Daily Law Tips (Tip 787) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:
In a country ravished by poverty and insecurity, with majority of its citizens leaving below $1 and with very unreliable security and judicial sectors, getting away with rape and sexual offences, is no-brainer. With no reliable records of convicts, amidst several prison breaks, it is asking too much, for any person to expect a national record of sexual offenders. With untrained security officers and unsafe stations, it is a mirage to expect to have security officers that are trained to manage victims of sexual abuse, in police stations and other law enforcement centers. With rising cases of stigmatization of victims of sexual abuse and a strange tolerance/support for sexual offenders, reporting of cases of sexual abuse and obtaining justice seems to be less profitable when compared with silence.

Yes, silence and unlawful settlement of cases of sexual offences are seen in most cases, with law enforcement agencies condoning such. As expected, sexual offenders and sexual abuse are on the increase, after all, many states in Nigeria have failed to enact stiffer laws on sexual and domestic violence. With poor institutional structure and cohesion, deterring sexual offenders may be a saver, since most offenders may not want “Castration” (removal of male testicles) or “Bilateral salpingectomy” (removal of fallopian tubes). There is a wide public believe that there are no professional executioners in Nigeria for the enforcement of death sentences, this turns castration and bilateral salpingectomy to quick fixes.

Castration and bilateral salpingectomy of sexual offenders are new in Nigeria but they seem to be timely and promising, as correctional centers are not as punitive and reformatory as losing ones’ sexual tools. By the way, the infamous executive pardons to convicted criminals, that often release sexual offenders back to the society, will most probably release pardoned convicts with no sexual tools. Castration and bilateral salpingectomy as punishments were launched in a part of Nigeria on 11 September 2020. This work focuses on the legality of the punishments and creates legal awareness on the issue.

Legality of Castration and Bilateral Salpingectomy:
Nigeria is a federal state that makes laws on certain exclusive issues for all parts of Nigeria. Consequently, the Federal Government of Nigeria also allows the states in Nigeria to make laws on some issues that are not exclusive to the federal government. However, such issues are concurrent to both the Federal Government and the states. So far as the Federal Government has no adequate law on such concurrent issues, any state government can make its own laws on such issues. Also, there is a list for issues that the Local Governments in Nigeria can handle. Finally, issues that are not exclusive to the federal government and are not in the concurrent list or in the powers of Local Government, are said to be the powers of State Governments. Such issues are said to be on the Residual List (note that, there is really no Residual list, rather it is the collection of issues not covered in the Exclusive List, Concurrent List and the Local Government List.

Issues that are exclusive to the federal government of Nigeria, includes; Arms, Ammunitions, Aviation, Passport, Visa, Weights and Measures, Railways, Labour Rights and Narcotics (Hard drugs), as well as offences relating to them. Issues on the concurrent list include; Libraries, Research, Education, Taxes, Electoral Laws and Electric Power and offences relating to them. The issues under the powers of the Local Governments, include; Establishment and Maintenance of Cemeteries, Burial Grounds, and Homes for the Destitute; Licensing of Bicycles, Trucks, and others; Establishment, Maintenance, and Regulation of Slaughterhouses, Market, Motor Parks and Provision and Maintenance of Health Services and offences relating to them. Then, the Residual list will include issues like; Child Rights, Violence Against Persons and Property, Chieftaincies and Kingdoms, social welfare, Tenancy, Customary Marriage and Islamic Marriage, as well as offences relating to them.

The above explanation shows that issues of domestic violence, child abuse and sexual offences are on the residual list and as such under the powers of the State Governments across Nigeria. They are under the residual list because they are omitted in the in the Exclusive List, Concurrent List and the Local Government List. Hence, the Federal Government of Nigeria cannot make any law on such issues for the entire country. The federal legislature lacks the powers to enact a federal law on domestic violence and sexual offences. It is important to note that since the Federal Capital Territory, Abuja has no legislative arm, the federal legislature plays the role of a state legislature for the Federal Capitol Territory (FCT), by making laws that apply only to the FCT. For example, the Violence Against Persons (Prohibition) Act, 2015 was made by the federal legislature but for only the FCT. Afterwards, many states went on to enact similar anti-domestic violence laws.

Among the states in Nigeria, is the Kaduna State. Kaduna State has an executive arm, a legislative arm and a judicial arm. In exercise of powers under the residual list, the state legislature makes laws for the state, over issues of domestic violence, child abuse and sexual offences. Hence, the Kaduna State has a written Criminal Law like any other state in Nigeria, focusing on offences relating to issues that are under the residual list. Kaduna State repealed its Penal Code Law on 29 May 2017 and enacted the Kaduna State Penal Code Law 2017. Furthermore, on 11 September 2020, the Kaduna State amended its Kaduna State Penal Code Law 2017 through the Kaduna State Penal Code Law 2017 (Amendment) Law 2020.

The Kaduna State Penal Code Law 2017 (Amendment) Law 2020 simply legalised and included castration and bilateral salpingectomy as punishments for rape. The law defines “Castration” as “the removal of testicles of a male person” and “Bilateral Salpingectomy” as “the removal of fallopian tubes”. It also made the punishment for rape of a child that is below the age of 14 years to be surgical castration and death for male offender, while bilateral Salpingectomy and death is for female offenders. Also, where the victim is a child, the name of the offender is to be listed in the Sex Offenders Register to be published in the media by the State Attorney General. Where the victim is above 14 years old, the punishment for a male offender is surgical castration and life imprisonment. However, the law is silent on the punishment for a female offender where the victim is above 14 years old.

Conclusion:
Since 11 September 2020, in Kaduna State, rape has become punishable with surgical castration and bilateral salpingectomy of convicted offenders. This punishment is created by a state law (Kaduna State Penal Code Law 2017 [Amendment] Law 2020), rightly enacted by the State legislature and assented by the Governor of the state. The Kaduna State Penal Code Law 2017 (Amendment) Law 2020 does not conflict or violate any federal law or the Constitution of the Federal Republic of Nigeria. If the good people of Kaduna State have through their state legislature chosen to punish rape with surgical castration and bilateral salpingectomy, then so be it. The people have spoken and all persons must obey.

It must be reiterated that the punishment of surgical castration and bilateral salpingectomy is only for convicted rapists and not for alleged rapists or persons caught in the act of rape. It is only a court of law that can declare a person to be guilty of rape (to be a rapist) and only the court can order that the punishment of surgical castration and bilateral salpingectomy be carried out. Like the law stated, surgical castration and bilateral salpingectomy must be surgically performed. Hence, surgical castration and bilateral salpingectomy are not to be performed by quacks and non-medical experts.

While surgical castration and bilateral salpingectomy of offenders may be unpopular in Nigeria and across the world, it is believed that it they came because of the rise in rape cases and the lack of institutions for reformation and reintegration. Kaduna State Government is encouraged to promote its law and deter prospective offenders, through effective legal awareness models. Also, there is need for the state to strike a balance, by also punishing female offenders with bilateral salpingectomy, where the victim is above 14 years old. Any sex of human being can be an offender or a victim of rape and equality is equity.
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My authorities, are:
1. Sections 1, 2, 3, 4, 5 and 6 of the Constitution of Nigeria, 1999.
2. Sections 1, 2, 3 and 4 of the Kaduna State Penal Code Law 2017 (Amendment) Law 2020.
3. Section 258 of the Penal Code Law No. 5) of Kaduna State, 2017
4. Onyekachi Umah, “Abandoning a Pregnant Woman or Girl is a Crime” (LearnNigerianLaws.com, 30 April 2021) accessed 3 May 2021.
5. Onyekachi Umah, “Abandonment Of Wife/Husband, Children Or Dependants Is A Crime” (LearnNigerianLaws.com, 3 December 2019) accessed 20 April 2021
6. Onyekachi Umah, “How Lagos State Is Legislatively Ahead Of Other States” (LearnNigerianLaws.com, 30 September 2020 accessed 20 April 2021
7. Onyekachi Umah, “The First Virtual Court Hearing Was In Borno State And Not In Lagos State” (LearnNigerianLaws.com, 1 June 2020) accessed 20 April 2021
8. Onyekachi Umah, “Emotional, Verbal And Psychological Abuse Is Now Criminal Offences” (LearnNigerianLaws.com, 3 September 2019) accessed 28 April 2021
9. Onyekachi Umah, “Forcing Wife to Stop Work is Now A Crime” (LearnNigerianLaws.com, 21 April 2021) accessed 26 April 2021
10. Onyekachi Umah, “It Is Now An Offence To Force Wife/Husband To Stop Working” (LearnNigerianLaws.com, 28 May 2019) accessed 20 April 2021
11. Onyekachi Umah, “Seizing or Destroying the Property of a Spouse is a Crime” (LearnNigerianLaws.com, 2 March 2021) accessed 20 April 2021
12. Onyekachi Umah, “Hiding/Concealing Domestic Violence Is A Crime” (LearnNigerianLaws.com, 11 December 2020) accessed 20 April 2021
13. Onyekachi Umah, “Domestic Violence Is A Crime Not A Family Dispute” (LearnNigerianLaws.com, 10 December 2020) accessed 20 April 2021
14. Onyekachi Umah, “Why Lagos State Needs A VAPP/SGBV Law” (LearnNigerianLaws.com, 26 January 2021) accessed 20 April 2021
15. Onyekachi Umah, “Lagos State Has No VAPP/SGBV Law !” (LearnNigerianLaws.com, 8 December 2020) accessed 20 April 2021
16. Onyekachi Umah, “An Access To Criminal Laws In Nigeria” (LearnNigerianLaws.com, 4 December 2020) accessed 20 April 2021
17. Onyekachi Umah, “8 New Things About Rape Laws In Nigeria” (LearnNigerianLaws.com, 3 December 2020) accessed 20 April 2021
18. Onyekachi Umah, “ChannelsTv Interviews Onyekachi Umah on Rape and the Laws.” (LearnNigerianLaws.com, 20 November 2020) accessed 20 April 2021
19. Onyekachi Umah, “Can A Woman Be Charged With Rape” (LearnNigerianLaws.com, 24 June 2020) accessed 20 April 2021
20. Onyekachi Umah, “Can A Husband Rape His Wife” (LearnNigerianLaws.com, 19 June 2020) accessed 20 April 2021
21. Onyekachi Umah, “When Is Seduction Or Indecent Dressing A Justification For Rape In Nigeria?” (LearnNigerianLaws.com, 18 June 2020) accessed 20 April 2021
22. Onyekachi Umah, “New Punishment For Rape In Nigeria” (LearnNigerianLaws.com, 23 June 2020) accessed 20 April 2021
23. Onyekachi Umah, “Rape Cannot Be Settled Out Of Court (No Room For Pay-Off/Forgiveness/Withdrawal Of Complaints” (LearnNigerianLaws.com,26 June 2020) accessed 20 April 2021
24. Onyekachi Umah, “A Female Too, Can BE Guilty Of Rape” (LearnNigerianLaws.com, 13 December 2018) accessed 20 April 2021
25. Onyekachi Umah, “Ages At Which Sexual Intercourse With Consent Will Amount To Rape” (LearnNigerianLaws.com, 20 February 2020) accessed 20 April 2021
26. Onyekachi Umah, “How To Prove Rape In Nigeria).” (LearnNigerianLaws.com, 2 July 2019) accessed 20 April 2021
27. Onyekachi Umah, “Child Marriage/Abuse Is A Crime (Rape): An Exposé On Laws Prohibiting Child Marriage” (LearnNigerianLaws.com, 22 June 2020) accessed 20 April 2021
28. Onyekachi Umah, “Forced Marriage Is An Offence In Nigeria.” (LearnNigerianLaws.com, 21 October 2020) accessed 20 April 2021
29. Onyekachi Umah, “Can a Married Woman Inherit Her Parents’ Property?”, (LearnNigerianLaws.com, 27 March 2020) accessed 20 April 2021
30. Onyekachi Umah, “Female Genital Mutilation/Cutting/Elongation, Breasts Ironing And Forced Marriage Are Now Criminal Offences In Nigeria” (Daily Law Tips [443]) accessed 20 April 2021
31. Onyekachi Umah, “Harmful Widowhood Practices (Traditions) Are Illegal In Nigeria” (Daily Law Tips [Tip 589]) accessed 20 April 2021
32. Onyekachi Umah, “Forceful Isolation/Separation Of Family Members/Friends Is Now An Offence In Nigeria” (Daily Law Tips [356]) accessed 120 April 2021
33. Onyekachi Umah, “Abolished Anti-Women Custom of Onitsha People of Anambra State, Nigeria” (LearnNigerianLaws, 10 March 2020) accessed 20 April 2021
34. Onyekachi Umah, “Citizen By Marriage Is Discriminatory and Against Nigerian Women”, (LearnNigerianLaws.com, 14 September 2020) accessed 20 April 2021
35. Onyekachi Umah, “Abolished Anti-Women Custom of Yoruba People of Nigeria”, (LearnNigerianLaws.com, 11 March 2020) accessed 20 April 2021
36. Onyekachi Umah, “Can a Married Woman Inherit Her Parents Property?” (LearnNigerianLaws.com, 27 March 2020) accessed 20 April 2021
37. Onyekachi Umah, “Approval For Marriage Of Female Officers/Staff Is Unconstitutional and Discriminatory”, (LearnNigerianLaws.com, 23 September 2020) accessed 20 April 2021
38. Onyekachi Umah, “It Is An Offence To Chase Out Wife/Husband From A Home Or Even Attempt To Do So” (LearnNigerianLaws.com, 17 May 2019) accessed 20 April 2021
39. Onyekachi Umah, “Examining Brutalization of House Helps in Nigeria. (An Exposé on Anti-Cruel Labour Laws in Nigeria)” (LearnNigerianLaws.com, 3 August 2020) accessed 27 April 2021

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