Legal Framwork on The offence of Rape in Nigeria

by Takim Etta Ndifon- Legal Framwork on Rape in Nigeria

3.1 Domestic Framework

Every time the offence of rape is committed there are various rights that may have
been violated as guaranteed, protected and punishable under Nigerian Laws. This
part of this research work would examine various domestic frameworks that aid
in the prosecution of rape offences in Nigeria.

3.1.1 The 1999 Constitution

Right to life

Victims of rape suffer various ordeals from the hands of their assailant,[1]the
constitution being the grundnorm of Nigeria Guaranties almost all the rights that may have been tampered with by
the rapist. In so many instances raped victims don’t survive.[2] When this happens the person’s right to life as guaranteed by section 33 of the constitution has been breached.[3] There were instances were some women were kidnapped, raped and killed
afterwards. For instance, a businessman Shola Olaseinde was kidnapped and killed by 5-gang fraudsters impersonating as women on a  dating site in Rivers state.[4] 

In 2010, another woman, Hyacinth AzuNwangolo, Head of  Economic Affairs, Rivers State Ministry of  Women Affairs was abducted in her car and  killed after ransom was not paid to secure her release. Another goring incident happened in Edo state
in 2012 when two students of Federal Polytechnic, Auchi, Edo State, Henry Edewo and Emmanuel Isikhuime, kidnapped, rape and murder a female student, one Mercy Peter also a student of the institution. They bury their victim in a forest.
The victim, who was kidnapped on July 29, that year, was killed four days later after she was serially raped by the suspects. They were also alleged to have continued to demand for ransom from her parents after killing her.[5]Nwalias
case which happened in Delta State in 2020 where a student went to read in a
hurch and was allegedly murdered after she was raped is a practical example.[6]

In Emmanuel Tometim v. The State[7]
the Accused was convicted for the rape and murder of   the victim and sentenced to death by
hanging.

Section
33(1) Constitution 1999 as Amended
provides that every person has a right to life, and no one shall be
deprived intentionally of his life. [8]
However execution of the sentence of a court in respect of a criminal offence
of which he has been found guilty shall not
be considered as being deprived of such right under Section 33(1).[9]

It
is finally submitted that the relatives of a deceased person who died as a
result of rape can bring an action for the enforcement of breach of fundamental
right to life.

Right to personal Dignity

The
offence of Rape touches on a person’s right to Human, Dignity. And when  the offence of rape occurs a person’s right
to freedom from inhuman and Degrading Treatment should also have been breached
as the use of force, cohesion threat and even physical pain is inflicted on
victims of rape offences.[10]
According to Zureick, victims of Rape suffer the highest form of inhuman and
Degrading Treatment.[11]Section 34(1) provides that Every
individual is entitled to respect for the dignity of his person, and
accordingly.[12]
No person shall be subject to torture or to inhuman or degrading treatment.
Rape is a form of aggression and a violation of the right to personal dignity[13]

In
AG & Commissioner Of Justice, Kebbi
State V. Jokolo&Ors[14]
The court held that the sum total of it is that the Governor conduct was not
only satisfied in dethroning the 1st respondent as the 19th Emir of Gwandu, but
showed no respect to his dignity as an individual by inhuman and degrading
treatment, where he was held like a slave, contrary to Section 34(1)(a)-(b) of
the Constitution of the Federal Republic of Nigeria, 1999. What the Governor’s
agents did constituted slavery.victims of rape can bring an Action for the
Enforcement of their fundamental right of human Dignity under this section.

False Imprisonment

Section 35 provide that every
person shall be entitled to his personal liberty and no person shall be
deprived of such liberty save in the following cases and in accordance with a
procedure permitted by law.  According to
the researcher all victim of rape suffer false imprisonment. The tort of false
imprisonment is the restraining or detaining of a person, if the person doing
or causing the imprisonment has no right in law to imprison that other. [15]

In FBN Plc v. Onukwugha[16] False imprisonment may be
defined as the restraint of a man’s liberty whether it be in an open field or
in a cage. The relevant fact or to look for is whether the victim had at the
time liberty freely to go at all times; as enshrined in our 1999 Constitution,
see section 35(1). [17]However the detention must
be total, in that there should be no means of escape from the detention known
to the victim.[18]
Detention, no matter how short, can lie as a breach of fundamental right.[19] The tort of false
imprisonment is defined as follows:-“A false imprisonment is complete
deprivation of liberty for anytime however short, without lawful cause.[20] In the more recent case
of Onyedinma v. Nnite[21], the court held that an
action for false imprisonment does not lie only against a party who physically
commits the tort. An action lies against a party who is directly or actively
instrumental to the commission.

Right to Freedom of Choice

39. (1) Every
person shall be entitled to freedom of expression, including freedom to hold
opinions and to receive and impart ideas and information without interference.

This
section extends to the right to choose whatever the person wants, that is a the
right to choose whether to engage in sexual intercourse or not, the right to
decide when, how, and with who he or she wishes. It is immaterial that the
person in question is a prostitute, consent must be sought and obtained.[22]

3.1.2 CRIMINAL CODE ACT

The
criminal code Act 1990 is embedded with punitive provisions for punishment of
the offences in Nigeria which also includes the offence of rape. This
legislation is limited to operate only the southern part of Nigeria.

Section 357 of the Criminal Code[23]defined
rape as

Any person who has unlawful carnal
knowledge of a woman or girl, without her consent, or with her consent, if the
consent is obtained by force or by means of threats or intimidation of any
kind, or by fear of harm, or by means of false and fraudulent representation as
to the nature of the act, or, in the case of a married woman, by personating
her husband, is guilty of an offence which is called rape. 

 From the provision of the above section
consent vitiates the offence of rape.[24]
It therefore means that prove of consent extinguishes the offence of rape.[25]
Here consent is gotten by mean of force,[26]threat,[27]
intimidation,[28]
by inflicting fear of harm to a person,[29]or
by false or fraudulent representation.[30]

The
section further provides for special form of representation which is a person
personating the husband and gains carnal knowledge of the wife even with
consent, such consent is in law fraudulent and at such amounts to rape.[31]

Section 6 of the Criminal Code Act[32]further  provides that
When the term “carnal knowledge” or the term “carnal
connection” is used in defining an offence, it is implied that the
offence, so far as regards that element of it, is complete upon penetration.[33]
“unlawful carnal knowledge” means carnal connection which takes place
otherwise than between husband and wife.  It therefore reaffirms the fact
that spousal rape has no place in Nigerian law.[34] 

Section 358
provides for the Punishment of rape and it states that any person who commits
the offence of rape is liable to imprisonment for life, with or without caning.[35]

Section 359
provides for  the offence of Attempt to
commit rape and it provides that  any
person who attempts to commit the offence of rape is guilty of a felony, and is
liable to imprisonment for fourteen years, with or without caning. 

FinallyA
male person under the age of twelve years is presumed to be incapable of having
carnal knowledge.[36]  

3.1.3 PENAL CODE ACT

The
Northern states of the federation are subject to the Penal Code. There are
numerous provisions against sexual violence in the Penal Code that will be
taken into account here.

Section 282
of the penal  Code Act provides where a
man has sexual intercourse with a woman in any of the

Following
circumstances:

(a)
against her will

(b)
without her consent

(c)
With her consent, when her consent has been obtained by putting her in fear of
death or hurt.

(d)
With her consent when the man knows that he is not her husband and that her
consent is given because

She
believes that he is another man to whom she is or believes herself to be
lawfully married.

(e)
With or without her consent, when she is under fourteen years of age or of
unsound mind.

According
to the Code, just penetration is sufficient to qualify as the sexual contact
required for the crime of rape. It’s interesting to note that the Code made no
mention of the need for corroboration to establish an offense. [37]State
v Ogwudiegwu[38]When
it was determined that, in order to gain a conviction for the crime of rape,
corroborations of the complainant’s evidence implicating the accused are not
necessary, but a judge must forewarn himself of the risk of convicting on the basis
of the complainant’s uncorroborated testimony. However in Sambo v State[39]
The court ruled that in order for the prosecution to succeed in securing the
accused’s conviction, the victims’ testimony must be supported by cogent,
compelling, and unequivocal evidence that the accused committed the alleged
crime, as well as by independent evidence linking the accused to the alleged
crime and evidence implicating the accused in its commission.

However,
the punishment for the offence of rape is fourteen years. It should be a life
sentence since it will serve as a deterrent to offenders. A maximum of 14 years
is insufficient.[40]

3.1.4 THE CHILD RIGHT ACT 2003

The
Child’s Right Act was enacted in 2003 to protect the rights of children in
Nigeria.

Section 1 of the Act provides  that every action concerning a child whether
undertaken or service  must be in the
best interest of child. The best interest of the child should be the primary
consideration of the State.[41]
In Esabunor&Anor V. Faweya&Ors[42]
the court in that case allowed blood transfusion where the parents of the child
who were members of Jehovah witness denied blood transfusion alleging it is
against their faith. The Act defines a child as any person below the age of 18
years[43].
It went further to state that no person is allowed to have sexual intercourse
with a child[44]
and the Act prescribes life imprisonment as punishment.[45]
It is immaterial that the person is ignorant of the child’s age, such claim
would not avail such a person[46]or
that the child gave consent[47]
for the sexual intercourse.[48]

Section 11 (a)
outlaws harming a kid physically, mentally, or emotionally, or abusing,
neglecting, or mistreating them in any way, including sexually. More
intriguingly, the Act forbids all other types of sexual abuse and exploitation
of children, and if found guilty, the offender faces a fourteen-year prison
sentence.

Section 21-23
forbids the engagement or marriage of minors under the age of 18. It is
regrettable to note that certain states have issues with these Act sections
because they consider them to be incompatible with their culture, customs,
and/or certain religions. Numerous acts of sexual abuse against women and young
girls had been frequently justified by marriage.

The
custom of marrying off young girls is observed in many parts of the world.
Given that young children are unable to give or withhold consent, the majority
of them have little to no experience with sex before marriage, and their first
sexual interactions are typically forced, the practice, which is legal in many
areas of the world, is a kind of sexual assault.[49]
In Nigeria, the average age of first marriage is 17 years old, but in the Kebbi
state of northern Nigerian, it is 11 years old. It is unfortunate to learn that
this kind of sexual assault is very common in Nigeria’s northern regions.

3.1.5 THE VIOLENCE AGAINST PERSONS
PROHIBITION ACT 2015

Section 1 provides
that a   person commits the offence of
rape if:

(a)
He or she intentionally penetrates the vagina, anus, or mouth of another person
with any other part of his body or anything else;

(b)
The other person does not consent to the penetration; or

(c)
The consent is obtained by force or means of threat or intimidation of any kind
or by fear of harm or by means of false or fraudulent representation as to the
nature of the act or the use of any substance or additive capable of taking
away the will of such person or in the case of a married person by
impersonating his or her spouse.

The
Act further states that if the perpetrator is proven guilty under Section 1 of
the Act, he will receive a life term.[50]
If the perpetrator is under the age of 14, the penalty is a maximum term of 14
years in jail.[51]
The Act stipulates that a minimum of 12 years must be served in other
situations.[52]
The Act also suggests that the victim receive proper recompense from the court.[53]
The Act also recommends that the victim be granted just compensation by the
court.[54]

 From the forgoing provision the act has
expanded the scope of rape to include male rape and woman to woman rape by providing
that not only can rape be achieved by insertion of sexual organ but object
also. It has also expanded rape to be achieved by penetration of other parts of
the body. However this law seems somewhat monumental as it has not totally
provided practical instances where a man or male child can be raped. It does
not cover the issue of marital rape as done in other jurisdictions like the US,
and the UK.

3.1.6
THE CYBER CRIME ACT, 2015

The Nigeria Cybercrime Act 2015 is a legislation
enacted by the Nigerian government to address and combat cybercrime within the
country. The Act was designed to provide legal frameworks, guidelines, and
penalties for various forms of cybercrimes and cyber related offence which also
include using the internet to as a means of meeting children for the purpose of
sexual intercourse and other sexual related offences. The
followingsectionswould analyze the relevance of the Cyber Crime Act to
improving the Nigeria justicesystem and the offence of rape.

Section 23 (3) provides
that:

A
person, who intentionally proposes, grooms or solicits, through any computer
system or network, to meet a child for the purpose of:

a.
Engaging in sexual activities with the child;

b.
Engaging in sexual activities with the child where:

(i).
use is made of coercion, inducement, force or threats,

(ii).
Abuse is made of a recognized position of trust, authority or influence over
the child,

Including
within the family, or

(iii).
Abuse is made of a particularly vulnerable situation of the child,

Mental
or physical disability or a situation of dependence;

c.
Recruiting, inducing, coercing, exposing or causing a child to participate in
pornographic performances or profiting from or otherwise exploiting a child for
such purposes; commits an offence under this Act.

The
Act used the word “and” which indicates that in addition to 10 years
imprisonment, the culprit will also pay a fine. For offences under categories
(b) and (c), the culprit will be jailed for 15 years and also pay a fine. The
Act prescribes a term of imprisonment of 10 years and a fine not exceeding N15,
000.00 (fifteen thousand Naira) upon conviction of the accused.

The
Act also states in section 24 (1) that anyone who intentionally sends or causes
to be sent a message or other item that is grossly offensive, pornographic,
indecent, obscene, or menacing by means of computer systems or a network is
guilty of an offense under the Act and is subject to a maximum sentence of
three years in prison or a fine of N7,000.00 (Seven Thousand Naira). The
penalty in this instance is disjunctive. Either a fine or a jail sentence
applies.

The
issue with this type of punishment is that offenders always pay the fee (even
when it is not harsh, as in this case), walk around freely, and carry on with
their behavior, further violating the law. To prevent others, sexual violence
punishments should be severe and prohibitive.

2.1.7 EVIDENCE ACT 2011

The
Nigeria Evidence Act of 2011 provides guidelines on how evidence should be
presented and evaluated in Nigerian courts. While it doesn’t specifically focus
on proving the offense of rape, it outlines general principles applicable to
all criminal cases, including rape. Here are some provisions of the Nigeria
Evidence Act 2011 that may be relevant in proving the offense of rape in
Nigeria.

Section 135:
Corroboration of Evidence:  in Egbuji
v State[55]“Corroboration is simply evidence outside that of the witness that
requires corroboration. The principle was restated in Okabichi&Orsv  The State[56]as
follows:

“We hold that
evidence in corroboration must be independent testimony which affects the
accused by connecting or tending to connect him with the crime. In other words,
it must be evidence which implicates him, that is, which confirm in some
material particular not only the evidence that the crime has been committed,
but also that the prisoner committed it. The test applicable to determine the
nature and extent of the corroboration is thus the same whether the case falls
within the rule of practice at common law or within that class of offences for
which corroboration is required by statute. The language of the statute,
implicates the accused; compendiously incorporates the test applicable at
common law in the rule of practice. The nature of the corroboration will
necessarily vary according to the particular circumstances of the offence
charged. It would be in high degree dangerous to attempt to formulate the kind
of evidence which would be regarded as corroboration, except to say that
corroborative evidence is evidence which shows or tends to show that the story
of the accomplice that the accused committed the crime is true, not merely that
the crime has been committed but that it was committed by the accused.”

In another case, corroboration was defined as evidence which
confirms the evidence of the prosecution.[57]Under
this provision, a conviction for rape can be based on the uncorroborated
testimony of the victim.[58]In
other words, the law does not require additional evidence beyond the victim’s
testimony to secure a conviction for rape.[59]

Section 137:
Evidence of Previous Sexual Experience:

This
provision states that evidence or questions regarding the sexual history or
character of the victim are generally not admissible in rape cases. The law
seeks to prevent the victim from being subjected to character assassination or
irrelevant scrutiny.

Section 138:
Evidence of Complaint:

This
provision allows for the admission of evidence of any prompt complaint made by
the victim after the alleged rape. The purpose is to establish consistency in
the victim’s testimony and to counter any argument that the complaint was
delayed or fabricated.

Section 164:
Expert Testimony:

This
section permits the court to admit expert testimony on matters related to rape,
such as the physical or psychological effects of rape, trauma, or consent
issues. Expert testimony can provide additional context and understanding to
the court when evaluating the evidence.[60]

Section 165:
Character Evidence:

This
provision generally prohibits evidence of a defendant’s previous sexual conduct
or character from being introduced in order to suggest the likelihood of them
committing rape.

The
focus should be on the specific incident in question and not on the defendant’s
general character.

3.2 INTERNATIONAL FRAMEORK ON RAPE

The
offence of rape touches on the inalienable right of citizen in member state
henceregional and international legal instruments in other to guarantee the
dignity, equality, and other right  it
has emphasized the importance of  member
state to protect this rights at all cost. Here we would be discussing both
regional and international legal framework that frown against the offence of
rape.

3.2.1 International Legal
Instruments

The
following international instrument would be discussed in this work.

1.      The
Unite Nation Declaration of Human Right UDHR

2.      Convention
on Elimination of All Forms of Discrimination against Women (CEDAW)

3.      International
Convention on Civil and Political Rights. (ICCPR)

4.      The
International Convention on Economic, Social and Cultural Rights (ICESCR)

3.2.1 The United Nation Declaration
of Human Right

The
Universal Declaration of Human Rights (UDHR) is a historic document adopted by
the United Nations General Assembly on December 10, 1948. It is considered a
foundational text in the field of human rights and has been translated into
over 500 languages. The declaration consists of a preamble and 30 articles that
outline fundamental human rights that are universally applicable to all
individuals, regardless of their nationality, race, gender, religion, or other
status.

The
preamble of the UDHR sets the context for the declaration, emphasizing the
inherent dignity and equal rights of all human beings. It acknowledges that the
recognition of these rights is the foundation of freedom, justice, and peace in
the world.

The
UDHR states that every human being is born free, with equal rights. They should
behave toward one another in a brotherly manner because they are gifted with
reason and conscience.[61]

Without
difference of any sort, including but not limited to, race, color, sex,
language, religion, political or other opinions, national or social origin,
property, birth or other position, everyone is entitled to all the rights and
freedoms stated in this Declaration.

Additionally,
no distinction shall be established based on the political, juridical, or
international status of the nation or territory that a person is a citizen of,
including whether that nation or territory is an independent, trust,
non-self-governing, or subject to any other restrictions on sovereignty.[62]
Everyone is entitled to life, liberty, and personal security.[63]

No
one shall be subjected to slavery or servitude, and all forms of the slave
trade shall be outlawed.[64]
Rape is unavoidable when rape victims are trafficked with the intention of
being exploited.[65]

There
shall be no torture or cruel, inhuman, or humiliating treatment or punishment
of any kind.[66]  This is evident in all rape cases.[67]

Everyone
is entitled to equal protection under the law without exception because they
are all equal before the law. Everyone has the right to equal protection from
any kind of discrimination that violates this Declaration as well as from any
instigation to such discrimination.[68]
Citizens shall have access to the court for the enforcements of their rights.[69]
It provides that member shall be afforded fear hearing and that everyone shall
be presumed innocent until proven otherwise.[70]
This right protects the accused persons of rape by presuming his innocence
until proven otherwise.[71]

3.2.2. Convention on Elimination of
All Forms of Discrimination against Women (CEDAW)

The
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) is an international treaty adopted by the United Nations General
Assembly in 1979. It is often referred to as the international bill of rights
for women. CEDAW is considered a landmark document that addresses the rights
and equality of women in all areas of life.

CEDAW
is based on the principle of non-discrimination and recognizes that
gender-based discrimination is a violation of human rights. It defines
discrimination against women as “any distinction, exclusion or restriction
made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women, irrespective of
their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or
any other field.[72]
This is particularly evident in victimization of rape victims in Nigeria,[73]
and the attitude of the society toward male rape and sexual molestation.[74]

3.2.3 International Convention
on Civil and Political Rights. (ICCPR)

The
convention places a strong emphasis on acknowledging the inherent worth and
unalienable rights of every member of the human family. Consequently, these
rights belong to everyone and cannot be revoked or transferred. This convention
makes sure that everyone’s civil and political rights are respected,
safeguarded, and available to them without hindrance. The member states have a
responsibility to take action to guarantee that men and women can exercise
their civil and political rights. It acknowledges that everyone has a right to
respect for the inherent dignity of all people.^[75]

State
parties to the convention are required under Article 3 to ensure that men and
women have an equal right to enjoy all civil and political rights outlined in
the agreement. Furthermore, Article 26 ensures that everyone is treated equally
before the law and is entitled to equal protection of the law devoid of any
form of discrimination.^[76] The
convent also owes it to the state parties to ensure that men and women are
treated equally and without discrimination under the law. 

Nigeria
as a signatory is obligated to fulfill all the requirements stated in the
convention in fulfillment of enjoyment of civil and political rights.

3.2.4 The International
Convention on Economic, Social and Cultural Rights (ICESCR)

This
convention acknowledges that a person’s rights come from their inherent
dignity. The preamble acknowledges the intrinsic worth and unalienable rights
of each and every member of the human family. States have a responsibility to
uphold and protect human rights and freedoms..^[77]

Article
12 of the convention provide that everyone the right to enjoy the highest
attainable standard of health.  Right of
rape victim to access medical facilities and free health care. The right of
infected victim of sexually transmitted infection to get treatments and drug.

3.3 REGIONAL FRAMEWORK ON THE
CRIME OF RAPE

3.3.1 African Charter on Human
and People’s Rights

Banjul
Charter is an international human rights instrument that promotes and protects
human rights and basic freedoms in the African content. Kenya is a signatory to
this charter. The Charter does not openly have provisions on gender based
violence or sexual violence but it has general provisions which are relevant to
the crime of rape. It recognizes individual and people’s right and duties,
social-economic rights and civil and political rights. It states that freedom,
equality, justice and dignity are the essential objectives for the achievement
of the legitimate aspirations of the African people.[78]

Article
2  guarantees that every individual shall
be entitled to the enjoyment of the rights and freedoms recognized and
guaranteed in the present Charter without distinction of any kind such as race,
ethnic group, color, sex, language, religion, political or any other opinion,
national and social origin, fortune, birth or other status.[79]
Article 3 on the other hand emphasizes that every individual shall be equal
before the equal and entitled to equal protection of the law.[80]
Article 19 further states that all peoples shall be equal, they shall enjoy the
same respect and shall have the same rights and nothing shall justify the
domination of a people by another.[81]

Every
person has the right to be treated with respect for the dignity that is
inherent in every human being and to have his or her legal position recognized,
according to Article 5. A violation of the regard for human dignity is when
Nigerian laws on sexual offenses fail to classify male on male rape and marital
rape as tenants of rape.[82]
The laws of Nigeria only protect female rape victims, leaving both male and
marital rape victims unprotected. This demonstrates unequivocally that not
everyone is afforded legal protection.

3.3.2 Protocol to the African
charter on human and peoples’ rights on the rights of women in Africa

By
ensuring that women’s rights are respected and achieved, this protocol supports
the notion of gender equality and enables them to fully exercise all of their
human rights.[83]
Article 1 of the protocol defines discrimination against women as “any
distinction, exclusion, restriction, or differential treatment based on sex and
whose objectives or effects undermine or destroy women’s capacity to recognize,
enjoy, and exercise their human rights and fundamental freedoms in all spheres
of life, regardless of their marital status.”[84]
Article 2 mandates that states pass the necessary legislation to end
discrimination against women and make sure that the equality of men and women
is fully implemented.[85]  Nigeria as a signatory to the protocol but is
in violation of this article since it has refused to change the position of
marital rape.

Gender Reassignment Under The Nigerian Law

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