REACTIONS ON POSSIBLE PUNISHMENTS FOR RAPE.
Anthony Akinola
Rape: Crossfire over castration law
• ‘It’s Barbaric, Uncivilised’
• ‘It’s Welcome Development, Ordeals Of Rape Victims Better Imagined’
• Without Constitutional Amendment, Kaduna Law Illegal – Lawyers.
• Focus On Social Justice To Prevent Crime, Not Criminal Justice – Sociologists
• ‘Should Be For Those Raping Our Collective Patrimony’
Mixed reactions are trailing the recent law enacted by the Kaduna State Government prescribing castration for rapists in the state.
While the law is receiving knocks in some quarters as being too harsh and undignifying, others, especially commentators on women and children issues as well as gender-rights activists, have described it as “timely and a welcome development.”
This is as some lawyers have contended that the Kaduna State Penal Code (Amendment) Law 2020 is a violation of Nigeria’s constitution, which in Section 34 provides that “every individual is entitled to respect for the dignity of his person and no person shall be subjected to torture or to inhuman or degrading treatment,” and also a violation of reproductive health as enshrined in international human right laws that Nigeria has signed and ratified.
Recall that House of Representatives member, representing Kazaure/Roni/Gwiwa/Yankwashi Federal Constituency of Jigawa State, Muhammed Kazaure Gudaji, had recently proposed outright castration as a stiff penalty for rape in Nigeria, in the belief that when the weapon for rape is taken, it would serve as deterrent to others who might contemplate it.
He spoke during a debate on a motion seeking to end the increasing rate of rape in the country brought by Rotimi Agunsoye (Lagos State), while seeking justice for Miss Uwa Omozuwa, Tina Ezekwe and other Nigerian female victims of rape. Though the motion received support from the lawmakers, attempt to amend the prayers to ensure rapists are castrated suffered rejection.
However, under the Children and Young Persons Law Cap 26, Laws of Kaduna State 1991, recently passed by the Kaduna State House of Assembly and assented to by Governor Nasir el-Rufai on September 11, men convicted of raping children under age 14 will have their testicles surgically removed, while women will have their fallopian tubes cut out, compared to the previous law that carried a maximum penalty of 21 years imprisonment for rape of an adult and life imprisonment for rape of a child.
In addition, such convicts will be listed in the Sex Offenders Register to be published by the attorney general of the state.
Governor El-Rufai said the new measures were “required to help further protect children from a serious crime.”
Delighted, a former chairperson of Federation of Women Lawyers (FIDA) and Founder of Gender Relevance Initiatives Promotion (GRIP), Rita Illevbare, described the law as a welcome development, insisting that once a rape offender is found guilty, his/her fundamental and reproductive rights have been lost.
Illevbare said, “The law is timely and a welcome development. If you know what the victims of rape go through, it is better imagined. If the sentence for rape is life imprisonment, what reproductive or human right would that person have?
“If it will serve as deterrent, I am for it. The cases of rape have become too rampant and this is why the law is a welcome development. I urge other states to follow suite. We all have fundamental human rights, but once you have run foul of the law, such right has been abridged. This not a jungle law, because it was passed by the state Assembly and the constitution empowers them to make law.”
“So, if you are found guilty of rape, the law on castration takes it course. There is nothing illegal or unconstitutional about it,” she reiterated.
Smart Martins Olatunji said sexual offence (rape) is an offence to humanity and God, noting: “Rape is an act, which can only take place between persons other than husband and wife with force or inducement, without the consent of the victim.
“This act has caused a lot of issues to our females in society, thereby infringing on the rights of our females to freely move around otherwise they may be raped. The position of Kaduna law is a welcome punishment that will make our society and our females free from any form of sexual harassment. The new law will serve as deterrence.”
To Mary Eluwa too, the law is not much punishment for rape, as it is a horrible crime against humanity, capable of killing the victims physically, psychologically, emotional and in so many other ways.
“The only thing that cannot be over-emphasised under this law is that it must be proven beyond any reasonable doubt that the accused person actually committed the crime, as it comes with severe punishment,” Eluwa added.
But rights lawyer and Founder of Initiative for Women and Girls Right Advancement (IWOGRA), Nkechi Obiagbaoso-Udegbunam said that, “Section 4 of the Kaduna State Penal Code (Amendment) Law 2020 is a violation of the constitution, which in Section 34 provides that every individual is entitled to respect for the dignity of his person and no person shall be subjected to torture or to inhuman or degrading treatment and it is also a violation of reproductive health as enshrined in international human right laws that Nigeria has signed and ratified.
“The lack of requirement for consent from the offender is the problem, as the offender does not have the choice to reject the measure, but to accept the treatment. This creates issues with informed consent as a fundamental requirement for the sexual and reproductive health and right of all persons.”
She added: “Another international human rights concern is that it constitutes cruel, inhuman or degrading treatment, which is prohibited by Article 7 of the International Covenant on Civil and Political Rights, signed and ratified by Nigeria.
“Nigeria has the obligation to respect, protect, and fulfill human rights. The right not to suffer cruel, inhuman or degrading treatment is not subject to any form of limitation and no justification or extenuating circumstances can excuse violations of the right not to suffer ill-treatment, including orders from authorities acting in an official capacity.
“This provision is clearly supported by Section 45 of the constitution, which list instances at which a person’s right can be subjected to limitations, but excluded Section 34 from the list of rights that can be limited or denied.
“Therefore, Surgical Castration and Bilateral Salpingectomy, as criminal sanctions, cannot be justified under the constitution and international human rights laws, with respect to the application of Section 34 of the constitution and Article 7 of the of the International Covenant on Civil and Political Rights.”
“In a bid to restore a balance of rights between that of the victim, which was taken away, and that of the perpetrator, which is vehemently limited by the state in order to protect the right of children not to suffer torture or ill-treatment and an effort to protect the rights of victims/survivors and potential victims, states must proscribe other stiffer punishments that do not contravene the constitution, as any law that conflicts with the provisions of the constitution is null and void.”
“In this light, Surgical Castration and Bilateral Salpingectomy as provided in the Kaduna State Penal Code (Amendment) Law is a violation of the right to dignity and reproductive health under the constitution and should be repealed to avoid gross violations of the rights of offenders.”
In the same vein, Lagos-based lawyer, Oluwole Kehinde, said the punishment is too harsh, adding: “I think the punishment is too harsh for the crime. Yes, it is desirable to control rape and sexual abuse, but the punishment prescribed is disproportionate to the crime. It is like killing a fly with a sledgehammer.
“The punishment appears inhuman, barbaric and repugnant to natural justice, equity and good conscience.” Another lawyer, Johnson O. Esezoobo, said castration is too extreme a deterrent, saying: “Admittedly, rape is too serious a crime, but if our experience with tying persons to the stakes and shooting them for armed robbery is anything to go by, castration will not solve that problem. Rather, it will make culprits more vicious, cruel and callous.
“For a civilised society, not an Islamic fundamentalist state, castration is not it. Moreover, from the perspective of fundamental right to human dignity, can the state dehumanise a citizen without an amendment to the constitution? I want to believe that a law that provides for castration without an amendment to the constitution will be undemocratic and unconstitutional.”
Acknowledging a spike in reported cases of sexual offences and domestic violence in recent times and the need for deterrence, rights activist, Oluyinka Oyeniji, however, insisted that castration of an offender is quite excessive and a breach of international human rights regulations to which Nigeria is a signatory.
Oyeniji said: “Castrating would ensure convicts would never reproduce. This militates against right to life, which includes being able to do all the things that make us human.
“Furthermore, if castrating under the law means that convicts will be rendered sterile, then one wonders the thinking of the lawmakers, in that, even ordinary citizens submit themselves to becoming sterile through vasectomy.
“What is the process of carrying out this punishment? This is pertinent because even death penalties being enforced have gone through the process of ensuring rights of convicts are preserved not to suffer pain or torture while execution is being done.”
Wondering whether castration would be done to render convicts sterile or to ensure they just don’t enjoy erection anymore, the legal practitioner said: “The answer to this will bother the rights to dignity of human person. Suffice to say that Nigeria is a State Party to the United Nations (UN) legislation and a signatory, having ratified the instrument on the 28th of June 2001.
“The Kaduna State law is a patent breach and susceptible to being challenged by human rights organisations, as well as the office of the attorney general of the federation as being a direct affront to the said UN law.” National Welfare Secretary of the Nigerian Bar Association (NBA), Kunle Edun, said much as something needs to be done to check the rising cases of rape in the country, the initiative of the Kaduna State Government is good, but too extreme.
“If we cannot recommend castration for politicians that are looting the country’s treasury, why for rapists? Rape is not a capital offence, but still a very serious crime. Our criminal laws give room for rehabilitation. That is why they changed the name of the Federal Prisons Service to Federal Correctional Centre. A lengthy sentence is good, but certainly not castration.
He proposed that a register should be opened for convicted rapists, who should be banned from certain places, including schools, and compelled to visit the Police station and register their names in any locality that they visit for a period of time.
“Those that have stolen huge public funds are the ones that deserve castration. While our criminal laws should be strict, we must give room for rehabilitation,” he stressed.
A former chairman of Ikeja branch of NBA, Monday Onyekachi Ubani, said the law is archaic and clashing with modern reality, adding: “If the person castrated is found later to be innocent of that offence, what happens to that individual?” He stressed the need to look for another way of punishing criminals, rather than bringing out punitive measures that have been considered outlawed or not recognised by modern society in this modern time.
“There are some punishments that can be allowed under the old order, but the law recognises remedial and correctional measures without injuring the life of a convicted.
“For me, the law is too harsh, knowing that the eventuality of the person who committed the offence may not be reality.”
Another former NBA chairman of Ikeja branch, Yinka Farounbi, said execution, as a punishment, is no longer in vogue, adding: “There is no doubt that sexual offences, particularly rape and defilement, are annoyingly on the increase in our country and all hands must come together to tackle the menace.
“While it is true that a drastic situation deserves drastic solution, violence should not be used to cure violence. The world is generally moving away from capital punishment and in Nigeria today, hundreds of convicts are on death rolls, but the approving authorities refused to assent to the executions. Thus, execution, as a punishment, is no longer in vogue.