By Ola Adeniji
It goes without saying that Rape is a serious crime and the Nigerian legal system actually acknowledges the seriousness of the crime, carrying with it a life sentence. The gag, however is that this rubber-stamp of ‘seriousness’ literally ends at the door. The law has failed to provide the adequate tools needed to hold culprits accountable. This is why there have been less than 20 recorded rape convictions since Nigeria’s independence in 1960.
How did we get here? Why is this the case? Amongst several reasons, we got here because the Nigerian legal system is incapable of providing adequate redress to rape victims. From the narrow definition to rape to the archaic laws of evidence, this article will highlight the rigid sexual violence laws in the country – to help us understand our rights (which are tiny) but more importantly as a call to action!
Definition of Rape
Rape is encapsulated under statute law – Criminal Code and Penal Code, and customary law – Sharia Penal code (we’ll come back to this). The criminal code is applicable to the Southern states of Nigeria, whilst the Penal Code and Sharia Penal code are applicable in the Northern States of Nigeria. Although the three different pieces of legislation use different terms in their definition of rape, the legal effect is the same – rape is committed when a man has sexual intercourse with a woman without consent. Nigerian case law, e.g Posu v State, has gone a step further by holding that ‘a man commits rape when he has unlawful sexual intercourse with a woman who is not his wife’. There are three main issues with this definition of rape
- It is not a gender neutral offence
- Rape is only complete upon penetration of the vagina and no other body part
- Marital rape is not rape.
Evaluation of this definition
The fact that the law only recognizes vaginal penetration by a penis as rape has several negative implications. Firstly, the law centers women in its definition, ignoring male victims. The law enforces the idea that rape is a crime in which only a man commit against a woman. This stance can be traced back to the historical protection of woman as ‘property’ either belonging to her father or husband. The law also centers heterosexuality in its definition. Because of the lack of gender neutrality in its language, sexual violence by someone of the same gender cannot be defined as rape. The result? It reinforces the culture of silence, as people who experience this sort of violence have no space within the law to seek redress. The Nigerian law needs to implore a more inclusive definition of rape, which expresses equal protection irrespective of gender.
Another implication of this definition of rape is that it is simply not comprehensive enough to ensure protection of other forms of sexual violence that is not vaginal penetration. For example, penetration of a woman’s anus or mouth through penile penetration, or similarly the penetration of the woman’s anus, mouth or vagina through foreign objects or other body parts does not constitute as rape. Therefore, such acts of violence can only be prosecuted under section 360 of the criminal code (Sexual Assault), which carries a prison sentence of only two years, in comparison to rape that carries a sentence of life imprisonment.
The law fails to recognize that any form of non-consensual penetration of a woman’s mouth, anus or vagina can be just as traumatic and degrading as penile penetration of the vagina. By doing this, the law trivialities other forms of sexual abuse. Again, this further reinforces the culture of silence as the disgracefully low prison sentence and the failure to label such acts as rape prevents women from seeking legal redress.
Legalization of marital rape:
“Let the husband render to his wife the affection due to her, and likewise also let the wife to her husband. The wife does not have authority over her own body, but her husband does. And likewise the husband does not have authority over his own body, but the wife does” – St Paul 1Corinthians 7, 3-5.
The above biblical scripture is of historical and cultural significance to the discussion of marital rape. This scripture greatly influenced the English common law, in force in commonwealth countries, such as Nigeria. There have been arguments dating pre 1600’s supporting marital rape. For example, Sir Mattew Hale argued in 1736 that marital rape is not recognized because the wife “hath given up herself in this kind unto her husband, which she cannot retract”.
Remember what I said earlier? Rape laws were enacted to protect a woman’s ‘honour’ for her father or husband. These legislators and judges have no interest in protecting the bodily integrity of women but rather to protect a man from the invasion of his property – a woman. This idea is validated through practices of the payment of bride price, which claims that upon payment for the woman by the husband, the husband becomes the owner of the wife. The idea that the husband owns the wife is also reflected through section 55 Penal code, which gives the husband the right to physically abuse his wife, for the purpose of ‘’chastisement’’ (we need a whole other article for this).
Anyway, the exemption of marital rape from the law is state sanctioned abuse and brutality. The law sets conditions where men can legally have sex with their wives without consent, with impunity. The law basically says to the unscrupulous men ‘’you can rape as much as you want, and whenever you want when you get married”.
Unfair laws of evidence:
From the above, it is clear that rape laws in Nigeria are bad. But the evidential requirements to prove rape are even worse. Why do I say this?
1.Burden of Proof:
In the case of Posu v The State, the supreme court held that it was the duty of the prosecution to prove the ingredients – the actus reus and mens rea of rape beyond reasonable doubt. Hence, the prosecution must prove that the accused had non-consensual sexual intercourse, involving vaginal penetration with the victim. They must also prove that the accused intended to have sexual intercourse with the victim without her consent or acted recklessly by not caring whether the victim consented or not. Furthermore, the English case of D.P.P v Morgan (another outdated English piece of aw), is still valid under the Criminal Code Act of Nigeria.
In DPP v Morgan, the court held that a defendant should be acquitted if he had a mistaken but honest belief of consent by the victim, even if belief in consent was unreasonable. The implication of this is that a defendant can claim he honestly believed the victim was consenting, even though his reasoning behind that belief is utter bullshit, and still be held not guilty! There is therefore no space for sexual manipulation, or coercion. The worst part is that it is for the prosecution to prove that that the defendant did not honestly believe the victim was consenting. From proving the physical act of vaginal penetration to the state of mind of the accused, this burden is extremely onerous for the prosecution. It results in a lack of faith in the justice system, hence hindering rape reporting among women.
2. Admission of the victims sexual history into evidence:
Section 211 of the Evidence Act allows the defence to prove the woman is of ‘immoral character ’by cross-examining her on her connections with other men including the accused’. The Nigerian law seems to believe that a woman’s moral compass lies between her legs. Before you ask, yes it is another appauling principle that originated from an outdated English common law principle, which states that the sexual morality of the victim is relevant to the credibility of her witness and to the issue. This principle is obviously obtuse because it is based on the harmful assumption that if the victim previously consented to sex, with the defendant or anyone else, then she definitely consented at the time of the incident. This is a product of rape culture, which insists that sexually liberated women deserve punishment for daring to deviate from existing gender norms of being a ‘good girl’ i.e a virgin.
Allowing evidence of sexual history, to be admitted in a rape trial, indicates that the Nigerian law believes that sexually active women are somehow less believable and incapable of being raped. This is extremely backwards as admitting such evidence only serves to humiliate and distress the victim. Her sexual history is of no relevance to the case, as RAPE IS NOT SEX BUT VIOLENCE. A previous or ongoing sexual relationship with someone does not give them unfettered access to your body.
3. Corroboration requirement:
Corroboration is confirmation, ratification, verification or validation of existing evidence from another independent witness or witnesses. It means – can your accusation be backed up by others? Under section 200 of the Evidence Act 2011 – a defendant can be convicted on the uncorroborated evidence of a single witness. Therefore, corroboration is not an actual necessity in proving a criminal case. However, a study of Nigerian rape cases shows that Judges require corroborated evidence before awarding a guilty verdict in a rape trial. Cases such as IGP v Sunmonu and Iko v State, among others, have validated the requirement for corroboration before awarding a guilty verdict. In Iko v State, the judge openly stated that ‘despite the fact that the corroboration requirement is only practice in Nigeria; it has become a compulsory practice, which is dutifully observed by judges’. You might ask why Judges are choosing to ignore the Evidence Act, by demanding others back up a rape accusation. The answer is sexism.
Again, the requirement of corroboration can be traced back to the English common law, which required judges to direct the jury that it is unsafe to convict on the uncorroborated testimony of the victim. The reasoning behind this was to protect the defendant from false accusations.
Men have argued from the beginning of time that women are prone to make false rape accusations due to jealousy, craziness, or because she is ashamed of sexual acts, of which she previously consented. Legal writers and judges have argued that the requirement of corroboration will protect men from these women.
The insistence of an independent witness to back-up a woman’s account of rape, suggests that women are unreliable and overly emotional beings whose word is incapable of being taken serious, till stamped by someone else. It is almost impossible for the victim to source an independent witness as the crime of rape often takes place in private by someone often known and trusted by the victim. Hence, such a requirement dissuades many victims from reporting the crime. It is very unfortunate that in the law’s attempt to protect the defendant from false accusations, the rights and dignity of victims are extinguished. The abolishment of the corroboration rule will not lead to injustice against the defendant but rather a resurrection of justice in this broken area of law.
Unfair laws of evidence under Sharia Penal code:
The sharia laws of evidence are very difficult to study. I almost could not believe what I uncovered. Section 127 of the Kano Sharia Penal Code Law states that in order to establish rape or Zina (extramarital sexual relations); there must be either a confession by the rapist or corroboration by four male witnesses. The imposition of these stringent requirements makes it impossible to secure a rape conviction. Most rapes occur in the absence of third parties. Hence, it would be difficult to find one witness, but four male witnesses? That is impossible. Through this providential requirement, the law has created an atmosphere where rapists enjoy impunity. Men will be able to rape as many women as they desire, because they know the woman will never be able to prove it. The most harrowing part of this providential requirement is that section 127, states that if a woman fails to provide the four male witnesses or secure a confession, she will liable for one year imprisonment or a 100 lashes – this is because she has admitted to having sex outside of marriage. The conflation of rape and adultery as one criminal offence results in women being at risk for being punished for the latter. Imagine being thrown in Jail or being brutally beaten for daring to report your rapist? An example is the case of Bariya Ibrahim Magazu, a 17 year old who was sentenced to 180 lashes – 100 strokes for having sexual relations outside marriage (Zina) and 80 strokes for falsely accusing three men of raping her. This was because she failed to provide four (male) witnesses to verify her allegations. The Sharia rape laws are barbaric and disgraceful. If anything, the law should exist to provide redress to victims and not punish those who boldly sought legal justice.
These laws have led to the impunity in the north and across Nigeria. These laws offer no real form of protection but instead serve as an educational guide for men who are interested in raping women without going to Jail. We may as well call it ‘How to rape with impunity; a step by step guide’ : Marrry, Rape where there are no witnesses and Rape in the northern states, she will even go to jail for trying to report you.
- The laws are biased. They don’t protect men.
- The laws don’t fully protect women.
- The laws make extra efforts in victim blaming.
- The laws are focused more on proving the perpetrator is not guilty or left with no other choice.
- The laws do not protect the masses and promotes impunity.