Should adultery be charged as a criminal offense? Is it pertinent for Nigeria to review some of its laws on adultery?
SOL Professor, Dr. Jennifer Mike, in a presentation on November 23, examined the controversies surrounding the criminalization of adultery and whether it is time for Nigeria to review its state laws which are binding on a private matter between husband and wife.
Dr. Mike explains adultery as simply a voluntary engagement in illicit extra-marital affairs that may destroy family, career, and social status of parties involved.
The criminalization of the act has spurred many debates with cultural and religious undertones that have called for the retention of the laws of adultery.
Dr. Mike explained that her argument springs from the human right perspective examining some of its provisions like the right to privacy and freedom of association, religion, thought, and consciousness.
The background of her study also relates to the recent decision of the Indian Supreme Court in September 2018, which ruled that the law on adultery is unconstitutional, archaic and discriminatory against women and should no longer be applicable in the society. She also cited that in recent times the UN has called for the repeal of adultery laws in many countries.
“Adultery laws in Nigeria have deep Puritan roots of historical underpinnings in colonial English Common Law as well as Islamic jurisprudence.
“In medieval and early modern Europe, women were executed for adultery as a form of deterring them from the act. Some were Agnese Visconti (in 1391) and Catherine Howard, wife of Henry the VIII, (in 1542), both decapitated for allegedly engaging in adultery.
“The sharia penal code in Nigeria also prescribes death as punishment for adultery. An example is the section 126 v 127 of the Sharia Penal Code of Zamfara State”.
She gave an example of the case of Safiya Hussaini, a nursing mother, and divorcee, who was charged with adultery and sentenced to death by stoning in 2002. The man involved with her, however, was not found with enough evidence to be convicted.
Another woman, Amina Lawal from Katsina was charged with conceiving outside wedlock and sentenced to death, but the father of the child was released for lack of evidence to convict him.
Comparatively, in Pakistan, a section in the Hudood Ordinance of 1979 demands that a woman who is raped be required to provide the quoted reasons why she should not be charged with adultery.
Dr. Mike said in the African society women become victims of social discriminations while the men are allowed to keep concubines.
Also in countries like Italy, Australia, France, Portugal, Spain, Mexico, Guatemala, and even Haiti considered to be an African setting, have repelled these adultery laws on the basis that it is against the citizens' private life.
This is not to say that adultery is tolerated in these countries, but the law deemed it fit to leave matters of adultery to the parties involved to either settle in the divorce courts or bring up a civil action against the offending party.
She states categorically that there is no support for adultery, but parties should be allowed to settle their matter in divorce courts.
"The counterfeit pleasures of an illicit affair can never compensate for the severe emotional distress it causes to parties, children, and the society at large. However, criminalizing adulterous acts goes against the spirit of the constitutional provisions that guarantee individuals the right to life and will have a more devastating effect.
Alternatively, morality should be better defined, as an argument for maintaining the laws and should be adequately enforced. If the legislation is meant to deter adultery, then we should see more convictions for adultery because at the moment the law is redundant in its very purpose."
Interim Dean of SOL, Prof Lawal Ahmadu, said the basis of the presentation is to generate the necessary discussion that will enlighten all on the sensitive and controversial topic. "It is a matter that is ingrained in the culture, traditions, and way of life of our society but will also have to discuss to what extent we can separate laws of moral content from their organic foundations in the society."
Reported by Tina Bitrus