Daily Independent (Lagos)
Adam Adedimeji
12 November 2008
Abuja — For two days last week, the Nigerian Law Reform Commission (NLRC) hosted stakeholders to a workshop on the review and reform of the laws relating to Rape and Other Sexual Offences. The objective is to re- examine the law, determine its adequacy, and provide justice to victims as well as improve the evidential requirement for proving any form or sexual offences.
It is in response to correct the conception that, our criminal justice system seems to have lost its capacity to respond to the changing needs of society to check the rising wave of the crime of rape and other sexual offences and bring the perpetrators to book that a national workshop on the review and reform of the laws relating to Rape and Other Sexual Offences was held in Abuja. The two - day workshop held between Tuesday 4th and Wednesday 5th November 2008 at Reiz Continental Hotel, Cadastral Zone, Abuja was organised by the Nigerian Law Reform Commission (NLRC), the body statutorily charged with the responsibility of reforming all Federal laws with a view to their systematic and progressive development and reform in consonance with the prevailing norms of the Nigerian society.
The Commission believes that apart from bringing perpetrators to book, the crime of rape in our society is becoming alarmingly high and in most cases, victims feel too embarrassed to report their experiences to the appropriate authorities. Hence the Commission, in pursuance of its mandate under sections 5 and 7 of the Nigerian Law Reform Commission Act Cap 313 Laws of the Federation of Nigeria 1990, now cap No 118 2004 embarked on the review and reform of laws relating to Rape and Other Sexual Offences.
The objective of the exercise was to re- examine the law, determine its adequacy, and make provide justice to victims as well as improve the evidential requirement for proving these offences with a view to ensuring that culprits are punished.
The event attracted several dignitaries from the Bench, the Bar, academia, non-governmental organisations (NGOs), government representatives and the media. Among participants were U.A Kalgo, Justice of Supreme Court; Olanrewaju Onadeko, Deputy Director General and Head, The Nigerian Law School, Lagos Campus; Ayo Atsenuwa of Department of Public Law, University of Lagos; and Professor C.O Okonkwo, SAN, the workshop's guest lecturer.
In her welcome address, Secretary of the Nigerian Law Reform Commission, Mrs. Abimbola Coker, said that the Commission noted with dismay the weaknesses, omissions and defects that the long operation of the Criminal Code since 1945 and the Penal Code since the 50's has revealed. According to her, the law on Rape and Other Sexual Offences is one branch of the Law that has tested the Criminal and Penal Codes in Nigeria. And with the prevalence of these offences coupled with the monumental challenges that the law on rape underwent in other parts of the world, review of the ingredients as well as punishments are no doubt imperative.
She said, "Although the Nigerian Law Reform Commission is primarily concerned with Federal laws, and having regard to the fact that sexual offences and rape are matters within the States legislative competence, and therefore, in compliance with the legislative provisions of the Constitution, the revision exercise shall apply to the Federal Capital Territory of Abuja. It is, however, proposed that the new Act would be presented as a model for the States to adapt and adopt, as the subject matter concerns not only the Federal jurisdiction but also the States.
Furthermore, this kind of exercise provides an opportunity for the States to co-operate in their legislative efforts, to ensure the much-needed uniformity in this area of law, which is of common interest, to meet the changing needs of the Nigerian society".
Coker, however, enjoined participants to contribute to the reform exercise, which would help the Commission to prepare the final report that will recommend a suitable and generally accepted law on Rape and Other Sexual Offences for Nigeria.
The working paper as those in which review is most necessary had identified seven areas. They are:
Meaning Of Rape And Sexual Assault
The provisions of the Criminal Code and Penal Code where rape was defined as unlawful carnal knowledge of a woman or girl without her consent or with her consent where it was obtained by force or against her will or by personating her husband restricts the commission of rape to penile penetration.
On the other hand, Sexual Assault is defined to mean penetration of the vagina, the anus or urethra of any person or any part of the body of another person or an object manipulated by another person except for hygienic or medical purposes.
The working paper reviewed the Rape Laws, March 2000 by the Law Commission of India where the word Sexual Assault instead of Rape was used. However, it was argued that while Nigeria must benefit from the expansion of the definition of rape in other Jurisdictions, the country's cultural peculiarities in the modernization of sexual offences law must be noted.
The retention of the word rape against sexual assault is thereby advocated, while the word rape should include penile and non-penile penetration of the vagina, anus of the victim by the penis of the perpetrator or any other object used or the mouth of the victim by the penis of the perpetrator without the consent of the victim.
Consent In Rape Cases
The use of "against her will", "without her consent" or "where the consent has been obtained by putting her in fear of death or hurt" are indicative of absence of consent on the part of the woman.
To find presence or absence of consent, certain circumstances needs be considered:
i. was there use of violence against the complainant before or during the act?
ii. was the victim/complainant detained at the time?
iii. was the complainant asleep at the time of the relevant act?
iv. was there physical disability on the part of the complainant that impaired communication with the accused?
v. was any substance administered to the complainant?
While arguing that there is need to provide even more comprehensive and detailed definitions of the circumstances where consent is absent other than the one given above, it is observed that consent itself should be defined either as "free agreement", "agrees by choice, and has the freedom and capacity to make the choice", "positive cooperation in act or attitude pursuant to an exercise of freewill" "voluntary agreement of the complainant to engage in the sexual activity in question", "subsisting, free and genuine agreement to the act in question".
In other words, it is recommended that: Consent should be exhaustively, comprehensively defined as "positive co-operation in act or attitude pursuant to an exercise of freewill. The person must act freely and voluntarily and have knowledge of the act or transaction involved"; that the present guidelines for determining consent in use by the courts are not satisfactory and the provisions of the ICC and other circumstances from other Jurisdictions should be harmonised for use in Nigeria and that S.211 of the Evidence-Act should be repealed.
Marital Or Spousal Rape
Like Nigeria, marital or spousal rape constituted exception to rape as an offence in countries such as Sweden, Norway, Denmark, Czech & Slovak Republic.
S.282 Penal Code provides that sexual intercourse by a man with his own wife is not rape. Under the Shariah, the position on spousal rape is not clear - cut. While the Qur'an urges submission by wives, the Hadith prohibits an intercourse of a man, of his wife during menstruation. Irrespective of culture, religion etc, the argument is that Nigeria is signatory to a plethora of conventions and protocols that prohibit discrimination against women.
In recent time, however, under well - spelt out circumstances, rape by husbands of their wives in certain Jurisdictions are penalised.
The circumstances that should constitute spousal rape are:
i. where there is Judicial separation between the husband and wife - either decree nisi or absolute.
ii. the existence of non-molestation agreement to the effect that 'there shall be no sexual connections between the wife and husband who are living apart and the violation of such agreement.
iii. where the woman signifies in a clear, unambiguous way that she has withdrawn her express or implied consent granted at the time of the marriage contract.
iv. when a husband is infected with contagious disease and forces his wife.
v. where the husband makes unusually excessive and unreasonable demands.
vi. where the husband cruelly, humiliatingly and in an un-dignifying way forces his wife into submitting to sexual intercourse.
On this, recommendations are as follows:
i. that Nigerian Penal Laws be amended to accommodate marital or spousal rape. That the name spousal rape is used instead of "sexual assault by husband" used in India and other Jurisdictions.
ii. that the circumstances highlighted above be fully itemised in the amended penal laws.
iii. that the consent of the Attorney General of a State should be obtained before prosecution is commenced against the accused person.
iv. that the punishment for this genre of rape should not be as heavy as other types of rapes (1 year or fine of N3,000 to N5,000).
v. that it should apply to all types of marriages.
Corroboration
Corroborative evidence is any evidence that confirms, reinforces or supports another piece of evidence of the same facts given by a party.
S.179 (5) (Evidence Act) requires corroboration of certain sexually related offences although; corroboration of rape is not required as a matter of law but as of practice.
However, because of the difficulty of proof, direct eyewitnesses evidence, corroboration is not and should not be necessary in rape cases.
No doubt, the main argument for retaining the requirement of corroboration is the need to minimize the possibility of convicting an innocent person.
Under the rules of various International Criminal Tribunals, corroboration of the victim's testimony is not required.
Corroboration is made difficult when taking a bath or changing of clothes destroys evidence, or where there are no obvious signs of physical injury.
It is hereby recommended that the requirement of corroboration, either as of law or of practice be removed, abandoned, repealed or abolished. Consequently 8.179(5) of the Evidence Act requiring corroboration of various offences under 8.218, 221, 223 or 224CC and 274, 276, 281 and 282 of the Penal Code are repealed. Courts should instead rely on evidence that are "relevant and credible" at the trial.
Punishment
The Criminal Code in 8.358 provides that a convict of rape is liable with imprisonment for life with or without whipping. The legal interpretation of "is liable" makes life imprisonment discretionary, not mandatory, as it does not mean, "Shall be liable".
Courts can therefore impose punishment terms of less than the maximum.
Mandatory punishments are deserving in rape cases especially in cases where the accused knows he is HIV positive or where the accused has previous record of conviction for rape or related offences or where the victim is under age.
As such, S. 8.358 CC should be amended to make punishment for rape mandatory by removing "is liable" and replacing it with "shall be punished"; S. 8.283 of the Penal Code should be amended in such a way that the words "or for any less term" be removed and restructured as "shall be punished with imprisonment for life and shall also be liable to fine".
Protection Of The Victim And Witness
Because of psychological trauma, insecurity or fear of disease, it may be necessary to establish a "Victims and Witness Support Unit" to provide services including rehabilitation, counseling and treatment in addition to other services provided by other NGOs and public-spirited individuals.
In addition, S.36 (4)(a) of the 1999 Constitution should be amended to allow the giving of evidence in private or in camera or any other special means for the protection of both the victim and witnesses.
Other Sexual Offences
On any form of sexual offences, it is recommended that punishment for any should not be less than 5 years. These offences include the followings: Obscene Publications; Incest; Sexual Defilement; Abduction/ Kidnapping and Prostitution.
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