Tuesday, 24 April 2012

Advocacy for Better Implementation of Women Rights through Protection of Women: Specific Offences

The criminal code of the South and the Penal code of the northern part of Nigeria have several provisions to protect women from harm or sexual abuse and exploitation. Examples of such protection under the Criminal Code include (a) indecent treatment of girls under 16 years (section 222) (b) Abduction of girls under 18
years with intent to have carnal knowledge of her (see 225) (c) Rape (section 357, criminal code and sec 282 of the penal code) (d) indecent assault (sec 350 and 363) (e) defilement.

Examples are:
(A) Indecent treatment
Indecent treatment of girls under thirteen, Indecent and unlawful dealing with a girl under thirteen years is a misdemeanour punishable with imprisonment for two years. “Deal with” includes doing any act, which if done without consent could constitute an assault. Causing or encouraging the seduction, unlawful carnal knowledge, commission of indecent assault of or prostitution of a girl under thirteen is an offence punishable with two years imprisonment. But prosecution must begin within two months after the offence is committed.
In some cases a person cannot be convicted on uncorroborated testimony of one witness.

(B) ABDUCTION S361 & 362 Criminal Code
Any person who with intent to carnally know a female of any age or to cause her to be married or carnally known by any other person takes her away or detains her against her will commit an offence punishable with imprisonment for seven years.

It also an offence to take an unmarried girl under the age of sixteen years out of the custody or protection of her parent or guardian. The offence is punishable with 2 years imprisonment.

For this offence it is immaterial:
(a) That the offender believed the girl to be of or above the age of sixteen years
(b) That the girl was taken with her own consent

Abduction of an unmarried girl under eighteen from the custody of her parent or guardian against the will of such parent or guardian is an offence punishable with two years imprisonment. (section 225 CC)

Defence: If the accused believed on reasonable grounds that the girl was above the age of eighteen years.

Problem with this Law: Is the consent of the girl herself not necessary? What are reasonable grounds?

Sec 273
Whoever abducts or kidnaps any person shall be punished with imprisonment for a term of up to 10 years and will also be liable to fine.

Essential elements of the offences Offenders may be arrested without warrant. Offence is not usually bailable. Penalties are stiffer than in the criminal code. Consent is not material except in the case of a girl under 18 and a woman under 21 who has been imported from another country where consent is immaterial.

In Ellison Ibo Vs. Zaria Native Authority. The high court held while considering a charge under section 275 that where a girl was procured for sexual intercourse with the procurer and not a third party the procurer could not be convicted.

(C) RAPE: The most serious kind of sexual assault S. 357CC
Rape is defined in gender specific language as “carnal knowledge of or sexual intercourse with a woman or girl without her consent or under duress. Rape is defined as having unlawful carnal knowledge of a woman or girl without her consent or with her consent if such consent is obtained by force or by means of threat or force or intimidation or by fear of harm or by means of force of fraudulent mis-representation or in the case of a married woman impersonating her husband. Rape is punishable with imprisonment for life attempt to rape is punishable with imprisonment for fourteen years. To prove rape there is a requirement of penetration and corroboration. By Nigerian law a husband cannot be guilty of raping his wife.

The manner in which rape trials are conducted in open court and the nature of evidence required by section 211 of the evidence Act cop 112LFN1990 exposes women to indignity making it a man’s trial and the woman is portrayed as a temptress. The requirement for corroboration is onerous and unnecessary. Furthermore, the law does not recognise marital rape. To prove the offence of rape, the survivor must prove the following:
• Penetration
• Lack of consent
• Capacity of male age above 12
• Corroboration
• Societal attitude to rape and sexual violence expose women to HIV/AIDS and other sexually transmitted diseases.

Rape within marriage is not yet recognised as a crime under the Nigeria Laws, but may amount to assault where force is applied. The Customary laws fails\to recognize the possibility of Rape within marriage as a woman is by virtue of marriage under customary law deemed to have given a blanket consent to sex during Marriage. The same notion is applied for other forms of Marriages even where in Countries with similar forms of Statutory Marriage, Rape within the Marriage is an offence.

Incidents of marital rape abound in several cases especially with violent, abusive or habitual drunken husbands where women are forced to sex by their husbands. Women consequently, suffer a lot of physical and psychological trauma in such relationships for which the customary laws do not redress the violation of the women’s rights. This situation of marital rape negates the provisions of the Criminal and Penal Codes which define rape as sex without the consent of the woman. In cases where women do not consent to sex whether or not within a marriage, such acts qualify as rape and is contrary to the criminal laws. In some countries marital rape is an offence punishable under the criminal Laws.

Note that sexual abuse of girl child between ages 11 to 13 is merely a misdemeanour punishable with 2 years imprisonment. Boys are however protected up to 14 years. Prosecution must be commenced within 2 months of the offence.

CARNAL KNOWLEDGE: As defined in the criminal code is vague e.g. that the element of carnal connection is complete upon penetration. The criminal and penal code while seeming to protect women against sexual offences and assault makes the proof of these offences very difficult and sometimes impossible. For example: Most of the offences require corroboration which in sexual assault is hard to come by. No one invites witnesses when planning to rape. The strict requirement for corroboration in rape and other sexual offences should be purged from our laws. Especially the provision that the evidence of only the victim is not sufficient to ground a conviction. Even though the rule is that there should be no conviction on the uncorroborated evidence of the complainant the court may warn itself and convict if satisfied with her evidence – Sunmonu Vs. Police 1957WANCR23 ant P24, R V. Ekelagu 1960 58SC217.

Sections 350 and 363 of the criminal code lower the offences of indecent assault but provides for punishment of two years imprisonment where the offender is a female and three years where the offender is a male. This is discriminatory. Consent is a defence. In Alawusa V. Odusole the man shaved his wife’s pubic hairs. Charged of indecent assault but convicted of simple assault because such assault between husband and wife cannot be characterized as indecent. But on a charge of rape or defilement contrary to S.218 or 221 an accused can be convicted of indecent assault. See Sec 175 & 176cc

Any person who has unlawful carnal knowledge of a girl under the age of eleven years is guilty of a felony punishable with imprisonment for life, with or without whipping .Any person who attempts to have unlawful carnal knowledge of a girl under 13 is guilty of a felony punishable with imprisonment for 14 years. A house owner or occupier of a premises who induces or knowingly permits a girl of such age to be carnally know by a man is guilty of an offence: If the girl is above eleven and under thirteen years of age he is guilty of a misdemeanour punishable for two years. If the girl is under eleven years he is guilty of a felony punishable with life imprisonment. Any person who has or attempts to have unlawful carnal knowledge of a girl who is above eleven years but under thirteen years or attempts to have carnal knowledge of a woman or girl who is an imbecile or an idiot is guilty of a misdemeanour punishable with imprisonment for two years.

The criminal code/penal code takes care of offences relating to trafficking in females to an extent through its provisions on encouraging seduction of girls under sixteen, allowing persons under sixteen to be in brothels, abduction of girls under sixteen, abduction of girls under eighteen for prostitution or to have carnal knowledge of them.

Section 276-297 of the criminal code forbids trafficking in females either for prostitution or any immoral or illegal purpose. The penalty ranges up to 10 years imprisonment.

Whoever procures defilement of a woman by threats fraud or administration of drugs commits an offence punishable with two years imprisonment.

Offences include:
• Procuring a girl under the age of eighteen years to have unlawful carnal connection.
• Procuring a woman or girl to become a prostitute
• Procuring a woman or girl to be the inmate of a brothel elsewhere or
• By threat, intimidation, false pretence or administration of drugs or substances to stupefy or overpower her to enable a man have carnal knowledge of her Problem.

A person cannot be convicted of any offence under the section on the uncorroborated testimony of one witness.

In addition, Section 232(2) provides that procuring of a woman or girl to become a common prostitute or to leave Nigeria with intent that she may become the inmate of a brothel elsewhere or to leave her usual place of abode in Nigeria with intent that she may for the purpose of prostitution become an inmate of a brothel either in Nigeria or elsewhere is an offence punishable with 2 years imprisonment. But a person cannot be convicted of the offences above on the uncorroborated testimony of one witness.

Sec 275 provides that the seduction of nay girl under the age of 18 years to go from any place or do any act with intent that she may be or knowing that she will be forced or seduced for illicit intercourse with another person is an offence punishable with up to 10 years imprisonment and fine.

Section 281. (Penal code) Titled “Traffic in women”
“Whoever in order to gratify the passions of another person, procures, entices or Leads away even with her consent a woman or girl for immoral purposes shall be punished with imprisonment which may extent to seven years and shall also be liable to a fine.” (Note: There is no age limit for female victims. This is an improvement on sec 275) This is not a modern definition of the offence of trafficking in women, which necessarily involves movement of the trafficked persons and some pecuniary gain.

Trading in Prostitution
Section 4052(d) of the Penal Code States Any male person who knowingly lives wholly or in part on the earnings of a prostitute or in any place solicits or importunes for immoral purposes commits an offence.

Living on the earning of a prostitute, Soliciting, abetting, or controlling the activities of a prostitute amounts to living on the earning of a prostitute and is punishable with imprisonment for two years.

Keeping a brothel
Keeping, managing, assisting in the management of, letting for purposes of using as a brothel is punishable on first conviction with a fine of N100 or six months imprisonment. Subsequent conviction: Three hundred naira or fourteen years imprisonment or fine.

Unlawful Detaining of a Woman
Detaining a woman against her will in any premises or brothel for her to be carnally known by a man or for any purpose is an offence punishable with two years imprisonment.

Importation of Girls from Foreign Country (Penal code)
Whoever imports a girl under 21 years into Abuja FCT from outside Nigeria with intent that she may be or knowing it to be likely that she will be forced or seduced to illicit intercourse with another person is liable for an offence punishable with up to ten years imprisonment or fine .

Unfortunately the publicity is only for Nigerian women trafficked abroad for prostitution whereas there are several cases of trafficking within Nigeria for Prostitution and other forms of labour such Domestic service and farm labour.

Janet was 13 when she lost both parents in her village in Akwa –Ibiom State. She had only attended primary school up to Primary six. Mid 1999, she lived with her aunt for a short while and had to leave her Aunt’s place because of the objections to her stay by her Aunt’s children. Janet then had to stay with her father’s uncle where she was also maltreated by the uncle and his children. One of Janet’s friend called Mary introduced Janet to her sister called Joy who promised to assist her by sponsoring with a vocational training in Lagos. Janet was lured by this promise and she followed her friend’s sister to Lagos the commercial capital of Nigeria in the year 2001. On arrival in Lagos Janet discovered that her friend’s sister, Joy was actually in prostitution and that she had no intention of sponsoring her vocational training. Joy demanded from Janet a repayment fee of N10,000 (Ten Thousand Naira) an equivalent of about $83 US Dollars for her ‘transportation costs’ from the village to Lagos and N15,000 (Fifteen Thousand Naira or $125 US.Dollars) for “settlement” for her shelter and upkeep.

Janet was forced into prostitution by Joy her friend’s Sister. According to Janet, initially, she worked as a prostitute for Joy until she fully repaid the total sum of N 25000 demanded by Joy.

After the repayment Janet started work as a commercial sex worker in a brothel at Ifako Agege a sub-urban area of Lagos. There she pays N1000 (One Thousand Naira) per week for a room and N500 for the generating set for alternative power supply per week. She earns about N11000 (Eleven thousand Naira) per month. She admitted facing tremendous problems and violence from the Police who constantly raid them. She has never been to school or learn any vocation since she came to Lagos.

- Did Janet suffer any violation of her rights?
- If so what rights are violated?
- Under which laws are these rights violated? Items all the relevant laws to this case?
- What assistance can you render for girls like Janet?
- What suggestions do you have to eradicate Trafficking of women and children?

Causing Miscarriage (Penal Code)
Whoever voluntarily causes a woman with Child to miscarry shall if the miscarriage is not caused in good faith for the purpose of saving the life of the woman be punished with imprisonment for up to 14years or fine or both. A woman who causes herself to miscarry faces the same punishment. Where death of the woman results from an attempt to cause miscarriage the punishment shall be a fine or imprisonment for fourteen years. If the Act was done with the consent of the woman imprisonment shall be for less term and fine may be imposed. Whoever unintentionally uses force to cause a woman to miscarry commits an offence punishable with 3years imprisonment. If the offender knew that the woman was pregnant punishment shall be five years.

Sexual intercourse with or without consent by Male with person who to their knowledge are their daughter, grand-daughter, sister or mother is guilty of an offence punishable with 2 years imprisonment. Females over sixteen years permitting their grandfather, father, brother, son to have carnal knowledge of her is guilty of an offence punishable with sixteen years imprisonment. In the penal code offence extends to any of ascendant or descendant, paternal or maternal aunt or uncle, nephews, nieces and punishment is seven years imprisonment.

The unsympathetic attitude of the courts to the victim of sexual assaults characterise the few cases that manage to reach the law courts. For example,
The State Vs Akingbade Gabriel
A Lagos High Court case
The accused was charged with rape of one Rebecca Okusaga, a 20 year old girl, a virgin. The girl had accompanied her male cousin to visit his friend who was a brother to the accused. The accused overheard that the girl was looking for a job and offered to help. The accused asked the girl to call back a few days later for some addresses of prospective employers. The girl came on the appointed day at about 6.30 p.m. She was given 4 addresses. As she knelt down according to custom to say goodbye, the accused a well built man, switched off the light, locked the door and forcibly carried the girl to the bed. In spite of her screams and struggle the accused had carnal knowledge of her.

No co-tenant came to the girl’s rescue. After the incident the accused offered the girl 5/- which she refused. His bed sheet was stained with the girls blood and the girls pants were also blood stained. The girl reported to her father and mother and her said male cousin immediately she got home. They followed her to the accused’s home who pretended to be sleeping. On being confronted with the girls complaint, the accused maintained silence. The accused also failed to make any statement to the police.

The judge held as follows “I have no doubt that the accused took most improper liberties with the girl who was also anxious to get a job. The accused committed the crime with which he is being charged but there is a practice in Nigerian Courts, which have for all practical purposes ripened into a law, that is the requirement of corroboration before conviction of rape even though the act does not call for corroboration”.

“Corroborative evidence which tend to show not merely that the crime has been committed but that it was committed by the accused” Applying the principle to this case. The girl’s prompt report or complaint to her parents is certainly not the corroborative evidence. That complaint and both the girl and her father’s evidence of it satisfy me that she did not consent to sexual intercourse by the accused with her”.

The learned trial Judge did not consider the silence of the accused as corroborative evidence”. The accused was however discharged and acquitted.

The State Vs. Samuel Adegboye
Where the accused was charged with unlawful carnal knowledge and indecent assault of a 9 year old girl. The accused was discharged of the count of unlawful carnal knowledge of the girl and convicted of the lesser count of indecent assault. The court held inter-alia “Although in cases of rape and sexual offences against women and girls a Court may convict on the uncorroborated evidence of the prosecution yet the court must warn itself that it is dangerous to do.

The apparent shift of sympathy to the accused rather than the victim constitutes an impediment to obtaining justice by the female victims.

Apart from the failure of the Nigerian system of administration of justice to enforce the provisions of the criminal law for an effective redress of sexual assault as a form of violence against women.

Cases of incidents of sexual assault in Nigeria are rarely reported as a result of the societal stigma usually faced by the women victims.

In a country where chastity and virginity are still held as prerequisite for marriage, the physically and psychologically are too ashamed to report incidents of violence against them.

Traditional Rulers and religious Leaders should sympathise with victims of sexual violence and ensure that they obtain justice.

The Police should take each case of sexual assault against women seriously and conduct thorough investigations into the cases so that the culprits do not get away free from the law courts.

The lawyers should refrain from deriding already traumatized victims of sexual assault through disparaging cross examinations. In addition, lawyers should take up cases on behalf of female victims and provide free legal services where necessary.

The Medical Doctors are critical to successful prosecution of cases of sexual assault, therefore they should provide the necessary evidence including issuance of medical certificate to ensure that women get justice for the violence against women where needed.

Any person who strives, touches or moves or otherwise applies force of any kind to the person of another either directly or indirectly without his consent, if the consent is obtained by fraud or who by any bodily act or gesture attempts or threaten to apply force of any kind to the person of another without his consent, in such circumstance that the person making the attempt or threat has actually or apparently a present ability to effect his purpose assault that other person. Punishment for assault is imprisonment for one year Assault occasioning Harm – three years imprisonment. Despite these provision, the weakness of the mechanism for monitoring, investigation and law enforcement means that very few offenders are brought to trial. The result is that the tolerance for violence against women in customary laws has found its way into the penal code.

Penal Code Laws of the federation of Nigerian 1990 Cap 512 vol. xxviii Third edition Pg17600 section 55(1) Correction of Third Pupil, servant or wife. “Nothing is an offence which does not amount to the infliction of grievous hurt upon any person and which is done.
• By a parent or guardians for the purpose of correcting his child or ward, such child or ward being under eighteen years of Age.
• By a School master for the purpose of correcting a child under eighteen years of Age entrusted in his charge.
• By a master for the purpose of correcting his servant or apprentice such servant or apprentice being under eighteen years of age
• By a husband for the purpose of correcting his wife such husband and wife being subject to any native Law or custom in which such correction is recognised as Lawful (emphases on section 378).

That section of the law permits a man to bear his wife, provided that chastisement is done with reasonable force. Reasonable force is nowhere defined in the penal code and this exposes the woman to being maimed or even killed. For chastisement of wife it is permitted as grievous harm is not done grievous harm is defined in S.221.

Under the Criminal Code it is a crime for a man to beat his wife. This will amount to assault and may result in wounding or grievous harm and these are punishable offences. Such matters are however usually settled at the level of Police Station. The woman is usually left to go without redress as the matter is a family matter and going to court may result to breaking up of the home.

Grievous harm under Sec 24 PC is designated as
• Emasculation
• Permanent Deprivation of the (right) eye, of the hearing of an ear or the power of speech
• Deprivation of any member or joint
• Destruction or permanent impairment of any member or joint
• Permanent disfiguration of the head or face
• Fracture or dislocation of a bone or tooth
• Any hurt which endangers life or which causes the sufferer to be during a space of 20 days in severe bodily pain or unable to follow his ordinary pursuits.

The speculation of the above is that unless those conditions exist a man has not assaulted his wife. Those sections of the penal code offend the rule of natural justice, equity and good conscience by encouraging a man to assault his wife provided he goes short of maiming or killing her and should be expunged from our laws.
Penal code Section 400: Word, Gesture or act intended to insult the modestly of a woman
Whoever intending to insult the modesty of a woman utters a word, makes a sound or gesture or exhibits an object, intending that the word or sound shall be heard or that the gesture or object shall be seen by such woman or intrudes upon her privacy commits an offence with one year imprisonment or fine or both.

Adultery by a man subject to any native Law or Custom in which marital sexual intercourse is recognised as a criminal offence.

Section 388 Adultery by a woman subject to any Native Law or custom in which extra marital sexual intercourse is recognised as a criminal offence.

Most customs do not recognise extra marital intercourse by a man as an offence. There is a need to examine the traditional license that permits men to engage in extra marital affairs while insisting that the women remain faithful. The scourge of HIV/AIDS underscores the need for both persons to abide by the same standard of fidelity.

Section 388- Enticing or taking a woman or detaining with criminal intent a married woman.

In respect of the Sections summarised above.
Section 1429(1) of the CPC (Criminal procure Code of the Northern states enjoins the courts in the following terms not to entertain any complaint brought independently by a female Victim. “No court shall take cognisance of an offence under section 387 388 or 389 of the penal code except Upon complaint made by the husband of the woman or in his behalf by some person who had care of such woman on his behalf at the time when the offence was committed

In the case of the woman being unmarried upon a complaint made by her father or guardian or his father or guardian or in the absence on his behalf by some person who had care of such unmarried woman at the time when the offence was committed.

Section 142 (2) further states “where the husband or father or guardian referred to in sub section 1 is under the age of 18 years or is an idiot or lunatic or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the court make a complaint on his behalf. The import of this section is that even where the father, husband or guardian is incapable of bringing a complaint, the female victim still cannot speak for herself, neither can her mother, sister or other female relative, a complete stranger is preferred by the Law.

This is the Law in the 16 Northern States and the FCT cases of rape, abduction and other forms of physical abuse of young girls against their will remain unreported and un-redressed.

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