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Thursday, May 19, 2022

The Sierra Leone Sexual Offences Act 2012 (SOA): Protection, Perversion or Persecution of Rights?

By Moses Massa

If the recent spates of sexual offences that have been flaring up in Sierra Leone were dizzyingly unanticipated, the social pizzazz and moral debate about their occurrence has been deflatingly expected. After predictable condemnation of this incomprehensible violence, an old division has overtaken the debate between those who want to be cruel against the perpetrators and others who want to be cautious. Both are right and wrong. Punishment of lawbreakers and protection of law conformers both have a place; the key is how it is used. The critical issue here is our human rights and its place in the laws of Sierra Leone.

In the first place the laws of Sierra Leone make provisions and guarantee our human rights.  Thus, why do we have rights called human rights? Well, the simple but factual answer is that we are humans. Why we are called humans is a matter of evolutionary and universal acceptance to say and know we are. What I shall be commenting about here is not specific to humans- sex- except law; the fact that there are laws and the functions they perform in society make it intrinsically human. And what are some of these human rights? Among these is sex; a key factor for our existence. No sex, less and eventually no human reproduction to continue our progeny. Sex is the universal characteristic that defines life in the animal kingdom, be it us or all our other DNA relatives commonly referred to as animals; when we in fact are, albeit the most intelligent ones.  Although sex is a biological attribute to differentiate male and female, it is not mutually exclusive, because there are some that have a mix of these physical, biological and chemical traits.  For the purpose here, sex refers to sexual activity.

The question is sex a need or a right? The response may be shocking but unashamedly sex is both a right and need. Right is what the law allows one to enjoy, and a need that has to be satisfied within the legal framework or acceptable standards of reasonable society.  Confusing but revealing, sex is no more than an opportunity; it is like a chance in life, where those that are lucky get more than others.  The right to sex does not oblige anyone to provide it; this could violate the right of the one providing it. So it’s up to the individuals wanting to negotiate how to satisfy this right. As a right, sex could be contractual. If paid for, it should be carried out by the intending parties; though one wonders which court one can sue if there is breach.  Sex is also a religious right; the book of Genesis says man has to “be fruitful and multiply”, but I am not going to stretch this further.

Sex as a right is about choice. One can choose to abstain for a given time or until death, which is okay to reduce our ever growing human population. If sex is a right, which undeniably it is, it makes sense that it is consensual to be consummated than without consent. Sex, like food, is a basic need, but one does not need to steal to get food.  It is the latter that every civilized society does not allow by punishing the perpetrator in order to preserve law, order and the dignity of persons.

Against this backdrop, the framework for my discussion is the Sexual Offences Act 2012 (SOA). This Act has five sections; each spelling out the physical conducts and state of mind elements, which must be present for a successful conviction of any alleged committed sexual offence. In other words, the prosecution must prove beyond all reasonable doubt that the defendant did the wrong act voluntarily, which the law condemns. I will attempt to comment on some of the Act’s key provisions, which seem confusing as they serve to protect people’s rights as well as criminalize their conduct.

To start with, under  this Act, marriage is no defence to rape, s.2 (4), meaning sexual offence can be committed by a married person to his/her spouse; nor is consent by a child below 18 years in s.2 (5) a defence to sexual penetration. Part II looks at the sexual offences generally and one of these; the most talked about, is rape. In s.6 SOA 2012, rape is defined as a person who intentionally commits an act of sexual penetration with another without the consent of that person, and if found guilty be sentenced to imprisonment not less than 5 years and not more than 15 years. Thus, a simpler deconstruction is:

Intention + Sexual Penetration + Consent + Adult = no sexual offence

What is the nitty-gritty of section 6? There are some interesting variables, which require consideration. In this section, there is no gender or age specific; meaning anybody (male/female) of whatever age can rape another. Is this so? And let me raise some critical questions here. If an intended sexual penetration is committed by a person; say a minor of 10 year boy on another 10 year girl without consent, is that rape? Clearly, where it talks about sexual penetration and penetration is associated with penile erection, which is male specific, a woman does not have penis, and cannot sexually penetrate, can she commit rape?  What if there is sexual penetration by another without the specific intention has rape occurred? Is causing or making someone intoxicated or forced to sexually penetrate another person without consent constitute the intention to commit a sexual offence?  Arguably, in criminal law, conviction of an offence hinges on the voluntary act of the individual with a sound mental functioning; though some laws do not need to prove any voluntary act to justify conviction, which I hope is not what the SOA 2012 is.

Sexual rights and sexual orientations are refraction within the kaleidoscope of human rights. The right to consensual adult sex makes it possible to pursue our emotional and reproductive fulfillments. Sexual orientation is the vehicle to come to this end. In other words, it is like different travellers using different means to get to the same destination. However, this is not a carte blanche to engage in every act that could be dangerous to public policy; for instance, say individuals having sex with children or incestuous sexual activities. A crime can only be committed when it is prohibited by common law or explicitly by Acts of Parliament. A key concern here is the issue of criminalizing conducts that the Act is silent or unclear about.

Assuming the sexual penetration is consensual between people of the same sex, is it wrong or legal?  The Sierra Leone 1991 Constitution states in s.23.7: “No person shall be held to be guilty of a criminal offence on account of any act or omission which did not at the time it took place constitute such an offence”. Thus, given the literal interpretation of s.6 SOA 2012, one is correct to argue that consensual same sex of the mouth, vagina or anus at the present is no offence in Sierra Leone.  If so, does the SOA 2012 nullify itself? It is strange to understand, with this grey area in the Act, why the police will want to charge people to court for buggery/sodomy. Perhaps those with religious or moral petulance will have some angst over what they consider as abhorrent. But why so, when the basis of criminalizing voluntary conducts is what the law forbids; than what it does not, or allows in ways not dangerous and otherwise unlawful to another?

If this leaves you guessing, in s.16 SOA 2012, it criminalizes bestiality for a person who penetrates the mouth, vagina or anus of a living animal with his penis or causes another person’s mouth; vagina or anus to be penetrated by the penis of living animal. What if the penetration is done on a dead animal will it be bestiality?

It is the function of a law to protect as well as punish law breakers. In Part III, Offences involving Children, s.19 states: “A person who engages in an act of sexual penetration with a child commits an offence and is liable on conviction …not exceeding fifteen years”. Whereas the case for punishment is made, it protects an alleged child sex offender in s.24.1 (a) (b) who sexually penetrated a child with the defence of mistake, if he/ she can satisfy the court on the balance of probabilities that before the sexual act was done, reasonable steps were taken to find out whether the child was of 18 years or over. This leaves open the door of weakness against punishing offenders. What is a reasonable step? If after reasonable steps were taken and the person reasonably believes the child was an adult, the Act does not state what should constitute reasonable grounds. Does a person who reasonably asks a child his/her age and is told by the child to be 18 years, need to go further and demand the child produce a birth certificate or other documentary evidence before sex is done?

Another confusing provision is the issue of prostitution. S. 17 states it is an offence for causing, inciting or controlling prostitution for gain, i.e. financial benefit or otherwise.  It goes further in s.30&31 that obtaining the services of child prostitute as well as offering; arranging or benefiting from child prostitution is an offence. But s.33 states it is a defence of mistake to a charge under these sections if on the balance of probabilities, reasonable steps were taken by the defendant that the child is 18 yearsThen what is prostitution? If, in meeting the 18 year threshold, is the law saying the person has not obtained the services of a child prostitute, offered, arranged or facilitated the engagement of a child in prostitution; or knowingly received any financial or other reward, favour or compensation from the child prostitution.

Is the Act saying that prostitution is no offence? So it seems. There is no point having a dithering law; if prostitution is an offence, let it be made clear than giving cause for people to blame the court for acquitting a defendant whose defense team can successfully explore this in their favour. Justice is premised on the foundation of strong evidence to convince the court for or against conviction, which should be independent, impartial and professional. In s. 36(3), it states “where a person has been convicted for any sexual offence under the Act, the court may in addition to any other punishment order the convict to pay the victim such sum as appear to the court to be a reasonable compensation”. What amounts to reasonable compensation is not made clear.

Often, with sexual offences, people have mixed feelings or are reluctant to report and having the perpetrator in serious trouble. However, sexual offences like any other can only be condemned and combated when the victims are bold to report them to the state institutions of law, order and justice, as well as having the media to disseminate the news to the wider society for urgent, preventive and corrective action.  But how does the Act regulate the media in reporting such sexual abuses? In s.41 (1) it states “No person shall publish or make public information that has the effect of identifying a person who is a victim of an offence under this Act. A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding Le l0 million or to a term of imprisonment not exceeding three year”.

The question then who is a victim of an offence under this Act? It is only when the court has proved beyond all reasonable doubt that the alleged offence took place that a complainant becomes a victim of sexual offence, not before or during the trial process.  With reference to the recent past rape furore, media and public razzmatazz involving a former Deputy Minister, when several newspapers published the name and picture of the alleged female rape complainant, were they not guilty of the above offence?  It’s strange the media could violate such a provision; nothing was done, and sometimes when the rights of those in power are violated by the media, then the media is brought to book. But what happened in that regard is a different ball game altogether, leaving much to be desired in the law, protecting the rights of all citizens, regardless of status.

Lastly, but more importantly is the process of reporting and investigating sexual offences.  It should not be cumbersome to report a sexual offence nor should the complaint be taken easily, perverted or weaponise against others. Reports of this nature should be given the utmost procedural competence and professional investigation to get at the credible evidence for or against conviction because they make or break a person. Failure to have the right balance affects someone’s psychology and reputation; in some cases their life. Considering this, what is the role of the police when a sexual offence is alleged to have been committed?

In s. 38 (1), paragraph (a-g) it states “ when a police officer receives a complaint under this Act, the officer shall- interview the parties and witnesses to the offence;  record the complaint in detail and provide the victim with an extra copy of the complaint upon request in a language the victim understands; assist the victim to obtain medical treatment and a medical report whenever necessary; assist the victim to a place of safety as the circumstances of the case or as the victim requires where the victim expresses concern about safety; assist and advise the victim to preserve evidence; and assist and advise the victim of his or her rights and any services which may be available”.

The meaning of the word assist is explained in s. 38(2)Police assistance to a victim under paragraph (c) of subsection (1) consists of issuing a medical form to the victim and where necessary sending the victim to a medical facility and obtaining a medical report”.  This section is clear about the role of the police but nowhere is it stated that they should arrest and detain the suspect of the offence. So, which powers are the police using to arrest and detain suspects alleged to have committed a sexual offence? This is where the water gets murkier. In answer to the question, the police will say that they have the Criminal Procedure Act 1965, which gives them statutory powers to do so.

Let’s again dice this police power to arrest. If a person(s) drunken with delight in another’s misfortune (schadenfreude) to bring down a hardworking high profile official, and allege(s) the official has committed a sexual offence, are the police going to invite, detain and arraign the person in question, deny them bail, or give them a preferential treatment under house arrest while investigating? Will the person be automatically fired the next day, without effective professional investigation before charging the matter to court? Or what if a politician(s) maliciously intend (s) to bring down their strong rival(s); say having someone do the dirty job of alleging a sexual offence?  If supporters of the person(s) in question are of such numerical strength, decide not to accept this, and put up a violent protest, with the potential to ignite a violent conflict, will the police have the stomach to go on with the investigation and eventual prosecution?  Or will the police duck to use their discretionary powers not to arrest?

If the police say they can decide when, if and not to arrest a defendant of sexual offence, then it will strengthen police unfair treatment of any vulnerable citizen before the law.  Crucial, given a sexual offence defendant’ bail is denied during investigation, it leaves open the door for politicization of the law to criminalize and subject meaningful people in this country to whimsical opprobrium and if not psychological or socio-political murder by those who want to bring them down. Thus, is this the purpose of the SOA 2012? If so, then nobody in this country is free and protected against the possibility of sexual violation allegation, eventual opprobrium, prosecution and demise.

It is absolutely clear; controversially so, no one is above the law in Sierra Leone, except the President, who according to s.48(4) of the 1991 Constitution, is protected against any civil or criminal proceedings for any act done in both his private and official capacity. One can make some assumptions here why the President is guarded while in office against legal proceedings, either against frivolous or malicious intent is not to run aground the smooth functioning of the state by making litigations.  Just a moot point, if there is a President who has committed a sexual offence against another person, what should take precedence, the law or the office?

Now if in reality the president does commit a sexual offence and the victim is bold enough to report it, the fact that legal proceeding is dropped against the holder while in office is an aberration.  On the other hand, should s. 51 of the 1991 Constitution apply as gross misconduct in performance of the office functions?, which states that wherein notice in writing is given to the Speaker signed by not less than one-half of all the Members of Parliament of a motion alleging that the President has committed any violation of the Constitution or any gross misconduct in the performance of the functions of his office and specifying the particulars of the allegations and proposing that a tribunal be appointed under this section to investigate those allegations.  Still transfixed by this illusion and adding to the confusion of s. 48(4), is that if such an act ever occurred, which violated the right of another, the cantankerous reasoning of private capacity still holds; thus cannot and should not be investigated for it.

Playing the devil’s advocate, if that happens; perhaps for argument sake, it makes for interesting reading but how that will play out in Sierra Leone is incomprehensible and beggars belief. Braced by the nature, immaturity of our political governance system, and weak moral values, I do not see this happening where a sitting president; the end and be all of the law, be investigated for such acts or violation of the constitution. More so, the constitutional process of impeaching a president in this country is like saying Sierra Leone intends to go the moon. It can be done but the question is when, taking into consideration the human and physical resources needed to make it happen is mind blowing altogether. Hence, this is a limitation of our laws, and an area the Proposed Review Constitution needs rethinking not to put so much power in the hands of the presidency. In fact, it should reduce them and sharpen the existing checks and balances on the office to guarantee political stability and ensure citizens’ economic prosperity.

No doubt some will argue strongly that the President will never do such a thing. Agreed; knowing the moral high ground expected of persons in public offices, but as the common parlance goes, never-say- never. Who would have imagined witnessing the recent salacious trial of the former Italian Prime Minister, Silvio Berlusconi, for engaging in a sex cartel with underage girls while in office, or the world’s powerful and most charismatic president of our time, when pressed for clarification over a private affair with a woman than his wife said:  “…But I want to say one thing to the American people. I want you to listen to me. I’m going to say this again: I did not have sexual relations with that woman, Miss Lewinsky. I never told anybody to lie, not a single time; never”. The beauty about this, which could hardly be repeated elsewhere, is the moral courage of the American democracy for Congress to charge a sitting American President with perjury, obstruction of justice, found him guilty and impeached him. This again does not immune the American democracy against power politics; the President through the powerful system of checks and balances in the House of Senate, which often votes on strict party lines, was able to finish his term by his Democratic Party majority voting against it.

Fair enough, the enactment of the SOA 2012 was a step in the right direction to protecting our human rights by punishing those who violate them. Laws are meant to be liberating as well as restricting peoples freedoms. Normally, I do not often see things from a gendered perspective, which is not to say I do not know a snake when I see one. In all fairness, the rate of sexual violence against women; especially children, is alarming and needs to be prevented, if not abolished; although a bridge too far should not stop us trying to get to our destination. There is no doubt the key perpetrators have been men but why have a law that could be perverted and used as a weapon to persecute or criminalize others?  Since the process of reporting and investigating sexual offences are not clear, denying bail to defendant during investigation, it leaves open the door for perversion of the law as nobody in this country is free and protected against the possibility of opprobrium, prosecution and demise.

In hindsight, it is like the Sexual Offences Act 2012 was a reactionary than forward looking law, passed without little or no contribution from members of the public. And for most modern democracies the practice now is to listen and solicit contributions from some key members of the public as to what should be included as provisions of enacted laws. Regrettably, the Sexual Offences Act 2012 has many dark sides that need to be reviewed and I call on other stakeholders to lobby members of the Human Rights Committee in parliament to do so, because as its current state; being a MP, lawyer, magistrate, judge, police or other high raking status cannot offer protection against an allegation with the potential of shame or destruction.  Finally, if those now in power think otherwise, does that mean we should allow dumb and dangerous laws to be implemented without repeal?

Moses Massa,

Senior Chevening Fellow & KAIPTC Alumnus on Conflict, Peace & Security 

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