Nigerian Woman and Protection Under The Law
By Rita Okoye
Women in Nigeria face many challenges and discrimination under some existing laws. This discrimination is endemic and was also highly prevalent in African countries in vast contrast to the developed Western world, where women are highly revered and regarded.
Unfortunately, in some rural areas in Nigeria, women and children are still regarded and treated as chattel or property.
Thus, women are said to be among the vulnerable groups subjected to discrimination by the Nigerian Laws.
Some of these laws that are not favourable to women include the aspects of rape, Indecent Assault, Domestic Violence, Customary law practices, Will and Property Rights, Marriage and Divorce, amongst others.
Rape against women is a significant ill plaguing the Nigerian society, and one of the least reported crimes in Nigeria. It is due to the societal stigma attached to it, adding to that, Nigerian laws expressly provide that there cannot be a case of rape in marriage.
While in the real sense of the word, there can be cases of rape in marriage, even if the law does not recognise it as an offence.
What is rape? Rape is a type of sexual assault usually involving sexual intercourse, or other forms of sexual penetration carried out against a person, without that person’s consent. The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid permission, such as one who is unconscious, incapacitated, has an intellectual disability, or is below the legal age of consent.
Lack of consent is a crucial factor in rape. Consent here is affirmative, informed approval, indicating a freely given agreement to sexual activity. It does not necessarily have to be expressed verbally and implied from actions, but the absence of an objection does not necessarily constitute consent. Lack of consent may result from either forcible compulsion by the perpetrator or an inability to consent on the part of the victim. Where there is consent by fraud, force, threat, intimidation, deceit or impersonation, the act is still rape.
Where a wife does not consent to the sexual intercourse, then if the husband “forcefully” has sex with her, it should be treated as rape, once well proven that he forced her, because it constitutes both physical and mental abuse of the wife’s person.
Speaking to Allure on the subject, Dr. (Mrs.) Adesola Falaiye, a practising Lawyer of 14 years, said ‘Section 258 Criminal Laws of Lagos State provides that rape is ‘when a man has sexual intercourse with a woman or girl without her consent, or with incorrectly obtained consent. Consent is incorrect where it is obtained: by force, impersonation threat or intimidation of any kind employing false and fraudulent representation as to the nature of the act.’
“Like the Penal Code, the Criminal Laws of Lagos explicitly states that sexual intercourse by a man with his wife cannot be unlawful, and therefore a man cannot rape his wife. Section 6 of the Criminal Code defines forbidden carnal knowledge, as ‘that which takes place otherwise than between husband and wife.’
All these provisions imply that marital rape is not an offence in Nigeria. Therefore a husband cannot rape his wife. The marriage contract gives an assumption of implied general consent to sexual intercourse upon entering the marriage. This implied consent is however revocable either by order of a court, or separation agreement or divorce.”
Sadly, when this same act happens against an unmarried woman, it is treated as a grave offence punishable by life imprisonment, under the Criminal Code and Penal code, but the major hindrance to the case is the rules of evidence which are stacked up against the victims in courts.
“In the case of Upahar vs The State (2003) Vol 6 NWLR pt 816 the court held that to establish the offence of rape, the prosecution must prove: (1)That the accused had sexual intercourse with the prosecutrix.
(2) The sexual intercourse is in circumstances under the provision of S.282(1) of the Penal Code. (3)The prosecutrix wasn’t the wife of the accused, or if she was the wife, had not attained the age of puberty. (4)The accused had the men’s rea——– (criminal intent) to have sexual intercourse with the prosecutrix without her consent, or he was reckless and careless regarding her approval. (5)There was penetration.”
Indecent Assault Laws
In this case, crime committed against males and females carry different punishment.
Here, the punishment for an indecent assault committed on a female is lighter than that of a male. Under Section 353 of the Criminal Code, a person who unlawfully and indecently assaults a man is guilty of a felony and liable to imprisonment for three years. However, by Section 360 of the Criminal Code, a person who unlawfully and indecently assaults a woman is guilty of a misdemeanour and is liable to imprisonment for two years.
Under Section 55 of the Penal Code, husbands are permitted to chastise their wives. Subsection 10, “nothing is an offence which does not amount to the infliction of grievous harm upon a person and which is done by a husband to correct his wife…”
According to Mrs Falaiye: “Women who are suffering or suffered from severe domestic violence gets protection under relevant laws within their jurisdiction. A lot still needs to be done though, to bring the rules up to date. For example, the judge must acknowledge rape within marriage should be recognised, and married women should be protected against sexual violence by their spouses.
There are many sources of help for a violated woman. She could seek help from the police in the area where the violation has occurred or is occurring; seek direction and counsel from Counselling Services and Support organisations; seek advice from Welfare Centres that are set up to provide support to victims of different kinds of abuse; find legal assistance by consulting a lawyer.
Many states in Nigeria have centres that offer help to abused and violated women through the Ministries of Women Affairs and Office of the Public Defender.
It is advisable to have good mentors around to consult when signs of violations are occurring before it gets out of hand and seeks proper direction and line of action.”Says, Mrs Falaiye.
The issue of Nigerian law and women, when it comes to marriage is broad and should be a standalone topic of discussion, but for Consent, by virtue of Section 18 of the Marriage Act the written consent of the father of either party to an intended marriage is required if he or she is under 21 years of age. It is only if the
father is dead, or of unsound mind or absent from Nigeria that the written consent of the mother may be required. This provision is discriminatory, and the mother’s permission is, if the father is dead or where he is of unsound mind.
“In terms of divorce or separation, if a woman had given her youthful years to the man, but he wants dissolution on a?? Wet grounds???, by all means, the court will look at the facts of the case and decide on its merit accordingly. Also, the
facts of the case determine compensation for all her years of struggles. For custody, generally, the interest and welfare of the child(ren) will be the primary and significant consideration in the determination of who takes charge. The decision will often be in favour of the parent that would be able to take better care of the children, and who the children could have easy access to,” says Falaiye.
Some customary practices also discriminate against women in Nigeria. For example, Customary laws of several communities impose conditions that make women access to land only through male relations. More often, women are regarded as property and therefore cannot own property themselves. However, this customary practice is not universal in Nigeria.
Will and Property Rights
Women married under the [Marriage] Act have their property rights protected by the Act, thereby making them entitled to a share in the marital property, including the husbands’ property, and the jointly owned and acquired property. While women married under customary law have little or no rights over their spouse’s property.
Here women “are more often entitled to kitchen utensils and whatever their husbands may give to them as gifts made inter vivos” (Olubor, 2009:16).
‘This rule is not generally applicable in every culture’, says Dr Falaiye: ” In the Yoruba cultural settings, for example, female children are equally entitled to the deceased parent’s properties as their male siblings, so they may contest the Will, as of right if they find it unfavourable to their interest. In the cultural settings where the girl child is not entitled to the father’s property, the culture prevails.
However, where the father makes a Will, then the Will prevails, and she would be entitled to the part of the property the Will allocates to her.
In any case, where a daughter or wife find’s the Will unfavourable to her interest, she could approach the court for redress.”
Fortunately, the government has initiated some reforms, while NGOs and Internationally bodies are also doing their best to mitigate the effects of the laws mentioned above.
Also, more women are having access to education, just as the re-orientation of Nigerians- concerning women’s rights – have been improved.