Punishment For Rape In Southern Nigeria. (An Exposé On Anti-Rape Laws In The South)

Daily Law Tips (Tip 597) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

PUNISHMENT FOR RAPE IN SOUTHERN NIGERIA. (AN EXPOSÉ ON ANTI-RAPE LAWS IN THE SOUTH)

INTRODUCTION
There are several legal regimes that define and provide punishments for rape. Some are federal laws while others are state laws. The location of rape (venue of crime) determines the definition of rape to be followed and its consequent punishment. There is no single national legislation on rape in Nigeria.

RELEVANT LAWS IN SOUTHERN NIGERIA.
1.) THE CRIMINAL CODE OF 1916.
In the southern part of Nigeria, rape and other criminal offences are created and regulated by the Criminal Code. The Criminal Code has been in operation since 1st June 1916.

By the Criminal Code, rape is unlawful sexual intercourse between a man and a a woman or girl without the consent of the woman/girl or with her consent obtained by force or fraud. The highest punishment for rape is life imprisonments with or without caning. Attempted rape is punishable with 14 years imprisonment, with or without imprisonment. Rape is complete when there is slightest penetration of vagina with penis.

Anything short of slightest penetration is not rape, rather may be an indecent assault. And, sexual intercourse between a husband and wife is not rape. This law also made it impossible for women and girls to be charged with rape, so men and boys were ignored as victims of rape. These are part of the gaps in the criminal code and there was obvious need for new laws to emerge, especially on sexual abuse.

2.) CHILD’S RIGHT ACT OF 2003 AND THE STATES’ EQUIVALENTS.
In 2003, the federal government enacted the Child’s Right Act. Among other offences, rape was further created by the Child’s Right Act to cover where a child is raped. It defined rape to be unlawful sexual intercourse and it sets a maximum punishment of life imprisonment.

However, the Child’s Right Act, unlike the Criminal Code did not give detailed definition of rape and what really constitutes rape. It is silent on the issue of level of penetration need for rape. It also does not have a minimum punishment for rape.

The Child’s Right Act being a federal law on an issue that is not in the exclusive powers of the National Assembly, meant that state legislators must make laws to domesticate/adopt the Child’s Right Act in their respective states. Without this, arguably, the Child’s Right Act cannot operate in the states. So far, many states in southern part of Nigeria, have enacted their own Child’s Right Law. The Child’s Right Laws also provide for rape but without a minimum punishment.

3.) VIOLENCE AGAINST PERSONS (PROHIBITION) ACT OF 2015 AND THE STATES’ EQUIVALENTS.
This federal law defines rape to include penetration into any opening in a human body by any person. Being silent on the status of husbands and wives and also using the cover word (any person), this means that there can be rape between couples and that boys and men can be victims of rape unlike in the Criminal Code. It also made the minimum punishment for rape to be 12 years imprisonment without fine and maximum to be life imprisonment.

However, where an offender is less than 14 years old his maximum punishment is 14 years imprisonments and where there is group/gang rape, the offenders are jointly liable to a minimum of 20 years imprisonment. Also, names of sexual offenders are to be kept in a register and made public. Victims are entitled to compensation as the court deems fit. This means that pedophiles or any person that marries any person below 18 years old and has sexual intercourse with her/him has committed rape.

This law operates only in Federal Capital Territory, Abuja. So, some states in southern part of Nigeria, have adopted and enacted similar laws, including Anambra State, Ebonyi State and Oyo State while more states are being urged to genuinely join this fight against rape.

4.) ANTI-TORTURE ACT OF 2017
Torture is the intentional infliction of mental or physical pain/suffering on a person in order to obtain information/confession, or punish, intimidate and force him or a third party. The Anti-Torture Act is a federal law made in 2017 and is operational across Nigeria.

Under the Anti Torture Act 2017, rape is a form of torture and torture is punishable with imprisonments for 25 years without an option of fine. This is the maximum punishment and there is no minimum punishment.

5.) THE CONSTITUTION OF NIGERIA:
The greatest of all laws in Nigeria, is the Constitution of the Federal Republic of Nigeria, 1999. The constitution overrides all other laws and even international conventions and religious books/rules made by international bodies, federal government, state government, local governments or any religious/communal organization. Any law, rule, custom or practise that attempts to contradict the constitution of Nigeria is on itself invalid, nullified and dead on arrival.

Among the inalienable rights of person (including children) in Nigeria, that are enshrined (contained) in the constitution, is Right to Dignity of Human Person. Rape is on its own torture, inhuman and a degrading treatment to any victim. It is a breach of fundamental human rights (right to dignity of human person and right to personal liberty) of victim and as such monetary compensation of victim is allowed although not as an alternative to imprisonment of offender but as an addition.

The constitution is operational in all parts of Nigeria, so the argument that Child’s Right Act and the Violence against Persons (Prohibition) Act do not operate in some states, does not apply to the constitution.

CONCLUSION:
States in southern part of Nigeria, have different laws governing rape, outside their common legislation (the Criminal Code of 1916). The state where the offence of rape is committed is what determines the minimum and maximum punishment an offender can get. That also, affects how victims of rape will be protected and treated. States with multiple operational laws on rape, means that law enforcement agencies and prosecutors are free to choose which law to enforce. This discretion may create inequality, since with corruption some offenders can be prosecuted under laws with lesser punishments. This creates the need for recent laws to expressly amend or repeal archaic old laws or parts of such laws.

Judgments of courts have shown that where there is no minimum punishment for an offence, the courts is at discretion to offer very little punishment. This may be so little and far from the maximum punishment to the extent that it becomes a mockery. Victims of rape and other crimes generally, will keep losing faith in our legal system, if offenders keep receiving little or no punishments.

There is need for very harsh minimum punishment, like as provided in the Violence Against Persons (Prohibition) Act of 2015 which makes minimum punishment for rape to be 12 years imprisonment. For this and more, all states are encouraged to enact state equivalents of the Violence Against Persons (Prohibition) Act and to also spend resources on promoting awareness on such laws.

Man is naturally selfish and people will not stop rape, child marriage or crime generally, because they care but will stop crimes for fear of law. Laws will not be known and obeyed after being enacted no matter how harsh the punishment therein may be, unless there is measurable constant awareness. So there is more to be done above and beyond enacting and amending laws. Legal Awareness must be prioritized having in mind the education gap in Nigeria. Law awareness is the vision behind the free daily law tips (#DailyLawTips) and the free law platform/website (LearnNigerianLaws.com) of Sabi Law Foundation.

My authorities are:

1. Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1, 47 and 48 of the Violence Against Persons (Prohibition) Act, 2015 and other similar laws in states of the federation.
3. Sections 2, 3, 8 and 13 of the Anti Torture Act, 2017.
4. Sections 31, 32, 277 and 278 of the Child’s Right Act, 2003 and other similar laws in states of the federation.
5. Sections 1, 2, 5 of Criminal Code Act, 1916 and sections 6, 353, 357, 358, 359, 360, and 363 of the Schedule to their Criminal Code Act, 1916.
6. The Supreme Court’s judgment in the case (on how to prove rape) of NDEWENU POSU & ANOR v. THE STATE (2011) LPELR-1969(SC).
7. Cyprian Okonkwo, Okonkwo and Naish: Criminal Law In Nigeria (1st ed, Sweet and Maxwell 1980) 271-278.

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