The Circumscribed Legal System: A Contributing factor to Rape in Nigeria

0

Tochukwu Anayo-Enechukwu

Abstract:

Women are now like endangered species as a day could barely pass without reports of sexual violence against their kind. Most at times, the predators not only commit rape but also murder or inflict serious injuries on their victims. This is a very sad reality in Nigeria as so far in 2020; 7[1]7 rape cases has been reported(1) , how much more the ones yet to be reported?

More recently, a septuagenarian grandmother was raped in her room by a 25 year old man; Uwavera Omozuwo a student of the University of Benin was raped and killed in the hallowed confines of a church in Benin. In less than 48 hours after this incident was captured by the news, two women were raped and killed in Ibadan and a week later, 18 year old Barakat Bello was gang raped and macheted to death. These barbaric acts has led to incessant calls against rape in Nigeria and protest for Justice to be meted to the Victims. But the question is “ How can justice be dispensed to the Victims when the provision of Law which is the altar on which Justice is served seems to favour this rapists?”

This article examines this provision of law for the offence of rape and how it silently contributes to the  up and rising cases of rape in Nigeria. 

1.0 Introduction:

Rape is a persistent issue in Nigeria. In recent years, it has become a prominent subject  of discussion on the internet owing to the fact that the media is the last resort of most rape Victims because it helps to share their stories and elicit societal reactions from State and non-state actors who clamour for Justice to be meted to the Victim. Sadly, these number of rape cases reported annually does not reflect the dispensation of Justice to the victims as only a few culprits are prosecuted.[2]

This inability of most Rape predators to be prosecuted is founded on the fact that a large proportion of Rape victims fail to report their ordeal to relevant authorities or media because of the trust bridge; stigma against them, fear of re-victimization and their inability to get the desired Justice because they either lack the funds to hire a lawyer or are left frustrated with the adjournments of Court proceedings which could see their case last for 10 years ([3]) thereby instigating abandonment or withdrawal of proceeding and in most cases when they seek to the end of the proceedings, they are left disappointed at being denied Justice because of the stringent Legal framework [4]which has to be strictly followed before an accused is convicted of rape.

 2.0 Legal Framework of Rape in Nigeria

The applicable laws to rape in Nigeria includes: Violence Against Person’s Prohibition Act, Child Rights Act, Criminal Code Law of various States, Penal Code, Criminal Code Act and the Constitution.

The Violence Against Person’s Prohibition Act provides that:  “A person commits the offence of rape if he or she intentionally penetrates the Vagina, anus or mouth of another person with any other part of his or her body or anything else.” (3) This offence is punishable by life imprisonment. But where the offender is below 14, it is punishable by a maximum of 14 years imprisonment, and where it is a gang rape, a minimum of 20 years imprisonment for each without an option of fine (4). Despite the precise nature of this law on rape in Nigeria, it is only applicable in the Federal Capital Territory.

The Child Rights Act provides: “ No person shall have sexual intercourse with a child, a person who contravenes this commits an offence of rape and is liable on Conviction to imprisonment for Life.”(5)  By virtue of Section 277 CRA, a child is a person under the age of 18. Thus where a person has sex with another under 18 years, rape has been committed. This law is however applicable to only states who have domesticated the Child Rights Act.

[5]The Penal Code further provides “ A man is said to commit rape who has sexual intercourse with a woman in any of the following Circumstances: Against her will; without her consent, when the consent is obtained by putting her in fear of death or hurt.” (6) This provision of the law is however applicable only in the Northern part of Nigeria and it is similar to the provisions of the Criminal Code Act save a few discrepancies in Section 282(1)(e) and Section 282(2) of the Penal Code. Thus, I am going to consider the Criminal Code Act as it is the widely used Law on rape in Nigeria. 

2.1  Criminal Code Act

CCA 2004, Section [6]57 defines rape as the unlawful carnal knowledge of a woman or girl without her consent or with her consent if it is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act or in the case of a married woman by personating her husband. And it is punishable upon Conviction, by Life imprisonment with or without caning. (7)

ALSO READ   Criminal Trial of Corporation in Nigeria - Chidera Nwokeke

Section 6 of the CCA defines unlawful carnal knowledge as carnal connection which takes place otherwise than between husband and wife (by implication of this marital rape is not recognized under the Criminal code.

In addition to this Statutory requirement for Rape, the code of practice over the years has it that a prosecutor must fulfill the following requirements in order for an accused to be convicted of rape:

That the accused person(s) has the capacity to have Carnal Knowledge of the Victim. Under the Law, a male under the age of 12 years is incapable of having Carnal Knowledge(8) and a woman is incapable of committing Rape (9)

That the accused had Carnal knowledge of the victim without consent. In Popoola v State (10) the Supreme Court held that an essential ingredient for the offence of rape is that the intercourse must be without the Woman’s consent.

The prosecutor must prove all ingredients of the offence of rape beyond reasonable doubt. In Iko v The State (11), the Supreme Court allowed the appeal of the appellants against their conviction for rape by the Trial Court affirmed by the Court of Appeal on the ground that the prosecution failed to prove beyond reasonable doubt the essential ingredients of the offence of rape.                                                                   [7]

Importantly, in proving beyond reasonable doubt, the evidence of the prosecution must be corroborated as the Nigerian Courts feel it is unsafe to convict on the uncorroborated testimony of the victim. In Mohammed v Kano State (12) the Supreme Court held that “ In a rape case, Corroboration means, evidence which confirms the evidence of the prosecution. ” And as furnished in the case of Sambo v The State (13) Corroborative evidence must be:

  1. Cogent, Compelling and unequivocal as to show without more that the accused committed the offence charged;
  2. An independent evidence which connects the accused with the offence charged; and
  3. Evidence that implicates the accused in the commission of the offence charged.

All these requirements must be proved in full. That is to say that prove of all but one is fatal to the case of the prosecution. This explains the difficulty in getting Justice in a rape case in Nigeria, as most often than not, direct evidence is required to prove the prosecution’s case beyond reasonable doubt. However, the fact that rape usually occurs in the presence of only the culprit and the victim makes it difficult to get a direct evidence other than the testimony of the victim and in a case where the Victim is killed, proving it becomes a journey of no end.

 Circumstantial evidence is usually used in place of direct evidence, but sadly most courts view Circumstantial evidence as not highly compelling to convict an accused for rape. Take for instance in the aforementioned case of Sambo V State (14)  the Supreme Court set aside the Conviction of the appellant who allegedly raped a 10 year old girl on the ground that the Circumstantial evidence used by the prosecution was not compelling enough. Even if the Circumstantial evidence is compelling, such evidence must still be corroborated (1[8]).

 The issue remains how can this evidence be adequately corroborated when in most cases rape occurs in covert and Medical evidence which is the resort to corroborate the testimony of the Victim often tend to prove that there was penetration in the Vagina of the Victim, but it hardly shows who’s organ penetrated the Vagina. Thus, it is not compelling enough to prove that indeed it was the accused who orchestrated the penetration. This Stiff Legal Framework justifies why despite the thousands of rape cases reported annually in Nigeria, only a few offenders are prosecuted and what is more irksome is that a greater percentage of the few convicted for committing the offence of rape [9]are only sentenced for a few years as opposed to the Legal requirement of Life imprisonment for offenders(1[10]).

 Our rigid Legal framework seems not to be the case in some other Jurisdictions, as despite the occurrence of rape; the prosecution rate is fairly commensurate with the rape cases in these Jurisdictions. Thus, it is important to consider the Laws in this Jurisdiction.

 3.0 Legal Framework of rape in Some Jurisdictions 

ALSO READ   NBA Elections: Tribal Adoptions Could Ruin Us, True Rotation of NBA Presidency Would Prosper Us! - Sylvester Udemezue

3.1 Sweden:

The Swedish Penal Code Chapter 6, Section 1 provides: “A person who by violence or threat which involves, or appears to the threatened person to involve an imminent danger, forces another person to have sexual intercourse or to engage in a comparable sexual act, that having regard to the nature of the violation and the circumstances in general, is comparable to enforced sexual intercourse, shall be sentenced for rape to imprisonment for at least two and at most six years.”

This law requires the prosecutor to prove violence or that the victim was in a vulnerable situation in order to establish rape. However, it’s inefficiency to combat the increasing rate of rape in Sweden led to the enactment of a new Law in July 2018. This new Law provides that “ One who, with a person who is not participating freely engages in intercourse or in another sexual act (that is comparable to unwanted intercourse because the violation of the victim is so severe) is guilty of rape and subjected to imprisonment for no less than 2 years and no more than 6 years.

This new Law incorporates Lack of consent in the definition of rape and it further establishes Negligent Rape. According to the new Law “ When one commits a sexual act mentioned under the code is grossly negligent in relation to the circumstance that the other person is not participating freely, such a person is guilty of negligent rape and subject to imprisonment for no more than 4 years. (17)

The import of this new law is that a person is guilty of rape when he or she has sexual intercourse with one who is not participating freely. Thus, the load on the prosecutor is reduced as they just need to prove that there was a sexual intercourse or slight penetration without the consent of the Victim. Corroboration of evidence is not a requirement.

The swift nature of this new Law in dealing with sexual offenders explains why since it’s passage into law, the rape conviction rates in Sweden has risen by [11]5%. (18)

It is instructive to note that similar Legal framework is also applicable in Luxembourg, Iceland, Belgium, Germany and it’s efficiency is a reason behind the low rate of Rape in these countries.

 3.2. Japan:

In 2017, Japan enacted a new Law on rape. This new Law recognizes the following amendments:

  • Changes to the Actus Reus, minimum penalty and naming of the crime of rape (Article 177): The stipulation that victims of rape be limited to females was changed, and cases where men were subjected to forced sexual intercourse became punishable heavier than forcible indecency
  • Quasi rape became recognized (Article 178, S.2) Quasi rape occurs when a person takes advantage of another person by causing loss of consciousness or inability to resist.
  • The minimum penalty of rape was raised from 3 years to 5 years; and
  • Rape by guardian became a crime. A guardian could be a parent or any other person who has actual custody of the child and takes advantage of his or her position of power in order to have intercourse with the child under the age of 1[12].

This Law recognizes the changing realities in the country and it’s strict enforcement is the brain behind the low rape rate  in Japan.

Diligent Juxtaposing of these aforementioned Laws and the Laws/ requirements of rape in Nigeria shows a clear discrepancy. It highlights the inefficiency of our laws because it doesn’t fit in contemporary realities, it is poorly enforced and it has stringent procedural requirement which makes it difficult to prove rape in Nigeria and in turn propels the commission of sexual offences because the perpetrators are poorly deterred.

4.0 Recommendations

In order for our laws to be efficient in tackling the increasing rate of rape in Nigeria, the following must be done:

  • Our Laws should be amended to accommodate contemporary realities such as Rape against men and Martial Rape (19). It is no news that rape against the male gender is not recognized in Nigeria and sadly one in 4 boys under the age of 18 are victims of sexual violence (20). Thus the sentimental attitude of our Law makes it impossible for these boys to access Justice.
  • The applicable laws on rape should be strictly enforced. The lack of enforcement of our existing laws has been a problem. Often times, the few convicted for rape in Nigeria are given just few years imprisonment whereas our Law provides for life imprisonment. This laxity in enforcing our laws has contributed negatively to our country.
  • Victims should have access to Probono Legal services to ensure that they are properly represented in Court. This is because the cost of Legal representation has deterred many victims from approaching the Court in order to seek Justice.
  • Special Courts should be established for rape cases. This is because our courts are usually fronted with workload which makes it highly impossible to conclude a rape case in time. Thus making rape Victims to abandon their case and sometimes the fear of being examined in Camera in Court makes these victims shy away from approaching the Court. Therefore, special Courts should be established as it will ensure swift Judicial proceedings as well as protect the identity of the rape Victim.
  • Judicial reforms in Nigeria. It is no gainsaying the fact that our current Judicial process needs reform; as it put victims of rape more in trial than the accused. The burden of proof also lies squarely on the Victim who is also required to corroborate their evidence. This makes it difficult for the victim to prove beyond reasonable doubt.
ALSO READ   Senate Judicial Nominee Confirmation Hearing and the Urgent Need for Reform in the Judicial Appointment Process - By Ellias Ajadi

I am of the opinion that our Judicial reforms, which is a characteristic of the judiciary[13], should accommodate the use of Circumstantial evidence to prove rape rather than Corroboration because Rape is usually done in secret not in the public; thus getting relevant evidence to corroborate the testimony of the Victim is very difficult. Niki Tobi JSC (of blessed memory) acknowledged this opinion in the Case of Ogunbayo v. The State where he held: “I am not comfortable with the case law that corroboration is necessary to secure conviction of the offence of rape. This is because, I see no statute foisting on the prosecution, evidence of corroboration before convicting an accused. Section 350 of the Criminal Code Act, Cap. 77 Laws of the Federation of Nigeria, 19[14]0, which is similar to the States Criminal Codes, does not provide that evidence of corroboration is necessary for conviction. And the Criminal Code specifically provides for offences where corroboration is necessary. Rape is not one of such. The above apart, neither the Evidence Act nor the Criminal Procedure Act or Code provides for corroboration in the offence of rape. I therefore ask, where did we get that law?”

In Conclusion, I must emphasize that death penalty or castration which has recently been clamoured by the Citizens of Nigeria is not the best penalty for Rape in Nigeria. In fact, it will not provide any solution to the Increasing rate of rape in Nigeria. After all, in Jurisdictions like India, China, and South Africa death penalty and castration is the Punishment of rape in most cases (21) yet the rate of rape in these countries is ever increasing. Studies have further shown that Capital punishment does not necessarily deter criminals. Take for example in Nigeria, Section 319 of the Criminal code provides that the offence of murder is punishable by death sentence. Despite this provision, the rate of murder in Nigeria hasn’t reduced.

Thus, the only thing that can deter the commission of Rape in Nigeria is strict enforcement of our Laws. Until we develop and strictly enforce a legal framework that does not treat Rape with kid gloves, we will continue to have more cases of Rape.

Tochukwu is a Prolific Writer, Freelancer and Public Speaker and can be reeached on: anayoet@yahoo.com 08109494399.

Footnotes

  1. Premium times (Abuja) report < https://allafrica.com/stories/202006150851.html > accessed on 23 June 2020.[2]

[3]  Isa V Kano State [2016] LPELR-40011 [SC] . In this case, an 8 year old girl was raped in 2005; after many years of Appeal and the matter lingering, the Final Judgement was delivered in 2016. 

  1. VAPPA 2015, S. 1(1)
  1. VAPPA 2015, S. 1(2)

[4] https://bscholarly.com/characteristics-of-nigerian-legal-system/

[5] https://bscholarly.com/causes-and-solutions-to-child-trafficking-in-nigeria/

  1. 5. CRA 2003, S. 31
  1. Section. 282
  1. CCA 2004, S. 358
  1. CCA 2004, S. 30.

9..  CCA 2004, S. 357.

  1. [2013] 17 NWLR [Pt. 1382] 96 [SC]

11      [2001] 14 NWLR [Pt 732] 221 [SC]

12       [2018] LPELR- 43913 [SC]

  1. [1993] 6 NWLR [Pt 300] 399
  2. Supra
  3. Ibeakanma V Queen 

[9] https://bscholarly.com/offence-of-rape-in-nigeria/

  1. in Ogunbayo V the State [2007] All FWLR (Pt. 365) 408, Posu & anor V The State [2011] 2 NWLR [PT1234] 393 the accused persons were found guilty of rape and sentenced to less than 6 years imprisonment.
  1. <https://www.loc.gov/law/foreign-news/article/sweden-supreme-court-defines-negligent-rape/ > Accessed on 22 June, 2020.
  1. < https://www.globaltimes.cn/content/1192556.shtml > Accessed on 22 June, 2020.
  2. In Musa v State [2013] 9 NWLR [Pt 1359] 124 [SC] held that Rape is an unlawful sexual intercourse committed by a man with a woman not his wife through force or against her will.
  1. Gift Agriga ‘Epidemic of rape assailed in Nigeria < https://www.google.com/amp/s/www.voanews.com/africa/epidemic-rape-assailed-nigeria%3famp > accessed on 22 June, 2020.

[13] https://bscholarly.com/9-essential-characteristics-of-the-judiciary/

  1. Rohit Bhattacharya ‘This is what they do to rapist in different countries around the world < https://www.google.com/amp/s/www.scoopwhoop.com/amp/inothernews/punishing-rape-globally/ > Accessed on 23 June, 2020.

LEAVE A REPLY

Please enter your comment!
Please enter your name here