By O’star Eze
Though adultery is one of the cardinal sins in the ten commandments of the Christian Bible, there seems to be a relaxed view of it in modern times. O’star Eze looks at what the people think about its status in the Nigerian law and whether it should be criminalised
The recent adultery saga involving Ifeanyi Azotani whose wife, Tochukwu, accompanied by her sister, Ogochukwu Nwankwo stripped his mistress, Ogochukwu Okafor naked, and flogged her while videoing and later allegedly uploading the act on the internet, as well as the resultant outcome came as an eye opener to many who did not know that except in northern Nigeria, the act of sleeping with another man’s wife or another woman’s husband is no issue in the eyes of the Nigerian law.
In fact, the three principal actors involved in the crime were paraded like common criminals and were charged to court, while the alleged adulterer walked away with her head held high.
According to sections 387 and 388 of the Nigerian Penal Act, 1960, adultery is an offence only in the northern part of Nigeria. It is not an offence in the western, eastern and southern parts of Nigeria. Hence, adultery as a crime in states in Northern Nigeria, is punishable with 2 years imprisonment and or with an option of fine. In the other parts of Nigeria, no person can be charged to court for adultery.
Incidentally, while adultery is not a crime in the eyes of the law, the Nigeria law still says that when intolerable adultery has been proven, it can provide ground for the dissolution of a marriage, according to section 15 (2) (b) and section 26 of the Nigerian Matrimonial Causes Act; Anagbado v. Anagbado.
Arguments against criminalising adultery in Nigeria
The argument in support of keeping adultery out of the law court holds that adultery law in application tends to be gender sensitive, victimizing the female in the act while the male co-perpetrator goes scot free. Dr Jennifer Mike of the American University of Nigeria captured it thus;
“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 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.
Dr Mike said in the African society women become victims of social discriminations while the men are allowed to keep concubines. She said that while she does not support adultery, she thinks that the parties involved 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 because at the moment the law is redundant in its very purpose,” she submitted.
Supporting Dr Mike, Barrister Mbazulike Amechi, a Nigerian legal practitioner and politician reiterated that adultery is more of a moral cum religious thing and should be left out of the criminal law system. His argument was that Nigeria has not adopted a state religion and “therefore bringing in things that will encumber our laws with religious injunctions could be harmful.”
On the premise that adultery leads to other crimes like battery and murder, Barrister Amechi said that there are several other factors that cause the listed crimes and that adultery is the least of the factors and should therefore be left alone by the legal system.
“Adultery is not the biggest issue before us. Why sensationalise it. How many crimes or homicides are direct results of adultery compared to alcohol, smoking and other similar factors? Moral codes could be interpreted in various ways depending on cultures and experiences. Could there then be legal adultery where one at the invitation of the couple engages in adultery with one of the spouses as in Igboland where people seek a male issue or in case of cultures where a woman marries a woman to maintain a bloodline and the duty falls on a married member of the family. The issue is better left as it is. You cannot codify it else you may kill the whole country,” he said.
Towing the same line, Barrister Daniel Nwafor, said that it is not the business of the law to enforce morality. He argued that given that adultery is sexual intercourse with consent between two persons out of whom one is married, the law should focus on more offensive acts and not moralities.
In his words, “criminalizing immorality will bring concussion because we would not know which sense of morality to adopt; should it be christians’, muslims’, hindus’ or traditional religion adherents’.”
Barrister Nwafor however advised that spouses who suffer indirect emotional damages as a result of adulterous act of their partners can sue for harbouring and enticement and obtain monetary damages against the person that enticed their wives or husbands as provided by the Law of Tort.
Citing sections 37 and 38 of 1999 constitution of Nigeria, another lawyer on the basis of anonymity opined that criminalizing adultery may infringe on the rights of traditionalists whose religion permits them to keep more than one wife, adding that monogamy is a foreign concept in most African cultures and that some cultures even endorse what is considered adulterous practices.
Tita Nze, a veteran journalist, in the same vein, said that even though he is a Christian, he does not think that the legal system should recognize the commandment; thou shall not commit adultery, given that the act is usually consensual. He alleged that even the Igbo culture accepts multiple relationships as long as it is not under duress.
“Iko and agiri (both terms that refer to a socially recognized extramarital affair in ancient Igbo culture) was well accepted by the Igbo society,” he said.
He said that morally speaking some persons who indulge in adultery may be doing good to their individual families given that in some homes, the man may not be able to perform sexually again or be able to fend for their family and the woman would need to seek help from outside the home.
“Some husbands cannot perform again and their wives engage in adultery thereby secretly helping the family not to scatter. Some couples cannot bear children due to health challenges or other factors and they therefore engage in adultery in other to get children and thereby save face,” Nze said.
Argument for criminalising adultery
However, the Anambra State chapter chairman of Pentecostal Fellowship of Nigeria, Bishop Moses Ezedebego has a divergent view from the popular. He argued that given that the law recognizes homosexuality as a crime, it would be hypocritical not to do the same with adultery which offends the spouses of the persons who engage in the act.
Arguing further, Bishop Ezedebego said, “if tampering with another person’s property without the person’s consent is considered a crime by the law, it should recognize adultery, which has to do with tampering with another person’s spouse.”
It appears that the popular stance among Nigerians is that adultery should not be criminalized given that attempts to do so in the past and in northern Nigeria had only succeeded in victimizing only the womenfolk found guilty of committing the act. However the general consensus is that not criminalizing adultery does not justify the act as it still remains a moral crime condemned by the Christian and Muslim scriptures and has been a predominant factor that has led to the dissolution of marriages in Nigeria as well as several homicide cases reported on the media.