Victims and survivors of Sexual and Gender-Based Violence (SGBV) are the most vulnerable and often have experienced horrific violations and abuse, sometimes several abuses before they gather the courage to disclose and formally report to the police.
Despite the government’s declaration of a “state of emergency” on SGBV, a report by Amnesty International in Nigeria said that rape persists at crisis levels with most survivors denied justice, rapists avoiding prosecution, and hundreds of cases of rape going unreported due to pervasive corruption, stigma and victim blaming.
The report, Nigeria: A Harrowing Journey; Access To Justice for Women and Girls Survivors of Rape covers harrowing cases of sexual violence against women and girls, including a six-year-old and an 11-year-old who were attacked so viciously they died. The report reveals how harmful cultural stereotypes, failures of law enforcement to investigate rape cases, toxic misogyny and insufficient support for survivors, have created a culture of silence and impunity which continues to fail hundreds of women and girls every year.
“The fear of not being believed, or even being blamed for being raped, is creating a dangerous culture of silence that prevents survivors from seeking justice. It is unacceptable that survivors of rape and other forms of gender-based violence face such a torturous ordeal to get justice, which only adds to their pain. The ‘state of emergency’ has proven to be an empty declaration, which has so far done nothing to protect women and girls in Nigeria.”
The report is based on research carried out between March 2020 and August 2021, including interviews with 14 women and girl survivors of rape aged between 12 and 42.
A similar report by the Centre for Social Justice on Sexual and Gender Based Violence and the Budget (A Review of Federal Capital Territory: 2016-2019) shows that the FCT has more women who have experienced physical violence than the national average. In fact, the report reveals that a proportion of men and women still justify domestic violence.
The Nigerian Police Force (NPF) and its sister National Security and Civil Defence Corps (NSCDC) have a responsibility and duty to protect, prevent crimes and enforce the law. However, on SGBV offences, the NPF and NSCDC have often treated the reports and offences as “private or domestic” matters and as a result condemn the survivors to further abuse, violations and suffering, a report by the International Organization for Migration said.
SGBV violates the dignity, safety and human rights of any victim. Survivors should feel safe and encouraged to come forward and make complaints to the NPF and NSCDC, but will not do so if they are subjected to negative attitudes and poor law enforcement practices. The initial contact between the NPF and NSCDC personnel and the survivor is a critical entry point for survivors of SGBV in the flow of accessing critical life-saving services, safety, security and support, often the first stop for accessing medical and justice due to the national law requirements.
Therefore, it is critical that the Nigeria Police Force and Nigeria Security and Civil Defence Corps adopt an attitude, understanding and corresponding procedures that treat these offences as crimes as provided by the national legislations.
There are many laws addressing the issue of rights of women in Nigeria including sexual-based violence and other forms of discrimination against women in Nigeria. The Constitution of the Federal Republic of Nigeria 1999 forms the basis of the rights inherent in every citizen.
Importantly, Section 19 (d) of the 1999 Nigerian Constitution declares respect for international law and treaty obligations. In applying international laws and treaties relating to the human rights of women in Nigeria, the Constitution is the primary source of law. The Constitution as the supreme law of the land allows a system whereby international laws and treaties ratified and adopted into law by the parliament becomes part of the accepted law of the land.
Section 34 of the Constitution provides for the rights of every citizen of Nigeria, for respect to the dignity of his/her person and not subject to torture, inhuman or degrading treatment, or held in slavery or servitude or forced to perform compulsory labour.
The Violence against Persons (Prohibition) Act 2015 is a legislation specific to the protection of persons including women and girls against violence. The VAPP Act provides for 26 offences and incorporates the rights guaranteed under the Constitution. With regards to violence against women and girls, VAPP prohibits female circumcision or female genital mutilation; forceful ejection from home; harmful widowhood practices; abandonment of spouses, children and other dependants without sustenance; battery; and other harmful traditional practices.
Again, the Nigerian Criminal Code (applicable in the South) and the Nigerian Penal Code (applicable in the North) makes it a criminal offence to subject a woman to indecent sexual assault, rape and defilement. Although there are provisions in section 357 Criminal Code and the Penal Code against various forms of sexual assault against women, these provisions are not effectively implemented due to the technical Court procedure and evidential rules, coupled with women’s apathy to report such cases for fear of social stigma.
Section 282 of the Penal Code provides that a man is not capable of raping or indecently assaulting his wife. This provision does not only condone marital rape, it also condones defilement of young girls under the age of 16. This is because the onset of puberty differs from girl to girl. Commencement of menstrual period is deemed to be the onset of puberty and some girls start as early as the age of 9 years to menstruate.
In cases of indecent assault, sections 353 and 360 of the Criminal Code cover the same offence but provide for a lesser punishment where the victim of assault is female. While indecent assault on males is a felony which attracts 3 years imprisonment, on females it is a misdemeanour for which the punishment is a statutory maximum of 2 years.
Under the Penal Code, other cases of sexual violence excluding penetration, the NPF and NSCDC can refer to section 285 of the Act, which criminalizes all acts of “gross indecency” upon the person of another without his/her consent or by the use of force or threat to compel a person to join in the commission of the act.
On cases of sodomy referring to a man or a boy, the NPF and NSCDC can refer to section 284 of the Penal Code Act, which states that whoever has a carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment and fined.
In section 383 of the Penal Code Act, the cohabitation or sexual intercourse by a man with a woman who is not lawfully married by deceit, causing the woman to believe she is lawfully married, is criminalized.
In cases of physical and domestic violence, the NPF and NSCDC can refer to the following legal provisions that talk about assault: the use of criminal force, which in turn causes grievous hurt.
Section 262 (a)–(c) of the Penal Code Act defines the word “force” and section 263 of the code punishes the act of a person applying criminal force to another.
In cases of domestic violence, where the force used as stated under section 55(1) (a)–(d) is such that inflict grievous bodily hurt on a person as would be described as having the elements within the definition provided under sections 240 and 241 of the Penal Code Act, this will be punished as provided under section 263 of the Penal Code Act.
In cases of domestic violence or any form of violence inflicted on a pregnant woman or a girl, section 232 of the Penal Code Act states that whoever causes a woman or girl to miscarry a child or a fetus shall be punished to 14 years of imprisonment or fined or both.
On cases of forced/early marriage, section 3(1) (d) and (e) of the Matrimonial Causes Act provides that a marriage is void in any of the following: (a) where consent of both parties is not obtained or consent was obtained by duress or fraud; (b) a party is mentally incapable of understanding the nature of the marriage contract; or (c) either of the parties is not of a marriageable age (14 years old). However, it is important to note that cases of forced marriage/early marriage, denial of resources and opportunities, emotional and psychological abuse are civil cases outside the mandate of the NPF and NSCDC. Should a survivor report the case to both NPF and NSCDC, the personnel at these two entry points should inform the complainant of the nature of the case and refer him/her to the appropriate avenues, such as Area Court that includes sharia and customary laws and procedures.
On procedure for the prosecution of gender-based offences, the Administration of Criminal Justice Act (ACJA) 2015 repeals the Criminal Procedure Act and Criminal Procedure (Northern States) Act and the Administration of Justice Commission Act 2004. The purpose of the Act among other things is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights of the suspect, the defendant, and the victim.
The Act applies to criminal trials for offences, including rape and other sexual offences, established by an Act of the National Assembly (called federal offences) and other offences punishable in the Federal Capital Territory, Abuja. The federating States are expected to adopt the Act in their various States.
A close reading of the ACJA 2015 on the protection of victims, informants and witnesses are all improvements and innovations in the substantive laws of Nigeria in line with international standards. It is expected that the relevant authorities like the Courts, the police and the NSCDC responsible for giving effect to these progressive provisions of our laws in Nigeria will deepen the efficacy of the law through meaningful and expansive interpretation to the benefit of victims and witnesses. Doing such is sure to encourage the victims of SGBV to cry out loud for justice and resist the culture of dying in silence.