Possession of pepper spray is not an offence In Nigeria

With the recent rise in news reports of sexual assaults in different parts of the country, the time is ripe to reach deep into the inner recesses of the law to find, if any, possible lasting solutions to the menace.

In so doing, it is expedient to examine a seeming controversial position of the law on how rape victims can protect themselves in the face of sexual assaults.

In most jurisdictions, victims of rape, and other sexual assaults are taking the initiative to protect themselves from possible harm or injury.

The reasoning cannot be faulted at all. Every human has a right to protect his life in the most legal means. Self-help, self-protection or self-preservation, or whatever form it chooses to be called is legal. That much is clear.

As a result, to curb the increasing tide of rape, some women now arm their selves with pepper spray or other similar mixtures to fend off possible attackers/violators. However, this move is being resisted by some Policemen.

According to tweets credited to Assistant Commissioner of Police, Abayomi Shogunle, “being in possession of pepper spray” is considered an offence under Nigerian criminal laws by the Police. However, this view is unfounded in law.

ACP Abayomi relies on section 417 of Nigeria’s Criminal Code Act as his authority. The said section provides, in unmistakable terms, that any person who is found in any of the following circumstances, that is to say, being armed with any dangerous or offensive weapon or instrument, and being so armed WITH INTENT TO BREAK OR ENTER A DWELLING HOUSE, AND TO COMMIT A FELONY THEREIN, is guilty of a felony, and is liable to imprisonment for three years.

The purpose of the highlighted parts of the provision of the law is not far-fetched.

In all legal systems, the doctrine of mens rea or mental element is encapsulated in the criminal law principle of “no liability without fault”.

According to the doctrine, no one should be convicted of a crime unless some measure of subjective fault is attributable to him.

Nigerian criminal law adopts this principle wholesale. Mens rea simply means a guilty mind or intent. That is to say, the state of mind that the accused person must possess at the time of performing whatever criminal conduct.

It has been long established that before an act could qualify as a crime, the perpetrator must have the guilty intent of doing that act.

It is this mens rea which seeks to fix the culpability of the offender. Apart from a minute number of crimes imposing strict liability on the offenders such that only the act would constitute the crime, it is the law that the mens rea – guilty intent – of the accused person must co-exist with the guilty act – actus reus. Anything short of that would not make an accused culpable.

Back to the cited provision of section 417 of the Criminal Code. Can it be said without any vestige of doubt that a lady who arms herself with a pepper spray does so “with an intent to break or enter a dwelling house, and to commit a felony therein”? The answer is an emphatic and resounding ‘no.’

So as not to be accused of advocating for crime since even the devil himself knoweth not the heart of man, we should reiterate that self-preservation is legal.

Even though pepper spray could easily fall under the category of ‘offensive weapon’ as defined under section 403B of Criminal Code, it is unassailable that the intent of carrying a pepper spray cannot by any stretch of the imagination be said to be for the purpose of committing a crime.

The raw data is available for anyone who wishes to look into. The major purpose of carrying pepper spray is solely for personal safety. It is designed to be carried to protect a person from potential attackers.

Even if ACP Abayomi or other Policemen were to rely on another statute, that is, the Public Order Act which seemingly gives the police a wide range of powers, including but not limited to, the power to nip a suspected crime in the bud by arresting people armed with offensive weapons who intend to breach the peace, in claiming that carrying of pepper spray amounts to an offence under the law, it must be stated that this statute cannot aid his view in this case.

We will still have to look at the intent of carrying the pepper spray: and having established that it is carried mostly for self-defence, that statute cannot help.

In addition, the provisions of the Public Order Act has been declared to be unconstitutional by the Court of Appeal in 2007, hence, no reliance can be placed on it.

The mere possession of pepper spray does not constitute an offence in Nigeria so long as it cannot be positively proved that a woman who carries it does so with the intent of committing a crime with it.

The duty of the Police is to enforce laws and not to make laws. The Police cannot also arrest anyone for an offence which does not exist or is unknown to law. It would be better if the use of pepper spray is regulated, rather than banned, as is done in the US.