It is becoming a startling reality in Nigeria that statistically, over 10, 000 women and girls are being raped on a daily basis. This is according to a research carried out by the Women At Risk Foundation (WARIF) in the course of implementing its projects in the West African State.
This study has identified the prevalent moral decadence that has engulfed Africa and in the instant case, Nigeria, in ways beyond imagining. Today, rape has gained such worrisome notoriety that it is almost gravitating towards an obscene normalcy in our societies. Before we proceed to do a comprehensive evaluation of the issues bothering on rape and consider undertaking a holistic exposition on the prosecutorial process, let’s examine some introductory thoughts as well as the legal framework to set a compass to direct our discussion.
Rape has been defined severally under different jurisdictions and condemned severely as an evil that must be eliminated by all means necessary. Rape is both morally reprehensible as it is criminally culpable. Thus, it is an unlawful, immoral and unthinkable act. It entails a man or a woman forcing another man or woman into engaging in sexual intercourse without the consent of the forced party. In some instances, some persons are hoodwinked into such sexual relations on the premise of deceit, threat, duress or intimidation of any kind.
In the past, a Man could not be a subject of rape. It was held that only a woman could be raped. However, in recent times, it has dawned on everyone and even received scholastic attention and legislative affirmation that the rate of male victims of rape has become alarmingly high. This issue will be examined more explicitly later in this article.
Victims of rape are made to suffer unquantifiable anguish, some become diagnosed with post-traumatic stress disorder, dissociation from reality, depersonalization, depression etc. Most of these victims endure physical violence, avoid social life, get infected with sexually transmitted infections, encounter serious difficulty in remembering events, recalls moments of sexual assaults and most times suffer unwanted pregnancy amongst all other ills.
In this paper, the Writer will concisely discuss the legal framework and prosecutorial workability of rape alongside the socio-cultural problem it has left in our hands and seek to find a mid-way to facilitate better reportage of rape cases whilst ensuring a more positive approach to prosecution and adjudication of the subject matter.
The Longman Dictionary of Contemporary English defines rape as seen below:
“to force someone to have sex, especially by using violence……The crime of forcing someone to have sex especially by using violence.”
The Blacks’ Law Dictionary defines Rape elaborately as follows:
“At Common Law, unlawful sexual intercourse committed by a man with a woman not his wife through force and against her will. The common law crime of rape requires at least a slight penetration of the penis into the vagina. Also at common law, a man could not be convicted of raping his wife.”
The Backs Law Dictionary above defines the Common law understanding of rape emphasizing the factor of penetration to establish same. It is to be noted further that it equally indicates that Marital Rape is not recognized under common law as culpable. The Dictionary proceeded to provide the different types of rape. Some of these types are reproduced hereunder for clarity of reference:
Marital Rape or Spousal Rape
Prior Relationship Rape
Rape by means of Fraud
The US Centre for Disease Control and Prevention (CDC) defines sexual violence as “any sexual act that is perpetrated against someone's will encompassing a range of offences, including a completed non-consensual sex act (i.e., rape), an attempted non-consensual sex act, abusive sexual contact (i.e., unwanted touching), and non-contact sexual abuse (e.g., threatened sexual violence, exhibitionism, verbal sexual harassment)”.
Rape has equally been sufficiently defined under the Nigerian corpus juris in the Nigerian Criminal justice system and elaborately expounded upon. These definitions are reproduced below for ease of reference:
LEGISLATIVE DEFINITIONS, ELEMENTS AND PUNISHMENTS IN THE NIGERIAN CRIMINAL JUSTICE SYSTEM
There is a multiplicity of laws and codes governing the Nigerian Criminal Justice jurisprudence. These laws vary from region to region and in some cases from State to States the Criminal Law is within the legislative arm of the independent states to investigate, try and punish where guilt is established.
We shall examine the different laws and their peculiarities in respect of the offence of Rape in order to facilitate a holistic approach at discussing the subject matter.
THE CRIMINAL CODE ACT CAP C38, LAWS OF THE FEDERATION OF NIGERIA (LFN) 2004
Section 357 of the Criminal Code Act (Nigerian Laws Cap 38), applicable in the south of Nigeria, defines 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 impersonating her husband, is guilty of an offence which is called rape."
'Carnal knowledge', as explained in Chapter 1 of the Criminal Code, implies penetration. This could be interpreted as including penetration by a foreign object and therefore the Criminal Code provides a broader definition of rape than the Penal Code, which uses 'sexual intercourse' rather than 'carnal knowledge'. Under Section 35(8), rape is punishable by life imprisonment, with the possible addition of caning.
Rape of a girl under 13 years is commonly referred to as 'defilement' and is categorized as a separate offence in the Criminal Code. Section 21(8) provides that: “any person who has unlawful carnal knowledge of a girl under the age of thirteen years is guilty of a felony, and is liable to imprisonment for life, with or without caning.” The law sets a limit of two months within which charges must be brought in a case of 'defilement'. According to many human rights defenders, prosecutors and others whom Amnesty International interviewed, this restricts the number of prosecutions of 'defilement'. Young girls who are raped are therefore discriminated against in the law by the limitations imposed on bringing a case before the courts and by the definition of the crime.
This Writer however opines that this might not necessarily be the case. Understanding that the nature of the offence of rape is physically and psychologically disturbing, it might have been the intention of the law to expeditiously investigate and charge such cases especially where a child is involved, when the evidences are still fresh, the child’s memory still untainted and the event still vivid. It is hoped that she doesn’t retain memory of the event for too long hence the end for expeditious prosecution in order to give the child a chance to heal thereafter if possible.
THE PENAL CODE ACT (NORTHERN STATES) FEDERAL PROVISIONS ACT
The Panel Code is applicable in the north of Nigeria, criminalizes both rape and “defilement” (rape of a girl under the age of 13 years). Section 282(1) of the Penal Code defines rape. A man is said to commit rape in the cases referred to in subsection:
(2), 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.
The note of explanation to Section 282(1) states that “mere penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.” A definition which presumes only penetration of a labia majora to the labia minora by a penis discriminates against women and girls who may have been raped by the use of a foreign object or who have been penetrated orally or anally by the penis. (In addition, the definition in Section 28(2) is not gender-neutral and is based on the concept that only a woman can be raped which is not necessarily true).
The criminal offence of rape is punishable by imprisonment of up to 14 years, which can be combined with a fine (Section 282 ). The Penal Code also makes specific provision in relation to children under the age of 16 years who are sexually assaulted by those in positions of authority. Section 282(5) on acts of gross indecency provides a punishment of imprisonment for up to seven years and a fine.
SHARIA PENAL CODES
Rape is criminalized in the Sharia penal laws which were introduced in 1999 and are now in force in 12 states in the north (The Sharia Penal Codes, 1999.) The definitions of rape, however, do not conform to the principles underlying the Rome Statute definition, do not provide sufficient protection or redress for women and girls who have been raped, and also discriminate against married women and girls. For example, the Kano State Sharia Penal Code Law (2000) provides in Section 12(6) that:
(1) A man is said to commit rape if [he] has sexual intercourse with a woman in any of the following circumstances:
a. against her will; or
b. without her consent;
c. with her consent, when her consent has been obtained by putting her in fear of death or of hurt;
d. with her consent, when the man knows that he is not her husband and that her consent is given because she is or believes to herself to be lawfully married; or
e. with or without her consent, when she is under fifteen years of age or of unsound mind.
(2) Sexual intercourse by a man with his wife is not rape.
Mere penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Under the Kano Sharia Penal Code Law, the criminal offence of rape carries different penalties according to the marital status of the perpetrator. Rape is punishable by death by stoning if the perpetrator is married and caning (100 lashes) and up to life imprisonment if the perpetrator is unmarried.
According to a research carried out by Amnesty International, lawyers representing cases before Sharia courts explained to Amnesty International that the provision the death penalty reflects the recognition that rape is an extremely serious criminal offence. A discrepancy in sentencing is therefore introduced: if a Muslim married man in one of the 12 northern states where Sharia law applies is convicted of rape of someone other than his wife, he faces a sentence of death by stoning which is a particularly cruel, inhuman and degrading punishment, whereas a man, whether married or not, who is convicted of rape under the Penal Code or the Criminal Code may be sentenced to up to 14 years or life imprisonment.
VIOLENCE AGAINST PERSONS PROHIBITION ACT 2015 PART I-OFFENCES
Definition of Rape Section 1
1. (1) 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 or her 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 and 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.
(2) A person convicted of an offence under subsection (1) of this section is liable to imprisonment for life except -
(a) where the offender is less than 14 years of age, the offender is liable to a maximum of 14 years’ imprisonment;
(b) in all other cases, to a minimum of 12 years’ imprisonment without an option of fine; or
(c) in the case of rape by a group of persons, the offenders are liable jointly to a minimum of 20 years imprisonment without an option of fine.
(3) The Court shall also award appropriate compensation to the victim as it may deem fit in the circumstance.
(4) A register for convicted sexual offenders shall be maintained and accessible to the public.
The VAPP Act 2015 estimates anyone who has sex with a Child as a Dangerous Sexual Offender amongst other persons. This can be seen in Section 4 of the VAPP Act 2015 below:
“Dangerous Sexual Offenders
4. A court may declare a person who has been convicted of a sexual offence a dangerous sexual offender if such person has-
(a) more than one conviction for a sexual offence;
(b) been convicted of a sexual offence which was accompanied; or
(c) been convicted of a sexual offence against a child.”
CRIMINAL LAW OF LAGOS STATE 2015 ON RAPE AND OTHER FORMS OF SEXUAL ASSAULT. CHAPTER 25 – Sexual Offences
258(1) Any man who has unlawful sexual intercourse with a woman or girl, without her consent, is guilty of the offence of rape and liable to imprisonment for life.
(2) A woman or girl does not consent to sexual intercourse if she submits to the act by reason of force, impersonation, threat or intimidation of any kind, fear of harm or false or fraudulent representation as to the nature of the act.
(3) Sexual intercourse between a man and a woman who are married is not unlawful.
(4) Sexual intercourse is complete on the slightest penetration of the vagina.
Sexual Assault Section 259.
Any person who penetrates sexually the anus, vagina, by penetration, mouth or any other opening in the body of another person with a part of his body or anything else without the consent of the person is guilty of a felony and liable to imprisonment for life.
Attempt to Rape: Section 260.
Any person who attempts to commit the offence of by Penetration. rape or sexual assaults by penetration is guilty of a felony and is liable to imprisonment for fourteen years.
Sexual assault: Section 261.
(1) Any person who sexually touches another person without his consent is guilty of a felony and liable to imprisonment for three years.
(2) In this section, touching may be done with any part of the body or with anything else.
Sexual Harassment Section 262.
(1) Any person who sexually harasses another is guilty of a Harassment. A felony and is liable to imprisonment for three years.
On Child Adoption for the purpose of forced marriage or Sexual Abuse:
Abduction from 267.
Any person who with intent to marry or have sexual intercourse with a girl under the age of eighteen years or who with intent to cause to be married or to have sexual intercourse with any other person takes out of the custody or protection of any of her parent or other person having the lawful care or charge of her, and against the will of any such person, is guilty of a felony, and is liable to imprisonment for ten years.
Ignorance of the Age of the girl or consent, no defence. Section 268.
In the case of proceedings in respect of an offence age of girl under section 267 it is immaterial that the:
(a) offender believed the girl to be of or above the age of eighteen years;
(b) girl was taken with her own consent or at her own suggestion.
LEGISLATIVE DEFINITION IN OTHER AFRICAN STATES
The definition of rape under Namibia’s Combating of Rape Act (2000) requires the existence of certain “coercive circumstances”, instead of proof of lack of consent.
A similar definition has been adopted in Lesotho’s Sexual Offences Act (2003). The Project Committee set up by the South African Law Reform Commission (SALRC) to develop new legislation on sexual offences in that country, considered the term “coercive circumstances‟ rather than “without consent‟ – although this was subsequently rejected by the Parliamentary Portfolio Committee, and the notion of “without consent” was retained in the new Act. In instances where a definition based on “coercive circumstances” is adopted, it is important to ensure that the circumstances listed are expansive, and do not revert to an emphasis on use of force or violence.
The South African Criminal Law [Sexual Offences and Related Matters] Amendment Act (also known as the Sexual Offences Act) defines rape as the unlawful and intentional commission of an act of sexual penetration with a complainant without their consent. Despite its direct criminalization of the act, South Africa remains reputed to have the highest incidence of child and baby rape in the world.
Ghana has also amended its criminal code, raised the penalties for rape and molestation, and abolished the option of fines for offences involving sexual violence. The government has also progressively conducted educational campaigns on issues relating to the rights of children, including child abuse.
In Kenyan law, defilement is defined as an act that causes penetration with a child, while rape is defined as the intentional and unlawful penetration of the genitals of a person without their consent, or with consent obtained by threats or coercion. An intentional and unlawful act is defined as one obtained in any coercive circumstance, under false pretences, or by fraudulent means, or against a person who is incapable of appreciating the nature of an act which causes the offence.
RAPE: AN URGENT EMERGENCY
Rape, whether committed by a state actor or a non-state actor constitutes a violation of women's rights and fundamental freedoms. It violates the rights of women and girls to be free from torture, mental and physical integrity, liberty and security of the person, and prevents enjoyment of rights such as the right to health, employment and freedom of expression and, in some cases; it denies them the right to life. These are rights guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 34(1) states that: "Every individual is entitled to respect for the dignity of his person, and accordingly, (a) no person shall be subjected to torture or to inhuman or degrading treatment". Article 17(2) (b) adds that “human dignity shall be maintained and enhanced.”
In medieval times, rape was an act of punishment and imposition of conquest by the victorious party in war times. It was often used as a weapon of war, as a form of attack on the enemy, typifying the conquest and degradation of its women or captured male fighters. It may also be used to punish women for transgressing social or moral codes, for instance, codes prohibiting adultery or drunkenness in public. Women and men may also be raped when in police custody or in prison.
Rape has however more regrettably become a common form of sexual assault. It is committed in many situations—on a date, by a friend or an acquaintance, or when you think you are alone For example, a 61 years old father was recently prosecuted in Benin City, Nigeria for conspiring with his friend to rape his daughter.
The incidence of the recalling rape cases and allegations a have become worrisome in disturbing proportions including cases of defilement and pedophilia. In fact, A study of female domestic workers in Nigeria found that 85% of the girls questioned were coerced into sexual intercourse with a male within the household where they were working, with some as young as 10 years of age. In the Kebbi State of northern Nigeria, the average age at first marriage is just over 11 years. High rates of child marriage have also been reported in the Democratic Republic of the Congo, Mali, Niger and Uganda. These are also factors affecting rape in Africa, that is, marital rape which in most jurisprudence is not criminalized as an offence except under exceptional cases.
Sexual violence against men and boys is a has equally gained prominence much to our chagrin as a country. With the exception of childhood sexual abuse, though, it is one that has largely been neglected in research. Rape and other forms of sexual coercion directed against men and boys take place in a variety of settings, including in the home, the workplace, schools, on the streets, in the military and during war, as well as in prisons and police custody.
What is however more disturbing being the low conviction ratio as against tried cases of rape. This is not surprising as it is sometimes easier for a camel to pass through the eye of a needle than for a prosecutor to sufficiently establish the guilt of the accused in a case of rape.
PRIESTS ACCUSED OF RAPE
As ignoble as it may sound, accusations against Priests or Pastors raping members of their flock or anybody at all is not news. It has been a problem we have had to witness from generation to generations. However, our reaction to these issues must be very instructive and reactive to forecast future recurrence or deterrence. This Writer will now address two separate cases of rape allegations against Pastors in Abuja, one being the Popular Pastor Biodun Fatoyinbo Scandal.
One of the cases worthy of note is the case of COMMISSIONER OF POLICE V. APOSTLE BASIL PRINCEWILL (Unreported). The said Apostle was accused of raping a 14-year-old girl repeatedly till she became pregnant. He was reported to have had several unlawful carnal of knowledge of two girls, who were minors in his church office; impregnated one of the girl-child in the process; procured an abortion of the pregnancy by him of one of the girl-children at Fountain Head Medical Centre, Mararaba, Nasarawa State; threatened the girl child whom he procured abortion for with death if she disclosed the truth amongst other things which this writer chooses not to reproduce because of its graphic content.
It was gathered that despite the dastardly acts complained of by the victim, the Police whose nominal title is the Commissioner of Police chose only to charge the accused with lesser offences such as Criminal Conspiracy, False Personation, Criminal Intimidation, Criminal Force and Assault before a Magistrate Court in Karu. At some point in this case, the affected parties also expressed concerns about the prosecutorial approach used by the Prosecutor which in this case was the Police. Eventually, the matter was more properly brought before the Federal Capital Territory High Court (hereinafter referred to as FCT High Court) where the matter was then tied and the other one before the Magistrate Court was discontinued and withdrawn.
It was equally reported that the Accused Person upon being released on bail on 6th of August, 2012 maliciously caused the arrest and detention of the girl-child victim of the offence and her mother at the Mararaba Police Division. The office of the Inspector General of Police however ordered for their release and they were accordingly released on the 7th of August 2012, the following day. The matter then proceeded at the FCT High Court and eventually judgment was delivered on Tuesday, June 25, 2019, seven years later. Below is an excerpt of the Judgment as delivered by Honourable Justice Hussein Baba-Yusuf:
“……Considering the interest of the girl, the interest of the public and the rising cases of rape in the Church by those who serve in the Lord’s vineyard, the court must send the signal to the public to serve as a deterrent to others ………It is even worrisome when the person involved is a man of God who we should look up to as next to God, those who serve in the Lord’s vineyard are expected to be an example to the society.”
“We have a duty to send a signal that this attitude would not be tolerated, it is regrettable that a person who calls himself a man of God could be involved in such a shameful disgraceful and satanic act……”
The judge said that from the evidence of prosecution witness(PW) 1 (the victim’s Mother); that of the PW2 (the victim) and the PW3 (Dr Ogunlade Felix), the accused perpetrated the act of rape “under the pretense of carrying out deliverance and cleansing on the girl on July 27, 2011” This thus seem to be a departure from the norm, though the court had other corroborative grounds to support its Judgment. Apart from sentencing Apostle Princewill to seven years’ imprisonment for raping the girl, the court added another five years sentence for his attempt to abort the resultant pregnancy to run concurrently.
The Court rejected the defense of the Defendant as being untenable in the circumstance and proceeded to convict the Defendant.
As earlier mentioned in “bold” above, it is however noteworthy that the Court decided the case on a collected stream of events aside from the testimonies obtained from the victim, her mother and the Doctor of the hospital. This includes the fact that indeed the Pastor had taken the girl to the said hospital to procure the abortion of her pregnancy which according to the court indicates that the Accused Person was aware of the pregnancy and sort to get rid of it. This is one of the ways the Court pinned the office of the accused person. There was no forensic examination from semen deposits to nail the offence more properly on his person as complained by the Supreme Court in the case of Okafor V The State 1 All N. R 420, the writer cannot confirm whether there was indeed an eye witness account aside from the victim’s account since her mother’s testimony seems to have been gleaned largely from what the victim had initially told her mother.
Yet, the Court helped itself with a series of several collections of circumstantial evidence especially taking into cognizance the girl child’s testimony being the victim and a minor and reached a conviction of imprisonment for 7 years and 5 years respectfully to run concurrently only because the Accused person is a first time offender.
The face of prosecution of the offence of rape is indeed changing as new dynamics continue to appear in prosecuting sex offenders.
The second scenario is the unfortunate rape scandal that has rattled the halls of the popular Commonwealth of Zion Assembly (COZA) church following the most recent rape allegation against its immediate past Senior Pastor, Pastor Biodun Fatoyinbo, by Busola Dakolo, wife of celebrity musician, Timi Dakolo.
In a graphic interview that has since broken the internet, Mrs. Busola Dakolo recounted her alleged experience with Pastor Biodun Fatoyinbo who in her words raped her some 20 years ago. This Writer will not dissipate his energy on endless talks on issues that are not within his knowledge, that is whether the allegations were true or not, whether the Pastor is guilty or not, whether she has proof to establish his culpability or not amongst as it does not serve the purpose of this effort. However, this writer will examine the legal issues inherent in the issue and consider ways through which the ends of justice can be served.
This Writer, on a recent interview Live on ARISE NEWS TV, was called upon to address some of the issues pertaining to the above Rape Allegation Scandal in Case 2 above. The Writer will now address these issues more elaborately with the intent to clear all existing grey areas. The underlining question here would be that if and when this matter is filed in court, what are the chances of a robust proof which the prosecution needs to establish to establish the guilty of the accused person if indeed he did it. This is the challenge of the Prosecution. The said act of rape being complained of occurred some 20 years ago and so the evidence that would be required to proof such a case might have faded off on the sands of time. It will be very difficult to establish evidences such as eye witness testimonies and medical test evidence especial one of such nature as to nail the act of rape on the accused person. See the case of Okafor V. State (Supra).
It is however unknown to this Writer if the Complainant who was the victim of this rape act has any other corroborative evidence which she might have gathered in the course of these alleged events one way or the other which would be sufficient to establish the guilt of the accused person. In the absence of any such evidence, it would be indeed difficult for her to prove her case beyond all reasonable doubt.
It is noteworthy, however, that if she can clear the reasonable doubts in the course of the trial and provide sufficient evidence which is viable enough to eliminate any REASONABLE doubt, the court may be moved to agree with her as it did in the Commissioner of Police V. Princewill Basil case above and exercise its discretion to believe her since she has pushed the burden of proof beyond reasonable doubt. This does not, however, mean that doubts will not exist. Some elements of doubts or shadows of doubt may yet remain but these shadows of doubt will not deter the Court to enter a verdict of guilty should it be clear that the Prosecution has established reasonable doubt.
Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with-compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt.
As was stated by Lord Denning J (as he then was) in Miller V Minister of Pensions , a case which has been generally relied upon by courts in Nigeria, the legal requirement of proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt.”
This principle has also been upheld by the Nigerian Supreme Court in a plethora of cases till date and has become a judicially noticed principle.
On the flip side of the coin, it must be crystal clear here that justice is a three-way street. There is Justice to the Victim, in this case Mrs. Busola Dakolo, there is justice to the accused person in this case Pastor Biodun Fatoyinbo who, till proven guilty by a competent court in Nigeria, is presumed to be innocent as a Constitutional right and there is justice for the State to protect our collective morality and commonwealth. Justice is not only required to be done, but must be seen to have been done. This is where we face the dilemma. Mrs. Busola Dakolo is entitled to her day in court. To this end, she has filed a Complaint accord