SEX & BOUNDARIES: LEGAL IMPLICATIONS OF KEMEN’S

ALLEGED ACT IN THE BIG BROTHER HOUSE

The just-concluded Big Brother Naija Reality TV Show on DSTV left in its wake as much social
furore as it did when it commenced in January 2017. At the commencement of the show,
Nigeria’s social media was abuzz with “For” and “Against” debates with each side of the
debates expressing its arguments with sufficient vitriol to match its opponent’s.

As the show progressed, the initial opposition against it relaxed to allow a battle of favourite
housemates during eviction shows take the center stage of social discourse. However, mid-
way into the show; an incident occurred which unleashed another tirade of “For” and
“Against” debates.

Since that incident is the premise of this article, a summary of it would be appropriate in
order to put things in perspective.

Housemate Kemen was disqualified from the show prior to a scheduled eviction show. His
disqualification was on account of his alleged unconsented and inappropriate touching of
fellow Housemate T’Boss’ genitalia whilst she was asleep. The act had been captured by
night vision cameras installed in the house.

The act was unbeknownst to T’Boss herself who only became aware of it when she was
invited into the Diary Room and shown a recorded video of the act and asked if she had
consented to same.

Kemen’s disqualification sparked off a torrent of debates on Nigerian social media. Those in
support of his disqualification commended the producers of the show for acting swiftly and
some even called for him to be prosecuted.

Those against his disqualification premised their objection on the fact that she had allegedly
consented to it firstly; by sharing the same bed with him (thus, supposedly, leading him on)
and secondly; for failing to voice her discontent when she awoke whilst he was touching her
(as seen on the video albeit it was for a fleeting second before she went back to sleep with
her back turned to him).

Two incidents during and after the finale show can be credited with reigniting the
controversy that has attended the conclusion of the Show. The first was the presence of
Kemen at a viewing centre in Lagos and his reaction to the eviction of T’Boss from the
House. The second was the rather tasteless and insensitive simplification of an alleged act of
sexual assault by comedians, AY Makun and Helen Paul.

The latter incident especially has exposed an underbelly of victim blaming and shaming that
typically characterizes the Nigerian society’s reaction to incidents of sexual assaults. It also
underscores a disturbing misconception amongst Nigerians about the concept of sexual
boundaries and the importance of consent in the consummation of sexual activities.

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Another disturbing observation from the comedic misadventures of AY Makun and Helen
Paul in making light of the issue of alleged sexual assault is the fact that many Nigerians
appear to hold the view there are no legal consequences that could arise from Kemen’s
alleged act, and especially that having apologized for the alleged act, he should be spared
further repercussion.

It is therefore in light of this pervasive view that this article seeks to examine the possible
legal consequences that could arise from Kemen’s alleged act. Notwithstanding his
disqualification from the show, the act itself is deemed alleged especially as Kemen has
denied touching her inappropriately as alleged nor has he been charged with any crime.

The Criminal Code Act in Nigeria makes provisions for an array of offences with sexual
connotations. These range from rape, attempt to commit rape, assault with intent to
commit unnatural offence, indecent assault on males, indecent assault on females, incest,
bestiality, sodomy, defilement to abduction.

Positioning Kemen’s alleged act within the context of the ingredients of the aforementioned
offences, the offences most likely to succeed against Kemen are rape and indecent assault
on females.

The Nigerian Criminal Code Act defines rape thus:

“Any person who has unlawful carnal knowledge of a woman without her
consent or with her consent if the consent is obtained by force or by means of
force or by means of threats or intimidation of any kind, or by fear of harm,
or by means of false and fraudulent representation as to the nature of the
act, or, in the case of a married woman, by impersonating her husband, is
guilty of an offence which is called rape”.

The punishment for rape as provided by the Criminal Code Act is imprisonment for life, with
or without caning.

It is clear from the above definition of rape that a charge of rape cannot be sustained
against Kemen under the Criminal Code Act. This is because the important ingredient of
penile penetration is absent in the facts of the matter as captured in the video.

However, a charge of rape could be sustained against Kemen if brought under the Violence
Against Persons (Prohibition) Act, 2015 (the VAPP Act). The Act defines rape thus:

“A person commits the offence of rape if-

(a) He or she intentionally penetrates the vagina, anus or mouth of

another person with any other part of his or her body or anything else;
(b) The other person does not consent to the penetration, or
(c) The consent is obtained by force or means of threat or intimidation of
any kind or by fear of harm or by means of false and fraudulent
representation as to the nature of the act or the use of any substance

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 or additive capable of taking away the will of such person or in the
case of a married person by impersonating his or her spouse”

The glaring differences between the provisions on rape in the Criminal Code Act and the
VAPP Act are that:
(a) Unlike in the Criminal Code Act, under the VAPP Act; both a man and a woman are
capable of committing the offence of rape.
(b) Unlike in the Criminal Code Act, under the VAPP Act; penile penetration is not the only
proof of rape.

The punishment for rape as stipulated by the VAPP Act is thus:

“Any person convicted for an offence under subsection (1) of this section is
liable to imprisonment for life except-

(a) Where the offender is less than 14 years of age, the offender is liable to
a maximum of 14 years imprisonment;
(b) In all other cases, to a minimum of 12 years imprisonment without an
option of fine, or
(c) In the case of rape by a group of persons, the offenders are liable
jointly to a minimum of 20 years imprisonment without an option of
fine”

In addition to the punishments listed above, the VAPP Act also makes two noteworthy
provisions to wit;

Firstly, the Court shall award appropriate compensation to the victim as it may deem fit, and
secondly; a register for convicted sexual offenders shall be maintained and accessible to the
public.

Aside rape, the other offence already identified above for which Kemen could be charged is
indecent assault on females as provided in the Criminal Code Act.

Indecent assault is essentially an assault that does not involve rape. Under the Criminal
Code Act, the offence is punishable by two years in prison.

In both offences, a key ingredient is the absence of consent. However, consent, if proved is a
valid defence to the offences.

Under the law, in sexual matters; consent essentially means the voluntary permission to
have sex granted by a person with the requisite capacity to give such permission.

In that premise vis a vis the subject scenario, it is immaterial that T’Boss shared the same
bed with Kemen or that she did not object to his touching her when she woke up briefly
before resuming her sleep (note that in that state of sleep, she cannot be regarded as
possessing sufficient capacity to give the requisite consent) or that she had at one time
allowed him give her a body massage or that she had on some previous occasions kissed

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some other male housemates (or even Kemen himself , were that to be the case) or that she
was in the habit of dressing provocatively or partially nude in the Big Brother House.

Under the law, nothing short of a “yes” or “no” is required to ground the presence or
absence of consent in sexual matters.

Having identified above the offences that could constitute possible legal consequences for
Kemen’s alleged act, there is a glaring legal snag in the matter than cannot be avoided.

It is the fact that the alleged act did not take place on Nigerian soil. The show was shot in
South Africa where the Big Brother House wherein the alleged act was perpetrated is
located.

This necessarily robs the Nigerian criminal justice system of the requisite jurisdiction to
address the matter. The South African criminal justice system is therefore the appropriate
authority vested with the requisite jurisdiction to address it.

In South Africa, the Criminal Law (Sexual Offences and Related Matters) Offences
Amendment Act No.32 of 2007 makes provision for the offence of rape. The Act defines the
offence of rape thus:

“Any person (‘A’) who unlawfully and intentionally commits an act of sexual
penetration with a complainant (‘B’), without the consent of B, is guilty of the
offence of rape”.

In its definition section, the Act defines “sexual penetration” to include:

“any act which causes penetration to any extent whatsoever by-

(a) The genital organs of one person into or beyond the genital organs,
anus, or mouth of another person;
(b) Any other part of the body of one person, or any object including any
part of the body of an animal, into or beyond the genital organs or anus
of another person; or
(c) Genital organs of an animal, into or beyond the mouth of another
person”.

With Kemen having since returned to Nigeria, and having observed that it is the South
African criminal justice system that can address his alleged act, the question then arises;
does that mean he is off the hook?

Should the South African Authorities decide to investigate the matter and pursue criminal
reprisals against him, the answer would be no.

Nigeria and South Africa enjoy a reciprocal extradition relationship by virtue of the
Extradition Treaty between the Government of the Federal Republic of Nigeria and the
Government of the Republic of South Africa (Ratification and Enforcement) Act, 2004
(2005).

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The Act places reciprocal obligation on both countries to extradite to each other persons
whom the requesting state has charged or convicted of an extraditable offence.

An extraditable office as provided in the Act is, amongst others, one which is punishable in
both contracting States by deprivation of liberty for a period of more than one year, or by a
more severe penalty.

Whilst it is clear that Nigerian courts cannot exercise criminal jurisdiction in the matter, the
alleged act having not been committed on Nigerian soil, Nigerian courts can, however,
exercise civil jurisdiction over the matter.

The fact that both Kemen and T’Boss are resident here in Nigeria is sufficient to vest a
Nigerian Court with civil jurisdiction should the latter decide to pursue a civil action in tort
against the former.

From the available facts, the most likely cause of action would be a claim for damages for
emotional and psychological trauma arising from the tort of battery.

The tort of battery consists of the intentional and direct application of force to another
person. Under the law, any physical contact with the body of another (i.e. the alleged
touching of genitalia in the subject scenario) sufficiently constitutes force to ground a claim
for battery.

Note, however, that despite the violent imagery the word “force” might evoke, no physical
hurt is necessary to ground culpability in tort for battery. The courts have held that the least
touching of another in anger, spitting in another person’s face and even an unwanted and
unconsented-to kiss all constitute battery.

Thus, in the subject scenario, the mere touching of genitalia, if proved, is likely to be
construed as battery by the courts.

In light of the foregoing, it is clear that despite a prevailing attitude in the Nigerian society to
make light of the incident that occurred in Big Brother Naija (and indeed in all matters
pertaining to inappropriate sexual contacts), there are serious criminal and civil legal
consequences that could and should attend such incidents.

It is high time our society learns not to ignorantly dismiss as innocuous acts that violate
other people’s personal spaces and dignity. And just as important; it is high time we do
away with the attitude of victim blaming and shaming whilst enabling perpetrators.

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