About a year ago, there was a roadshow cum protest in Lagos by prostitutes in which they among other demands campaigned for the legalization of prostitution in Nigeria. Occasionally we hear reports in the news of policemen raiding hot spots of prostitutes, and in the process arresting them. Also prostitutes have often times lamented the spate of extortion and harassment by policemen in the course of plying their trade. From sampling the opinion of quite a few Nigerian citizens, most people believe that prostitution is illegal in Nigeria. In fact, information available on Wikipedia supports this belief, and further states that Nigeria is looking to legalize it. All these incidents suggest that prostitution is illegal in Nigeria, and this piqued my interest to analyse and determine what the law actually says about prostitution in Nigeria. After all, the constitution gives every citizen the right to personal liberty which ordinarily suggests that one can do as he or she pleases, including selling his/her body for sex.
Simply put, prostitution is exchanging sex for money. The Criminal Code which is the substantive law on crime operative in most of the southern states in Nigeria defines it to include “the offering by a female of her body commonly for acts of lewdness for payment…” In some countries, the act of prostitution is punishable under the law, while in others, what is criminalized is the act of soliciting prostitution, arranging for prostitution, and operating a brothel. In Nigeria, the latter appears to be the situation.
The criminal code in section 223 provides that
- Any person who procures a girl or woman who is under the age of eighteen years to have unlawful carnal connection with any other person or persons, either in Nigeria or elsewhere or
- procures a woman or girl to become a common prostitute, either in Nigeria, or procures a woman or girl to leave Nigeria with intent that she may become an inmate of a brothel elsewhere;
- or procures a woman or girl to leave her usual place of abode in Nigeria, with intent that she may, for the purposes of prostitution, become an inmate of a brothel, either in Nigeria or elsewhere; is guilty of a misdemeanor, and is liable to imprisonment for two years.’
also Section 225 provides that
- ‘Every male person who knowingly lives wholly or in part on the earnings of prostitution; or in any public place persistently solicits or importunes for immoral purposes, shall be liable to imprisonment for two years, and, in the case of a second or subsequent conviction, shall be liable to any additional term of imprisonment awarded.
- ‘Any magistrate who is satisfied, by evidence upon oath, that there is reason to suspect that any premises or any part of any premises are or is used by a female for purposes of prostitution, and that any male person residing in or frequenting the premises is living wholly or in part on the earnings of the prostitute, may issue a warrant under his hand authorizing any constable to enter and search the premises and to arrest that male person.
- “Where a male person is proved to live with or to be habitually in the company of a prostitute or is proved to have exercised control, direction, or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting, or compelling her prostitution with any other person or generally, he shall, unless he can satisfy the court to the contrary, be deemed to be knowingly living on the earnings of prostitution” and “Every female who is proved to have, for the purposes of gain, exercised control, direction or influence over the movements of a prostitute in such a manner as to show that she is aiding, abetting or compelling her prostitution with any person or generally shall be liable to imprisonment for two years.”
From the above, it is clear that there is nothing in the law that says a person cannot exchange sex for money. Thus, it is safe to conclude that engaging in prostitution in itself is not illegal, but engaging in the listed activities surrounding prostitution is. Apparently, what is criminalized is soliciting in a public place, operating a brothel, pimping and a string of other activities around prostitution. Being a client of the prostitute is not an offence either. However, by giving a definition of prostitution, and criminalizing other connecting acts to prostitution itself, the impression is given that prostitution is illegal in Nigeria. This ambiguity and ambivalence in the law has been the source of great confusion for both the citizens and law enforcement agencies alike.
Despite the uncertainty in the law concerning prostitution, it is safe to conclude that prostitution is not an offence in Nigeria. This conclusion is strengthened by the absence of a prescribed punishment in the criminal statutes, or an outright prohibition of the act itself. The rationale for this conclusion is that the Constitution which is the fundamental law of Nigeria states that an act cannot be categorized as an offence, unless it is expressly defined and there is a corresponding punishment prescribed for the act.
In parts of the world where prostitution is actually illegal, the law is clear on the issue. For example, prostitution is illegal in all the states in the US except certain parts of Nevada. And here is an example of how the law is drafted. In the State of Oklahoma Law on Obscenity and Child Pornography, the law clearly described it as unlawful:
- To engage in prostitution, lewdness, or assignation;
- To solicit, induce, entice, or procure another to commit an act of lewdness, assignation, or prostitution, with himself or herself;
- To reside in, enter, or remain in any house, place, building, or other structure, or to enter or remain in any vehicle, trailer, or other conveyance with the intent of committing an act of prostitution, lewdness, or assignation; or
- To aid, abet, or participate in the doing of any of the acts prohibited in paragraph 1, 2 or 3 of this subsection.
“…Any person violating any of the provisions of Section 1029 within one thousand feet of a school or church shall be guilty of a felony and, upon conviction, shall be punished by imprisonment in the custody of the Department of Corrections for not more than 5 years or by fines as follows….”
From the above, it is seen that though this American law is brief on the matter, its stance towards criminalizing prostitution leaves no one in doubt. But in the Nigerian law on prostitution, the law makers criminalized everything else about prostitution but prostitution itself yet it subtly leaves the impression that it is a crime.
It is not known whether the lawmakers did this on purpose or whether it is the result of poor legal drafting. As it is currently, the laws around prostitution in Nigeria are far from straight forward and so the effect is that all over the social media, you will find one set of people saying they should legalize prostitution while another saying they should criminalize it. Even the lawmakers themselves seem to be at a loss as to what the true position of the law is. In 2011, it was widely reported that Senator Ike Ekweremadu, the Deputy Senate President of Nigeria, called for the complete legalization of prostitution in the country. This statement by the Deputy Senate President further propagated the view that prostitution is illegal. In my opinion, prostitution cannot be more legal than it already is. The law is clear on what is legal by being silent on the matter.
While this may be good news for Madam Patoo Abraham, who led the protests that prostitution be legalized in Nigeria; that is not the intention of this article. It is not the intention of the author to make a case for prostitution but rather to simply educate the average Nigerian on the correct position of the law and also, to urge the law makers to state the law in clearer terms so that the masses know what is allowed and what is prohibited.
It is a time honoured principle of criminal law jurisprudence that laws which do not state explicitly and definitely what conduct is punishable are void for vagueness. In the Nigerian law on prostitution, the average citizen cannot generally determine what persons are regulated, what conduct is prohibited or what punishment may be imposed, and so it is my opinion that it should be declared void for this reason. But until then, whether or not it is declared void, as it stands, prostitution is legal.
Before any prostitute interprets the foregoing to mean that they have the liberty to ply their trade unhinged, a note of caution needs to be sounded. Most of the states in which the Criminal Code operates have laws on the environment and public safety which among others prohibit acts of street trading or hawking. The effect of this is that prostitutes who parade themselves beside the road may be arrested for hawking or trading. In essence what the law has criminalized is the mode of carrying out the act without criminalizing the act itself. The same way a ‘Gala’ or ‘Pure Water’ seller may be arrested for hawking on the streets even though there is nothing offensive about selling ‘Pure Water’ or ‘Gala’.
Perhaps it is these laws which prohibit environmental nuisance that have been interpreted by the citizens and the authorities alike as a prohibition of prostitution, which warrants the call for legalization of prostitution in Nigeria.
Perhaps, one would have thought the new “Sexual Offences Act” would resolve this issue, but no, it has not. The new law must however be commended for addressing other very serious issues that our criminal law had been silent about; issues like child sex tourism, gang rape, lacing drinks with drugs with intent to sexually abuse, and deliberately infecting partner with HIV and other diseases. Issues that again make you forget that nothing is said about the very act of prostitution.
