Few days ago, the popular Nigerian disk jockey Kudirat Gbemisola, aka DJ Kulet announced the end of her eight-month marriage to Mr Ohis Emmanuel on social media, accusing him of infidelity and sexually assaulting a minor.
Accordingly,the Lagos State Domestic and Sexual Violence Agency (DSVA),coming across the viral post made by DJ Kulet and the video released,has launched an investigation into these allegations of child sexual abuse against Mr Ohis Emmanuel, her estranged husband.
The purpose of this article is to consider whether the popular Disk Jokey DJ Kulet can be prosecuted as a party to the alleged offences of her husband if her husband is eventually caught without her reporting him. By implication,whether it is visible under the law to prosecute her for not reporting her husband.
In every criminal offense, the level of involvement of a party determines the extent of his liability, and his punishment is prescribed based on the level of his involvement and the role he plays in the commission of the crime.In the realm of felonies, common law classified individuals involved in criminal act into two categories: principals and accessories.The Criminal Code Act has properly provided and defined the various actors and parties to an offense including an accessory.
However, it is instructive to note that for a person to be implicated as a party to an offense, the person must fulfill two elements that must always be present in every offense to make them liable. The person must physically act in a manner or way to commit, aid, or assist in the offense in question (actus reus). Secondly, the accused person must have committed the act constituting the offense with the intention or knowledge of committing, aiding, or assisting in the commission of the offense ( guilty mind). Without the Act and the knowledge or intention to act,a person can generally not be a party to an offence. Except with some offences of strict liability which do not require the intention of the accused,these two elements must be present and working at the same time as held in EZE v. STATE (2017) LPELR-CA/OW/304C/2014.
A principal party to an offense is any person who directly performs the act or commits the omission that constitutes the offense. Section 7 of the Criminal Code Act Provides that the following actors will be regarded as principal offenders. The person who performs the act or commits the omission that constitutes the offense is a principal offender. Any person who does or omits to do an act to enable or aid another person in committing the offense is a principal offender.
Furthermore, the section provides that every person who aids another person in committing the offense and any person who counsels or procures any other person to commit the offense is a principal party. It is imperative to note that all the classes of parties mentioned in this section have the same extent of criminal liability.
Husbands and wives can be principal parties to an offense and would be liable to the extent of the punishment prescribed for principal offenders. The law does not provide any protective shields for husbands and wives who aid, abet, or participate in the commission of a particular offense as principal parties.
For instance,sometime March 23,2023,Senator Dr Ike Ekweremadu, aged 60, along with his wife Beatrice, aged 56, and Dr. Obinna Obeta, aged 51, were found guilty of being involved in organ trafficking. The charges included facilitating the travel of a young man to Britain with the intent of harvesting his kidney for a transplant operation on their sick daughter.
However,based on the available facts,nothing shows that the popular Disk Jokey acts,omits,assists,aid,abet,procure, enable or counsels her husband to abuse a child or minor. Therefore,DJ Kulet can not be prosecuted as a party to the offence if at all her husband eventually get prosecuted by the law officers. It is also very important to note here that 34 of our Criminal Code Act provides that “A husband and wife of Christian marriage are not criminally responsible for a conspiracy between themselves alone.” What this means is that except with with a third party,couples of Christian marriage cannot be prosecuted for conspiracy.
The principle that a husband and wife under a statutory marriage (Christian marriage) cannot be held guilty of conspiracy is based on the common law presumption that a husband and wife are one, each being part of the other and since conspiracy requires the agreement of at least two persons to commit an offence, such husband and wife cannot commit the offence.
This principle has received judicial pronouncements in Obiakor & Anor v State (2002) LPELR-SC.327/2001 and reiterated in the 2019 recent case of Nwabu v IGP (2019) LPELR-CA/C/67C/2018.
However, this principle will not apply if the couples conspire with a third party. Also, the evidential burden of proving the existence of a Christian marriage lies on the accused.
Having resolved that she can not be prosecuted as a principal party to the alleged offence,it is important to consider whether she can actually be prosecuted as an accessory after the fact since we have said earlier that participants in crime can either be principal party or accessory after the fact based on the level of their involvement.
According to Brett and Mclean an accessory after the fact is defined as follows: “A person who receives or assists another who is, to his knowledge, guilty of an offense, to enable him to escape punishment, is said to become an accessory after the fact to the offense.This definition has been quoted with approval in the Nigerian case of ABACHA V. THE STATE (2002) LPELR-SC.290/2001.
Section 10 of the Criminal Code Act in Nigeria defines Accessories after the fact as follows:
“A person who receives or assists another who is, to his knowledge, guilty of an offence, in order to enable him to escape punishment, is said to become an accessory after the fact to the offence.
A wife does not become an accessory after the fact to an offence of which her husband is guilty by receiving or assisting him in order to enable him to escape punishment; nor by receiving or assisting, in her husband’s presence and by his authority, another person who is guilty of an offence in the commission of which her husband has taken part, in order to enable that other person to escape punishment; nor does a husband become accessory after the fact to an offence of which his wife is guilty by receiving or assisting her in order to enable her to escape punishment.
In this section the terms ‘wife’ and ‘husband’ mean respectively the wife and husband of a Christian marriage.”
While there has been criticism on the propriety of the use of “Christian Marriage” in the above proviso in that section by the drafters,the consideration of propriety of the use of that phrase is not the purpose of this article. What can be taken from that section is that the marriage referred to is the marriage under the Act and by extension the ones conducted in church of which DJ KULET’s marriage belongs to the former.
However, it is clear from the provisions of Section 10 of Criminal Code Act reproduced above that while spouses can be held liable as principal offenders, a husband and wife are afforded a shield that grants them immunity from liability of accessory after the fact to an offense.
By illustration,what this means is that even in the course of arrest of DJ Kulet’s husband,the law provides DJ Kulet an opportunity to aid the escape of her husband from being arrested for prosecution.Not only her husband,the law also empowers her to enable the escape of her husband’s accomplice.Now,flowing from this shield that the law provides her to prevent her husband from being arrested,can we say the same law envisaged that she reports her husband to the police?
However,there is need to peruse the laws of Lagos state to see whether the above question can be answered in affirmative. Section 19 of Criminal Law of Lagos State (2011) defines an accessory after fact as follows:
“Accessories after the fact:
A person who receives or assists another who to his knowledge has committed an
offence, in order to enable him to escape arrest or prosecution, is an accessory after the
fact to the offence.”
From the above provision,it can be seen that the Criminal Law of Lagos State doesn’t have the proviso in our Criminal Code Act which seeks to protect the parties of Christian Marriages in any case of accessory after fact. That has been abrogated in 2011. Therefore,by way of location, DJ Kulet cannot enjoy the protection provided under the Criminal Code Act as Lagos State has taken further steps to address this dicey situation. Just like any citizen should do,she may be required to report her husband as she can also be prosecuted as accessory after fact.
It is also imperative to note that the protection given to a husband and wife of Christian marriage by which they cannot be held criminally liable for a conspiracy between themselves alone under Section 34 of the Criminal Code is no longer available in Lagos State as that provision has been completely expunged from the Criminal Law of Lagos State of 2011. Now in Lagos, a husband and wife can now be charged for the offence of conspiracy.
Recommendation: Lagos State has abrogated all the protections for parties of statutory marriage and put our criminal laws in right perspective. In terms of legislation,Lagos State is like 50 years ahead of other states in Nigeria, other states need to do more in terms of legislating in order to put their various criminal laws in right perspective.
