By Victor Sunday
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I. Introduction
Among the Igbo it is said that eziokwu bu ndu, truth is life. The saying carries a meaning that is applicable to the end that a lie told about another person is a theft of life. The problem is even greater when the lie involves rape, because the accusation can cause serious harm before the accused ever gets a chance to defend himself in court.
Rape remains among the gravest wrongs known to the criminal law and a false allegation of rape is also a grave wrong. Before anyone has asked the accused for his side, his name is already being spoken in several places. People form opinions quickly and many never look for the facts. Friends become careful, colleagues keep their distance, and the accused is treated as guilty while he is still presumed innocent in law. Even if he later proves the claim was false, the vindication would a footnote while the accusation makes the headline.
In Nigeria, there appears to be a disturbing pattern of false accusation of rape made out of spite, rejection, or self-interest. Some recent episodes are worth mentioning briefly such as the fabricated allegation attributed to TikToker Mirabel which ended in rehabilitation rather than prosecution; the accusation by Chioma Oniniwu against footballer Victor Ebele which was later publicly retracted after criminal proceedings began; and the case of Izuchukwu Mmadubueze whose public naming in a disputed sexual-misconduct allegation preceded his death. Even though not related, but how can we forget the case of Ozioma Okonkwo who was accused by his wife of defiling their two daughters only for police investigations to reportedly uncover evidence that the children had been coached to implicate him, leading to his wife’s arraignment for defamation and giving false information?
The details might differ but the consequences are the same to the end that once an accusation enters the public space, it can outrun investigation, due process and truth.
There is an old parable I read in secondary school of a man who slandered his neighbour and was told by an elder to cut open a pillow and scatter its feathers from a hilltop. When he returned, the elder told him to gather every feather again. He protested that the wind had carried them beyond counting. Social media, for example, is the wind that scatters the feathers of reputation as the law cannot gather them all back but it can determine who bears the cost of scattering them.
- What Does the Law Say About Rape and False Allegation of Rape?
The starting point is section 36(5) of the 1999 Constitution, which presumes every accused person innocent until proved guilty.[1] Section 135 of the Evidence Act 2011 sets the standard of proof in criminal cases at beyond reasonable doubt in the tradition of Woolmington v DPP [1935] AC 462 (HL).
The offence itself is defined in sections 357 and 358 of the Criminal Code Act for the southern states where the penalty is life imprisonment and in section 282 of the Penal Code for the north. The Violence Against Persons (Prohibition) Act 2015 widens the definition, and states such as Lagos maintain their own criminal laws. The severity of the penalty is exactly what makes a false charge so lethal. In Iko v State (2001) 14 NWLR (Pt 732) 221, Ogunbayo v State (2007) 8 NWLR (Pt 1035) 157 and Posu v State(2011) 2 NWLR (Pt 1234) 393, the Supreme Court insisted on strict proof of the ingredients of rape, penetration and want of consent above all and treated the corroboration of the complainant as a matter of prudent practice. The difficulty, as we shall see, is that the harm of a false allegation is often complete before the trial begins and sometimes without any trial at all.
Against the false accuser herself, the law offers several provisions. Section 125 of the Criminal Code makes it a felony to conspire to charge a person with an offence knowing him to be innocent with a penalty that rises to life imprisonment where the alleged offence is punishable by life and with no power to arrest without a warrant. Section 125A punishes knowingly false information given to a public servant with intent to cause them to act to another’s injury but only with one year’s imprisonment and prosecution requires the consent of a superior police officer. Perjury and the fabrication of evidence, in sections 117, 118 and 120 (and section 156 of the Penal Code in the north), bite only once falsehood enters judicial proceedings. Defamation, criminal and civil, and an action for malicious prosecution under Balogun v Amubikahun (1989) 3 NWLR (Pt 107) 18 complete the picture alongside the Cybercrimes Act for online conduct.
III. The Loopholes of the Law
The first and deepest gap is the absence of a clearly defined offence. Nigerian law files a deliberately false rape allegation under the general heading of false information so that an accusation capable of producing a life sentence for its target attracts a single year. How ridiculous and absurd! That is a mismatch of gravity and it tells the public that the system does not take the injury seriously.
The second gap is seen in section 125 of the Criminal Code which requires two persons. A conspiracy falls outside it and is left to the weaker section 125A. The third gap sits inside that section as prosecution turns on the consent of a superior police officer and the police are frequently the very institution that received and acted on the false complaint. The section also speaks of information given to a person employed in the public service so an accusation made only online as in the Mirabel and Mmadubueze episodes may never reach its door.
Also, where an accusation is followed by suicide, the Criminal Code’s definition of killing in section 308 reaches death procured through threats or deception but it was drafted with a different mischief in mind and stretching it to reputational ruin is uncertain. More so, the civil redress is largely theoretical because defamation is slow and costly, the defendant is often judgment-proof and malicious prosecution requires a prosecution that ended in the claimant’s favour, which never arises where the accusation was aired but never prosecuted.
IV. Lessons from Botswana
Botswana, through its Parliament, criminalized false or misleading allegations of sexual offences through the Penal Code (Amendment) Act of 2021 inserting section 168B which commenced on 12 September 2023 and carries imprisonment not exceeding three years. The new provision works alongside an older law that makes it an offence to give false information to public officials. However, some scholars note that there is no known case where this provision has been used to prosecute a false rape allegation. They also stress that an allegation that cannot be proved is not necessarily a false allegation.
Therefore, it is important to learn from the Republic of Botswana that creating a separate offence for deliberately making a false rape allegation is a legitimate option for Nigerian lawmakers. Secondly, the punishment should be reasonable and thirdly, the law must distinguish between a deliberately false allegation and a case that simply cannot be proved. This is important because harsh laws could discourage genuine victims from reporting rape. Also, Nigeria should keep records that distinguish unfounded, unproven and proven-false complaints, so that the national conversation can move beyond a war of anecdotes.
V. Conclusion
The Blackstonian wisdom holds that it is better that ten guilty persons escape than that one innocent suffer. That wisdom was never meant to comfort the guilty but it was meant to remind the State that its power is most dangerous when it moves on an accusation alone. The same wisdom cuts both ways as a justice system must believe survivors enough to investigate them and must protect the accused enough to test what is said against them.
Therefore, the task is not to choose between women and the wrongly accused but to build a law strict enough to punish the lie and careful enough never to punish an honest complaint that failed. May we not get into situations where only God knows we are innocent.
Victor Sunday is a legal writer, orator and public affairs analyst and can be reached at victorsundayonwukwe@gmail.com
[1]Constitution of the Federal Republic of Nigeria 1999 (as amended), s 36(5).
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