Violence Against Women: Prosecuting Rape in Nigeria II
It’s hard to see any value in the ABSU Rape Video saga (as it shall forever more be known despite the Abia State government’s threats) but it sparked widespread national outrage and finally focused media and federal government attention on violence against women in Nigeria. That’s a good thing. The Ministry of Women Affairs, the Ministry of Youth Development and the relevant National Assembly committees have all rolled out belated but laudable initiatives to reduce rape and violence against women in the country.
While we must applaud the flurry of activity by various state and non-state actors and the rush to pass bills with stronger penalties (something that will make VAW activists who have struggled to get them passed for years very happy) the new laws and the behavioral change strategies proposed cannot have short or mid-term impact on the security of our girls and young women unless we improve prosecution of rape cases.
The old Nigerian cliché that says enforcement is our problem not laws is sadly true in this case. The crimes of rape and sexual assault and their penalties have always existed in our Criminal Code, the Penal Code and under customary law. According to a 2006 Amnesty International report on rape in Nigeria that cited several national civil society organizations the great challenges have been getting victims to report and the police to investigate and prosecute rape.
The AI report says social stigma is a major reason rape is under reported. How is that stigma correlated with the insensitive and traumatic treatment victims can expect to experience with the police and the criminal justice system in Nigeria? According to the same AI report state actors especially the police are the major perpetrators of rape and violence against women. How do we expect them to impartially investigate reports of rapes? How do we expect them to be sympathetic to victims brought to them for justice and protection?
The Abia State commissioner of police is on public record saying that Ms. X, the woman in the video in question, seemed to him to have consented to the sexual intercourse or else she was being ‘punished’ for some real or imagined slight to one of man. Most significantly he revealed that the police are aware that young women are being raped and videoed as a means of punishment and social control. It is not unreasonable to deduce from his words that they also condone it.
Governor Theodore Orji of Abia State himself a publicly known cultist narcissistically suggested that his political enemies staged the revolting and dehumanizing video to make him look bad. I’m not sure whether who is worse, him or his political enemies. Is anyone still suggesting that a woman’s mode of dress is what leads to rape? It is well established that rape has nothing to do with uncontrollable sexual desires and everything to do with power and social control.
There is an epidemic of rape in Nigeria and our chief protectors and prosecutors are also our chief rapists. Can making new laws, public relations, public campaigns to reduce stigma and victim support services solve the problem? It can’t if we don’t retool the police force and the criminal justice system to increase prosecution and convictions for rape. In the past decade a number of citizen sector initiatives have designed and carried out rape management training for small groups of judicial and police force officers. However, their impact has been weak and localized to just a handful of communities.
In the United Kingdom the police and criminal justice system were transformed over a period of 20 years after a series of independent investigations identified key challenges to prosecuting rape cases. Many of the changes were the result of legal precedent and policy change, not legislation. Today they have specially trained police officers in specially designated units working with prosecutors to ensure that both victim and accused are adequately protected from abuse of the system. The processes are contained in a public policy document from the Crown Prosecution Services.
Does creating a new unit in the police force and training them require new legislation or new regulations from the line ministry or the Inspector General’s office? What is required to change the curricula at the Police Training Academy to include training on violence against women generally and rape in particular? Furthermore how pervasive is rape by policemen? Is there a presumption that all policemen are guilty but what’s the evidence that what we’re dealing with is not a minority of rogue cops? Credible data is essential to formulating a corrective strategy.
How does the Director of Public Prosecutor’s office handle rape cases? Are these processes public and subject to monitoring and evaluation? Does the public prosecutor’s office have a policy or guidelines for handling allegations of rape? Is there specific training and support provided to individual prosecutors that handle rape trials? Can the Attorney-General make policy guidelines or regulations for handling rape cases?
The Amnesty International report also highlighted the challenge presented to successful prosecution of rape cases by restrictive evidence rules, for instance the requirement that medical reports must be from a public hospital to be admissible in a court of law. The Nigeria Police and courts do not accept medical reports from private hospitals as evidence in rape trials. Is this a rule of practice or a statutory requirement? Could this practice be challenged in the courts? Or do we require a legislative review?
Customary law, which includes Sharia law in Nigeria, is also applicable in rape cases and takes precedence if inconsistent with the constitution. Can the multiplicity of customary laws that exist in Nigeria override constitutional protections if chosen as the applicable personal law? Under the customary law of some groups the punishment for rape ranges from banishment, a fine paid to the victim’s father or family group or enforced marriage to the victim of the rape. With the exception of banishment these are also the sort of sanctions we frequently see negotiated between a victim’s and her rapist’s family and mediated by the police when rape is reported to them.
Under Sharia law it’s almost impossible to prove rape, the requirement for at least 4 male witnesses that must all agree it was actually rape is both unreasonable and improbable. There are even records of victims that reported a rape and were instead charged with adultery, a crime punishable with death by stoning or zina a lesser crime punishable with caning. How do we ensure that our girls and women are protected under customary law and from repressive customary laws?
According to AI in most reported cases of rape the victims were minors. This is corroborated by a women’s led citizen sector organization protecting women’s rights in the country that recently listed the number of rape prosecutions they were supporting and discovered that all their cases involved minors presumably because it is easier to establish a lack of consent. Defense lawyers in rape trials frequently attack the credibility and the morals of the victim to try and prove implied consent. What does Nigerian case law say about consent in rape? How does the Nigerian bench define consent?
Disturbing fallout of the ABSU Rape was the exposure of the monumental degree of public ignorance about consent and what constitutes an appropriate response during rape from the victim. Many public commentators on the issue felt that Ms. X did not resist violently enough and was not brutally beaten or visibly injured to have been actually raped. By definition all a woman has to do is say NO, she does not have to fight or sustain injuries to prove that she was raped. As a matter of fact VAW counselors have been advising women for years not to violently resist rape if there is no obvious escape in order to minimize physical injury and trauma. However what the courts have to say about it is far more important. What precedents are the honorable members of the Nigerian bench setting and how can we impact them?
Since the video first appeared the calls for Ms. X, the unidentified woman in the video, to turn herself in (as if she were the criminal) have abated as focus has shifted away from her as an individual to the bigger problem of endemic sexual violence against women generally and on campuses in particular. Is that a good thing? I certainly hope it is but it has also occurred to me that she may have been killed. It won’t be the first time in Nigeria. More visible and powerful figures have been killed with no consequences. After all the rapists are rumored to have political, cultic and occultic connections and the Abia state police commissioner did keep on insisting that his hands were tied unless she comes forward.
“Thou doth protest too much”
We can but pray. And prosecute