an enabling environment in which formal and informal associations can be established and operate. This may include an obligation to take positive measures to overcome specific challenges that confront certain persons or groups such as minorities, people living with disabilities, women and youth etc. in their efforts to form associations.

 

States have an obligation to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, including persons espousing minority or dissenting views or beliefs and human rights defenders, seeking to exercise or to promote their rights.

It is first and foremost a duty for the state to abstain from interfering with the free formation of associations. There must always be a general capacity for citizens to join, without state interference, in associations in order to attain various ends.

Freedom of association also protects the right to refuse to join an association. There is no right for any individual to join a particular association if other members of the group decide not to include them or to expel them on the basis that their membership was not compatible with the aim and interests of the association. However, in relation to trade unions, if a decision not to include a person has adverse employment consequences, any such decision must not be unreasonable or arbitrary.

The right to freedom of association protects against the interference of the State in both the right to form an association and the right to join or remain a member of an existing one. The state is also obligated to guard against interference with the right by non-state actors and facilitate the exercise of freedom of association by creating an enabling environment in which associations can operate.

 

  • IT SHOULD FURTHER BE NOTED THAT Associations have the right to participate in matters of political and public debate, regardless of whether the position taken is in accord with government policy or advocates for a change in law.

“There is nothing…to suggest that it is immoral or unlawful to persuade those in power to change certain laws as long as that is done lawfully and peacefully. If the change advocated for is in the views of the lawmakers, likely to lead to or promote unlawfulness or any other undesirable situation or consequences, they are perfectly entitled to refuse to accede to such suggested changes. To refuse the applicants an opportunity to come together and register an organization to carry out peaceful and lawful advocacy for legal reforms…clearly violates their rights under the [Constitution]”

Thuto Rammoge v. Attorney General of Botswana, case no. MAHGB-000175-13 (High Court).

Legislation and policy concerning associations must be uniformly applied and must not discriminate against any person or group of persons on any grounds such as age, gender, gender identity, health condition, religion or belief, sexual orientation or other status. Membership or non-membership in an association shall not constitute grounds for the discriminatory treatment of persons.

Although an ‘association’ must have some degree of continuity, it need not have any formal or legal status (including legal personality) in order to be protected by international law.

The state cannot effectively negate the freedom of association by generally declaring the objectives of associations to be unlawful.

 

LEGAL EXCEPTIONS THAT NEGATES THE FULL ENJOYMENT OF FREEDOM OF ASSOCIATION

International human rights law allows restrictions to be imposed on rights where those restrictions are;

  • Provided by law,
  • Serve as a legitimate aim; and
  • Are necessary in a democratic society.
  • Prescribed by law– This implies that any restriction should have a basis in domestic law. Furthermore, the law itself should be of a certain quality; foreseeable as to its effect and accessible to the person concerned.
  • Legitimate aim– The interference in question should be necessary in a democratic society, in the interests of national security or public safety, for the prevention of disorder and crime, for the protection of health and morals or for the protection of rights and freedoms of others.

In Monim Elgak, Osman Hummeida & Amir Suliman (represented by International Federation for Human Rights & World Organisation Against Torture) v. Sudan, ACHPR Comm. No. 379/09 (2014), para 119, the ACHPR found that “the only reason that KCHRED and its director were targeted was on account of their perceived links with the ICC.  The Respondent State has not provided any information showing that the activities of the organization endangered national security, morality, or the rights of other people in Sudan.  In the circumstances, the Commission considers that the State’s interference with the activities of the organization and its staff was unjustifiable and arbitrary and finds a violation of Article 10 of the Charter.”

 

  • Necessary in a democratic society– This implies two conditions;
    • There has to be a pressing social need for the interference, and in particular,
    • The interference should be proportionate to the legitimate aims pursued. They must be proportionate to achieve their protective function; they must be the least intrusive instrument amongst those which achieve their protective function; they must be proportionate to the interest to be protected.
  • In Attorney General of Botswana v. Thuto Rammoge [2016] Civil Appeal No. CACGB-128-14, Botswana Court of Appeal held the Registrar violation of the LGBT group’s right to association was not a proportional restriction. “In my judgment the refusal of registration of a society to further address that social ill could only be justified if it could be shown clearly that the society proposed to actively participate in or to encourage the commission of crimes against those sections. That is not the case.  Nor can it be said to be proportional if a society formed to pursue a number of honourable objectives, including advocacy, public health and education, was refused registration purely because, in the subjective view of the Registrar (or of the Minister), it was suspected of being likely to promote unlawful activities.  There must, as I have said, be some evidential basis for such a conclusion.  Here there was none.”

 

JUDICIAL DECISIONS VIS-À-VIS FREEDOM OF ASSOCIATION OF LGBTIQ MEMBERS

 

In 2013 in Kenya, the NGO Co-ordination Board refused to register an organization under the name Gay and Lesbian Human Rights Council.  The Board defended its rejection on the basis that the proposed names were inconsistent with laws criminalizing same sex conduct.  The High Court in Nairobi held that the Kenyan Constitution guarantees every person the right to freely associate and form an association of any kind.  As the judiciary is enjoined to apply the Constitution without prejudice, the right to freedom of association must be realized for all persons regardless of sexual identity or gender.   The Board, as a state entity, is required to act in accordance with the Constitution regardless of the personal views of its members and public opinion holding that homosexuality is reprehensible.

The Court found that limiting the petitioners’ right to freedom or association was not justifiable under Article 24 of the Kenyan Constitution, since can only be limited if it is reasonable and justifiable in a “democratic society based on human dignity, equality and freedom.”  The criminal ban on same sex conduct does not prohibit LBGT persons from existing or associating and thus is not reasonable nor justifiable.

Eric Gitari v Non-Governmental Organizations Co-Ordination Board [2015] eKLR, Petition No. 440 of 2013 (at paras 73-99).

 

In Jacqueline Kasha Nabagesera v Attorney-General Misc. Cause 33 of 2012, Freedom and Roam Uganda and Sexual Minorities of Uganda organized a workshop in order to train LGBTI activists.  The Minister of Ethics and Integrity ordered the forcible closure of the workshop, alleging that it was an illegal gathering of homosexuals prohibited by section 145 of the Ugandan Penal Code, which criminalizes same sex conduct.  The workshop organizers challenged the actions of the Minister as a violation of their constitutional rights to freedom of expression, political participation, freedom of association and assembly, and equality before the law.

The Ugandan High Court accepted that the applicants were exercising their rights to freedom of expression, association, and assembly.  Yet, it also found that Article 43 of the Ugandan Constitution, which allows justifiable limitations of human rights in the public interest, was applicable in this circumstance.  The Court found that the workshop promoted prohibited and illegal same sex acts and such promotion was prejudicial to the public interest, thus the Minister was justified and did not violate the applicants’ aforementioned rights.   The Ugandan High Court declared that the “promotion of morals is widely recognized as a legitimate aspect of public interest which can justify restrictions”.

 

In Pamela Adie v Corporate Affairs Commission (2018) Federal High Court of Abuja, the CAC refused the registration of an organization named Lesbian Equality and Empowerment Initiatives whose goal was to advocate for the rights of female sexual minorities. The CAC contended that the name could not be approved because it was misleading, offensive, contrary to public policy and violates an existing law that prohibits same-sex marriage in Nigeria.

The Court held that in so far as the Same Sex Marriage (Prohibition) Act is still operative in Nigeria and has not been repealed, the right to form same sex and gay unions and associations is prohibited and CAC was justified to have rejected the application for being in contravention of public policy and morality.

 

RECOMMENDATION

The right to freedom of Association is core to any society, it is an indispensable right in enabling citizens to monitor the Human rights situations in a country and to support the implementation of Human Rights policies. It is key for the work of Human Right defenders.

Registration should never serve as a tool to control the establishment of organizations, but rather as a tool to provide them with a legal status in jurisdictions that require such a measure.

Denying registration to NGOs that challenge or criticize the government is a violation of the right to freedom of association which forces civil action underground and delegitimizes NGO work. Registration as a form of repression also hinders the formation of an open and pluralistic society, by excluding civil society from public dialogue.

In many countries with a high level of civil society engagement and indeed an enabling environment, prior registration is not mandatory. If such regulations are in place, the UN has underlined that principles guiding the rule of law also apply to these regulations, meaning that they should be determinable, non-retroactive, lawful, proportional, non-discriminatory, and necessary. Furthermore, registration procedures should be expeditious, and not be used as a tool to slow down the establishment of organizations.

The possibility to appeal a decision should be included in the regulation, to provide civil society organizations with fair access to obtaining legal status. Provisions should not require re-registration, enabling organizations to be sustainable and look to the long-term.

Procedures governing the registration of civil society organizations play an important role in the control of civil society space. With this in mind, the power to limit the right to freedom of association must be appropriately framed. States should not impose lengthy, burdensome or overly bureaucratic registration processes, as this would undermine the effective functioning of NGOs.

In some countries, registration applications filed by associations can take up to a month to be considered for approval, while business registration is considered complete, the moment the application is filed.

Burdensome re-registration and reporting requirements usually do not meet the criterion of necessity, as they are solely used to control the activities of NGOs. Nor do they follow the principle of non-discrimination, as often more requirements are placed on civil society than on businesses. There are also doubts that such requirements are proportional, given the heavy requirements with regard to the budget of NGOs, in comparison to businesses for example.

CONCLUSION

FROM All The ABOVE CONSIDERATION, then comes the parody,… can the express provision of the Same Sex Marriage Prohibition Act 2014, negate, subjugate and undermine the express provision of the Constitution of the Federal republic of Nigeria?

Section 4(1) SSMPA “The registration of gay clubs, societies and organizations, their sustenance, processions and meetings, is prohibited”

Section 40, 1999 constitution “ Every person SHALL be entitled to ASSEMBLE freely and ASSOCIATE with other persons and in particular he may FORM or BELONG to ANY political party, trade union or ANY OTHER ASSOCIATION for the protection of his interest”

THERE LIES THE PARODY, WHERE LIES THE SUPREMACY?

 

CAVEAT

Lawyers Alert hereby puts our readers on notice that this article is based on the writers opinion and do not necessarily represent the views of the organization except otherwise stated.

 

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THE IMPLICATION OF SAME SEX MARRIAGE PROHIBITION ACT 2014 AND THE RIGHTS OF SEXUAL MINORITIES IN NIGERIA.

By Victor Eboh, (Legal / Reproductive Right Officer)

blacklgbt

 

Violence and discrimination against sexual minorities  in Nigeria have been on the increase in recent times, no thanks to the promulgation of the Same Sex Marriage (Prohibition) Act 2014, (Herein after referred to as The Act) which has contributed negatively to the already dire circumstances of the Sexual minorities (Herein after referred to as The Community) in Nigeria. Members of the community have suffered an increasing wave of arbitrary arrest, unlawful invasion of privacy, assault and battery, sexual violence and extortion, among other ills, since the passing of the Act.

The average citizens of Nigeria, finds it very difficult to enjoy the protection of their rights and access to basic social services. It is rather more unfortunate for persons who are imputed to have sexual minority identities; they are faced with even more social isolation and discrimination by both states and non-state actors. Ironically, Public Authorities who are saddled with the responsibility to protect and ensure the fundamental rights of citizens are sustained, are most times at the forefront of the scourge of terror, intimidation, intolerance and violence against members of the community. The extreme intolerance, homophobia, bi-phobia and transphobia, make it even more dangerous for sexual minorities to reach out for help, hence most human rights violations against them, go unreported.

The cardinal principles of human rights include, universality and non-discrimination. The pre-condition for enjoying human rights is HUMANITY.  However, the Nigerian society and Public authorities do not see the sexual minorities as part of those, whose humanity are guaranteed rights under the Nigerian Constitution. Thus, their humanity is disregarded solely because of their sexual orientation or gender identity or expression, which exposes them to all forms of violence.

 

LEGAL FRAMEWORK GOVERNING SEXUAL MINORITIES ISSUES WITHIN THE NIGERIAN CONCEPT

The combined efforts of both the Domestic, Regional and International frameworks, all ensure equality of all persons regardless of their sexual orientation and gender identity.

DOMESTIC LEGAL FRAMEWORK

  • DOMESTIC FRAME WORK: 1999 CONSTITUTION OF FED. REPUBLIC OF NIGERIA
  • The preamble of the constitution
  • SECTION 1(1) & (3)
  • SECTION 17 (3) (C & D)
  • THE FUNDAMENTAL RIGHTS OF EVERY CITIZENS:
  • CHAPTER 4  of the constitution  section 33-40
  • SECTION 33: “Every person has a Right to Life and no one shall be deprived intentionally of his Right    to life
  • SECTION 34: “ Every individual is entitled to Respect for the dignity of his person and no person shall be subjected to torture or inhuman or degrading treatment.
  • SECTION 35: “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty.
  • SECTION 36: “Every person shall be entitled to fair hearing
  • SECTION 37: “ The privacy of citizens, their homes, correspondence, telephone conversation and telegraph communications is hereby guaranteed and protected
  • SECTION 38: “ Every person shall be entitled to freedom of thought, conscience and religion
  • SECTION 39: “Every person shall be entitled to freedom of expression
  • SECTION 40: “ Every person shall be entitled to assemble freely and associate with other persons …or any other association for the protection of his interest.

 

REGIONAL LEGAL FRAMEWORK

the African Charter on Human and Peoples Right, (hereinafter referred to as ACHPR),  a document which has been domesticated and  forms part of the body of laws in Nigeria, clearly and unequivocally guarantees freedom from discrimination and equal protection and equality of individuals before the law. The treaty was signed in 1981, but did not become a law in Nigeria until when the National Assembly ratified and enforced it as applicable law in Nigeria. The Charter is now known as the AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS (RATIFICATION AND ENFORCEMENT) ACT (CAP 10) OF THE FEDERATION OF NIGERIA 1990

Article 2 of the Act, clearly provides that ‘ Every individual shall be entitled to the enjoyment of the rights and freedom recognized and guaranteed in the present charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status’

Other relevant sections of the Act are as follows:

  • The preamble
  • ARTICLE 1
  • ARTICLE 2
  • ARTICLE 3
  • ARTICLE 4
  • ARTICLE 13 (2)
  • ARTICLE 16 (1 & 2)
  • ARTICLE 19

 

The African Commission, the body responsible for monitoring compliance with the African Charter, has in various communications, denounced acts of discrimination. The ACHPR has clearly established that the expression ‘OTHER STATUS’ as used in the Act can broadly be interpreted to include grounds, other than those explicitly listed under that provision of the Charter. The rights to dignity, liberty and security of persons and freedom of association are among rights clearly proclaimed by the African Charter and the Charter clearly states that every human being is entitled to these rights.

Concerned by the increasing violence against the community, the ACHPR at its 55th session adopted a landmark resolution on the Protection Against Violence and Other Human Rights Violations against persons on the basis of their Real or imputed Sexual Orientation or Gender Identity. The Resolution unequivocally condemns violence against persons on the basis of their real or imputed sexual orientation and gender identity. It calls on states to stop all violence committed by state and non-state actors and to enact and implement laws condemning violence against all persons regardless of their sexual orientation or gender identity. States were also urged to promptly investigate and punish all acts of violence against persons based on their real or perceived sexual orientation and gender identity.

 

 

INTERNATIONAL LEGAL FRAMEWORK

The International legal framework governing Human rights apply equally to all sexual minorities in all parts of the world. The principle of equality, non-discrimination and universality are fundamental in ensuring the human rights for all persons including sexual minorities. It has been established that the grounds of discrimination enumerated in the International Covenant on Civil and Political Rights and the International Covenant of Economic, Social and Cultural Rights are non-exhaustive and “other status” includes sexual orientation and gender identity.

 

THE SAME SEX MARRIAGE PROHIBITION ACT 2014

The promulgation of the Same Sex marriage prohibition Act has to a great extent heightened the level of violence against the sexual minorities. The law has been used and utilised by both state and non state actors to subject community members to all sorts of violations, ranging from public humiliation, to battery, assault, blackmail, extortion and other forms of violations and violence.

The Act has further encouraged and in fact, breeds a culture of intimidation, suppression and violence against community members in Nigeria. The Act, apart from prohibiting same sex marriage, goes further to prohibit and criminalizes the association of persons and organizations who purport to promote the interest of Sexual minorities in Nigeria. It prohibits and criminalizes the ‘Public show of same sex amorous relationship directly or indirectly without defining what qualifies as “same sax amorous relationship”

The negative effect of this law was immediate and still persists, as and thus the community members are subjected to an unimaginable level of futility being victims of a wave of arbitrary arrest, invasion of privacy, blackmail, extortion and violence of which state actors are also perpetrators of this hideous practices.

 

 

RECOMMENDATIONS

From the above consideration, it suffices to say that if the rendition of the constitution “WE THE PEOPLE” is the have a meaningful impact, then it must have the force of general application without prejudice.

The following recommendations are worthy of consideration:

  1. The Government should act timeously in condemning the on-going violence against persons based on their real or perceived sexual orientation and gender identity expression.
  2. A review of discriminatory laws that trigger violence against sexual minorities should be given priority.
  3. Enforce constitutional and treaty provisions on universal human rights in public and private institutions across the country.
  4. Human rights violations based on sexual orientation or gender identity expression, should be investigated and perpetrators brought to book.
  5. Embark on a holistic campaign to promote an end to hate speech and statements inciting violence against sexual minorities in Nigeria from religious leaders, politicians and others and establish a link with sexual minorities human rights organizations, regarding ways to promote awareness on issues affecting sexual minorities.
  6. Establish a reporting process for informing the Human Rights Commission and other related bodies, on human rights abuses experienced by sexual minorities.
  7. State actors should discourage incidences of police raids, arbitrary and indiscriminate arrests and searches of individuals based on perceived or actual sexual orientation or gender identity expression.
  8. The police should be at the forefront in investigating and prosecuting incidents of violence against sexual minorities and refrain from harassing, arresting or prosecuting members of the sexual minorities support organizations and human rights advocates on account of their work on sexual minority rights.
  9. Civil society organizations should be encouraged to mainstream sexual minority’s awareness and rights into their relevant health, gender and human rights programmes.
  10. Mainstream stakeholders and the general public should be educated on human rights issues affecting sexual minorities. Sensitization workshops with government agencies, health workers and other law enforcement agencies be developed, on the need to promote and protect rights of sexual minorities as citizens of Nigeria.

 

CONCLUSION

From the above consideration, one fundamental principle looms larger, that violence and discrimination against any individual or groups of persons is unacceptable. OUR HUMANITY should be paramount in ensuring dignity and rights to ALL PERSONS.

 

CAVEAT

Lawyers Alert hereby puts our readers on notice that all articles on this page are of the writers opinion and do not necessarily represent the views of the organization except otherwise stated.

 

 

 

 

 

 

 

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CHILD BRIDE: IT’S LONG TERM AFTERMATH

By: Innocent Doris U.

 

 

 

 

 

 

 

 

 

 

“As we let our own light shine, we unconsciously give other people permission to do the same”.     – Nelson Mandela

Agnes sat down on the platform at the back of her house staring into space, her mind whirring like an electronic fan at its highest pace. As a young woman at 28 who has 6 children for a man who kidnapped her as a child and was forced by her uncles to remain with him, tradition they called it. She was only 14 and newly orphaned. Her life from then on turned inside out and all she had become accustomed to was a dark tunnel, at no time did she see the light as there was no one to show her the way. For the past 14 years of her life, she has endured a place worse than hell, because of her helplessness first as a child and subsequently as a mother who feared to lose her children. Her 4 beautiful girls and 2 little boys who were still running about in their knickers in their childish innocence, oblivious to the reality around them except for when their mother becomes a punching bag, which happens very often.

She smiled on the platform, so much sadness, anguish and pain in her eyes as she relived the past 14 years of her life. Life has been so cruel to her, as she endures constant pain, abuse, rape, neglect and even torture. She definitely didn’t suffer alone, any child who dared come between her and the man who calls himself her husband when he is beating her, would be beaten as well.

Samson really personified his name on her body, he was tall, dark and handsome, such an irony to his personae. It would be too kind to call him a beast, because even beasts have time for rest. He always found an excuse to hit her, rape her or even torture her, sometimes in the presence of their children. He also didn’t relent in saying terrible things to their children about her. This was the system that enabled her conceive 10 times; of those 10 pregnancies she lost 2, had 2 still births and nurtured 6 children who she is grateful, are alive and healthy.

As she continued her reminiscing, she remembered the many times she had woken up to realize that she had fainted from domestic violence. She took a look at her young battered body, the scars on her body and the gaping wound in her heart.

Samson had threatened to separate her from the kids forever if she ever dared to leave him. This threat was etched in her heart and so with every child she bore, her fear grew and so did her anger.

The most troubling part of her situation that has kept her in this quagmire presently is the plan to marry off her first daughter Ruth who is only thirteen, to a rich man who had promised to give them a new house, buy them three cars and send their two boys to school. Samson had eagerly agreed without her consent, she was deeply troubled; she was only a year older when she was kidnapped. She couldn’t stand and let the same evil that befell her and caused her, her entire life befall her precious baby.

By this time her tears had become groans and her tears like a torrential rain fall luckily, Samson is not home. As Agnes fights in her heart frantically for a solution, her mind wanders to what she could have become if only one adult had fought for her fourteen years ago, she could have been an enlightened graduate and would have every form of security any woman could dream of, be it mental, economic or even marital.

These and many more she wanted desperately for her children. She would fight tooth and nail and sacrifice anything to ensure that all her children would get the things she could only dream of. She is still thinking of a way out of this dilemma.

This is currently the plight of hundreds of young women somewhere in Northern Nigeria today. They transit from girlhood into womanhood in a nightmare they have no choice but to call home. The many unheard voices filled with anguish and pain still abound. Their Sexual, Reproductive and Health Rights are still violated thoughtlessly. Some of these young women and girls lose their lives during child birth or from domestic violence. Others contract Vesico-Vaginal Fistula (VVF) and are left to suffer until they are either helped or they eventually die. Some others who are bold enough to escape may never see their babies again. Others just endure the precarious situation due to fear and pressure from family and friends. These are the ones who cannot even cry silently, because of the burden in their hearts. I can hear the cries of this young girls; “Save us, the ones we were entrusted with, have failed to protect us. Rather, they have let us out to the wolves to devour. But, I am only a child.”

We see how Child Bride practices foster and sponsor Gender Based Violence and other Sexual and Reproductive Health Rights (SRHR) violations. This is the reason why this menace must be strongly hunted down and stopped. We must lend our voices to victims of Child Bride and reinvigorate their broken spirits and bodies. They have the right to dream as much as the rest of us do. We must also do our best to ensure that Parents and members of the society recognize child bride for what it is so that together we can discourage it, stop it and have a better Nigeria. A Child Bride Free Nigeria is a great Nigeria.

 

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SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS (SRHR) VIOLATIONS OF SEXUAL MINORITIES

By Doris U Innocent Esq

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Sexual and Reproductive Health and Rights or SRHR is the concept of human rights applied to sexuality and reproduction and these rights are protected by international laws. SRHR guarantees a number of rights to individuals, some of these rights are; The right to equality and non-discrimination, the right to life, liberty and security of the person, the right to autonomy and bodily integrity, the right to be free from torture and cruel, inhuman, or degrading treatment or punishment, the right to be free from all forms of violence and coercion, the right to privacy, the right to the highest attainable standard of health, including sexual health; with the possibility of pleasurable, satisfying, and safe sexual experiences. In our society today, there are sexual minority groups which these laws seek to protect and among them are the Sexual minorities.

The concept of Sexual minorities is fairly new to our continent Africa and our country Nigeria. It is proven that man fights and opposes anything he is not familiar with. The concept is alien to our society’s tradition, culture, religion and beliefs. Thus the concept is met with hostility and adverse opposition. Most communities are part of the sexual minority groups presently, in Nigeria. Due to the peculiar nature of their circumstance, Sexual minorities suffer a lot of Sexual and Reproductive Health Rights (SRHR) violations in the hands of members of the society. The passage of the Same-Sex Marriage (Prohibition) Bill (SSMPA) 2014 into law in Nigeria has heightened the rate of violations suffered by members. Over the years many of these groups have experienced homophobic stigma, discrimination and violence. This has driven sexual minorities to hide their identity and sexual orientation. Many fear a negative reaction from members of the society. Reports of indiscriminate arrests by law enforcement officers were also made from different parts of the country. These acts of injustice, discrimination and violence have led to the intervention of some civil society organizations in ensuring that the human rights of these affected persons are protected. It has also led to the rise of the SRHR movement in the country, which has consequently led to the nationwide awareness and sensitization programs held by different Civil Society Organizations (CSOs). This write up is aimed at giving you credible information on the SRHR violations of communities in Nigeria.

In partnership with AmplifyChange, Lawyers Alert an NGO, in the last two years has been monitoring and documenting Sexual and Reproductive Health and Rights violations in Nigeria. Within these two years, they have released findings on these rights violations with regard to the sexual minorities. Their findings are published and updated every six months. Their reports can be found at http://www.lawyersalertng.org/res.php

This documentation is done via their online tool styled “LadockT” http://colahr.org/lawyersalert/index.php  which automatically analyzes these violations across locations with regard to State and Local Government.

It is important to note that, as it relates to Nigeria as a geographical entity, the findings here may not represent the entire facts nationally. The project that birthed this tool is focused in 12 states.

Nevertheless, these findings are critical owing to their veracity and mode of collation.

Based on the analysis on communities, Ikeja in Lagos State has the highest reported violation rate, followed by Kosofe in the same Lagos State, while Gboko in Benue State ranks third on violation rate. Damban in Bauchi State and Gwagwalada in the Federal Capital Territory both rank forth. Lastly Biu in Bornu State ranks the least with regards to MSM violation rate.

On the analysis of age range with regards to these groups, 25-40 years and 20-24 year both have the highest violation rate with 38% while 10-19 years with 24%.

Information gotten from the Lawyers Alert’s tool shows the report of violations as regard to the group, within the time range ( July, 2017 – April, 2019) 20-24 years and 25-40 years has been leading age group in the increase to reported violations in local government areas in States, followed closely by 10 – 19 years age group. From the tool it is also shown that, Physical abuse and Verbal Abuse have the highest reported violation rate with 13%. Followed closely by Emotional Abuse having 12%, Blackmailing and Sexual Expression both rank third with 11% each. Personal Security and Freedom to Associate both rank fourth with 10% respectively. Forced Detention has 7%, Freedom of Movement and Economic Abuse both have 6% each. Quality Healthcare has 4%, Harassment has 3%. Privacy has 2%, Sexual Exploitation and Rape both have the least amount with 1% each. These facts are stated more clearly in the table below.

VIOLATION TYPES – MSM JULY 2017 APRIL 2019
Physical Abuse 13%
Rape 1%
Verbal Abuse 13%
Harassment 3%
Emotional Abuse 12%
Freedom to Associate 10%
Economic Abuse 6%
Blackmailing 11%
Privacy 2%
Freedom of Movement 6%
Quality Healthcare 4%
Sexual Expression 11%
Personal Security 10%
Forced detention 7%
Sexual Exploitation. 1%

 

It is hoped that this document will help to highlight the dangers of communities exposed to. It should also be stated that the data represented in this report is based only on that obtained from the Lawyers Alert online portal. It is important to note that, all violations recorded were verified. Flowing from all of the above it is clear that members of  communities, are beginning to speak up and that the society is becoming a more SRHR conscious one with regard to communities. Nevertheless, there is still need for more awareness programs as many victims of these violations are still stuck in their shells and many more members of the society need to be enlightened.

 

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WHEN THE ANOINTED GOT TOUCHED

By Devaan M. Mom

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Busola Dakolo’s decision to call her pastor out could not have been an easy one. She is after all, a successful professional photographer, married to one of Nigeria’s prominent musicians, and the incident occurred many years ago.

Her accusation came a few weeks after her husband, Timi Dakolo’s allegations of sexual misconduct meted to female members of the church by the same pastor, Biodun Fatoyinbo.

Biodun Fatoyinbo came to most Nigerians’ consciousness in 2013 when salacious allegations were made about him by a female member of his church who claimed to have been in an extra-marital affair with the founder of the upcoming (at the time) Pentecostal church, the Commonwealth of Zion Assembly, COZA.

Dapper, young, charismatic and good-looking, Nigerians were more sympathetic to the pastor whom it was assumed by most had fallen prey to some Delilah determined to bring him to ruin and pull the church down. Indeed, there are those who opine that the scandal served to make both pastor and church even more popular and sought after.

So, it was with a sense of unease and dismay that many read Timi Dakolo’s allegations when they first hit social media in June 2019. Still, many gave Fatoyinbo the benefit of the doubt. That debate was still being whispered around when Busola, Timi’s wife dropped her own bombshell. Apparently, this same pastor had raped her in her parents’ home when she was just 17 years old. One can only imagine that the constant allegations of sexual impropriety levelled against him by a staggering number of women, mostly members of his church, brought back memories which spurred Busola to pitch in her 2 cents to give credibility to the stories.

It seems to have worked.

Suddenly a tsunami engulfed social media, particularly Twitter and Facebook, as more people watched the revealing interview on Youtube and drew their conclusions. However, if Pastor Fatoyinbo of COZA had hoped to weather the storm as usual, it seemed Nigerians and particularly women weren’t having it this time around. In less than 48 hours a peaceful protest was organized and held at the church premises in Abuja and Lagos, 2 of Nigeria’s biggest cities.

COZA’s attempt at a pushback, having the Church premises cordoned off by state security agents, hiring random strangers to stage a counter protest, only outraged Christians and served to rouse scorn and deepen suspicion. The hue and cry would not die down this time and the church had to get Pastor Fatoyinbo to step down (even if temporarily) and yet there are still those insisting on litigation.

Described as a serial rapist, many on social media claim he has a history spanning back to his time before he became a pastor and speak of how he left Ilorin, Kwara state in a dust cloud of sexual impropriety including statutory rape, abortions, and getting kicked out of university. They insist his relocation to Abuja was an attempt to remake his image which has since fallen through owing to the constant trail of the same kinds of allegations.

His wife, Modele Fatoyinbo, who handled service the Sunday after the scandal, defended her husband. A bit of an irony really, since several of the women speaking up claim he blames his behavior on her inability to satisfy his sexual desires.

The sexual scandals COZA has found itself engulfed in are not new to the Christian faith. The Catholic church, the biggest Christian institution in the world, is currently in the process of reconciliation and healing after thousands of faithful brought such allegations against priests spanning many decades. The Anglican church had to deal with a split when it took the controversial decision to ordain gay priests, a stand the African arm of the church refused to accommodate. Every now and again, the random randy pastor is named though hardly ever shamed and life goes on.

However, what makes this situation stand out is the instant mass action embarked upon especially by non-COZA members to try to get the situation redressed. It serves as a watershed in the history of the church in Nigeria and indeed the culture of silence and shame which generally attends such occurrences. For one thing, it makes evident the fact that Nigerians are no longer willing to look away when clergymen are accused of sexual impropriety in any form as was the case in times past. Many challenged Christian regulatory bodies such as the Christian Association of Nigerian CAN, and the Pentecostal Federation of Nigeria PFN, to speak up. Both have since condemned the act while calling for investigations and also revealing that COZA is not registered with either of them.

The public uproar, however, has served the purpose of ensuring COZA’s postponement of a planned weeklong church activity tagged, “7 days of Glory”. These are remarkable achievements as far as holding the Church to account goes. It is also an indication that Nigerian women are finally finding voice and losing shame where rape stories are concerned.

There are still several people who disbelieve Busola’s story and wonder why it took her so long to raise the issue, despite the number of women who have chimed in since the story broke. The Pastor still has a strong fan base within and without his church.

Pastor Dave Ogbole wrote, to the ire of many, on his Facebook page, “My loyalty is stronger than correctness. I run to the battle right or wrong, we never leave a comrade alone in battle. It is one for all, all for one. I stand with Biodun Fatoyinbo, I am Bidoun Fatoyinbo”, following which he also promptly got called out for similar conduct by a certain Nguter Uja.

Also, in support of Pastor Fatoyinbo were the following Twitter accounts, with @funshographix tweeting: “It’s pure lies that Jesus was born through holy spirit (sic), God actually raped another man’s wife to birth Jesus Christ, Pastor Biodun was just following God’s steps.” Yet another tweep, @RenoOmokri described Busola’s account of the rape as being totally without merit. Tweeps like @DrJoeAbah, @Omojuwa, @BukkyShonibare, @Adeola, @AuduMaikori however, had a different perspective and kept the debate alive on Twitter.

Shortly after the video was publicized, Pastor Fatoyinbo, wrote a strongly worded rebuttal in which he threatened to take legal action to clear his name. Many on social media do hope the matter goes to court to reach a resolution on the matter. Twitter account @AyodejiOsowobi appeared to be soliciting for complaints of a similar nature perhaps in hopes of carrying out a class action or having other victims willing to testify should the matter go to court. As at the time of writing this article, her request had generated almost 10,000 likes and been retweeted by over 12,000 tweeps.

Should this action actually follow through, and an investigation is carried out, regardless of what is ultimately uncovered regarding Pastor Fatoyinbo’s guilt or otherwise, it would have served to send a very strong message to sexual predators that the days of shameful silence are over.

 

Devaan Mom is a journalist, development worker and politician. She writes from Abuja.

 

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THE CLASS ACT OF THE 8TH BENUE ASSEMBLY AND THE VAPP LAW

By Jerome Uneje

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“Hmmm…Torkwase my sister, so it’s true that everything about the domestication of the Violence Against Persons (Prohibition) Act (VAPPA) is finally done and dusted! Hah…the glory of the 8th Benue Assembly and the Governor will never be erased from the memory of the Benue people o! At least vulnerable and indigent women, children and even men will benefit greatly with this VAPP Act as assented to in Benue State. The two Women smile and lean their backs against the wall at the same time.

The most recently rattled and misconstrued Law has finally seen the limelight. Violence Against Persons (Prohibition) Bill like other bills presented to the National Assembly became a Law in May, 2015 and it seems to have overshadowed all other instruments and laws in Nigeria regarding the prohibition of all forms of discrimination against persons regardless of their sex and/or gender. This instrument enshrines the concerns and needs of vulnerable and indigent women including men and other groups who often fall victims of violence in Nigeria.

The Law which is applicable only at the  Federal Capital Territory had left the option to States at the Sub National level to domesticate the law in their respective States or otherwise. However it became imperative for the Law to be domesticated at the sub-national level especially in States such as Benue where on a daily basis, newspaper headlines are awash with killings, rape or maiming, particularly of spouse and/or lovers by husbands or man-lover, or rape of even minors like the case of Ochanya, who died from a gradual torture of rape by her so-called uncle and his son in Ugbokolo, Benue State and that of a young woman that was strangled to death by her husband for denying him sex in Plateau State and every 1 out of 3 women and/or young girls who suffer violence daily. All of those necessitated the propagation of the campaigning and advocacy for the VAPP Act to be domesticated in the State.

Be that as it may, the VAPP Law among other things has strengthened advocacy against rape, Female Genital Mutilation, partner battery, stalking, harmful widowhood practices by State Actors while prohibiting all forms of violence, including physical, sexual, psychosomatic, domestic, harmful traditional practices; discrimination against persons and to provide maximum protection and effective remedies for victims and punishment of offenders.  In as much as this all powerful legislation instrument has provided for the above, it has also initiated positive innovations such as prohibiting persons from being forcefully isolated or separated from their family and friends and preventing widows from being subject to harmful traditional practices. It has even gone ahead to provide for a Commission of Violence Against Women which will be responsible for the general supervision of the Bill while a Victim of Violence Trust Fund will be established to provide and manage victims of violence. Under the Trust Fund, rehabilitation programmes, shelters and rape centers will be provided to cater for victims of violence. This indeed is a huge and robust fortification especially for victims of violence.

The positive effect of this Law is overwhelmingly amazing as prior to this law only women could be raped as approved in other legal materials and in the true definition of the word ‘rape’ as well as penetration of the vagina and for this sole reason, only women could be said to be raped. However, this Law now provides that a man can also fall victim of rape. VAPPA is the first piece of legislation in Nigeria which recognises that men are capable of being raped and also recognizes that not only penetration of the vagina is acceptable. All other criminal statutes delineate the offence in relation to women.  The VAPP acknowledging that unlawful anal and/or oral sex can be rape and not sexual assault is therefore ground-breaking.

The above has truly shown that the Benue people at this point will be thoroughly protected by the appropriate application of this Law and in secure environment notwithstanding the degree and/or pedigree of persons involved in violations.

In conclusion, we express our warmest gratitude to the out gone 8th Benue Assembly for a great job well done. This singular act has demonstrated beyond every reasonable doubt that their tenure was people oriented and has therefore purged it of all shortcomings while the House lasted. We also commend the Executive Governor of Benue State His Excellency Samuel Ortom for his speedy action towards signing the bill into law. We also commend the doggedness of the Civil Society including FIDA, Lawyers Alert, The Civil Society Coalition in Benue, The Media and all other actors involved in the course of this struggle.

As the struggle continues, Torkwase and her friend Ada laugh out loud shake hands and stand up. They walk out of the room towards the door to catch up with a new day in a new Benue where the rights of Women and other vulnerable groups are fully protected under the Violence Against People Prohibition Act.

 

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