Is it that the crime of rape, especially against women and the girl child, has suddenly taken on unimaginable proportions and dimensions in the past few months, or countless rapes have simply been going unreported? Some have even attributed the astronomical increase in this heinous crime to the lockdown occasioned by the Covid-19 pandemic, though experts say the problem had been with us long before the lockdown. What can possibly make a sane adult male rape anybody, talk less of a girl child who is only a few weeks old? These days, male children too are not spared, as the menace of abusing and sodomising boys, is also on the rise. Prof Joy Ngozi Ezeilo and Omolara Oriye, both experts in gender based violence, delve into the thorny issue to examine and proffer practical legal solutions to this worrisome trend
Rape and the Law in Nigeria: Blaming, Stigmatising and Silencing Victims in Search of Justice
Professor Joy Ngozi Ezeilo OON
Rape Across the Country
The rise in rape cases in Nigeria is scary, worrisome and an ugly phenomenon, especially the sexual abuse and exploitation of minors, that is under-aged girls. It is nothing short of impunity, and is being perpetrated with such rampancy and violence that has left many wondering and asking what is really amiss? It is becoming clearer that we are not just fighting the Coronavirus pandemic in Nigeria, but also the rape epidemic happening upon the Covid-19 pandemic.
On 26th June, the Katsina Police Command reported arrests of 40 suspected rapists within this period of the Covid-19 lockdown, between April and June, 2020. In the same vein, on 24th June, 2020, the Akwa-Ibom Police Command in a press briefing, informed the public about how they have arrested within seven days another Pastor and 11 others, for rape and defilement. Investigation further revealed that, the said Pastor, who lives with eight other girls between the ages of 13 and 16 in his so-called deliverance centre at the said address, severally had unlawful carnal knowledge of one of the minors who is a 15 year old. The Akwa-Ibom Police's arrest, included two fathers who committed incest with their daughters. It also revealed the violence rapists deploy these days, to coerce or force sex on their victims. In two cases out of the 11, a gun and a machete were used, and a deep cuts and grievous bodily harm were meted out on one of the victims.
In Enugu, in one of the nine cases that was reported and handled this June by Women's Aid Collective (WACOL), a gun was also used to intimidate a 16 year old girl at Nsukka, to succumb to the rapist's unwarranted sexual attack. In another case, WACOL received in April, a report that a father started to have unlawful sex with the daughter as a minor, and it continued to her adulthood, and she had been impregnated by this father and forced to abort two pregnancies until she ran away and reported to us through our online services in April, 2020.
There have been tales of woes for women and girls caught up in the web of the pervasive violence in public and private spaces, especially during this Covid-19 pandemic. Why is the world watching this impunity grow daily? What are the Nigerian Government and other stakeholders doing, to immediately halt this trend of increasing sexual and gender-based violence? The crux of the matter is that, there is low accountability to violence perpetrated against the female gender. Today, it is Uwa Omozuwa (Benin, Edo State), yesterday it was the ultimate betrayal of defilement and torture on a three- month old baby in Nasarawa, a year ago in 2019, it was about a 17 year old salesgirl being gang raped to death in Edo State. The year before in 2018, it was the case of young Ochanya Ogbaje, a 13 year old girl who was allegedly raped to death by her uncle and his son in Benue State. In 2014, it was an 8 year old girl named Evidence, who was raped and murdered in Enugu, and she became a body of growing evidence of the heinous crime of rape and sexual assault against womanhood. And on and on, the list goes.
There exists an unaccountable number of other victims who are violated every day, every week, every month and every year, in Nigeria. In 2014, it was the Chibok girls (Borno), later on the Dapchi girls (Yobe), and on and on the list goes, until we can count no more. It is not a myth; it has become women's lived reality. Women's body has become a site of struggle, and the personal has become political.
Tamar Sexual Assault Referral Centre (SARC) which I founded as an extension of WACOL services that was funded by the then Justice for All (J4A) Programme of the Department for International Development, (DFID), UK, recorded within two years of its operation from 2014 to 2016 about 641 clients - victims/survivors of sexual violence. Of that number, 401 were minors (under the age of 18), of which 183 of them were under the age of ten, while 240 were above the age of 18. From the 641 clients we responded to, 629 were females, while 12 were male clients. In addition, 24 clients treated were persons with disability of various categories, and were all females. The statistics from this Centre in just one city of Nigeria sheds some light on the prevalent rate of sexual violence, and the culture of silence and impunity on the issue.
In fact, Mirabel Centre and the Lagos State Domestic Violence Response Unit, have recorded thousands of sexual assault cases in Lagos State alone.
The truth is that, there is no safe space for women and girls anymore in Nigeria. Every second, every minute, every hour, every day, women and girls face disproportionate forms of sexual and gender based violence in the forms of rape, defilement, trafficking, sexual harassment, wife battery, domestic abuse, female genital cuttings/female circumcision, early and forced marriage, widowhood practices, including denial of inheritance rights, torture, acid attack, abandonment without means of livelihood, denial of custody rights etc. It is now an epidemic, within a pandemic of Covid- 19.
Within the months of the April and May Covid-19 lockdown period, WACOL received and handled about 156 cases of sexual and gender-based violence (SGBV), out of which were 25 cases of sexual violence bordering on rape, defilements and sexual assault of under-aged girls. The complaints received included, six cases of defilement and gang rape of girl-children who are under-aged. Of these child sexual abuse cases two resulted in pregnancy, including of a twelve year old now seven months pregnant, and about to be forcefully married to the rapist who stole her innocence and disrupted her education and personal development.
Following our intervention and petitions to Police on cases involving rape, defilement and sexual assault of under-aged girls in June, 2020, five arrests have been made in Enugu by the Police, while the other three cases are still under Police investigation, with the hope for imminent arrest of the culprits by the Police, as WACOL follows up diligently on these cases.
What is going on?
Again, and for the umpteenth time what is going on? Is there still a safe space for women, with the incessant rape and murder? The audacity of rapists and pedophiles have taken dimensions, hitherto uncommon. Why are they getting bolder, and defying the public outcry for an end to this heinous crime of rape? The upsurge in rape cases even in this Covid-19 crisis, is indeed, scary and adds to the anxiety and anguish caused by the Coronavirus pandemic. However, the increase may well be an indication that we are succeeding in breaking the culture of silence that hitherto, shrouded open sexuality discourse. It may also mean that, Nigerian women and girls are coming to terms with their own "me too" movement. The world is a global village, and increasingly, people are empowered, especially by social media to speak out and stand in solidarity to deal with social ills that affect them.
For far too long, victims have been re-victimised, and doubly jeopardised by society and in the administration of criminal justice. A woman who alleges rape is seen as a liar, even before the law, hence, all the bottlenecks in accessing justice.
Speaking on rape and stereotypes, Justice Claire L'Heureux-Dubé, of the Supreme Court of Canada observed in the case of R v Seaboyer (1991) that:
"The woman who comes to the attention of authorities, has her victimisation measured against the current rape mythologies, i.e., who she should be in order to be recognised as having been, in the eyes of the law, raped; who her attacker must be in order to be recognised, in the eyes of the law, as a potential rapist; and how injured she must be, in order to be believed. If her victimisation does not fit the myths, it is unlikely that an arrest will be made or a conviction obtained. As prosecutors and police often suggest, in an attempt to excuse their application of stereotype, there is no point in directing cases toward the justice system, if juries and judges will acquit on the basis of their stereotypical perceptions of the 'supposed victim' and her 'supposed' victimisation".
People in position of power, including artist/stars use their position of authority or celebrity to suppress rape accusations against them, and even intimidate their victims and complaints. The recent case of D-banj - a popular musician and celebrity who was accused of rape by a young woman named Seyitan Babatayo through social media, that she was raped by him in December 2018. In a sad twist of events, she was arrested and detained by Police, intimidated and allegedly forced to delete some information in relation to that from her social media handles. Furthermore, she was slammed by his Lawyers with a demand letter to pay a sum of N100 million within 48 hours, as compensation for falsely accusing him, or risk legal action.
What a country! Where the victim becomes the villain, and the perpetrator gets away with blue murder in daylight? As rightly, observed by Laila Johnson-Salami of ARISE NEWS Channel in her insightful piece of 23 June titled: "D'banj, Apologists and Why Women Aren't Reporting Rape", - "... Speaking up remains highly theoretical, and there are several dynamics to Nigeria's rape culture that we need to deconstruct for women to be safe. Firstly, both men and women have to start holding people accountable for rape and sexual violence, there are far too many rape apologists in our society today. The constant watering-down of the conversation, excuses made for people's actions and denial, needs to stop."
Nigeria's Rape Culture
Sadly and truly, Nigeria's rape culture has been in existence and tolerated for decades, and often shrouded in secrecy due to ingrained patriarchal sex stereotypes, structural and systemic oppression women face, including prevailing social norms and media portrayal that culturally treat women as sex objects and discourages open sexuality discussion, and stigmatises women who dared to speak out about their victimisation. Undoubtedly, there is a need to break the culture of silence, especially now that more women are beginning to have courage to speak out about their victimisation.Rape Impunity: Facts, Figures and Extant Laws in Nigeria
Women and girls in Nigeria, from available statistics suffer from sexual and gender-based violence (SGBV) in different spheres of life, from different actors. A National survey on torture in Nigeria carried out by WACOL, indicates that rape and sexual abuse, are amongst the forms of torture experienced by women. The survey puts the rate of women's rape and sexual abuse, at 65.4%. CLEEN Foundation National Crime and Safety Survey 2012 carried out in all 36 States of the Federation, revealed that only 23% of rape incidents in Nigeria were reported to the Police. Thus, about 77% of rape cases go unreported, and those who manage to report their cases had no treatment or better services from the Police and other actors, including health care providers. From the study, reasons for not reporting rape cases include: Police insensitivity (32%); fear of stigma (21%); Accused may not be arrested (21 %); and Police corruption (14%).
Reports from WACOL legal clinics show that rape, sexual exploitation and abuse of young girls is on the increase, and yet unacknowledged and discussed in low whispers. The truth about sexual violence against women in Nigeria, 2003 WACOL Publication where the survivors of rape and victims of sexual violence told their stories in a national mock women's court we organised in Abuja on 14 November, 2002 at the National Centre on Women Development, revealed that victims rarely break their silence to report their victimisation largely due to shame, stigma and fear. Consequently, they suffer in silence, mostly, mentally depressed and confused, contract HIV/AIDs /STI, and worst of all, unwanted pregnancy may occur thereby endangering the health and future of survivors.
There is a correlation between SGBV and women's predisposition to sexually transmitted infections, including HIV and AIDs. The percentage of women living with HIV increased slowly from 51.7% in 2013 to 53.1% in 2016, but that of men was decreased slowly from 48.3% in 2013 to 46.9 % in 2016 (NACA).
The emergence of the Boko Haram terrorist group has escalated SGBV in the form of sexual slavery, abduction, kidnapping and trafficking of girls as mercenaries and comfort women to provide sex for the insurgents, forced marriage to terrorists and 'sex-for-food', especially in the North East of Nigeria that is having signiﬁcant impact on womanhood, and the perpetuation of the miseries suffered by women on the basis of gender.
Rape is the most serious form of sexual assault. Section 358 of the Criminal Code imposes life imprisonment with or without caning, while Section 359 defines an attempt to commit the offence of rape as a felony punishable by imprisonment for fourteen years, with or without caning.
Under the Penal Code the punishment for rape is a term of imprisonment which may extend to fourteen years, in addition to a fine. The punishment for rape under the PC appears softer or lighter, when compared with the life imprisonment which the same offence attracts under Section 358 of the Criminal Code. Hence, the call for stiffer penalties, especially in Northern Nigeria.
However, the punishment for rape under recent legislations like the Violence Against Persons Prohibition Act of FCT, 2015 and various States' Violence Against Persons Prohibition Laws, is stiffer. In fact, under the VAPP Act, 2015 applicable to the FCT, a person commits the offence of rape if he intentionally penetrates the vagina, anus or mouth of another person, no matter how slight, with his sex organ or any other part of his body or anything else, once the sex is without consent or consent was obtained by force or duress.
The punishment for rape under this recent legislative jurisprudence, is life imprisonment. Importantly, an offender gets a minimum sentencing of 12 years imprisonment without option of fine; and in case of gang rape by group of persons, the offenders are liable jointly to a minimum of 20 years imprisonment, without option of fine. The idea of minimum sentencing is very good. However, the problem is not with the law alone, but rather the lack of effective enforcement of extant penal laws, including judicial interpretation of ingredients or elements of the offence of rape like consent, corroboration, penetration and capacity to commit the offence of rape. If there are no marks of injury, broken hymen or evidence of torn clothes etc, the case even if reported, may not be prosecuted, and if prosecuted, there may be no conviction because of lack of corroboration. Yet, the victim might have been terrorised into submission with no marks of violence appearing.
Recently, the Upper Shari'ah court sitting in Tudun Wada, Zaria sentenced three rapists to one year imprisonment with an option of N7000 fine, with 20 strokes of the cane, for raping two girls aged 9 and 10 on their way to school (Daily Trust April, 27, 2019). The sentence has generated a lot of controversy, about what should be an appropriate sentencing.
In Upahar v The State (2003) in confirming the sentence pronounced upon a rape convict by a lower court, the late Hon. Justice Nzeako JCA, commented thus: "befitting punishment must be meted out to persons who seek to defile and degrade womanhood, and in particular, the ever so helpless girl-child. This will act as a deterrent to others". It was in the news that a Kaduna State High Court in the last few days, sentenced one Usman Shehu Bashir to death by hanging, for raping to death a two year old girl.
The VAPP Act/ Laws, introduced and legalised the concept of minimum sentencing. Otherwise, rapists will be getting away with light sentencing or payment of fines. Notwithstanding, the problem is still with the trivialising of the serious crime of rape/ defilement, stigmatising and blaming the victim or rape survivor.
Protective Measures for Rape Victims: Lack of Use of Technology
It is pertinent to mention that, various protective measures and remedies for victims and survivors of rape provided for in recent laws, are not fully explored or utilised by administrators of criminal justice system. Take for example, hearing in camera in rape cases, witness protection before, during and post-trial, and also the possibility of compensation during the criminal trial of rape cases. The Evidence Act 2011, allows for admissibility of electronic evidence. Yet, the court prosecutors and defence counsels, including the courts, are reluctant to admit electronic evidence or allow hearing in camera (recorded video of victims of rape), instead of insisting on physical appearance that tends to shame, stigmatise and re-victimise the victim or rape survivor all over again.
Importantly, there is a lack of use of technology to fight this crime. Forensic evidence is the ultimate evidence required, to corroborate rape cases. So, if we have functional and state of the art DNA laboratories in every State that is linked to Police, court and the Ministry of Justice, it will aid investigation and prosecution of these cases. The country has failed to take full advantage of advancement in technology, to solve crimes and bring perpetrators to account.
Proof of Rape
As it were, offenders get away with their crimes for want of evidence and the cautionary rules Judges of commonwealth jurisdiction often adhere to, especially in the Nigerian jurisdiction.
The problem is with the elements of the offence of rape invoked in proving rape, and lack of appropriate knowledge and information on how to preserve those evidence. In particular, early reports and medical examinations to document the forensics. Law reform is called for, to mitigate these stringent requirements. If such is not done, more rapists will be set free, as a result of technicalities.
The crime of rape as it is currently applicable in most States of the Federation, does not recognise the act of sodomy performed upon a woman without her consent; or the insertion of objects in her genital or anal cavities cannot be defined as rape, nor can sexual attacks by a man against another man or by a woman against another woman. Luckily, the new Violence Against Persons Laws adopted by some States, have taken care of this in those States.
In fact, well-meaning Nigerians are supporting women's groups and civil society, in protesting the spate of rape cases and the new trend of rape and murder. Dozens of protests and demands for declaration of a state of emergency on rape have been organised around the country, including by WACOL in collaboration with Action Aid Nigeria (AAN) and by several other partners of AAN, including FIDA, FOMWAN working under the auspices of Women Voice Leadership (WVL) with funding support from Global Affairs Canada, and in solidarity with women's groups to condemn the heinous crime of rape.
Women during the current spate of protests used different graffiti to communicate their demands for justice, whether for Uwa or for other victims, including for support services for victims. I was particularly enthused to see in our Enugu protest march to the Government House, a banner with the following message "Don't tell us what to wear, tell them not to rape". This message is a direct challenge to the commonest and highly rebuttable excuse for rape that tends to justify rape - on indecent dressing by young women. What a fallacy, when the reality shows that, even babies and toddlers without any revealing curves and cleavages are ravaged in most barbaric tortious assault.
In the Nasarawa State case, it was reported that the rapist had violated three other minors previously, and the baby Rukayya, three months old, was his fourth victim, yet this pedophile escaped being prosecuted and held accountable until now. As one of the banners I saw in one of the women's protests in social media read: "An erection must be given direction" I think I can quickly re-write that to say: 'Control that erection or get castrated and jailed.' Some commentators posited that the male sex organ should be cut into pieces never to enter anywhere ever, and I sanction that? Yes, cut his "P... " if the wrong erection comes your direction.
Ikechukwu Ekenta, 43 years old, was arrested in Anambra State for raping his three year and ten months old daughter on 28 April, 2020, the same day his wife put to bed with another child. This is sickening, and those who perpetrate such gender crimes should be made to languish in jail for a long time, as long as possible. Incest and sexual abuse of minors, is the ultimate betrayal. The impunity, must be brought to an end.
There is an urgent need to embark on mass sensitisation and campaign, to create awareness to break the culture of silence on rape and other sexual violence. Without education, even victims and their families will not be aware of the procedure to follow, in the event of rape. We hope that through public education and sensitisation, especially at the grassroot level about extant provisions of law, that would aid and bring succour to those affected and seeking for redress to demand for full implementation of these recent legislation, such as the Violence against Persons Prohibition Act, in 2015; which has been domesticated in about 14 States, including: Anambra, Akwa-Ibom, Benue, Cross Rivers State, Edo, Ekiti, Enugu, Kaduna, Lagos, and Ogun States. Trafficking in Persons (Prohibition) Law Enforcement and the Administration of Criminal Justice Act, which entered into force in 2015. Trafficking in Persons (Prohibition) Law Enforcement and Administration Act (NAPTIP Act), which entered into force in 2015. The National HIV/AIDS Anti-Stigma Act, in 2014; Child Rights Act, 2003 and its Child Right Laws of two-thirds of the States of the Federation.
States that are yet to domestic this law, should urgently do so. This is the minimum that they can do to protect women and girls in Nigeria, and demonstrate that they are against this impunity. Beyond declaration of a state of emergency, which is a welcome development by both the Governors Forum and the Federal Government of Nigeria, we need to see action and commitment of funds to scaling up information geared towards prevention. Government at all levels, if serious, should put their money where their mouth is.
An obvious need exists to change the attitude of communities towards SGBV violence, by making community members and especially service providers, more aware of the tremendous burden placed on numerous women affected, due to the woeful inadequacies of services and unresponsive State policies. There is need to embark on massive public education and sensitisation, for the public to take action and stop the rape. Such education will emphasise that it is in our hands to reform our laws and procedures; it is in our hands to take appropriate measures to protect women and girls' against rape; it is in our hands to break the culture of silence, not to stigmatise and blame the victims. Prevention is key, and there is need to increase awareness, especially on punishment for rape, and encouraging victims and survivors to speak out. Ensuring that the accountability stake, is raised. No settlement of rape cases outside the court, especially in cases involving minors. It has to be, zero tolerance.
Nigerians, especially civil society organisations and women's groups, must come together to end the impunity of rape and gender-based violence, by transforming the culture of sex stereotypes and advocating for enforcing laws that protect women's rights and changing the attitudes that condone violence against women.
I am against the death penalty, but will not hesitate to be in support of stiffer punishment and promotion of laws that provide for maximum sentencing in rape, and not leaving the discretion to the personality and idiosyncrasies of Judges, some of whom have trivialised this serious offence that has been ruled to constitute a crime against humanity, in international criminal court jurisprudence.
Nigerians are now in favour of extreme punishment, like castration - removal of testicles. This should not be off the table, because as an Igbo adage says "If a bird learns to fly without perching, then the hunter will learn to shoot without stopping". The rapists are not just committing the heinous crime of rape, but also homicide. They are raping, ruining lives and killing their victims, and this calls for urgent measures, drastic action, prosecution and appropriate punishment, as effective deterrents. Life imprisonment without the possibility of parole, should be a deserving punishment for dangerous sexual offenders as defined in the new VAPP Laws. Enough is enough! It is not a crime to be born a woman. Stop the rape! Put the rapists in jail, where they belong. We cannot afford to wait a minute longer. The time is now to end this impunity of rape, that is fast becoming an every day crime reported across Nigeria in their numbers.
STOP THE RAPE! THIS IMPUNITY HAS GONE ON FOR FAR TOO LONG.
Professor Joy Ezeilo, Professor of Public Law, Dean, Faculty of Law, University of Nigeria; Former United Nations Special Rapporteur on Human Trafficking; Member, United Nations Civil Society Advisory Board on Prevention of Sexual Exploitation and Abuse; Founding Director, Women's Aid Collective (WACOL)/Tamar Sexual Assault and Referral Centre and the Chairperson, Sexual Assault Referral Network, Nigeria.