Violence Against Women & 16 Days of Activism: Prosecuting Rape in Nigeria

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


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Child Custody in Nigeria

There seems to be a presumption that all child custody matters in Nigeria will be decided in favor of the father. While it is true that under some customary law systems the father is privileged in custody matters this is not uniform or universal and does not apply to any statutory marriage under the Matrimonial Cause Act.

Under Sharia law custody is usually granted the mother; under Yoruba customary law, mothers are granted custody of female children and fathers of male children. In Igbo customary law custody is of weaned children is usually given to the father. Mind you Nigeria has numerous ethnic groups and customary laws vary broadly.

For a marriage to be subject to customary law the ceremonies for consecrating marriage under that particular system of customary law must have been complied with and the bride price must have been paid. If these conditions have not been met any custody of any children of the relationship will be automatically awarded to the mother and or her father.

A statutory marriage that comes under the jurisdiction of the Matrimonial Causes Act must be celebrated before a licensed marriage officer outside Nigeria or registrar of marriages within Nigeria between a man and woman that are previously single. Many foreign women have been manipulated with threats that they would lose custody and be deported forcibly.

Section 71 of the Matrimonial Causes Act is very clear that custody should be decided based on the child’s best interest. Case law has upheld this principle but mothers that want custody are held to very strict proof that they can maintain the children without regard to the courts powers to grant maintenance orders.

Mothers that have come to me for representation frequently describe the arduous proof they are made to provide that they have a personal residence, job and income before they are given custody. While it seems logical and fair that mothers are encouraged to have a job, child maintenance is supposed to provide the necessary financial support that she may lack to take care of her child or children.

If it’s in the best interest of the family that the spouses separate or divorce such as in cases involving domestic violence the spouse granted custody should receive maintenance and support from the other. Both parents should be and should remain financially responsible for their offspring.

However if either spouse was by mutual agreement or otherwise the primary care giver and did not work outside the home during cohabitation and is given custody in a divorce it would be questionable whether requiring that spouse to now work would serve the interest of the children.

Father’s that are asking for custody of children during divorce proceedings are equally required to prove that they can personally provide attention, care and nurture in addition to material needs and that they are fit to have custody.

Will the court automatically grant custody to a father that is also a violent drug addict and regularly disappears for months at a time?  No. Will the court grant custody to an abusive man that believes his wife is a witch and takes his children for strange midnight rituals and exorcisms? No.

Likewise the court will not automatically grant custody to a mother if she is a drug addict or a dangerously delusional religious zealot. Case law shows the child interests being paramount. Custody hearings are getting more sophisticated and judges are asking insightful questions about the best interest of a child in any given circumstance.

Generally custody of very young children is awarded to the mother. There is also a preference for awarding custody of male children to the father and female children to the mother but again this is not a hard and fast rule and circumstances of each case determine the best interest of the child/children.

Evidence of misconduct and moral depravity could however tip the courts judgment against the offending party when awarding custody. The case law needs to be carefully reviewed to determine what the courts consider moral depravity of sufficient seriousness to otherwise deprive a parent of custody.

The Child’s Rights Act of 2003 makes provisions for protecting children during a divorce but child custody law remains a product of Nigeria’s marriage laws and it remains to be seen how the CRA will be read and enforced.

 

For more on Nigerian case law and decisions on custody here 

After Losing a Job: What Next?

It’s not easy losing your job. It’s not a good time to lose your job. It’s even worse when you lose your job wrongfully. Of course the law is supposed to protect you from that. Your human rights entitle you to dignity, fair treatment and access to justice. Your labor rights entitle you to reasonable notice of termination, a fair appeal process and protection from vindictive line managers.

What does that mean in practical terms and what actually happens when you are wrongfully fired? Do you put your life on hold and pursue your rights with all the determination of a tick on a dog? Or do you forge ahead with your career believing success will give you the power and opportunity to confront the key issues?

I think a lot of people might pursue some sort of a middle course. Building careers and pursuing their rights. Undoubtedly available resources would have a strong impact on project management and implementation. How would you allocate priorities? Evaluate risk? Meet your milestones in the face of funding gaps, corruption and bureaucratic hurdles?

Consider the options: A – the tick on a dog position. Reduce personal expenses to the barest minimum.  Cut off all dependents. Read night and day for a month or two till you know Nigerian Labor Law better than the dudes that wrote it. File your matter in the competent court. Prepare to be in the legal system for the next 10 years minimum.

During those 10 years every naira and kobo you make will go into servicing this case. Every spare moment you have will be devoted to this matter.  You will speak to people who will speak to people who will speak to the people you want to speak to. You will network obsessively and persistently lobby everyone on your expanding contact list. Opposing counsel certainly is doing just that too.

There will be innumerable delays and insufferable frustration from the bench, from opposing counsel and from the gate man at the High Court unless palms get greased. If your action is against a big rich organization especially a foreign one they’ll try to outspend and outlast you. Even veteran Nigerian politicians, Masters of the Game, hesitate to revisit the halls of our judiciary.

B – forge ahead with your career. Review and update your resume, post to job sites, tell friends and family you’re looking for a new job, read the classifieds, write cover letters, and go for interviews. If that doesn’t yield results in a few months, go get another degree, acquire new skills and build on your existing competencies.

While you’re looking for a job you may lose your house, your spouse, your health insurance and your savings so be very frugal. It’s unlikely that you will have the funding to pursue a case against your former employers at this time. You could talk to a No Win No Fee lawyer but you’ll probably have to talk to several before you get one good enough to represent you.

Then again if you are lucky you’ll get a job real quick and maybe even one with more responsibility and remuneration. If the gods have truly smiled on you it will be a located in a sunny cosmopolitan city outside Nigeria. You can now choose whether to service your labor dispute with your shiny new salary. You may need to appear in court every few months involving international travel and hotel bills.

Wherever you are employed you will need to consider how your new employer feels about you pursuing a labor dispute.  Whatever the circumstances of your case big organizations are more interested in protecting themselves from legal liability than in protecting labor rights even if they are in the business of international human rights and development.

A legal dispute with your past employer could affect your future employability or present employer. Employers could see you as a ‘trouble maker’ or the opposite of a team player. You may need to mitigate a strong remedial strategy to reassure them. Your past employer could also black list you in your industry or just give you a bad reference.

C – Take you career into new directions. Review and adjust your career goals, assert your independence, buckle down and start a consultancy, a small business or an enterprise. Put as much persistence, discipline and commitment into it as you would into options A and B above. In 12 months you could build start seeing a steady income.

Of course setting up a business in Nigeria gets harder and harder everyday. Your 12 months business plan will come up against the sort of delays and frustrations that could well see your implementation period stretch to 36 months or more. I recall a businessman telling me how his project came in 5 years and NGN60million over budget. So you’ll have to work that into the plan.

Network with businessmen and capitalists, bankers and stoke brokers, investors and merchants, entrepreneurs and traders, innovators and opinion leaders. You will meet a conman or two, the tax man, and your own personal bogeyman. Success, which is what you are aiming for after all, attracts diverse personalities. Learn to deal with all sorts.

You will have to scale back your expenses till you start turning a profit and you will work 120 hours a week. And in the beginning you won’t have any time to devote to legal problems with your former employer. Except when the bills are due and you’re struggling to pay them when they shall be remembered with all the venom of a puff adder. Manage your money carefully.

You’re greatest challenge in Nigeria will be venture capital. And human resources. And corruption. Maybe not even in that order. As a woman you will find it even more challenging. The IFC’s World Bank Report on Women, Business and the Law shows that women in Nigeria lack access to credit, lack protection in the workplace and lack incentives to work outside the home like childcare and tax breaks.

Despite these challenges Nigeria keeps on popping up as an emerging market to watch. The country is awash with high risk, high ROI opportunities.  Many of them are in the energy, construction, telecommunications, banking and food sectors but there are also numerous underexploited opportunities in garments, education and training, professional services and retail marketing.

Foreign investors have an advantage because they come in with cheap venture funds. At least they’re cheap compared to cost of funds locally. Look for a foreign investor who can bring in cheap funds or an angel investor willing to buy equity. The cost of starting a business in Nigeria is high, you will need to budget generously for startup costs and restrict your operating costs.

It will even be a challenge to keep faith with your dream but you know that with drive, persistence and good providence you will achieve your personal and professional goals.  The question is will you be able to give enough focus, time and resources to a long arduous legal dispute with your more heavily resourced and more powerful former employer?

Each of the above scenarios carries with it considerable risk and considerable promise of success too. Each strategy requires the same amount of passion, commitment and diligence to bring about that success. You could settle for a middling job that doesn’t require more than 5% of your brain power with employers that don’t care about labor disputes and pursue legal matters in your spare time.

I’ve not talked of the possibility that you could decide not to pursue the labor dispute at all. People and organizations must be held accountable and that is what the legal system is for. I’ve worked in the organized citizen sector for over 15 years supporting laws and policies against corruption, impunity and the Great Corporate Menace. We need to start holding people accountable to the standards we’ve set.

You won’t get your old job back but that’s not the point, you may not even want your old job back. If you remember you started complaining from the day you resumed. There may not even be any large settlement worth the effort of the years you’ll put into it but a judgment in your favor would show employers there are consequences for injustice and inhibit a recurrence.

A judgment against you could just leave you with a stack of legal bills and more bitterness. It’s a sad but true cliché that the law isn’t about the truth anymore, it’s about what you can prove and counsel for both sides increasingly rely on extreme and ethically questionable approaches to discredit evidence, witnesses and  plaintiffs and manipulate legal outcomes. There could be a lot of bitterness at the end.

It’s up to you the individual to decide whether this is a battle worth fighting and what is the best strategy for YOU. There is no right or wrong choice but it must be an informed choice. A lot of lawyers don’t lay out the risks clearly or they underestimate the time and resources a labor dispute can require.  They maybe more interested in getting you committed immediately and collecting a fat retainer.

It’s your right to get a second and a third opinion if that will make you feel more comfortable about the choice you make. It’s your right to have as much information as you need to make that choice. You wouldn’t choose invasive surgery based on the recommendation of one doctor so why would you choose an equally invasive legal procedure without asking around and weighing your options?

One way that we are making that choice a little bit easier for women to make at Agams & Associates is by promoting a Women’s Legal Defense Trust Fund to support eligible women with legal expenses in cases that could have broad impact on public policy and women’s rights. Because it’s not just about you losing a job, it’s about changing the world for everyone. Right?