The unfortunate sex tape of school children of Chrisland Schools Lagos has brought to the fore a number of issues within the scope of law, ethics, morality, societal, and parental upbringing, amongst others.
One fact that is clear to everyone is that the social media became the vehicle for sharing a sex tape which is nothing short of child pornography, without any scintilla of regard to the age of the participants in the abhorrent display.
In this article, attention is given to the law (international, regional, national and state) on how being possession of such sex tape and sharing it may constitute a serious offence. But before then, who is a child?
Who is a Child?
Legally speaking, there exists no definition of ‘a child’ in the Constitution of the Federal Republic of Nigeria 1999 (as amended). However, Article 1 of the United Nations Convention on the Rights of the Child 1989, defines a child as a person below the age of eighteen years except in the law applicable to the child, the age of majority is attained earlier. The proviso to this definition renders it nothing more than a suggestion.
Nigeria ratified the Convention in 1991 and domesticated it in 2003.
Article 2 of the African Charter on the Rights and Welfare of the Child 1999, defines a child as ‘every human being below the age of eighteen years.’
The Child’s Right Act 2003 in section 277 defines a ‘Child’ as a person under the age of eighteen years. The Child’s Right Law of Lagos State in section 262 adopted the same definition as under the Childs Right Act.
The Labour Act defines a child as a young person under the age of twelve years and a young person as one under the age of fourteen years. Section 2 of the Children and Young Person’s Act, defines a child as a ‘person under the age of fourteen years and a young person to mean ‘a person who has attained the age of fourteen years and is under the age of seventeen years.’
The Black’s Law Dictionary defines a child as a person under the age of majority.
In view of the forgoing definitions, the participants in the said video are said to be 10 and 13 years old, they will therefore come withing the definition of “a child” as stipulated by various laws.
Child Pornography
According to the Optional Protocol to the Convention on the rights of the child on the Sale of Children, Child Prostitution and Child Pornography, Art. 2 (c), child pornography is any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primary sexual purposes.
Under the Protocol, the following constitutes child pornography:
Producing: The Protocol states that any on who produces any content i.e any animation, pictures, graphics, cartoons, videos whatsoever that exposes the child sexual parts is liable and is said to have been involved in child pornography.
Distributing: The Protocol also states that anyone who distributes, shares or disseminates knowingly or unknowingly any document or substance that suggests the inference of any child pornography is guilty of child pornography.
Importation and exportation: The importation and exportation of any child pornographic material(s) is also prohibited in its smallest form either for commercial purposes or for the purpose of entertainment. It is imperative to note that it is not only the producer that is liable on conviction but all the parties involved would be punished accordingly.
Offering: Under the Protocol, any person who offers to sell, either the sale was successful or not, would be punished for offering to sell. It is enough to offer to sell even though there was no acceptance to buy from any other party.
Selling: According to the Protocol, if anyone offers to sell any pornographic material of a child would be liable on conviction for the act of sale of child pornographic material.
Possession: Under the Protocol, any person in possession of any child pornographic materials irrespective of the means it was gotten would be liable. It is enough to prove possession, the law is not concerned with how it was gotten either it was downloaded, bought, stolen etc. It is pertinent to state that the Optional protocol to the convention did not specifically state the punishment for offenders but rather subject it to the respective states that have domesticated the Convention and the optional protocol.
In an attempt to curb this menace regionally, the African Charter on the Rights and Welfare of the Child (Art. 27 (c)) prohibits the use of children in pornographic activities, performances and materials it further prohibits the use of the girl child for pornography either in cinema or for advertisement of any kind.
However, this convention has failed to prescribe adequate punishment for offenders; the absence of punishment may likely subject the law to be seen as a toothless bull dog.
Further, the African Union Convention on Cyber Security and Personal Data Protection (the African Union Convention) defines child pornography in its Article 1 as any visual depiction, including any photograph, film, video, image, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where: a) the production of such visual depiction involves a minor; b) such visual depiction is a digital image, computer image, or computer generated image where a minor is engaging in sexually explicit conduct or when images of their sexual organs are produced or used for primarily sexual purposes and exploited with or without the child’s knowledge; c) such visual depiction has been created, adapted, or modified to appear that a minor is engaging in sexually explicit conduct.
In Nigeria, the Child Right Act 2003 forbids the procurement of a child or the offer of a girl child for prostitution or for the production of pornography and any pornographic performance.
Indeed, the purport of the entire Act is stated in the opening sections 1 & 2 thus:
Best interest of a Child to be of paramount consideration in all actions.
In every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority, the best interest of the child shall be the primary consideration.
A child to be given protection and care necessary for his well‐being
(1) A child shall be given such protection and care as is necessary for the well‐being of the child, taking into account the rights and duties of the child’s parents, legal guardians, or other individuals, institutions, services, agencies, organisations or bodies legally responsible for the child.
The Act provides that a child shall not be used. It further provides that a child shall not be procured or offered for prostitution or for the production of pornography or for any pornographic performance.
The prescribed punishment for this offence is stipulated in section 30 of the Act as it provides that: ‘A person who contravenes the provisions of subsection (1) of this Section commits an offence and is liable on conviction to imprisonment for a term of ten years.’ Similar provision is in section 26 of the Child’s Right Law of Lagos State 2007.
However, the Child Right Law only provided for prohibition of Child prostitution, leaving out Child pornography.
The Cybercrime Prohibition and Prevention Act 2015 in section 23 specifically creates child pornography offences, with punishments of imprisonment for a term of 10 years or a fine of not less than N20 million or to both fine and imprisonment, depending on the nature of the offence and the act carried out by the accused persons.
Offences include, amongst others: producing, procuring, distributing, and possession of child pornography.
Could the Children (in the sex tape) be Criminally Liable?
The children are said to be between 10 and 13 years. By the definitions under the child legislations, they are still considered minors and survivors of sexual violence against each other. However, one needs to draw attention to section 30 of the Criminal Law of Lagos State states that “A person under the age of ten (10) years is not criminally responsible for any act or omission.”
Going by the above provision, one may be tempted to say that the children in the sex videos are criminally responsible for their actions.
However, since there are child-centric legislations and the need to redeem and protect the future of these children, it is doubtful that the Lagos State Government will bring criminal proceedings against them.
The issue of rape may not even come in due to the lacunae in the various statutes on who can commit the act of rape, that is the man, under the various criminal laws. Section 260 subsection 1 of the Criminal Law of Lagos State 2015, defines rape as “Any man who has unlawful sexual intercourse with a woman or girl without her consent commits the offence of rape and is liable on conviction for life.”
Under the same law, in section 137, defilement of a child (which applies to both females and females) is defined as “Any person who has sexual intercourse with a child commits a felony and is liable on conviction to imprisonment for life.” This is a provision of the law that seeks to protect the child.
It should also be clarified that the provision of section 137 of the Criminal Law of Lagos state is repletion of section 31 of the Child Rights Act, which states that;
(1) No person shall have sexual intercourse with a child.
(2) A person who contravenes the provision of Subsection (1) of this section commits an offence of rape and is liable on conviction to imprisonment for life.
Also, the issue of consent does not even arise because all the participants in the obnoxious sex tapes are minors and cannot give consent to have sex.
