Kemen’s disqualification…Right or Wrong, From legal perspective.
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On Sunday, the 5th of March, 2017, Kemen, a housemate of the Big Brother Naija Reality TV show was disqualified from the show for breaking a House Rule. The decision to disqualify Kemen came as a welcome development to many, but it also came as a surprise to others who felt TBoss was a wiling-cum-leading participant in the act. The latter set of audience also felt Kemen was hard done by the Organisers of the show who ignored a similar incident involving Debbie-Rise. Several questions were also asked on social media, to wit: was Big Brother right to disqualify Kemen? Is Big Brother culpable of selective justice when he ignored a similar incident involving Debbie-Rise’ but punished Kemen for the same thing? Did Kemen sexually assault or harass TBoss, or both? Was TBoss a willing participant and did she lead Kemen on? Would it make any difference if Kemen was drunk at the point of committing the act? Did Kemen really break any House Rule and could he sue the organisers of the show?
Harold, a writer who shared his thoughts on Kemen’s disqualification from Big Brother Naija,I shall attempt to address some of the foregoing issues in the light of the applicable principles and provisions of Nigerian law, as well as the Big Brother House Rules. This may be a long one, but given the magnitude of the queries, please bear with me. My responses may surprise you.
First Things First
I shall address the queries without bias to anyone. What I shall simply state is the position of the law and my opinion and interpretation of the applicable Big Brother House Rules.
In the wee hours of the 5th of March, 2017, a curious video footage from the Big Brother House emerged on social media. In the video, Kemen appeared to be making bodily contact (groping? spooning? fondling?) with TBoss, who appeared to be asleep and unaware of Kemen’s act. After a while, TBoss appeared to be awake – or at least, conscious – as she turned on her sides.
Social Media Outrage, The Charge and Threat
The video footage sent social media agog as many rebuked Kemen for such act. He was accused of sexually harassing and assaulting a woman without her consent. In little or no time, calls were made on Multichoice, the organisers of the show to evict Kemen for the disgraceful act. It was simply the best opportunity “to teach viewers what consent really meant.” Some other members of the audience went after Payporte, the major sponsor of the show. The Organisers were threatened to ensure something was done about Kemen’s action, else, they (Payporte) will be seen to condone such actions.
Big Brother’s Trial
After the outrage of social media, Big Brother called Kemen and Tboss (at different times), to the Diary Room to make enquiries.
Just before the Live Show on Sunday by 7:00pm, Big Brother called the Housemates to the lounge and announced as follows:
“Housemates, Big Brother would like to bring something to your attention. As you know, Big Brother takes everyone’s safety and wellbeing very seriously. A very serious infringement has taken place in the Big Brother House by Kemen. Big Brother can assure you that, all necessary warnings and disciplinary measures have been actioned prior to this moment. Kemen is aware of the incident and resulting consequence of his action. Kemen, please rise. Kemen, you have been found guilty of violating the Big Brother House Rules. Based on a private disciplinary session with Big Brother this afternoon, you are hereby disqualified from the Big Brother House immediately. Kemen, you have one minute to leave the Big Brother House.”
What does the Big Brother House Rules State and can Housemates be summarily evicted for violating same?
In 2008, Alexandra De-Gale was “ejected” from the Big Brother House, UK, for repeatedly breaking the House Rules. So, disqualification of housemates for breaking Big Brother House Rules, is not a strange phenomenon. In the case of Kemen, he was “found guilty of violating the Big Brother House Rules.” The pertinent question that comes to mind is, what does the Big Brother House Rules state and which of them did Kemen actually violate?
I went digging for the Big Brother House Rules after the incident. Interestingly, the Rules do not say anything about sexually assaulting or harassing a fellow housemate. Sexual assault and harassment were never defined nor expressly prohibited.
Making sexual advances at fellow housemates was also not prohibited. I believe the reason for this is that, the show is rated 18+. It is therefore expected that, housemates would engage in sexual or pseudo-sexual acts of any form. In fact, the show has been widely condemned for having adult content. But the organisers of the show have never shied away from admitting such contents should be expected as the show is a social experiment. And maybe, just maybe, Kemen proved the show to be right in that sense. Rightly or wrongly, he may have exhibited a trait of someone in his condition and circumstances. If you put a rat in a kitchen full of exposed fish (without restriction) all in the name of social experiment, what do you expect the rat to do? It will definitely eat the fish. That is what your social experiment will reveal. Should the rat be punished for eating the fish, especially when you did not instruct the rat not to eat the fish? That is another kettle of fish all together.
So, yes, there is no House Rule against making sexual advances towards a housemate, whether with or without their consent.
If Kemen Did Not Break Any Specific House Rule, What Rule Could He Have Violated?
Having studied the Rules, I do not think Kemen can be said to be culpable for “Sexual Assault/Harassment”. Mind you, I am strictly speaking within the confines of the House Rules. Perhaps, that was why Biggie was careful with his choice of words. He simply said Kemen was found guilty of violating the Rules. He didn’t state which Rule(s).
Notwithstanding the foregoing, there are two House Rules I found interesting. They are:
“Housemates must respect the House and their fellow contestants at all times”
“Housemates are not allowed to strike, intimidate, threaten or act in any way that can be construed as violent towards any fellow Housemates. This could result in immediate disqualification.”
Can Kemen be said to have violated either of these Rules? I think it would be difficult to say. If anything, the answer could be “yes”; it can also be “no” depending on subjective interpretation.
With respect to Rule 1, Kemen’s acts towards TBoss may be seen as a sign of disrespect towards her by some. Kemen touched her without her consent. It is as simple as that. He disrespected her. To others, maybe not so much. Especially as she did not reprimand him after she realised he was sleeping so close to her. Maybe she did not feel so disrespected, after all. Was she aware he was touching her? Well, from the footage, she appeared to be asleep the first time he made moves. But subsequently, she turned on her sides which suggests she may have woken up. She did not leave the bed to show he “disrespected her”.
Rule 7 will be difficult to interpret. But let’s still try. Kemen’s action can be construed to mean “personal violence” towards Tboss. Yes, “personal violence” is a thing. It need not occasion physical injury. It can cause psychological injury. Was Tboss traumatised by the experience? She sure did appear to be traumatised when relaying what happened in the Diary Room to the Housemates. Others might differ in opinion. She did not appear shaken until Kemen was evicted and the Housemates appeared to be hostile towards her. Was her “traumatic” state a manipulative move by her to win back the affection of her fellow Housemates?
Big Brother Rules aside, is Kemen Culpable for Sexual Assault or Sexual Harassment?
Section 261 of the Criminal Law of Lagos State, 2011, defines sexual assault as sexually touching another person without the person’s consent. A person is said to consent if (s)he agrees by choice and has the freedom and capacity to make and communicate that choice.
Section 262 of the Criminal Law of Lagos State, 2011, defines sexual harassment as an unwelcome sexual advance, request for sexual favours, and other visual, verbal or physical conduct of a sexual nature, which when accepted or rejected, has the tendency of affecting one’s employment or educational opportunity or unreasonably interferes with the person’s work or educational performance.
The foregoing definitions are my summarised versions of what the law provides. As can be seen for sexual assault, the most important ingredient is the person’s consent. So, can Kemen be culpable for sexually assaulting TBoss? The answer is yes.
As for sexual harassment, the latter part of the law may have taken the wind off the provision. That law seems to suggest that, sexual harassment can only occur in a work or learning environment. So, until the law is amended, then, I do not think Kemen’s action can be said to be one of sexual harassment. This is rather unfortunate as we all know sexual harassment can occur anywhere. But as for sexual assault, he is culpable.
If Kemen did not break any House Rule, why was he disqualified?
Yes, Kemen’s act is morally despicable and cannot be justified, but since he did not break any particular House Rule, the only reasonable conclusion to make from his disqualification is that, he was disqualified due to pressure from social media. Big Brother had condoned a similar act by Debbie-Rise because the pressure from social media was not as intense as in Kemen’s case. Now that Housemates know Kemen’s fate might befall them, they would henceforth, refrain from sexually assaulting each other.
Was TBoss a willing participant and did she lead Kemen on?
It does not matter if TBoss had, prior to the incident which got Kemen evicted, led him on. What matters is whether TBoss consented to the particular action which got Kemen evicted. The answer is no.
Would it make any difference if Kemen was drunk at the time he groped/fondled TBoss?
Generally, intoxication is no defence to a crime. There are exceptions to this rule, though. For example, if the intoxication was procured by another person, etc.
In the instant case, the fact that, Kemen may have been drunk at the time he groped TBoss, is no defence. What makes matters worse is that, even if Kemen was drunk, the drunkenness is self-induced. And self-induced drunkenness can never suffice in law as a defence.
Why didn’t Big Brother evict Kemen for Sexual Assault, then?
The law is that, only the court can find a person guilty of a crime. Since the Organisers of Big Brother are not a court, they cannot find him guilty of sexual assault.
Since Kemen was not evicted for breaking any specific House Rule, can he sue the Organisers of Big Brother for wrongful eviction?
Some commenters on social media have said that, since participants of the Big Brother show were made to sign documents before entering the House, they have waived their right to institute legal actions. The truth is that, irrespective of what the parties signed, an aggrieved party can commence legal proceedings as the powers of the court cannot be curtailed by mutual agreement of parties. The Constitution empowers the court to hear and try all civil and criminal disputes between parties. Any agreement which ousts the court’s jurisdiction is null and void.
So, can Kemen sue?
The answer is yes. Anyone can institute court proceedings, no matter how frivolous their claim is. But then, what would be Kemen’s cause of action? He may sue for Breach of Contract (that is, assuming he signed an agreement with Multichoice and he feels they did not keep to their side of the bargain. For example, if the agreement states that, Kemen can only be evicted for violating a Rule and Kemen can prove that he was evicted without violating any Rule. Tough call).
Now, although Kemen’s cause of action might be breach of contract, the question is, does he have a reasonable cause of action? The answer is no. Whatever agreement Kemen may have executed with the Big Brother’s Organisers, it can safely be assumed that, there is a clause exempting the organisers from liability for any actions taken by them. This is a standard clause in agreements or memoranda of such nature. If there is such clause, any legal proceedings commenced by Kemen is bound to fail as Kemen would be said to have agreed to be bound by any decision taken by Big Brother, including being evicted for any or no reason. It is simply a case of volenti non fit injuria – self inflicted injury.
Peradventure Kemen sues, which Court can hear the matter? Nigeria or South Africa?
It is a universal cannon of practice that, the jurisdiction of the court to try a matter is determined by the place the cause of action arose. So in this case, that would be South Africa. There are exceptions to this, though.
Kemen and TBoss
In conclusion, I will say that, although Kemen was not removed from the House according to the books but due to pressure on the Organisers from viewers, his removal has sent a clear message to everyone. Making persistent sexual advances at anyone without their consent is disgraceful. It is even more despicable when the person is asleep.
I do not believe because Debbie-Rise was not punished, so Kemen should have also been excused. This is not a case of what is good for the goose is good for the gander. Kemen was wrong. Beyond wrong. But could he have been given another strike? I do not know. His disqualification will serve a good purpose, though: it is a big lesson to everyone, especially critiques of the Big Brother Naija show who believe the show teaches nothing. Now you know it is wrong to take advantage of another person without their consent. It could cost you a fortune. Or your name.
PS: I believe Kemen can redeem his image. I’ll discuss that in another article.
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