Kemen
Olajengbesi Pelumi
Nigerian lawyer, human right activist and principal founder of "Pelumi Olajengbesi & co" legal firm ( Law Corridor) has reacted to the disqualification of former Big brother housemate "Kemen".
Nigerian lawyer, human right activist and principal founder of "Pelumi Olajengbesi & co" legal firm ( Law Corridor) has reacted to the disqualification of former Big brother housemate "Kemen".
Olajengbesi Pelumi wrote an article concerning the whole alleged sexual
asualt on Tboss which led to kemen disqualification. Read below:
A BRIEF LEGAL APPRAISAL
Having seen the viral video of the said sexual assault attempt and the
basis of Mr. Kemen disqualification from the BBN house, I make bold to
state categorically that the Big Brother Naija (BBN) decision is an
irony of their own twisted world,and further declare that Mr. Kemen has
committed no offence, not in law or even the tenets of the BBN code.
Hence, Mr. Kemen must be allowed to breathe freely.
I am
particularly worried that individuals with market place ideas of law are
beginning to make silly comments that have no place in law. Making
presumption (s) on the law from a contrived sense of morality is not
only resentful but hypocritical.
There is absolutely no crime
recognised by law that survives without the element of an intention
before the action except in strict liability cases under which a claim
for sexual assault does not come under. In other words, for an act to be
a crime there has to be prior intention to commit said crime, known in
law as the mens rea.
Mens rea ( Latin for "guilty mind") is the
mental element of a crime. The test of criminal liability is expressed
in the Latin phrase, " actus reus non facit reum nisi mens sit rea",
which implies the act is not culpable unless the mind is guilty.
In
the scenario that took place in the BBN House, there are actually
offences that can be likened in the circumstance, sexual assault, which
must be proven with elements of violence and there was non, no violence
of any quantum at all hence sexual assault have no bearing in the
situation.
Also putting sexual harassment into consideration, it has no
place in the situation because it has to do with hostile environment and
undue pressure on the other sex.
Sexual harassment is not necessarily
nor absolutely about consent. In fact, a person can be sexually
harassed, yet had given consent but the law will hold the actor liable
for a sexual offence.
Sexual harassment will therefore occur where a
person of a higher social power would put the other party into a
position he or she would not be able to decline sex. A good example
would be of a woman seeking employment, a student to a lecturer etc,
where the environment is hostile and the balance of power or strength
disproportionate.
BBN have the right to disqualify any of their
members in the program but they don't have the right to lower the
estimation of his person in the eye of every right thinking person.
Firstly, we know it's trite law that he who asserts must prove. Can the
element of sexual harassment be proven in this instance ? In a sexual
harassment case, the court looks at the surrounding circumstances,
importantly the nature of the environment and social bargaining
circumstance. Why then can't we put the activities carried out on a
daily basis on the Big brother house into context.
The Big brother
house is amorous and accommodates such tendencies. You see a man and
woman bathing together, women working around with panties, almost
completely naked.
In such an environment, no one can sue for sexual
harassment except in an event of sexual assault and there must have been
the use or threat of violence on the other party.
Reviewing the
case of Oludotun Ogunbayo v. The State, the Appeal Court upturned the
decision of the High Court in the instance of the complainant 's
inability to establish sexual harassment because of the surrounding
circumstances.
To better illustrate, a female stripper cannot sue a
man for sexual harassment while giving him a lap dance in a club. In the
context of the Big Brother Naija v. Kemen issue, Tboss and Kemen had
shared prior intimate and suggestive moments that can be actively
construed as Tboss leading Kemen on. In fact, she had enjoyed a massage
lying completely naked with a flimsy towel thrown on over her while
Kemen massaged her prior to bedtime.
'Leading Him On' is a principle
in law which can be inferred from the relationship both parties shared
in the house. They had been extremely close and even sleep on the same
bed.
The lady in question occasionally pulled on the guy's boxers,
opened her breast to him and so many other amorous or suggestive
activities. She is therefore not a weaker person and she has equal
bargaining power with him.
Secondly, I have listened to arguments of
CONSENT, but people need to remember that this is law and not sociology
or theatre arts. Consent can be implied or expressed.
A woman and a man
cannot be in an amorous environment yet raise matter of consent, they
can't share what the parties shared and yet talk about consent, they
have their bath together, the girl touches him sensitively and all.
Consent is thus a contextual overreach in this circumstance.
The key
element in sexual harassment is a hostile environment in corpus juries
world over. It can be implied or expressed, a situation where there is a
weaker and a stronger person in terms of needs and influence.
A man may
sexually harass his female house help or a lady seeking for employment
in his company even with her consent, yet be liable in law, as far as
she was unduly compelled to give the consent to secure the favour.
However in such situations, it must be severe and pervasive.
I
therefore want to say without doubt that Kemen was defamed by the Big
Brother Nigeria show by allowing the general public to think he had
sexually assaulted a fellow housemate. This is wrong and unfair to him.
In fact, his act promoted the publicity of the BBN in line with what
they are ostensibly set up to do.
I dare say the organisers of the
show are as culpable as Kemen should they persist in labelling him as
such and not correct the impressions about Mr. Kemen that they've
stirred up.
At the point said act was underway, with the live cameras
on, the organisers of the show must have been fully aware and could have
made a move to contain the happenstance but didn't. That makes them
abetters if they decide to hold onto their wrongful assertions.
Be
advised on my true position. I am by this in no way condoning a sexual
assault on a woman or a man, nor encouraging same. I have simply put in
context this particular issue, deriving my conclusions from law and
fact. The term 'sexual harrassment' has in Kemen 's case been wrongly
applied and that reduces his estimation before the public- a clear case
of defamation.
What is more, the organisers of the show have
unashamably capitalised on the generated publicity at the expense of
truth and fairness, throwing out the window other circumstantial
variables which, duly considered, exculpates Mr. Kemen of particular
blame.
The organisers of the show owe it to fairness and equity to
truly set the records straight and face up to its own guilt and
pretensions. The public too ought to be wise to such publicity antics
and everyone must call a spade a spade.
Source...Pelumi Olajengbesi Esq.,
Co-convener of The Nation's Conscience is a legal practitioner and civil
rights activist based in Abuja.
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