Barrister Chukwu Emmanuel Madujibe is an Abuja-based human rights and constitutional lawyer. In this interview with PAUL OKAH, he says only 22 convictions of rape have been recorded in the history of Nigerian judiciary. He also explains why many rape cases are not prosecuted or pursued to logical conclusions, even as he offers advice to rape victims.
Gender inequality is a major concern in Nigeria; what’s the true situation?
The issue of gender inequality has long been over flogged in Nigeria. However, the traditional and populist view that women cannot share the same opportunities and privileges accorded to men has been eroded by implication of the preamble to the 1999 Constitution of the Federal Republic of Nigeria (as amended). The preamble provides for a Constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of freedom, equality and justice for the purpose of consolidating the unity of our people. The Constitution has thus, settled the consolidation of equality of genders of all persons in whatsoever capacity in Nigeria. In fact, the whole of Chapter IV of the Constitution is dedicated to the protection of the fundamental rights of citizens, irrespective of gender. Thus, the womenfolk also enjoy the rights to life, dignity of human persons, personal liberty, inter alia, as predicated by the dictates of the constitution. Sadly, men severally infringe on these rights by averting their minds to the belief that women are piece of chattels and own their places in kitchens, farms, and as tools for sexual gratification, exploitation, slavery and trafficking without considering these rights. Accordingly, this conscious and unconscious erosion of rights of women is no longer the position today as the courts haves accorded recognition to the overriding equality of their rights with the men-folk. Apart from this, the aforementioned are only a few cases that struggle their ways for determination before the courts on the issue of gender inequality. The reason is not far-fetched: it is largely as a result of ignorance of the law by victims of gender victimisation and the social insecurity of persons who approach these courts for justice.
Are they no laws to protect women against harassment?
They are. In fact, Nigeria is a signatory to international instruments; which outlaws all forms of ill treatment meted out on women. Interestingly, most of these international laws have been domesticated by our laws. It is settled that the application of international laws in Nigerian courts curry persuasive effects. However, they set a standard on how women’s rights should be accorded respect and recognition by members of the opposite sex. I shall in the course of this discuss, mention few of this International instruments, including the Universal Declaration of Human Rights (UDHR), Declaration on the Elimination of all forms of Discrimination Against Women, Declaration on the Elimination of Violence Against Women, Convention on Consent to Marriage, Minimum Age for Marriage and Registration for Marriage, Convention for the Suppression of the Traffic on Persons and of the exploitation of the Prostitution of others, among others. These International Conventions, often times, complement our laws, where such is before our courts. For instance, Article 7 of the Universal Declaration of Human Rights (UDHR) provides that, “All are equal before the law and are entitled without any discrimination, to equal protection of law.” This accedes to my position that women should, at all times, be treated equally irrespective of their gender.
What would you say about rape and the Nigerian legal system?
The issue of rape is a global phenomenon. In Nigeria, the maximum sentence for the offence of rape is life imprisonment. However, rapists tend to be set free by the courts due to the rudiments or ingredients of rape, which the prosecutor must prove beyond reasonable doubt to establish proof of rape against the prosecutrix. Nevertheless, the issue of rape is predicated upon the penetration of a woman’s vagina without her consent. In circumstances where consent was alleged to have been obtained from the prosecutrix by the accused person, and she alleges that it was fraudulently obtained, either by force, threat, intimidation or misrepresentation, such consent will not suffice as consent and thus will qualify as rape. It should be noted that only a woman is capable of being raped in Nigeria, except in the Federal Capital Territory (FCT), Abuja; where lesbians can commit the offence of rape through the use of phoney penis or toys to penetrate the vagina of another woman without her consent. In the same light, homosexuals can be charged for penetrating the anus of a man without his consent.
Are there legislations against rape in Nigeria?
I shall herein expose the different legislations which regulates the criminal offence of rape in Nigeria. Sections 375 and 358 of the Criminal Code provides that, for an offence of rape to be committed, there must be penetration of the woman or girl’s vagina without her consent, or where consent was obtained by force, threat, intimidation, fraud or impersonating the husband of a married woman. However, this Criminal Code is only applicable in the southern states of Nigeria. It, therefore, follows that a man cannot complain of being raped in the southern states as only women are capable of being raped. I agree that penetration of the anus in the southern states is also on the rise or prevalent, but it cannot be said to amount to rape – no matter the amount of force applied by the accused person in penetrating the anus. Anal penetration is another offence of its own which is, distinct from rape offences. In the southern states, it is equally worthy of note that, where an underage girl, imbecile or person with unsound mind and who cannot give consent is raped, the proper charge the accused or defendant is usually charged with is rape/defilement. Nevertheless, the Penal Code applies only in northern Nigeria. In this clime, a man cannot also be said to rape his wife. As such, spousal rape is exempted from the offence of rape.
When then should rape be said to have occurred?
Well, section 282 of the Penal Code outlines conditions where rape can be said to be done. There must have been penetration of the woman’s vagina without her consent. Also, the accused person must have put his victim in fear of death or hurt or gotten such consent with fraud or impersonating of her husband. Again, it cannot be said that anal penetration would qualify as rape in the northern states as it is entirely another offence, which is distinct from rape offences. Equally, where sexual offence is committed against a child or minor under 14 years, he is usually charged in that clime for rape/ defilement. The punishment is usually life imprisonment or the court may consider a minimum term. Let’s consider the criminal laws of Lagos state, for instance. In Lagos state, the issue of penetration and consent still follows suit as obtainable in other jurisdictions. However, in this clime, a man cannot rape his wife in Lagos state. In fact, Section 258 provides that rape is committed where a man has unlawful sexual intercourse with a woman or girl without her consent.
What would you say about the Child Rights Act vis-a-vis rape?
This is only applicable to states that have domesticated the Act as their laws and implies that, where a person has carnal knowledge of a child, with or without her consent, is guilty of the offence of rape. I shall now consider a more elaborate statute which is applicable only in the FCT. This Act captures all the other genres of sexual offences under the offence of rape .If this piece of legislation should have the full force of law throughout the country, then the issue of sexual offences would have been dealt with. For instance, the Violence Against Persons (Prohibition Act) outlines intentional penetration without consent or either with the use of substances capable of taking away the power of the will to give consent on the prosecitrix. It clearly specifies those places which may be penetrated to amount to rape; like the vagina, anus, mouth and with any object or any part of the body. It follows that this legislation, unlike its counterparts, expressly outlaws homosexual activities and lesbianism and thus, an accused homosexual, having escaped the wrath of law on the charge of rape, cannot evade same in the FCT.
What becomes of rape victims under the Nigerian legal system?
Having noted the fact that proof of rape cases are regimented on proving ingredients of rape outlined above, sadly though, only 22 rape cases have seen the light of successful convictions in the history of the Nigerian legal system and all round the years of prosecuting sexual offenders. This is because, most times, the prosecution only secures conviction for lesser crimes like indecent assault and attempted rape; having failed to prove the case of rape regarding the ingredients stated above. Also, the problem of conviction is not farfetched; ranging from incompetence of the prosecutor to prove the ingredients of rape, societal stratification and ostracism of the victim, apathy and compromise of the prosecutor to prosecute the case to the slow wheel of justice; which usually sets a motion to setting the accused person free. Also, women and men are ignorant of the law of rape. They often feel reluctant in setting the law in motion to get justice by reporting to the police authorities. In fact, most times, they feel that settling the matter at family levels, without involving law enforcement agencies, will help curtail publicity and preserve their dignity of persons.
What should a victim do when raped?
The first point of call, when a perpetrator rapes a victim, should be lodging a report in the police station. This should be done in the heat of the passion of that disengagement. It follows that it’s advisable that the victim or guardians/ parents should besiege the police station while the victim is still crying or with her torn pants or dress or even the torn shirt of the rapist, or where a wound was occasioned by the violent struggle between the rapist and victim. It should be noted that appearing in this state will give the police the edge to form an opinion of the situation on ground and thereafter launch an investigation on the fresh allegation, which may include visiting the scene of crime to see things for themselves.
It is also good news that the advent of technological devices will help the victim in taking pictures of her physical state, regarding the scene of crime, wounds occasioned by the violent struggle and gathering other useful evidence that will help her case. It is sad that rape victims usually shut their mouths and take weeks or months to report their case to the police. The second limb of salvaging a just cause for herself is to go for medical examination in a hospital. Now, rape victims prefer going to chemists, pharmacists or traditional healers for medical interventions and the courts do not make use of such reports. A victim, at all times, must be examined by a certified medical practitioner to ascertain, in a medical certificate, whether: (a) the victim’s vagina was ruptured or bruised, as a result of the force used by the perpetrator, (b) whether the perpetrator transmitted some venereal diseases on the victim’s vagina, and (c) to ascertain that there was penetration of the vagina and/or ejaculation. Where the victim goes through these processes, she’d be sure to have corroborated her police report of rape. Finally, it doesn’t matter what the victim wore or where she went to, what matters is the lack of sexual control and lust of the perpetrator. What matters is the rapist. There are laws in this country that proscribes offensive dressings or dressings, which could arouse the sexual urge of other persons. If someone feels that a crime of inciting sexual urge has been committed by a lady, he should charge her for that offence rather than raping her. Everybody in Nigeria has rights of movement; it doesn’t matter where she was.