By Bright Ogbonna Esq.
There has been an upsurge in the incidence of rape cases in Nigeria. In April 2020, Jennifer; an 18-year-old girl was raped by a group of 5 boys in Narayi, Kaduna, in Kaduna State. Only two of the alleged rapists have been apprehended.1 In May 2020, Uwaila Omozuwa; a student of the University of Benin was raped by an unknown group of 11 men and bludgeoned to death with a fire extinguisher canister, while studying in a church auditorium in Benin.2
As if these were not enough, one week later, Barakat Bello; another 18-year-old, who was a student of Science Laboratory Technology at the Federal College of Animal and Health Production, Oyo State was also raped and butchered to death in her home in Akinyele, Ibadan.3 In all the above, investigations are ongoing and no prosecutions have so far been made.
These are but a few of the incidents which have come to public notice because of the decision by family members to report online. The resulting public outcry against this menace has attracted the intervention of several persons of prominence including Governor Babajide Sanwo-olu of Lagos State, Governor Godwin Obaseki of Edo State and the Speaker of the House of Representatives, Mr. Femi Gbajabiamila, calling on security operatives to bring the perpetrators to book.
While the response of these eminent persons is commendable, without a concerted effort at reappraisal of the legal and institutional realities, their intervention would remain mere rhetorics.
Since it is agreed that this vice, which evokes the bitterest reprehension within right thinking members of our society has become rife in our society, it is sought herein to explore the legal framework for the prosecution of rape cases together with the institutions concerned with a view to identifying the imperatives for curbing this growing menace.
CHALLENGES
Legal Impediments
The Criminal Code and Penal Code, which are the foremost criminal legislations applicable to Southern and Northern Nigeria respectively recognize rape as an offence. While the Criminal Code provides for the offence of rape in Section 357, providing a punishment of life imprisonment with or without whipping in Section 358, the Penal Code creates the offence of rape in Section 282 with the same punishment or a less term and liability to a fine.5
Although the merits of the provisions of the Code is recognised, legal scholars would agree that the provisions in reference are inadequate to deal with the issues arising from rape and emerging matters within the discourse.
In the first instance, rape is defined as having carnal knowledge of a woman without her consent. On the meaning of carnal knowledge, Section 6 of the Criminal Code describes it as ‘being complete upon penetration’. The Supreme Court has held in such cases as OGUNBAYO V STATE that the offence of rape is complete upon the penetration of the vagina by the penis.
Upon decisions of this nature, in the course of interpreting carnal knowledge, came the constricted assumption that carnal knowledge as being penetration of the vagina by the penis. One of the problems with this definition is that the sphere of sexual assault, which can be considered as rape cannot be limited to only penetration of the vagina. Sexual penetration of other parts of the body, like the anus and mouth, are not captured within this definition.
Secondly, the definition of rape in Section 357, presupposes that only females can be raped under the law. Unfortunately, the sad reality is that males have for years, been the victims of various degrees of sexual assault.
Again, the Criminal6 and Penal Code7 are in agreement that rape cannot occur between a man and his wife, provided in the case of the Penal code that the wife has attained puberty. These provisions tend to deny the possibility of imposing unreasonable sexual demands on spouses especially in cases of ill-health and other circumstances, which make it either difficult or impossible for the spouse to consent to the sex act.
Thankfully, the Violence Against Persons (Prohibition) (VAPP) Act of 2015 was enacted to cure these defects. Section 1 of the Act states: A person commits the offence of rape if:
a. He or she intentionally penetrates the vagina, anus or mouth of another person with any part of his or her body or anything else.
b. The other person does not consent to the penetration
c. The consent is obtained by force or threat or means of intimidation of any kind or by fear of harm or by means of fraudulent representation as to the nature of the act or the use of any substance or additive capable of taking away the will of such person or in the case of a married person, impersonating his or her spouse.
The unlawful penetration of the anus or mouth without consent have been recognised as constituting rape, as well as such penetration of a man.8 These improvements are reflective of the progressive nature of the rape discourse as exemplified in the UK9 legislations on this matter.
The VAPP Act further introduced a Sex Offenders’ Register10; a practice very common in advanced legal systems and effective for information about the proclivities of individuals and warning the public in advance. The Register is however yet to be seen in any part of the nation.
It must be noted that in spite of the laudable improvements made by the VAPP Act, its Section 2(c) prescribes a punishment of 20 years upon conviction for gang rape. With respect, there is absolutely no justification for prescribing life imprisonment for a single offender of rape and 20 years for rape committed by many persons at a time.
Gang rape is no less heinous than a single individual committing same. If anything, it causes more anguish, trauma and is more likely to be fatal. If the punishment is to have a deterrent effect on prospective/intending offenders, the punishment should be more, not less.
More importantly, the VAPP Act is only applicable within the Federal Capital Territory, Abuja.11 The effect thereof is that other states outside of Abuja can only rely on their state criminal laws and other laws criminalizing rape and assault.
Another issue arising from the legal framework from which rape arises is the requirement of corroboration. Although the relevant Criminal legislations and the Evidence Act do not specify the need for corroboration in order to convict a defendant for rape, it would be very difficult for a judge to convict without corroboration.
In the case of STATE V OGWUDIEGWU12, the Supreme Court stated that in order to secure a conviction in the case of rape, corroboration of the evidence of the complainant is not essential, but a judge must warn himself of the risk of convicting the accused solely on the evidence of the complainant.
The consequence of convicting an alleged offender solely on the testimony of an alleged victim is all too obvious. This situation is compounded by constraints stemming from the two main forms of corroboration in this situation.
The first form of corroboration would be the evidence of witnesses. It goes without saying that it would be easier to find a needle in a haystack than to find a witness to a rape. This is because, except in instances where the victim is anticipating rape, it is usually perpetrated away from the view of prying eyes – hotel rooms, the privacy of homes, dark alleys and such hidden places.
The second form of corroboration would be physical observations made from the body of the victim. With this comes the problem of preservation of the observations until trial. The usual and safest mode of achieving this is by obtaining a medical report perhaps accompanied with pictures of any lacerations or wounds sustained around the genitalia.
Now, apart from the reluctance of rape victims to seek medical attention immediately after the incident, many hospitals are ill equipped with the rape kit able to properly preserve the evidence which can sustain a prosecution to conviction.
Again, owing to administrative constraints, rape prosecution takes a long time at the court. As a result, many rape victims are discouraged from pursuing prosecution of their cases. This necessitated the establishment of special courts for sexual offences in states like Lagos. The objective here was to decongest the dockets of the criminal courts and enable the judges designated concentrate on sexual offences. There has however not been an appreciable acceleration in the rate of justice dispensation in this area.
Investigation and Evidence Management
Having identified a few of the legal issues surrounding rape, it is also necessary to look at the administrative constraints regarding rape reports. It is necessary to underscore that the crime management authorities in Nigeria, namely the Nigerian Police, has not lived up to its bidding in investigating and prosecuting reports of rape.
In a report by Amnesty International, it was stated that apart from an unwillingness to investigate rape cases in Nigeria, many police officers were themselves perpetrators of rape among inmates held in their custody and outside their places of work using the instrument of intimidation.13
In many instances, it is difficult to convince a police officer of date rape for instance, as the question which usually emerges is ‘What were you doing with him?’ or ‘why were you at his house?’, questions which put the blame on the victim. The fear of this line of questioning creates the reluctance in many victims to make a report.
Again, as has been earlier identified, even when a rape victim manages to get to the hospital, the management facilities are ill equipped to provide the needed services. Generally, it would be necessary to examine and treat the victim for wounds and infections, obtain and preserve the evidence of the rape for prosecution, after which there is a further need for counselling sessions with trained therapists to deal with the psychological impact of this level of abuse.
In many cases, evidence is lost because of improper handling of the victim and the dearth of body fluid analysis equipment. Consequently, many offenders are freed for want of credible evidence even when their victims have actually suffered rape. It was only recently that the Mirabel Centre; a private initiative in Lagos for instance, with professional services for rape victims was established.14 Otherwise, there is a dearth of healthcare providers with specialty in this area across Nigeria.
Stigmatisation
We have earlier observed that there is a reluctance on the part of rape victims to make reports to the appropriate authorities. This fact has been traced to the stigmatization associated with rape victims. Often, victims are stigmatized and are considered a public disgrace to their families and significant others with serious implications for future relationships such as marriage.15
Unfortunately, there has not been enough efforts at the reorientation of both the victims, their families and the society on the possibility of a normal life after a rape incident. The result is that the victim is left all alone to deal with the effects, often times, in silence and depending on their emotional strength and financial capacity, may end up with venereal disease, unwanted pregnancy, depression, and even suicide.
Although there is currently before the House of Representatives, the Rape and Insurgency Victims Stigmatisation (Prohibition) Bill 2019, which bill seeks to protect the fundamental right to dignity and freedom of association of rape victims, it is yet to be passed by the National Assembly.
WHAT THE GOVERNMENT MUST DO
In order to rid the society of the menace of rape, it is necessary to take another look at the laws on rape. Notwithstanding the improvement brought about by the VAPP Act, the restriction of its application to the FCT limits its impact. A national legislation modelled after the improvements made in the VAPP Act is imperative.
Further, since crime is jurisdictional, there is a need to incorporate the improvements on the law of rape to criminal laws of the various states while including the recommendations made herein. We have recommended for instance, that it is necessary to impose the same sentence of life imprisonment on gang rape as it is with rape involving a single offender. It is obvious that the effect of the offence is not ameliorated by its perpetration by a gang; and as such the punishment should not be less.
The Sexual Offences Bill of 2013 was one strong attempt at improving on the rape laws of Nigeria. It expanded the definition and scope of rape, employing most of the statutory recommendations made above. Unfortunately, that bill, despite having been passed by the National Assembly, did not receive Presidential assent. The National Assembly on its part, did not override the veto.
In the quest for a national legislation which would cater to the growing need to curb incidences of rape, the National Assembly is hereby called upon to effect whatever reasonable changes that are needed to obtain presidential assent to the Bill or override the veto of the President and have the Bill signed into law.
Further, it is necessary to relax the requirement of corroboration for the evidences of the prosecution regarding rape. While it is recognized that conviction of an alleged rapist solely on the testimony or evidence of the victim would open the door to an avalanche of spurious vindictive claims against persons for any grievances, it must also be recognized that requiring corroboration stricto sensu before conviction would also do great injustice in genuine cases.
This is more so, when it is considered that rape is almost always committed in relative secrecy. It is imperative to consider the surrounding circumstances forming the facts of the case which may lead to the veracity of the victim’s testimony without necessarily requiring corroboration. In the case of AHMED V NIGERIAN ARMY16, the court held that in the instant case, the PW 2 Ruth Waziri testified with clarity not only that she had been severally raped more than three times, she was also able to note and state the two birth marks around the pubic area of the appellant and on the thigh which was confirmed. This was taken as enough to secure a conviction.
In order to curb the stigmatization of rape victims, the government (especially the Federal Ministry of Health and the National Orientation Agency) in collaboration with civil society organizations needs to urgently sponsor and execute a continuous, spirited orientation campaign on the incidence, prevention and proper protocol after a rape incident.
It must be emphasized that anyone can be raped. By keeping the public abreast of the steps to take in the event that a person falls victim, the victim has a higher chance of complete recovery and ensuring that the offender is arrested, prosecuted and punished.
The organization of these campaigns periodically, would reduce the protests against rape incidents after the fact. In the same vein, government at all levels need to immediately establish specialized treatment and rehabilitation centres, fully equipped for rape victims with a workforce of professional caregivers who would cater to their needs.
It is imperative that the Police stations establish and equip in every division of the Force a Sexual Offences Section, which shall deal with Rape and other related matters. Officers serving in these sections should be trained in forensic investigation and analysis, in order to ensure that all exhibits and evidences collected are properly managed in preparation for prosecution and trial.
It is further of urgent necessity that the Rape and Insurgency Victims Stigmatisation (Prohibition) Bill 2019 be passed to protect rape victims and punish persons who indulge in acts stigmatizing them. This would reinforce the strong stance of government on the matter.
Again, some states like Lagos have established a sexual offences division within their state High Courts. This practice should be adopted by all states. The Chief Judges of the states should issue practice directions which abridge the time within which the prosecution of rape cases must be procured.
More specifically, rape cases ought to be heard from day to day, since often times, defendants in the offence of rape are remanded without option of bail. By publishing the practice direction ahead of time, the parties are made aware of the procedure of court and as such, complaints of denial of fair hearing are thereby forestalled.
Although Section 1(4) of the VAPP Act provides for the maintenance of a sexual offender’s register by the National Agency for the Prohibition of Trafficking in Persons and other related Matters (NAPTIP), as at the time of writing this article, no such register has been published. The register ought to be made accessible at their various state offices and published on their website. This would avail the public with the criminal records of sexual offenders and better equip themselves in their employment and social relationship with them.
In addition, corporate organizations and business should be compelled to institute sexual harassment policies within their organizations wherein the organization would be obliged to ensure that their organisations are harassment free or be made to pay heavy fines where they fail to do so.
Finally, it is necessary to incorporate human rights education into the primary and secondary school curriculum across Nigeria, with emphasis on the right of the human person to dignity. It is important that the culture of understanding and respecting personal boundaries be inculcated in our children from an early age. This will go a long way to dislodge certain socio-cultural beliefs inherent in society, like the objectification and unhealthy subjugation of women, which has led to the perpetuation of rape incidents.
CONCLUSION
Rape is a menace which has come to stay with us. But we can ameliorate its effect on us by if the proper steps are taken.
REFERENCES
1. Aljazeera: Nigerians online demand justice on abuse of women, aljazeera.com/news/2020/06
2. E. Akinwolu: Rape and Murder of Student in Church sparks outrage across Nigeria, theguardian.com/global-development/2020/jun/02
3. A. Kabir, ‘How My Daughter Barakat was gang raped, killed – Father’ June 4, 2020.
4. C. Muoghalu, ‘Rape and Women’s Sexual Health in Nigeria: The Stark Reality of being female in a Patriarchal World’, The African Anthropologist Volume 19 Nos. I & 2, 2012 p.33 – 41, Council for the Development of Social Science Research in Nigeria 2014.
5. Section 283.
6. Section 6
7. Section 282(2)
8. T. Akpogome, ‘Analysis of the Domestic Legal Framework on Sexual Violence in Nigeria’, Journal of Law and Criminal Justice, Vol.4 No. 2 2016 pp. 17 – 30.
9. Sexual Offences Act 2003 (UK)
10. Section 1(4) VAPP Act
11. Section 44 VAPP Act
12. (1968) NMLR 117
13. Nigeria: ‘Rape: The Silent Weapon’, refworld.org/pdfid/45a2479c2.pdf
14. E.Egbejule, ‘Welcome to Mirabel, the First Centre for Support of Rape Survivors in Nigeria’, Guardian, 25th Feb., 2016.
15. Muoghalu, ‘Rape and Women’s Sexual Health in Nigeria: The Stark Reality of being female in a Patriarchal World’, The African Anthropologist Volume 19 Nos. I & 2, 2012 p.33 – 41, Council for the Development of Social Science Research in Nigeria 2014.
16. (2011) 2 NWLR (PT.1234) 393.
- Bright Ogbonna Esq. is the Director of Volunteers, SIFA Human Rights Office.
Disclaimer: “The views/contents expressed in this article are the sole responsibility of Bright Ogbonna Esq. as published on the online platform of SIFA Nigeria, and do not necessarily reflect those of The World Satellite. The World Satellite will not be responsible or liable for any inaccurate or incorrect statements contained in this article.”T
