THE LACUNAS IN THE NIGERIAN LAW: AN ESCAPE ROUTE FOR RAPISTS
by
OLAYINKA ABDURRAZZAQ
Rape and sexual assault are serious crimes against the dignity and sexual rights of an individual. Everyone has the right and free will to make informed decisions about their sexual conduct and also to respect these same rights and dignity of others.
Historically, women have always been subjugated and oppressed by men in most cultures in Nigeria. This situation is due to the inequality in gender relations between men and women.
Rape has always been with mankind throughout the world. However, in recent times, the incidence of rape has increased in Nigeria. The hegemonic patriarchal values and practices make it difficult for women who are raped to obtain justice.
Perpetrators often go unpunished even if the victims have the courage to report the incident. The court acquits most of the rape offenders on account of the lack of evidence or because the victim has a ‘questionable’ character. Owing to this, rape victims suffer in silence due to the stigma and humiliation attached to the public acknowledgement of rape.
The reason the menace of rape has not been effectively curtailed over the years is not the absence of relevant laws to bring culprits to book but the weakness in implementation and enforcement.The punishment prescribed in our laws is life imprisonment for rapists. This punishment is enough, but the problem lies in the string of implementation.
Since I was born till now, I don’t think I have seen anyone going to jail for life for rape. The most we have had is the recently enacted VAPP where rapists have been sentenced to several years. Nigeria has at least five different codes regulating the offence of rape, yet the incessant rape cases in Nigeria is not ready to cease.
The Nigerian law, I say without fear of contradiction, is full of lopholes and lacunas which makes it so difficult for any victim of rape to get justice. The clarion calls make by many concerned people, for stiffer punishment, is too far from the achievement. Unless the law-drafters are ready to reform and amend our iniquity laws, the rape cases may persist.
Indeed, no court in Nigeria will award life imprisonment for the offence of rape, because the sections: 283, 358, 258, 1 of penal code, Criminal code, Criminal law of Lagos State and VAPP respectively provide that a person that is guilty of rape is ‘liable’ to life imprisonment, not ‘shall’. And this word has given courts to exercise her discreation. Since law does command them to award the punishment, it is only a reconmendation. This lights the punishment of rapists and make it persist.
Amongst the lacunas that makes it difficult for rape’s victim to get justice, and free rapists from conviction is the technicality of “coroboration.” It is settled in our laws that a rape victim’s testimony is not enough to convict rapist, unless it is corroborated by another evidence which is Either through eye witness or medical test which is hardly to get, because no rapist will commit such ungodly act where people may see them. And as well Sexual Assault Evidence Collection Kit is not available in our hospitals which makes it difficult to check rupture of hymen of victim.
The proof of penetration is also another lacuna hindering the conviction of rapists. Under our extant law, the only recognized rape, is rape per vagina. That is, a person could be guilty of rape only when he penetrates the victim’s vagina with his manhood. If he uses other objects he will not be guilty of rape but assault. Our laws need reformation in order to curb this unholy act. Because the advancement of rape has beyond per vagina only. The only present law that cater for this is the recent VAPP, and all the states ought to have domesticated it.
The major ingredient of rape is lack of consent. Where there is no consent there is rape, and when there is consent, there is no rape. To prove the lack or presence of consent is a major problem that impede the justice to attain. Even our law fails totally to device a static measure to determine the presence or lack of consent, this is a very tricky subject in the offence of rape.
That is why Glanville Williams pointed out that, “the facts of life make consent by women to sexual intercourse a hazy concept.” Also Gour, the Indian writer asserted, that there are many times when a lady’s ‘No’ to a sexual intercourse request may in fact mean ‘Yes’. It is glaring from their assertions that Courts do face difficulty of ascertaining whether or not a prosecutrix consented to sexual intercourse with a person standing trial for rape, which provides an escape route for rapists.
It is also under our extant law that it is an irrebutable presumption for a twelve years old boy to have carnal knowledge of woman. That is, by virtue of section 30 of the Criminal code, a boy of twelve years old is not capable to have sexual intercourse. This is really sound absurd nowadays and it is an encouragement for the young ones to persist in commiting rape. Because the loopholes in our law has covered them.
Moreover, the law has made distinction between rape and defilement. Though this is good, yet the sections 218 and 221 of the Criminal code has made it a lesser to rape. For instance in the offence of defilement: Corroboration is a must, prosecution must commence an action within two months after the offence is committed. These two conditions have posed a serious problem to convict defilers. That is why myriad rape cases of children, like a 3, 6, 10 and 12 are caught but no conviction.
In conclusion, it is now a dire time for our law drafters to block these escape route via reformation and amendment of laws of rape. In order to let justice reign.
A pupil of Law/ Activist/ Writer/ Essayist and investigative Journalist.
He can be reached through: 08102225920
olayinkaabdulrazaq@gmail.com.
