analysisBy Ruby Rabiu
Rape, according to the Oxford English dictionary, is having sexual intercourse with someone without consent. It also describes it as an act of destruction or an act of destroying a place.
Despite the violent description given to rape, it is unfortunately, said to be on the increase. Ironically, the prosecution of the offenders of this heinous crime has remained relatively low as many rapists are going all over the society scot free due to the disheartening fact that the existing rape laws have not been a deterrent to the perpetrators of the crime which tends to encourage them to molest girls.
Recent newspaper reports reveal a spiraling population of female children as targets of rape. The most unfortunate scenario is the numerous reported incidences recorded in the north, most notably Kano, Jigawa and Niger states where minors are sexually molested by either teenage boys or adults. The Federal Capital Territory is, itself, not innocent with regards to this sordid social vice, with a case recently recorded in Gwarinpa tells of a 32-year old man raping a two-year old toddler. Another reported incidence was in Karu where a three-year old girl was raped by a 45-year old man, Karimu and many of such in other areas smear the Federal Capital Territory with the sickening dirt of rape. Rape cases before the law courts often drag longer than necessary before the culprits are prosecuted and convicted.
Despite the long-lasting effects of the psychological and physical wounds which rapists inflict on their victims, many offenders are still not being punished. This is notwithstanding the health implications where a victim can get infected with diseases, incurable ailments like AIDS/HIV and childhood pregnancies which cause VVF.
To make matters worse, because of the stigma usually suffered by a rape victim, other victims have learnt to shy away from reporting their attackers. Besides, why report a crime to the police who seldom carry out proper investigations or, worse still, publicise the case, tarnishing the image of the victim who may be condemned to living with the scars of the incident all her life?
The most alarming is when young girls are raped during robbery attacks and are usually stigmatised as the victims who were molested. The Head of the Legal Unit of Women Action Collective (WACOL), Nkiru Nwadioke, captured police attitude to rape thus: "Our research on this matter has revealed that most of the rape cases reported to the police are shabbily investigated and out of the few which managed to go on trial, a greater percentage are discontinued midway. Some officers discourage women by graphically describing how courts will put them on trial. They have even pressed some women to say they lied. These practices fatally undermine prosecutions. To our knowledge, police mishandling of a rape case has never led to the dismissal of any officer."
Some non-governmental organizations have been active in exposing rapes in our society while others are also pushing to bring perpetrators to justice. But the odds against them have remained daunting.
First, Nigerian laws on rape are obsolete. The provisions have become inadequate and are in need of review. The rules of evidence and procedure in rape cases also need to be overhauled. The Federation International De Abogadas (FIDA), a worldwide association for women lawyers, has pointed out that the law requiring rape to be prosecuted within two months or it becomes statute bar does not help the prosecution of rape. "We, therefore, suggest that victims are given ample time to prosecute their matter in a law court," FIDA suggests.
In some parts of the country, proving rape cases requires that the evidence of the rape victim be corroborated. This is a great setback for prosecuting the cases, as most offenders commit rape in nooks out of the sight of other persons. An Associate Professor of Law at the University of Lagos, Ayodele Atsenuwa, while speaking on evidentiary issues involved in rapes cases, said, "Evidentiary rules designed to ensure the courts rely only on credible witnesses have been well demonstrated to be biased against females."
Presently, laws on rape regard women as the only persons who can be raped. This may no longer be adequate. As homosexuality continues to gain grounds worldwide, men have suddenly become 'rape -able'. Dr. Okoh Akubo, a lecturer at the University of Jos, said, "In any case, our legislation is narrow in scope. It proceeds from the premise that only women can be victims of rape. It fails to take cognizance of the growing number of Nigerians, self-professed and practising lesbians and homosexuals in same-sex relationships. The legislation also fails to look at the bigger picture of whether a man can be raped by a woman."
Generally, there is a consensus among legal practitioners and the public that laws on sexual offences must be amended. It appears, however, that the lawmakers at the National Assembly are yet to see the inherent dangers in sexual offences and have not yet made the review of sexual laws a priority. The laws, as an act of necessity, need to be amended, even if to dissuade randy men on the prowl to sexually molest women and, therefore, to safeguard the future of our young girls. However, the Nigerian Law Reform Commission appears to have seen the need to review these laws. Established in July 1979 by Act No 7 of 1979, the Commission is empowered to review obsolete laws with the aim of making them conform with modern trends.
Section 5 (1) of the Act states: "It shall be the duty of the Commission generally to take and keep under review, all Federal laws with a view to their systematic and progressive development and reform in consonance with the prevailing norms of the Nigerian society including, in particular, the codification of such laws, the elimination of anomalies, the repeal of obsolete, spent and unnecessary enactments, the reform of procedural laws in consonance with changes in the machinery of the administration of justice and generally, the simplification and modernization of the laws."
In order to tackle the inadequacies of the present laws on rape, the Commission has identified possible areas of reforms. It has sought the views of experts in criminal law practice and has produced a recommendation good enough to help the victims of rape and also ensure that perpetrators no longer go scot-free. Some of the recommendations proposed by the Commission include a gender- neutral definition of rape so as to accommodate the rape of a man by another man or of a woman by another woman. That the definition of rape, it has also recommended, should be widened to include vaginal and anal penetration by any part of the assailant's body or any object used by the assailant. The present legal regime envisages only penetration by the sexual organ of the assailant.
It is the view of the Commission that many offenders escape justice because of the narrow description given to the offence of rape. "In addition, the onerous rules of evidence and procedure applicable in rape cases under Sections 179(5) and 211 of the Evidence Act, are sometimes prejudicial to the victims," the Commission added.
The amendment to the laws should also reflect the need to provide for the establishment of Victims and Witnesses Support Units to offer protective measures and support, such as rehabilitation and counselling centers for victims. To avoid stigmatization and also encourage more people to report rape, the Commission recommends that section 36(4) of the 1999 constitution which provides for circumstances under which proceedings in court may be held in camera, be invoked in rape trials. The NLRC further recommends that, "the irrefutable presumption of law that a male person under the age of 12 is incapable of having carnal knowledge provided in Section 30 of the Criminal Code be done away with." Precisely, the Commission is suggesting that the presumption be made rebuttable, especially so in today's modern world.
However, the work of this Commission is being hampered by the absence of commissioners. It is the duty of President Umaru Musa Yar'Adua to appoint these commissioners. During a recent visit to the Commission, the House of Representatives' Committee on Judiciary called on the President to, as a matter of urgency, appoint new commissioners into the Nigerian Law Reform Commission. The Committee's chairman, Mr. Henry Dickson, said that the work of the Commission was being hampered by the fact that no Commissioner was in place to carry on with the task of reforming Nigeria's obsolete laws. According to him, the work of the Commission is very important in the present democratic setting given the fact that many areas of the country's laws are in need of reforms. The tenure of the last members of the Commission expired in January, 2008.