When audacity of immorality is at issue, the celebrated case of Smith v Hughes is always referenced. It is also used to explain the mischief rule in law. By the 19th century, the English society had become so notorious for the infiltration and embarrassment caused it by commercial sex workers on the streets of London. Prostitution had become a profession of its own and takes a prime place of consideration. In 1791, a police magistrate estimated the number of prostitutes in London alone as 50,000. They had become such an embarrassment that a surgeon said he counted 185 of them on his way home one night. Thus, to curtail this embarrassment, the 1959 Act was promulgated by the English law to tackle the menace. Section 1(1) of the Act prohibited a prostitute from offering her services “in a street or public place.”
It however took one unnamed prostitute to circumvent this loophole. Since the wording of the Act specifically mentioned “street or public place,” she devised a way out. She stood by the balcony of an apartment she rented and solicited for men therefrom.
Upon her arrest and prosecution, her counsel argued that she hadn’t contravened the law as she had not solicited in the “street or public place” which the law prohibited. The lower court found her guilty. On appeal and delivering judgment, Lord Acton found her argument tendentious. He ruled: “Observe that it (the Act) does not say there specifically that the person who is doing the soliciting must be in the street. Equally, it does not say that it is enough if the person who receives the solicitation or to whom it is addressed is in the street. For my part, I approach the matter by considering what the mischief is aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street.”
Though Lord Acton successfully propounded the mischief rule which is today applied to answer the actual intention of framers of the law, questions have been asked as to whether the prostitute deserved conviction, judging by the variation in the wording of the Act on street solicitation and her resolve to solicit by her balcony. Was the prescription for the ailment by Acton and the British legal system an apt prescription?
In Nigeria last week, a dissimilar event happened but which provokes similar questions as to whether the prescription for the ailment, as Lord Acton and the British lower court prescribed for the prostitute soliciting from the balcony, was what should have been applied. Though promiscuity in Nigeria had become as embarrassing as the rate of prostitution in England of the era cited above, a chain of events which took place in Kaduna State under Nasir El-Rufai seems to have made the governor and his reprisal actions take the place of the British legal system in the above prostitute case. Demolition was ordered by the governor and this has sent people asking whether the governor’s prescription of demolition of the hotel where the sex party was to be held was an appropriate remedy in the eyes of the law for a depraved party thus organized.
Not minding the generally held breakdown of the walls of morality in Nigeria, purists momentarily lost their cool upon hearing about the party. A seemingly innocuous invitation, which appeared on the social media, broke the walls of their patience. The invitation called for potential attendees to a sex party slated for December 27, 2020. They were to appear at the party venue in their Adamic nudity as organizers would not allow the breach of the code by any pretention to cover their nakedness, even with a fig leaf. Payment of N2000 for the popular side and N3000 and N5000 respectively was all a participant needed to be at the popular side.
Outrage immediately followed. What was the world turning into? Purists queried it, with the social media literally locked down by traffic of condemnations for the organizers and flaks for a Nigerian moral code that had kissed the canvass. Barely two days after this bedlam, the Kaduna State government, under the suzerainty of Emperor Nasir el-Rufai, renowned for the heartlessness of demolishing Abuja properties as Minister of the Federal Capital Territory, (FCT) on Thursday, ordered officials of the Kaduna State Urban Planning Development Agency to immediately carry out the demolition of the proposed venue of the pervert act, Asher Hotel in Barnawa Kaduna South. Like biblical David holding the head of the accursed and boastful Goliath the Philistine, El-Rufai’s demolition squad proclaimed their own conquest via the Kaduna Twitter handle, @kasupda-kdsg that “KASUPDA has demolished Asher Hotel in Barnawa Kaduna South. Asher Hotel was the proposed venue for the Kaduna Sex Party, the hotel was also caught contravening the Covid-19 guidelines of the state.”
The Supreme Council for Shariah was to follow with commendation of the Kaduna government for demolishing the hotel. In a statement it issued through its State chairman, Engineer AbdurRahman Hassan, it said “the council as an advocate of moral and social values commends the steps taken by the Kaduna State Government on the arrest of the organizers of the Satanic so-called ‘Kaduna Sex Party’ and the demolition of Asher Hotel…no doubt this kind of illicit act is one of the ingredients that is fuelling the wrath of Allah that we are inflicted with currently.”
Law lecturers and even lawyers may need extra reading to explain the legality of what El-Rufai did to that Kaduna hotel. I am not sure the Hughes case would suffice to explain a convergence of mis-employment of statutes. While Acton’s ruling has endured for decades, El-Rufai’s peremptory demolition may not. The English case was one of prostitution. Is the Kaduna case a prostitution case? We’ve not been told that ladies at the party were to be paid. Even then, the lady in the English case was put through the rigours of trial. So, what will be the defence for the demolition of the hotel without trial?
To be sure, the proposed sex party was indeed very daring. Sexual audacity rates as one of the indices of societal moral disorder and collapse. All religions frown at it, with commercial sex hawkers being stoned in the holy writs. However, there is a huge variance between law and morality. The two occupy very distinct compartments that should not be merged. What is immoral is not necessarily unlawful. Though behaviour commonly held as immoral are not often considered illegal, legal and moral principles however share different spaces and can be distinguished from each other. So while sanctions get imposed on an offender for infringement of a legal obligation, there are no known official sanctions for immoral behavior. Apparently fazed at this distinction, most societies oftentimes create their own form of censorship for immoral acts.
Perhaps as a way of sanction or censorship for immoral acts, having sex in public space attracts the frown of the law for offending public decency. This is what makes it actionable. So where in the law books did el-Rufai find the organizers of the nude sex party proposed for Asher Hotel in Barnawa Kaduna South, Kaduna culpable as to warrant their arrest and demolition of the hotel? Lets even imagine that the COVID-19 alleged infringement appended to the “offence” of the Asher hotel proprietor is real, is its recompense demolition of the building? Which court found it guilty?
Ancillary questions tied to this also beg for answers. One is, did the organizers of the nude sex party also own the hotel? If they do, did the convening of the party leave the realm of proposal that the invitation indicates or the proposal of a wild sex orgy had been effected? Couldn’t the organisers have claimed that they were just playing pranks and didn’t intend to provoke this public opprobrium? So if these were the case, what right did the governor have to unilaterally and without any recourse to law, pull down the Asher hotel?
This sickly and sickening governmental policy actually didn’t begin with el-Rufai. It was pioneered by Imo State during the Otokoto human parts sale and ritual in Owerri and the hotel where the said human parts were reported was pulled down. And because the passion of the people was at its highest centigrade, the world clapped for this obtuse decision. Peter Obi also followed this tyrannical route when he ordered some houses pulled down in Anambra State on account of suspicion of human parts Peter Obi also followed this tyrannical route when he ordered a hotel shut down in Nkpor, Ndemili North Local Government of Anambra State confisticated to government on account of suspicion of a kidnapping gang lodging in the place. Governor Nyesom Wike of Rivers State also did same last year when he ordered a hotel he claimed had violated the COVID-19 protocols to be pulled down. The truth is that, these governors had no right to take such unilateral decisions as they could not in one fell swoop be the accuser, the judge and the police by themselves.
In May last year, Governor El-Rufai also demolished a popular Kaduna inn, GM Car Park and Relaxation Centre. Owner of the inn, Emeka Ugwua, called the El-Rufai action “a clear case of a witch-hunt and politically-motivated,” maintaining that, prior to the demolition, the El-Rufai government had been collecting taxes and other dues from him.
In the case of the nude sex party and others where the allegation was human rituals, criminal as the allegation was, the right thing to do was to charge the accused to court and let the judiciary pronounce on the alleged infraction. I personally do not see how a proposal to have a sex orgy by consenting adults in an hotel constituted a comparatively greater bother to El-Rufai in a state where maniacal Fulani terrorists stroll into homes of Southern Kaduna people killing them without let or hindrance and in their thousands. If El-Rufai had demonstrated the same kind of revulsion towards the seeming holocaust going on by the tip of his nose in Kaduna South as he did at the orgy slated for Asher Hotel in Barnawa, to the extent of ordering its instant demolition, there would have been an armistice in that Kaduna South field of blood now. The Shariah Council which said it was at one with the government has, over the years, watched as this bloodletting goes on unchecked in Southern Kaduna. I am not aware of any release it issued calling for its condemnation and itemising concrete steps it had taken to talk to the Kaduna emperor to do something about it.
Nigerian political leaders and governments of all tiers are just being hypocritical about spiraling immorality in the country. Many northern leaders are alleged to be involved in sodomy while sexual predation on young university girls is prevalent among political leaders in virtually all of Nigeria. University girls are used as objects of entertainment of visiting big guns to Government Houses. Inside their sexual trysts, they allegedly do worse than those Barnawa boys proposed to do, destroying the future of our daughters in voyeuristic engagements. The Shariah Council doesn’t see anything wrong in this and has never condemned it.
The truth is, no one can legislate against immorality or legislate morality to being. It is an effort by individuals, from their homes, with government’s support. To stop youths going the Barnawa route, everyone should guide, guard and garnish their homes with morals and values of yore. Political leaders should also make Nigeria livable and imbue the youths with hope of tomorrow. The youths mistakenly hold that the hopelessness in the land, the economic morass and the scourge of unemployment can be combated with engagement in drugs, perversion and multiple immoralities.
It is obvious that years of military rule have made us lose the ability to see the dividing line that separates an executive action from a judicial pronouncement. The principle of separation of powers and fair hearing presuppose that, not only is an accused deemed innocent in the face of the law until he is found guilty and thus pronounced by a competent court of law, a governor, no matter how tyrannical he may be, cannot be the accuser, the judge and the executor of judgment, all by himself. The governor can only accuse but he cannot convict. To so act is a grievous infringement on the right to justice and fair hearing.
Festus Adedayo is an Ibadan-based journalist.