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#BBNaija: The Ironical Farce Of The Big Brother Naija Reality Show : MR KEMEN AS A SCAPEGOAT
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.


Pelumi Olajengbesi Esq., Co-convener of The Nation's Conscience is a legal practitioner and civil rights activist based in Abuja.