We can begin the conversation on the current state of the framework of sexual laws in Nigeria and its possible improvement, by an examination of the existing legal protection, if any, provided by the Nigerian law. It is certainly not out of place to assert that Nigerian laws on sexual harassment seem to be inadequate and for victims of sexual harassment to be properly protected in Nigeria effective protection must be provided by our laws. In this article, we will focus on the provisions in Nigerian law regarding rape, specifically marital rape and the age of consent.
The criminal code defines rape as any sexual intercourse with anyone without his or her consent or incorrectly obtained consent. Under this act, the slightest act of activity without the ‘yes’ of the other partner equals rape. It, however, does not recognize any other form of sexual activity, so any penetration of the anus or mouth is not considered rape under the Nigerian law. The offence of rape under this act is also gender-specific; only men commit the offence and by implication, only a woman can be raped. Also, according to Section 30 of that act, a male person under the age of 12 years is presumed to be incapable of having carnal knowledge. This is an irrefutable presumption which means that he cannot be guilty of the offence even if it is proven that he has reached puberty despite his age.
The penal code which applies to northern states of Nigeria has similar provisions to that of the criminal code however it is narrower. The criminal code referenced earlier, makes use of the term ‘carnal knowledge’ implying that penetration may be done with any foreign object and not just the penis; the Northern Nigerian penal code only recognizes penetration with the penis.
Nigerian sexual laws are harmful, regressive, unsympathetic and in dire need of change.
Another blank space in the Nigerian law with sexual violence is the fact that marital rape is not recognized by Nigerian law. Section 6 of the criminal code defines rape as an unlawful carnal knowledge that takes place excluding that which could happen between husband and wife. Another issue that could be pin pointed is the fact that rape according to this act is only complete upon penetration. Our culture and law assume that the wife gives implied general consent to sexual intercourse with her husband upon marrying him and thus he can rape her ( or have carnal knowledge as the law suggests) whenever he pleases without any consequence.
It should go without saying that the law on sexual violence in Nigeria needs reform and while little progress is made from time to time ( for example the violence against person prohibition act of 2015 acknowledges forms of sexual violence beyond penetration, it however only applies to the federal capital territory) we still have a long way to go, in 2013, a sexual offense bill that would have expanded the definition of fake to cover both genders was rejected.
According to UNICEF, Nigeria has the 3rd highest absolute number of child brides in the world – 3,538,000- and the 11th highest prevalent rate of child marriage worldwide. Nigeria is also ranked 9th most dangerous country for women by the Reuters Foundation
The Nigerian constitution regards any person who is married to be of full age, this was remedied by the child Rights act 2003, which has the minimum legal age of marriage as 18years. However, as of May 2011, there were still 12 Nigerian states that do not apply the child’s right act 2003 in their internal legislation, so local laws apply instead. This is because, federalism allows for states to determine the legal age for a child in its territory, usually countries have a defined age within which the age of consent must be set, there is no defined legal age in Nigeria.
The popular belief is that it is 18 but it depends on what state you’re in and which act it follows. So when it comes to child’s marriage and the abuse of children, a perpetrator can walk free depending on the laws functional in the state the crime was committed. Nigeria also does not recognize the close to age exception, this ensures that even where the age consent is 16 for example, the person they engage the act with is not a certain years older, for most countries it’s 2 years. So if a 16-year-old child is having sex it should not be with s overdub older than 18 years.
Nigeria can not define itself by its archaic and harmful methods there are areas in society that need the protection legislation offers, and except these laws are reviewed , victims of sexual violence will continue to have their rights to justice overlooked because the laws created by the country expected to protect them do not protect them while the perpetrators of these crimes walk freely looking for the next victim to prey on because they can.
Image: Statista / Thomson Reuters Foundation
By Ayotunde Balure