By Sanusi Yahuza
Since punishment for rape is not enough to make rape a history in Nigeria or in the world, it is high time for lawyers to find a way to discourage that filthy act through the instrumentality of fundamental right enforcement.
In Nigeria, the following legislations are against rape to wit: (a) The Criminal Code, which is applicable in Southern Nigeria; (b) The Penal Code, which is applicable in Northern Nigeria; (c) The Criminal Laws of Lagos, which is applicable only in Lagos State of Nigeria; (d) The Violence Against Persons Prohibition Act, which is applicable only in the Federal Capital Territory, Abuja, Nigeria; and (e) The Child Rights Act, which can be only applicable in the Nigerian State(s) that domesticate it.
Traditionally, whenever a person commits the offence of rape, they are said to have violated the right of the government as contained in the above statutes but apart from this right of the State, there are other rights clearly violated by the rapists while carrying out the rape to wit: The fundamental rights of the rape victim(s), which is main concern of this piece.
As the saying goes that “a shadow can’t be buried,” I also philosophically think that the same shadow can’t equally be washed away by water, swept by broom or caged by irons. And this is why, with all sense of humility, I write to postulate that there is a need for every lawyer against both meager and mega rapes (oh Lord) to start going to courts to apply for enforcement of fundamental rights of the rape victims that were directly or indirectly violated during the acts of rape. Do you think I am just stabbing in the dark? Follow me as we explore my reasoning.
By way of introduction, let me ask: at any time there had been rape, don’t you think that there had been some sorts of assault, torture, threat to life, inhuman and or degrading treatments on the rape victims? See, no need to even waste time pondering on this. But then, why don’t we apply to Court for enforcement of such fundamental rights of innocent victims in order to procure a financial compensation or freedom for these victims merely to serve as an advanced measure to thwart the inhuman offence; the doers of which now recognize no tenderness of age or of mind or even the value of lives of young women as well as infants? Is it an enough and just punishment to only sentence a person who raped a five (5) years old girl for example? Is that enough? And is it right not to go court to enforce the fundamental right of such victims?
Now, since at any time there was rape, there could have been an infringement of some legislations which when violated, the only option available for the victim is to apply to competent court of law for enforcement of their rights trampled upon by way of fundamental right enforcement, such legislations can be invoked by the rape victims to claim possible compensation against the rapists to wit:
- The Constitution of the Federal Republic of Nigeria, 1999 (as amended) particularly under section 34(1) (a) as it provides that:
‘Every individual is entitled to respect for the dignity of his person, and accordingly —
‘(a) no person shall be subjected to torture or to inhuman or degrading treatment.’
… Thus, the only question to repeat here is, don’t we think some rape victims must have gone through torture, inhuman or degrading treatment as against the above proviso whenever raped? How come it is only the State that should pursue its right (which is entirely focused on establishment of ‘penetration’) against the rape perpetrators and then we would refuse to pursue the victim’s jettisoned and violated right to dignity of human person by way of claiming a heavy compensation for the prosecutrix?
I stressed on cost or compensation here because most of the rape victims in Nigeria are of poor background and as such; they might deserve some reasonable amount of money to at least soothe the gravity of the rape stigma that includes grief, psychological trauma, community gossips and mental imbalances possibly caused to them and their families. It is my humble opinion that since we might not succeed in having the penalty for the offence of rape to be amplified with immediate effect or to be made so harsh by our law makers, there ought to be a cost in honour of each crime of rape because, the only necessary triumph for the continuation of committing any offence or rape is when the rape victims and their families continue to pretend as if they don’t have a fundamental right to enforce and restore upon being sexually exploited forcibly and inhumanly.
- By the provision of Article 5 of the African Charter on Human and People’s Right, a victim of rape can claim damages against the rapist because the Article also provides that:
“Every individual shall have the right to the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.”
Based on the above, as long as the government would punish criminals for non-consensual and illegal penetration or fraudulently having carnal knowledge of infant, lass, woman, man or lad as the case may be, why shouldn’t the rape victims institute legal action for breach of their fundamental rights against the cruelty, degradation, torture and non recognition of their legal status by the rapists?
- Also, going by Article 3 of the Universal Declaration of Human Rights, one can demand compensation and enforce their fundamental right once raped as the said Article provides that:
“Every person has a right to life, liberty and security of person.”
Based on the above, let me say, in humanitarian and logical spirits, most of the time rapes occurred, there must have been a threat to life; a crass violation of the personal security of the rape victims as well as a profound disregard to their right to liberty or right to dignity of human person and as such, there ought to be a financial compensation or claim for such inhumanity by the poor innocent rape victims in Nigeria, Africa and all parts of the world — for the victims now to start ‘livin la vida loca,’ just to have the pain and tension of the suffering at least reduced.
In conclusion, one thing I must say here is, to enforce the fundamental right of rape victims against the rapists does not mean sheer disregard to the rapists’ right against ‘double jeopardy’ or simply the right against being punished twice for committing one offence.
My humble view is that, in rape, there were violation of two different kinds of rights which are (1) that of the State which prohibits the offence itself, and (2) the right of the individual, the rape victims focusing on no one should torture them, assault them, sexually exploit them and/or inhumanly treat or degrade them because they evenly have the right to dignity of human person which could have been grossly violated during the commission of rape.
As proposed, States punish rape offenders for violating some legal provisions against rape in either the Criminal Code of Southern States of Nigeria, the Penal Code of Northern States of Nigeria, the Criminal Laws of Lagos State of Nigeria, the Violence Against Persons Prohibition Act of Federal Capital Territory, Abuja, Nigeria and the Child Rights Act applicable in all the Nigerian States that domesticated it.
However, the enforcement of fundamental right of the rape victims could come either under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the African Charter on Human and People’s Right or the Universal Declaration of Human Rights. Under all these, the rape victims could claim damages or compensation by way of fundamental right enforcement action for the torture, non recognition of their legal status, inhumanity and cruelty advanced on them by the rapists.
In my view, if the punishment for rape would be accompanied by payment of huge, reasonable compensation against the perpetrators depending on their social or financial status, the fear of committing rape would be the beginning of wisdom in the minds of many potential rapists.
Note that even if the offence of rape or the violation of State’s right failed to be proved in a competent court of law by the prosecution or the State, the enforcement of fundamental right of the rape victims might still see the light of the day even though advisably, the fundamental right action should be initiated once the accused is found guilty or otherwise by the court.
It should also be noted that even though some people will argue that some laws now provide a right for every victim of crime to be rewarded with some compensation against the offender by a trial court, I am still on my firm belief that that cannot take away the right of rape victims to apply for enforcement of their fundamental rights and to claim a separate compensation or damages. With this proposal, even without having the law makers on table to increase the punishment for the offence of rape, we still have some options to bring the rapists on their knees even faster.
Let us give justice a chance. Let us commit no rape.
Sanusi Yahuza is a lawyer, author, human rights activist, performing artist, practical philosopher and psychic counselor. Email: firstname.lastname@example.org. (0813 609 1742).