RAPE IN NIGERIA: NEW DEVELOPMENTS

Rape is condemnable. It is an unjustifiable act in our society and it is time that we rise as a nation to condemn and eradicate this despicable act.

Victims of rape are made to suffer unquantifiable anguish, some become diagnosed with post-traumatic stress disorder, dissociation from reality, depersonalization, they endure physical violence, avoid social life, get infected with sexually transmitted infections, encounter serious difficulty in remembering events, relives moments of sexual assault and unwanted pregnancy amongs other ills. The severity of the offence of rape cannot be over emphasized. Little wonder why a lot of pundits have advocated strict punishments for the offence.

In the case of Popoola v State (2013) 17 NWLR (Pt 1382) P. 100 Per Muntaka-Coomasie J.S.C at page 120 paras G-H on rape said:  “the offence appeared to be heinous and heartless. The sentence meted out by the trial court amounts to abdicating its role as a judicial officer. I condemn such type of sentence. The sentence is unnecessarily lenient and loose”.

In the same light, Per Ngwuta J.S.C AT PAGE 12, Paras D-E said “ I join my learned brother in expressing disappointment that the appellant was given a lenient term of five years in prison. I think that the severity of punishment for rape, with particular reference to statutory variety, should rank next to capital punishment”

Under the Criminal Code of Nigeria, Rape is defined, as having unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false act, or, in case of a married woman, be impersonating her husband. This offence is punishable by imprisonment for life, with or without caning. (See Section 357 and 358 of the Criminal Code Cap “C38”, Laws of the Federation, 2004)

In plain language, in Nigeria, a person has committed rape when he has sexual relations (carnal knowledge) with a woman against her will; or

a)      without her consent or,

b)      while putting her in fear of death or hurt or,

c)      misrepresenting as the husband of the woman or,

d)     having carnal knowledge of a girl under 14 years, with or without her consent or,

e)      having carnal knowledge of a girl with unsound mind.

Under the Penal Code (applicable in Northern part of Nigeria), it goes further to say even where the girl is a wife of the person, such person will be guilty of rape if she has not attained puberty.

The case of the former Governor of Zamfara State who was alleged to have married a 13 year old girl from Egypt comes in handy. In such situation, if the girl has not attained puberty and he has carnal knowledge of her, he will be guilty of rape. However, what will be regarded as attaining puberty under the law will probably be subject of debate.

The above postulation was given judicial backing in the following cases: Upahar v. State (2003) 6 NWLR Pt. 816 p. 230; Ibo v. Zaria N.A (1962) NNCN 30 and Okoyomon v. State (1973) NMLR 292

Victim of Rape

Rape is so despicable such that it warranted a notable pronouncement in the recently decided case of Edwin Ezigbo v. The State (2012) 16 NWLR Pt 1326 where My Lord Justice Muhammed J.S.C had this to say;

“the facts revealed in this appeal are sordid and can lead to a conclusion that a man can turn into a barbaric animal. When the “criminal” was alleged to have committed the offence of rape, he was 32years. His two young victims: Ogechi Kelechi, 8 years old and Chioma, 6 years, were, by all standard underage. What did the appellant want to get out of these underage girls. Perhaps, the appellant forgot that by nature, children, generally, are like animals. They follow anyone who offers them food. That was why the appellant, tactfully, induced the young girls with ice cream and zobo drinks in order to translate his hidden criminal intention to reality, damning the consequences. Honestly, for an adult man like the appellant to have carnal knowledge of underage girls such as the appellant’s victims is very callous and animalistic. It is against the laws of all human beings and it is against God and the State.”

Such small girls and indeed all females of whatever age need to be protected against callous acts of criminally like-minded people of the appellant’s class. I wish the punishment was heavy so as to serve as deterrent”

Though rape as over the years been categorized  into various categories namely acquaintance rape, command rape, date rape, incestuous rape, fraud rape, underage rape, statutory rape, gang rape and marital rape just to mention a few, the big question is why is there a low rate of rape prosecution cases?

A victim of rape

The writer has identified some of the reasons as follows:

1.      Inability of victims to report cases to the police: This can be seen from the shame or neglect shown towards rape victims in Nigeria by family and friends. It ranges from openly mocking the victims to being neglected by close family members and friends. In some cultures, some are even seen as having brought shame and dishonor to the family.

There is a general lack of support from care agencies of government who should not ordinarily encourage these victims but also re-engineer a systemic re-integration of victims into the society.

Considering the statistics of decided cases on rape at the Court of Appeal and Supreme Court, a cursory look shows that most reported instances of rape are from underage children who do not usually understand the very nature of the offence. Most adults rather choose to suffer in pain and anguish due to the social stigma attached to it.

2.      Lack of proper investigation: There is a general apathy on the part of the Police institution. A typical example will be that of a victim approaching a police station and the police officers insist on laying the complaint over the counter without trying to conceal her identity or guaranteeing her privacy or possibly requesting information that is not central to the genuine complaints.

As far as I am concerned, apart from the delay in commencing investigation or total lack of, the police institution is not adequately equipped in both human and material resources to effectively investigate rape cases.

There is a lack of specialized training for police officers in handling these cases or in providing support for the victims. Furthermore, forensic identification of suspects cannot be effectively carried out, the use of biological evidence such as blood, semen, saliva, vagina epithelial cells etc is totally lacking. There is serious doubt as to the existence of a functional forensic crime laboratory in Nigeria.

3.    Weak legal sanctions and enforcement: This point has been mooted by Senator Helen Esuene when she moved a motion to protect infants and minors from the cruelty of rape and other abuses. The current Senate President, David Mark, retorted that “we must ensure that maximum sanctions are meted out to culprits of rape and sexual abuses”

Even though the offence of rape is in itself punishable with life imprisonment, other related offences such as indecent assault, sodomy etc carries lesser punishment.

It is not just expedient to ensure maximum punishment, it is also imperative to enforce this punishment in a very firm and decisive manner. The police authorities should courageously investigate and recommend for prosecution the alleged offenders. The judiciary should not shy away from handing out maximum punishment, when the occasion demands, to sex offenders. This will serve as a deterrent to other members of the public.

4.      Legal requirement: In Nigeria, for the offence of rape to be properly established, there must be corroborative evidence which usually comes from eyewitnesses account or medical evidence. As regards eyewitnesses’ corroboration, the law requires that such witnesses must have witnessed the actual penetration of the victim’s vagina. How this is possible, practically speaking, at all times, defeats my wildest imagination. Most often than not, sex offenders will not undertake the abominable act in a place easily accessible to members of the public and there is always the possibility that before any eyewitness finally reaches a rape crime scene, the offender would have disengaged from the victim which ultimately means that rape as a criminal offence cannot be established but a lesser offence of attempted rape.

Secondly, the law requires that there must be penetration of the vagina, no matter how slight, this is in itself a laudable idea but modern realities has shown us that it is only the vagina that can be penetrated or defiled. This issue will be addressed in due course in this essay.

The other way through which corroboration can be established is through medical evidence which has been discussed above. The lack of human and material resources to medically investigate and reach conclusive findings in a rape case leaves a sour taste in the mouth.

To be continued.

By ‘Deji Olunlade LL.B, B.L ACIarb

‘Deji Olunlade is a legal practitioner with Prime Solicitors.

Disclaimer: The information contained in this publication is only intended as a general review of the subject concerned and should not be used as a substitute for specific advice concerning specific situations. If you need further information about any issue discussed above, please contact ‘Deji Olunlade by using this form here or by clicking on the Contact button.

Source: Nigeria Law