CRIMINALIZING MARITAL RAPE IN NIGERIA: THE LAWS, THE MYTHS & THE REALITY

Abstract

 

Marital rape is not a criminal offence in Nigeria. This thesis argues that criminalization of marital rape in Nigeria is a necessary but insufficient means of addressing marital rape. I shall analyze the Nigerian legal framework and the international framework. The analysis of the international framework shall be focused on the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). I shall undertake a comparative analysis of how South Africa and Zimbabwe have addressed marital rape. I will examine the benefits and limitations of criminal law in addressing marital rape. I will argue that an examination of the wrongful gender stereotypes of married women is essential to create effective and holistic remedies; that wrongful gender stereotypes of married women violate their rights to equality and non- discrimination and the right to be free from violence.

 

CHAPTER ONE

 

1.    Introduction:

 

“Violence against women pervades all social and ethnic groups. It is a societal crisis that requires concerted action to stem its scourge…culture does influence the relationship between the various groups in society and some cultural practices beliefs and traditions have had the tendency to relegate women to second class status in society thereby not only violating their rights as human beings [but] leading to discrimination against women. Some…customs and cultural practices have found their way not only into law but [are used] as justification for violence against women.”¹

 

 

Though overwhelmingly, victims and or survivors of gender based violence are women, sexual violence is experienced across genders at all ages.² In 1989, the UN released a report on Violence against women in the Family, which initiated a change in the emphasis in international law from protection of the family to protection of individuals within the family.³ It showcased that the family was the locus of the harm. In 1990 the UN General Assembly adopted General Resolution 45/114 on domestic violence which noted the serious lack of information and research on domestic violence globally and the need for exchange of information on ways of dealing with this problem.⁴ In 2006, the office of former Secretary-General Kofi Annan issued a report classifying violence against women-whether in the home or elsewhere-as a human rights

Nigeria Attorney General, Amos Wako, during the 16 Days of Activism against Women, 10 December, 1999.

2

Charles Ngwena, Sexual Health and Human Rights in the African Region” ICHRP (2011), online: Ichrp

<http://www.ichrp.org> at 158

3

Bonita Meyersfeld, Domestic Violence &International Law(Oregon: Oxford &Portland, 2010), at 19

4 Ibid at 23

 

 

 

violation.⁵The report confirmed that states are obliged by international standards to hold perpetrators to account. Violence against women is one of the widespread violations of human rights which include physical, sexual, psychological and economic abuse.

 

Violence against women cases have been a widespread problem in Nigeria for a long period of time. In 1966, the Nigerian government attempted to address the problem of wife beating by setting up the Commission on Marriage and Divorce.⁶ The Commission recommended a proposed bill explicitly outlawing wife beating but when it was taken to Parliament in 1968, all male legislators opposed it arguing that wife battery was a “normal” customary practice and that such a law could amount to undue interference in the domestic affairs of husband and a wife. In

the media, cases of domestic violence have also been highlighted. In 1983, a husband gouged out his wife’s eyes for bearing him only female children; in 1998, a highly publicized case where a woman was battered by her husband, a Nigerian police Officer, succumbed to death; in 1999, a woman was slashed on the face, head, and hands after her husband found her singing

along to a ‘ndombolo’ song on the radio in front of a guest.⁷

 

Sexual abuse, while a common form of systemic intimate violence, is rarely reported.⁸ The stereotypical image of rape is non-consensual sex with a stranger, occurring in a strange and unsafe location.⁹ Because of this perception, a victim or her society may not recognize the crime of rape when her sexual partner of many years demands sex without her consent.¹⁰ Intimate partner violence is often systemic and it may be difficult for the victim to keep track of the

 

 

 

 

5

Ibid.

6

Tom G. Ondicho, Battered Women: A social-legal Perspective of their Experiences in Nairobi, Center for African

Area Studies, Kyoto University at 36

7

Ibid

• Supra note 3at 132
• Ibid
• Ibid

 

 

events and dates when the crimes were committed.¹¹ The law on violation of a woman’s integrity takes into consideration all aspects of the abused woman’s life, characterized by threats, assault and mental stress, and has been drawn up so as to facilitate prosecutors of perpetrators who repeatedly have violated the integrity of a woman with whom they are in an intimate relationship.¹²

Marital rape is not a criminal offence in Nigeria. It is therefore difficult to obtain accurate statistics on sexual violence against women in the home. In 2003, the first government survey, Nigerian Demographic and Health Survey, collected data on violence against women and found that 16% of married and divorced or separated women experienced sexual violence from their

husbands,¹³ and reported instances women of being slapped, pushed/shaken/thrown, punched or forced to have intercourse with their husbands.¹⁴ In the 2008-2009 Nigeria Demographic and Health Survey, it was reported that 17% of ‘ever-married’ women experienced sexual violence by a husband, with 14% of the cases experienced within the twelve months of the survey.¹⁵ In the latter report, 14% of the women interviewed reported that they were forced to have sex with their husbands when they did not want to.¹⁶

In this chapter, I shall analyze the legal framework of marital rape in Nigeria. I will examine the international framework, the national framework dealing specifically with the issue of sexual violence in Nigeria. I will also briefly examine the traditional/cultural framework in Nigeria.

 

 

 

 

 

 

 

• Ibid at 160

12 Ibid

13 Central Bureau of Statistics (CBS) [Nigeria], Ministry of Health [Nigeria] and ORC Macro, 2004, Nigeria Demographic and Health Survey 2003):Key Findings, Calverton, Maryland, USA at 14

14 Ibid

15 Nigeria National Bureau of Statistics (KNBS) and ICF Macro, Nigeria Demographic and Health Survey 2008- 2009, Calverton, Maryland: KNBS and ICF Macro at 275.

16 Ibid

 

 

International Legal Framework Brief Background

Under the old Nigerian Constitution, Nigeria was a dualist system, where treaties that had been

ratified by Nigeria, would become part of the law, upon their domestication. The lack of national implementing legislation authorizing domestication of international agreements ratified by Nigeria was a problem in the implementation of these international agreements. For example, Nigeria ratified the Convention on the Elimination of all Forms of Discrimination against Women¹⁷ (discussed here below), but did not have an implementing legislation to operationalise it.  Therefore,  CEDAW  was  not  effectively considered  to  form  part  of  the  laws  of Nigeria.

However, the Nigerian Courts, in some instances, used their discretion to defer to the provisions of CEDAW, despite the absence of an implementing law. In Mary Rono v Jane Rono & William Rono,¹⁸ the Court of Appeal considered the applicability of international conventions in determining that it was discriminatory to give lesser acreage of property to the daughters of the deceased based on the fact that they were women and would inherit somewhere else (when married). Justice Philip Wako declared that the Marakwet¹⁹ customary law was discriminatory in so far as it sought to deny the complainant her right to her father’s estate and affirmed that the law is repugnant to justice and moral good.²⁰ Justice Wako observed that “Nigeria has ratified CEDAW, the International Covenant on Civil and Political rights, International Covenant on Economic Social and Cultural Rights and the African Charter on Human and People’s Rights and that although the country ascribes to the Common Law theory that international customary and treaty law only forms part of domestic law where it has been specifically incorporated by implementing  legislation,  the  current  thinking  on  the  Common  Law  theory  is  that  both

 

 

 

 

17 Convention on the Elimination of All Forms of Discrimination against Women, Dec.18, 1979, 1249 U.N.T.S. 113, Reprinted in 19 I.L.M. 33 (1980), (entered into force Sept.,1981), (“CEDAW”)

18 Civil Appeal 66 of 2002 at Court of Appeal, Eldoret

19 Marakwet refers to one of the forty-two tribes in Nigeria.

20 Supra note 18

 

 

international customary and treaty law can be applied by state courts where there is no conflict with existing state law, even in the absence of implementing legislation.²¹

 

The dualist system has been changed by the new Nigerian Constitutio.²² It has changed Nigeria from a dualist to a monist system, through article 2(5) which provides that the general rules of international law shall form part of the law of Nigeria; and article 2(6) that provides that any treaty or convention ratified by Nigeria shall form part of the law of Nigeria. These Constitutional provisions do not require the enactment of a national legislation to give force to international treaties or conventions and gives all ratified conventions or treaties immediate force of law. Therefore, ratified treaties and conventions, now effectively forms part of the laws of Nigeria. Whether or not, the ratified treaties and conventions will be held to have the same force as laws enacted by the Nigerian legislature, remains to be seen over time. The Nigerian government is therefore under an obligation to implement the provisions laid down by CEDAW to eliminate all forms of discrimination against Nigerian women, including sexual violence as it now a part of the Nigerian laws.

 

The Convention on the Elimination of All Forms of Discrimination against  Women  (CEDAW)²³ ratified by Nigeria in 1984 is the main convention addressing discrimination against women. The CEDAW text does not address violence against women explicitly. However, the CEDAW Committee General Recommendations have affirmed that the provisions of CEDAW include violence against women. General Recommendation 19²⁴ affirms the definition of discrimination under CEDAW to include gender-based violence,²⁵ which acts include physical,

 

 

 

 

 

21 Ibid.

22 The Nigeria Constitution of Nigeria, 2010, repealed Constitution of Nigeria, Revised Edition 2009(2008). See

<www.kenyalaw.org> >

23 Supra note 17

24 Committee on the Elimination of Discrimination against Women, General Recommendations No. 19: Violence against Women, UN Doc. A/47/38 (1992)

25 Ibid at Para 6

 

 

 

mental or sexual harm or suffering, threats of acts, coercion or other deprivations of liberty.²⁶ General Recommendation 19 also affirms that family violence is one of the most insidious forms of violence against women, whose forms include battering, rape, other forms of sexual assault, mental and other forms of violence, perpetuated by traditional attitudes.²⁷ This recommendation has demonstrated that violence between intimates affects women disproportionately, demarcating women as a group in need of proactive state protection.²⁸ CEDAW Committee further obligates State Parties take measures to eliminate discrimination against women by private persons, organizations and enterprises, implying that states may be responsible for private acts if they fail to act with due diligence to prevent violations of rights, or to investigate and punish acts of violence and provide compensation.²⁹ The Committee further calls on states parties to take all measures necessary to prevent gender-based violence, such measures would include not only legal measures such as penal sanctions, civil remedies and avenues for compensation, but also preventive measures such as public information and education programmes, and protective measures, including support services for victims of violence.³⁰ Nigeria is therefore under obligation to protect married women from sexual violence in the home and provide remedies through legal reforms.

CEDAW obligates state parties to pursue all appropriate means and without delay a policy of eliminating discrimination against women by undertaking to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;³¹ and to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.³² Article 5(a) of  CEDAW obligates state parties to take all appropriate measures to modify the social and cultural

 

 

26 Ibid.

27 Ibid at Para 23

28 Ibid

29 Ibid at para 9

30 Ibid at para 20(t)

31 Supra note 27 at art 2(e)

32 Ibid at art. 2(f)

 

 

patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.³³ CEDAW

General Recommendation 25³⁴ asserts that State parties have three obligations; to eliminate direct, and indirect discrimination, and to address prevailing gender relations and the persistence of gender-based stereotypes that affect women.³⁵ Therefore, if it established that a law, regulation, custom, including gender stereotype constitutes discrimination against women; a State Party has an obligation to modify or abolish the law, regulation or practice.³⁶ The treatment of Nigerian married women as the sexual property of their husbands discriminates against them, by treating them as inferior to married men. It is a violation of the rights of married women to equality and non-discrimination. Nigeria has an obligation to modify and abolish the laws and customs that perpetuate stereotypical belief that women are the sexual property of their husbands.

 

CEDAW Committee monitors State Parties implementation through the reporting mechanism. State Parties are required to submit to the United Nations (UN) Secretary General, for consideration by the CEDAW Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to the provisions of CEDAW,  every four

years.³⁷ This reporting mechanism is important at the national level, in that in allows a State Party to monitor the steps it has taken to eliminate adverse forms of discrimination against women, identify areas of difficulties in the implementation of the Convention. The reporting mechanism also allows the State parties to plan and strategize on the appropriate legal and policy measures it needs to identify to promote non-discrimination of women, and equality.   At

 

33 Ibid at art 5(a)

34 Committee on the Elimination of Discrimination against Women, General Recommendation No. 25: Article 4,

Paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on Temporary Special Measures, UN Doc. A/59/38 (2004)

35 Ibid at paras 6-7

36 Rebecca J. Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (Philadelphia: University of Pennsylvania Press, 2010) at 5

37 Supra note 17 at art 18(1)

 

 

 

the international level, the reporting mechanism can be viewed as a source for dialogue between the State Parties and CEDAW Committee, to analyze their commitment and progress towards elimination of all forms of discrimination against women. The reporting system makes states accountable by international standards and subjects them to international scrutiny.³⁸ The reporting mechanism has been used in identifying and naming underlying gender stereotypes in the laws, policies, and practices of State Parties that perpetuate discrimination against women. In its Concluding Observations to Nigeria, the CEDAW Committee expressed its concern over

the persistence of cultural norms, practices and traditions as well as patriarchal attitudes regarding the roles, responsibilities and identities of women and men in Nigeria, that were reflected in women’s disadvantageous and unequal status in life.³⁹ The concluding remarks by the CEDAW Committee would have been more effective if they had identified the specific cultural norms and practices. The CEDAW Committee was further strengthened in its mandate, through the adoption of the Optional Protocol to the Convention on the Elimination of all Forms of Violence against Women.⁴⁰

The Optional Protocol to CEDAW provides the complaints mechanism under CEDAW. It authorizes the CEDAW Committee, to receive complaint from individuals or groups of individuals or other persons acting on their behalf, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set out under CEDAW.⁴¹ The Optional Protocol introduced another important mechanism, the inquiry procedure, which enables the CEDAW Committee to undertake inquiries into reliable information concerning grave or systematic violations by a State Party.⁴² The Communications procedure has allowed the Committee to address various issues surrounding the discrimination of women by State Parties.

 

 

38 Supra note 36 at 133

39 Committee on the Elimination of Discrimination against Women: Nigeria, CEDAW, U.N. G.A.O.R., 66^th Sess., Supp. No. 38 (A/66/38), Part III (2011) 142 at para. 17

40Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, Oct.19,

1999, G.A. Res.54/4, UN G.A.O.R., 54^th Sess., Supp. No. 49at 4, UN Doc. A/54/4 (1999), reprinted in I.L.M.

281(2000), (entered into force Dec. 22, 2000)

41 Ibid at arts.2-7.

42 Ibid at arts.8-10

 

 

 

In its most recent communication, Karen T. Vertido v The Philippines,⁴³ the Committee, in finding that the Philippines violated the rights of Karen, has made significant comments on the gender stereotyping of rape victims in the Philippines. The Committee found that the judiciary relied on various wrongful gender stereotypes such as; women should physically resist sexual

assault at every opportunity,⁴⁴ women are inherently untruthful and therefore likely to fabricate allegations of rape,⁴⁵ and that perpetrators of rape are strangers.⁴⁶

Nigeria is yet to sign and ratify the Optional Protocol; its compliance to CEDAW is assessed through the State reports submitted before the Committee every four years. In its latest report, the CEDAW Committee lauded Nigeria for its adoption of the new Constitution⁴⁷ which includes a comprehensive Bill of Rights which enhances protection for women with provisions such as, article 27(4) which prohibits direct or indirect discrimination on the basis of sex, pregnancy and marital status.⁴⁸ The Committee urged Nigeria to give attention, as a priority, to combating violence against women and girls and adopting comprehensive measures to address such violence, in accordance with its general recommendation No. 19. ⁴⁹ The Committee called upon Nigeria to criminalize marital rape, repeal section 38 of the Sexual Offences Act,⁵⁰ enact Family Protection Bill and develop a coherent and multi-sectorial action plan to combat all forms of violence against women.⁵¹

 

 

 

 

 

 

43 Karen T. Vertido v The Philippines, (18/08), CEDAW/C/46/D/18/2008(2010)

44  Ibid at para 3.5.1

45  Ibid at para 3.5.8

46 Ibid at para. 3.5.4

47

Supra note 22

48 Supra note 39 at para. 8

49 Ibid at para. 22

50 Sexual Offences Act, 2006, No. 3 of 2006, at s.38, “Section 38 of the Sexual Offences Act provides “any person who makes false allegations against another person to the effect that the person has committed an offence under this Act, is guilty of an offence and shall be liable to punishment equal to that offence complained of.”

51 Supra note 39 para. 22

 

 

 

The adoption of the General Assembly’s Declaration on the Elimination of Violence against Women (DEVAW)⁵² increased the international movement towards establishing measures to prevent violence against women.⁵³ DEVAW defines violence against women as “any act of gender-based violence that results in or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”⁵⁴ DEVAW affirmed that violence against women encompassed “physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence,

marital rape, female genital mutilation and other traditional practices harmful to women, non-

spousal violence and violence related to exploitation.⁵⁵

 

Article 4 of DEVAW urges the involvement of States to condemn violence against women and not to use culture or traditions to avoid their obligations to prevent and protect women from violence, perpetuated by the State and by private persons. It further urges states to pursue by all appropriate means of eliminating violence against women; through the exercise of due diligence to prevent, investigate and punish acts of violence against women, whether those acts are

perpetrated by the State or by private persons.⁵⁶

 

DEVAW, as a U.N. General Assembly Declaration, does not have the binding legal authority of a convention or treaty. However, it is argued that it is evidence of customary international law, as evidence of a norm, prohibiting violence against women that is binding on states.⁵⁷ DEVAW, is important because it showcases that violence against women in the private sphere is not acceptable and obligates States to prevent, investigate and punish acts of violence against women, whether by the State or by Private persons.

 

52 Declaration on the Elimination of Violence against Women, Feb.23, 1994, G.A. Res. 48/104, U.NG.A.O.R., 11^th Sess., Supp. No. 49 at 217, UN Doc. A/48/49 (1993), (“DEVAW”)

53 Supra note 3 at 21

54 Supra note 52 at art 1, art. 4

55 Ibid at art 2(a)

56 Ibid at art 4

57 Supra note 3 at 38

 

 

                        Regional Framework

The regional framework addressing the rights of women shall be examined under two legal instruments; the African Charter on Human and Peoples’ Rights (Banjul Charter)⁵⁸ and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa.⁵⁹

The African Charter on Human and Peoples’ Rights (Banjul Charter)⁶⁰ ratified by Nigeria on 23 January 1992 does not contain explicit provisions on sexual violence. However, the general provisions of the Banjul Charter may find application in relation to sexual violence. The Banjul charter provides for the right to equality and equal protection of the law;⁶¹ the right to the respect for her life and integrity of her person;⁶² right to the respect of the dignity inherent to a human being, prohibiting all forms of exploitation and degradation such a torture, cruel, inhuman and degrading punishment and treatment. ⁶³ The Banjul charter also provides that States have a duty to eliminate all forms of discrimination against women (in the family) and ensure the protection of the woman and the child as stipulated in international declarations and

conventions.  The African  Charter obliges  the Nigeria  State to  protect  the rights  of women  to

equality and non-discrimination. By failing to criminalize marital rape, the Nigerian government discriminates against married women, based on their sex and marital status and violates their right to equality before the law.

 

 

 

 

 

 

 

58 The African Charter on Human and Peoples Rights, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5, reprinted in 21 I.L.M. 58 (1982) (entered into force Oct. 21 1986) (“Banjul Charter”)

59 Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, Sept.13, 2000,

O.A.U. Doc.CAB/LEG/66.6, reprinted in Afr. Hum. Rts. L.J. 40, (entered into force Nov.25, 2005).

60 Supra note 58

61  Ibid at art 3

62  Ibid at art 4

63  Ibid at art 5

 

 

 

The Protocol to the African Charter provides stronger provisions for the protection of the woman from violence and the State obligations to ensure that the woman’s rights to equality and non-discrimination are achieved. The Protocol on the Rights of Women in Africa was adopted  to protect the rights of women to equality and non-discrimination. Nigeria has signed but not

ratified the Protocol.⁶⁴The Protocol to the African Charter provides that every woman shall be entitled to respect for her life, and the integrity and security of her person; that all forms of exploitation, cruel, inhuman or degrading punishment or treatment shall be prohibited. It obliges State parties to take appropriate and effective measures to; enact and enforce laws to prohibit all forms of violence against women, including unwanted or forced sex whether the violence takes place in private or public.⁶⁵ The Protocol to the African Charter also provides that women shall

have access to justice and equal protection of the law. ⁶⁶ It recognizes the international law, for the woman to be free from domestic violence, and mandates the state to adopt legislative, administrative, social and economic measures, as may be necessary to ensure the prevention, punishment and eradication of all forms of violence against women.⁶⁷ Although Nigeria is yet to ratify the Protocol to the African Charter, it may apply the provisions of the Protocol and refrain

from acting in ways that contravene the intent of the Banjul Charter and its Protocol. Authors to complaints in court may rely on the provisions of the Banjul Charter and its Protocol, and the judiciary may use its discretion to apply the provisions of the Protocol, to protect married women from sexual violence in the home.

 

 

                        The National Legal Framework

The Nigerian framework shall be examined from the main criminal laws; the Sexual Offences Act and the Penal Code which regulate sexual violence.

 

 

64 Nigeria signed the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa on Dec. 17, 2003

65 Supra note 59 at art 4(b)

66 Ibid at art. 8

67 Ibid at art.4(b)

 

 

 

 

The Sexual Offences Act (2006):

 

The Sexual Offences Act (SOA) is the primary law regulating sexual offences in Nigeria. The adoption of the SOA was marred by intense, polarized debates as it was the first time that the colonial laws on sexual violence under the Penal Code’s offences against morality⁶⁸ were being reviewed. The debate was a battle between the traditionalist and the reformists. The  traditionalist argued that the bill was ‘Un-African’ and introduced western doctrines; ‘I am saying that when this Bill is referred to the relevant Departmental Committee, make it an African Bill that accommodates all the cultures of Nigeria and that improve the atmosphere of marriage between man and woman.”⁶⁹ The Bill was seen as an attack on the  traditional marriage system and also on the cultural systems surrounding sexual relationships, marriage and family life. The Sexual Offences Act became more controversial with the adoption of section 38

which provides for the prosecution of any person making false ‘sexual violence’ claims, with

punishment equal to that surrounding the false claim.

 

The SOA strengthened the general provisions of the sexual offences. It expanded the definition of rape by providing that the perpetrator and the victim could be either male or female.⁷⁰ Section 3 of SOA provides “A person commits the offence termed rape if he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;⁷¹ the other person does not consent to the penetration;⁷² or the consent is obtained by force or by means of threats or intimidation of any kind.⁷³ This moved away from the now repealed Penal Code

 

 

 

• The Penal Code, Nigeria, Cap 63, at chap. XV, See “offences against morality”
• Nigeria National Assembly Official Record (Hansard), April 26, 2005 at 756, 759
• Supra note 50 at s. 3
• Ibid at s. 3(1)(a) 72 Ibid at s. 3(1)(b) 73 Ibid at s. 3(1)(c)

 

 

definition which provided that only a woman or girl could be a victim.⁷⁴ The SOA is further strengthened by its provisions on consent. It provides that a person consents to the act if she or he agrees by choice, and has the freedom and capacity to make that choice.⁷⁵ The SOA provides that the presumption of lack of consent by the complainant, would be conclusively met if it is proved that; any person was at the time of the offence or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him/her;⁷⁶ any person was, at the time of the offence or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person.⁷⁷

Based on the above provisions on rape and consent, a case for marital rape may be sustained as it provides for lack of consent and coerced consent; where it is obtained by force or by means of threats or intimidation. However, Nigerian legislators, determined to provide immunity for married spouses, expressly sought to exempt the provisions of rape from being applied to legally married spouses. Section 43 which defines what constitutes an ‘intentional and unlawful act’ in relation to rape, as acts “committed under coercive circumstances-where there is use of force against the complainant or the property of the complainant, threat of harm against the complainant or against the property of the complainant or that of any other person.” Section 43(5) of SOA then proceeds to exempt the application of section 3 as read with section 43, to include persons who are lawfully married to each other. The effect of section 43(5) is therefore to exempt the enforcement of the rape provision from spouses, thereby denying married spouses protection from rape under the law. The rape provisions of the Sexual Offences Act can only be

 

 

 

 

74 Supra note 68, at s. 139, defined rape as “any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by impersonating her husband is guilty of the felony termed rape

75 Supra note 50 at s. 42

76  Ibid at s. 44(2)(a)

77  Ibid at s. 44(2)(b)

 

 

 

claimed by victims who are not married. This provision exposes and burdens married women to sexual violence.

 

The effect of the rape exemption implies that both married men and married women cannot bring up allegations of rape, where it is committed by the spouse. The provisions of rape⁷⁸ under the Sexual Offences Act and the provisions exempting married persons⁷⁹ are couched in gender- neutral terms, implying equality in treatment of victims. Another gender neutral provision is Section 38 of the SOA which provides that “any person, who makes false allegations against

another person to the effect that the person has committed an offence under this Act, is guilty of

an offence and shall be liable to punishment equal to that offence complained of.” This means that if a person makes an allegation of rape, for instance, that there is a danger that if the  accused is acquitted or some inconsistencies found, that the complainant, would if found guilty of making false allegations, be convicted to a term not less than ten years and which could be enhanced to imprisonment for life.⁸⁰ I submit that these gender neutral provisions are harmful to married women in Nigeria. This is because; the gender-neutral laws ignore the inherent  inequality between men and women. It is submitted that discrimination against women   may

occur when a law, policy, or practice is facially neutral, but has the effect of impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of their human rights and fundamental freedoms because it perpetuates a gender stereotype.⁸¹ In the present case, the statistics show that Nigerian women suffer violence, sexual violence disproportionate to the men. The gender neutral provisions do nothing to diminish the power of men sexuality over the women sexuality. Section 38 of the Sexual Offences Act, further harms women, by intimidating women who are victims

 

 

78

Ibid at s. 3

79

Ibid at s. 43(5)

80

Ibid at s. 3(3) SOA, “A person guilty of [rape] is liable upon conviction to imprisonment for a term which shall

not be less ten years but which may be enhanced to imprisonment for life.

81

Supra note 36 at 105

 

 

 

of sexual violence, from reporting the cases, for fear of being prosecuted themselves. It also insinuates that women are liars and are therefore likely to bring up false cases of sexual violence.

 

To date, no legal challenge has been brought under the Sexual Offences Act, before the Nigerian courts to address the marital rape exemption. However, courts have addressed issues of  domestic violence, including marital rape, in civil cases, such as divorce and custody cases. In Esther Nangwanaa Nandi v Jones Chewe Bobo⁸²a divorce cause before the High Court of

Nigeria, the Complainant in providing particulars that amounted to cruelty on the part of the respondent stated that the respondent was physically violent to her, that he would lock her out of their matrimonial home forcing her to seek alternate shelter at hostels and that he would unreasonably force her to have sex with him when under the influence of heavy drinks. High Court Judge, Rawal, as she then was, in finding in favour of the petitioner in granting the divorce petition affirmed that the respondent was guilty of acts or cruelty and adultery, which she stated were of a very ‘serious nature and caused danger to her life and health’ and that they were acts that should not be accepted as a wear and tear of married life and of living together in

thick and thin.⁸³ This case goes only as far as to determine that the specific acts suffered by the petitioner in this case constituted cruelty.

 

The Sexual Offences Act’s express exemption of marital rape from its application means that married women cannot file a suit on a charge of marital rape. This burdens married women with exposure to sexual violence, and denies them the equal protection of the law. Married women, who are victims of domestic violence, are therefore left with the option of using the assault provisions provided under the Nigerian Penal Code, which are insufficient.

 

 

 

 

 

 

82 Esther Nangwanaa Nandi v Jones Chewe Bobo Divorce Cause 84 of 2005 at High Court of Nigeria, Nairobi

83 Ibid

 

 

 

 

 

The Nigerian Penal Code⁸⁴:

 

Before the enactment of the Sexual Offences Act, the Nigerian Penal Code was the main law regulating provisions of sexual violence. With the explicit exemption of rape provision to married spouses under the Sexual Offences Act, victims of rape are left with the option of using assault provisions of the Penal Code to address marital rape. Whether or not these provisions can be sufficiently used by victims of marital rape will be examined below.

 

Section 234 of the Penal Code provides that any person who unlawfully does grievous harm⁸⁵ to another is guilty of a felony and is liable to imprisonment for life, with or without corporal punishment. Section 250 of the Penal Code provides that ‘any person who unlawfully assaults another is guilty of a misdemeanor and if the assault is not committed in circumstances, for which a greater punishment is provided, is liable to imprisonment for one year. Section 251 of the Penal Code provides that any person who commits an assault occasioning actual bodily harm⁸⁶ is guilty of a misdemeanor and is liable to imprisonment for 5 years, with or without

corporal punishment. These provisions have been used by women to file for cases of physical violence in marriage. Their application has however not been effective. In one case, a man was convicted of assault causing actual bodily harm to his wife and fined 10,000 shillings (US$12), or four months’ imprisonment in default, having spent a year in prison on remand.⁸⁷ Evidence was introduced in court that he had pushed the broken legs of a stool into her private parts. The International Federation of Women Lawyers-Nigeria later reported that he had again been charged with assault after allegations that he had beaten his wife again and threatened to kill her

 

 

 

84 Supra note 68

85 Ibid at s.4 defines grievous harm as “any harm which amounts to a, maim or dangerous harm, or seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense.

86Ibid at s.4 defines harm as “any bodily hurt, disease or disorder whether permanent or temporary”

87 Amnesty International, Nigeria: Rape- The Invisible Crime,(2002), AI Index: AFR 32/001/2002 at 8

 

 

in reprisal for his imprisonment.⁸⁸ In another case, High Court Judge Vitalis Juma, set free the accused, Dickson Chege, who had admitted stabbing to death his wife, because of her alleged infidelity, reasoning that the accused had been highly provoked by his wife’s infidelity.⁸⁹

The assault provisions of the Penal Code are insufficient for addressing marital rape. The requirements of the Penal Code have requirements such as witnesses, which is hard to provide in the case of spousal rape because it occurs in the privacy of the victims and perpetrator’s home. The assault provisions also require physical proof or injury- to distinguish, where there was actual harm, grievous harm, to determine punishment. However, as marital rape mainly constitutes coerced sex, proof of injury may be absent where no physical abuse was meted. The failure of the Penal Code assault provisions also lies in its lack of appreciation for the different dimension of domestic violence, as opposed to assault caused outside a domestic relationship. Spousal violence technically constitutes assault and battery, but because of the complex relationship between the abuser and the victim in this case, the legal categorization of domestic

violence is inadequate and inappropriate.⁹⁰ It is argued that creating a specific crime (independent of assault and battery) demonstrates the state’s serious approach to preventing and punishing domestic violence.⁹¹ It sends a signal of approbation which changes society’s perception of domestic violence as a “family matter” and places it firmly within the realm of objectionable criminal conduct.⁹²

 

 

                        The Traditional/Cultural Framework:

Marital rape in Nigeria may also be analyzed from the cultural/traditional perspective. Violence in the home, whether physical or sexual, has found acceptance and tolerance in some of the

 

88 Ibid

89 Ibid at 21

90 Supra note 3 at 161

91 Ibid at 61

92 Ibid

 

 

traditional practices in Nigeria. Blind adherence to traditional practices and State inaction with regard to these customs and traditions has made possible large-scale violence against women.⁹³  I argue that an examination of the Nigerian traditions, in relation to violence against women, and treatment of the woman in marriage is necessary to identifying and reshaping the base of shared understanding, on which desirable change or progress can build.⁹⁴ In Nigeria, the customary and religious laws and practices interact with the national and international laws. The Nigerian Constitution in its preamble recognizes this spirit by declaring “we, the people of Nigeria, proud of our ethnic, cultural and religious diversity, and determined to live in peace and unity as one indivisible sovereign nation.” The Constitution further recognizes “culture as the foundation of the nation and as the cumulative civilization of the Nigerian people and nation.”⁹⁵

Nigeria comprises of at least 42 ethnic tribes, grouped into three subgroups: the Bantus, the Nilotes and the Cushites. Each tribe has its own identity, realized through its culture and tradition. Though there are some common practices shared among the Nigerian tribes, each tribe has its own unique beliefs captured in Customary Laws. Before its colonization by the British, the Nigerian was organized by their various traditions and customs; in all areas of the life of a community, particularly in the family unit. Nigeria is a paternalistic society with traditions that affirm the position of the man as superior to the woman. Some of the customs that we practiced were discriminatory to women and persist today advancing a tolerance for violence against women. It must be noted that not all customs are discriminatory towards women as shall be discussed below. Some of the cultures and traditions that entrench discrimination and violence against women include wife inheritance, bride price/dowry practice, forced marriages and female genital mutilation.

 

Wife inheritance, practiced mainly by the Nilotes, for example the members of the Luo tribe, provides that on the death of her husband, a woman is “inherited” by his brother or close

 

93 Supra note 87 at 13

94 Katharine. Bartlett, “Tradition, Change & the Idea of Progress in Feminist Legal Thought” (1995) Wis. L. Rev. 303 at 305

95 Supra note 22 at art. 11(1)

 

 

 

relative. The widow’s consent to the new ‘marriage’ or to sexual relations with her new ‘husband’ is not sought.⁹⁶ In some cases, Amnesty International reports that children will marry off their mothers, usually to the [dead husband’s] elder brother, but the children cannot do any cultivation on the land until the elder brother has had sexual intercourse with his new wife. The children cannot cultivate or build a permanent house, for the elder brother determines everything, otherwise there is chira (negative consequences for the family).⁹⁷ This cultural practice perpetuates the sexual violence meted out on a widow upon the death of her husband. It shows the inferior status of the woman to the men, treating the woman as one without a right to her husband’s property, or to her personal dignity. This culture exposes women to sexual, physical violence and further exposes her to other harms such as exposure to sexually transmitted diseases.

 

 

 

Another custom widely used as justification of the treatment of married women is the practice of dowry payment/bride price. It is a common practice within the Nigeria tribes, such as the Kikuyu, members of the Bantu tribe. According to the Kikuyu, the tradition of bride price was to join two families together, with the woman leaving her parents home to join and form a new clan. Once the dowry has been paid, it signifies the completion of the marriage contract and the man

acquires sole right to sexual intercourse with the woman or women whom he marries.⁹⁸The marriage ceases to be a personal matter as the contract binds the groom, the bride and also their kinsfolk.⁹⁹ The dowry tradition was traditionally not intended as purchase of the woman, but rather as a symbol of appreciation joining two families. However, the dowry practice sealed the contract of marriage and if the wife committed a wrong, she could be sent back to her father and

 

 

 

 

96  Supra note 83 at 12

97  Supra note 87 at 12

98 Jomo Nigeriatta, Facing Mount Nigeria: The Tribal Life of the Gikuyu (London: Secker and Warburg, 1953) at 163

99 Ibid

 

 

 

the husband had the right to demand the dowry that he paid.¹⁰⁰This emphasizes the inferior position of the woman with respect to a man- that a woman, a wife, to a man-the husband. The dowry tradition also offered justification for men to treat their wives as they pleased, within reason, as she was now counted as part of his property. Dowry tradition has been used as justification for wife battery, couched in terms of disciplining the wife. Though the Constitution provides for equality within the marriage, the dowry practice and the subordinate status of the woman is still maintained to date. During the debate of the Sexual Offences Bill, one of the legislators arguing against marital rape used the dowry practice to assert that rape within marriage is not possible. “I have paid dowry for my wife and we are formally married. I cannot rape her by any chance. You can see the damage that western indoctrination has done to us. I cannot rape my wife! I don’t think there is one man who can rape his wife…you can rape

someone else.”¹⁰¹ The culture of dowry justifies and tolerates the violence against women at home.

 

Another culture that perpetuates subordinate status of women and a culture of tolerance towards violence against women is the practice of female genital mutilation. Female Genital Mutilation (FGM) is exercised by Nigeria communities. Traditionally, circumcision of boys and circumcision of girls was a set rite of passage. To the Kikuyu, circumcision and FGM (referred to as irua) ¹⁰²were the initiation processes that gave a boy, manhood and a girl, womanhood. The ‘surgery’ itself was the last process after the teachings of what was expected of womanhood and manhood, to the initiates.¹⁰³ In the matrimonial relation, no ‘proper’ Kikuyu would dream  of marrying a girl who has not been circumcised, and vice versa.¹⁰⁴ In addition to being a rite of passage, female circumcision was also a way with which the sexual desires of women were

tamed. This asserts the subordinate status of the woman. FGM is now outlawed in Nigeria under

 

 

100 Ibid

101 Nigeria National Assembly Official Record (Hansard), Second Reading of the Sexual Offences Bill, April 27, 2006 at 780

102 Supra note 98 at 134, “Circumcision, or trimming the genital organs of both sexes”

103 Ibid

104 Ibid at 132

 

 

 

the Children’s Act¹⁰⁵, but continues to persist in the country because people still believe in the value of circumcision as a rite of passage and as a way of controlling women’s sexuality. Some communities, in addressing the problem of FGM, have maintained the aspect of the teaching girls who have come of age of what is required of them as they move into adulthood. The girls have a ‘graduation ceremony that is symbolic of the rite of passage from childhood to adulthood. Male circumcision on the other hand, is still practiced and encouraged.

 

The above traditions, as explained have been used to the detriment of women, emphasizing the subordinate status of women, despite the equality provisions in the Constitution. These traditions have exposed women to physical and sexual violence, exposure to disease and discrimination and unequal treatment before the law. As explained, Nigerian customary laws inter-relate with the national and international laws in Nigeria-and this has worked to the detriment of women in some instances, such as property inheritance. In Mwathi v Mwathi and

Anor,¹⁰⁶the Court of Appeal applied the Kikuyu Customary Law in relation to the estate of an intestate, despite the fact that the Law of Succession Act¹⁰⁷ was in force to find that Kikuyu unmarried girls cannot inherit their father’s property. In the Estate of Njeru Kamanga (dcd¹⁰⁸) the daughters of the deceased were disinherited by the magistrate who felt that the daughters had no right of inheritance to their father’s property because they were married.

 

On a positive note, some courts have found customary laws to be discriminatory to women, justifying the unequal treatment of women. In Mary Rono v Jane Rono and William Rono¹⁰⁹ the court, in granting that it was discriminatory to give less acreage to the daughters because they were women and would have a chance to inherit elsewhere when they got married, asserted that the current thinking of Common Law theory is that in both international customary law and

 

 

 

105 The Children Act, (Nigeria) 2001, No. 8 of 2001

106 1995-1998) 1 EA 229

107 The Law of Succession Act(Nigeria) Cap 160 108 In the Matter of the Estate of Njeru Kamangu 109 Supra note 18

 

 

 

treaty law can be applied by state courts where there is no conflict with existing state law, even in the absence of implementing legislation.

 

As discussed above, some traditional customs are effectively undermining the equal treatment of women, further exposing them to such adverse effects as physical violence, sexual rape-marital rape and exposure to diseases. However, it must be noted that not all traditions are discriminatory towards women. We can draw from some of the traditions to address some of the current problems. One such tradition is the use of a council of elders that would hear disputes between husbands and wives. The use of the council allowed the hearing and determination of disputes that did not discriminate against who brought the matter to the council of elders. The law must therefore, come from an understanding of the role of traditions in relation to the treatment of married women, to find effective solutions.

 

Conclusion

 

The analysis of the Nigerian Legal framework has highlighted the gaps that exist in protecting married women from marital rape. Married women are exposed to sexual violence in the home, which is justified under the law and also under the tradition of dowry/bride price. It is important to analyze and examine the role of traditions in the treatment of married women, in order to identify holistic solutions. A multi-sectoral approach is necessary to ensure the protection of women from sexual violence within marriage. It is imperative that a thorough legal reform be undertaken, which I argue must begin with the criminalization of marital rape in Nigeria.

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