Rape: Crossfire over castration law

 
Sat Sep 26th, 2020 - Benue
 

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.

“To now castrate a man is akin to a lesser execution and not all individuals will be courageous enough to sanction it. “Yes, we have a bold man as governor of Kaduna State today, but what happens after leaving office? It is, therefore, my candid advice that some other punishments should be looked at order than castration for so many reasons.

“In the 21st Century, punishment should not be cruel. The law is likely to be unpopular after the first implementation. We all remember what happened in Zamfara when Sharia Law was introduced. After the first implementation, which later caused the government some money, in terms of palliative and medical expenses, it became unpopular and is now dead.

“The government should not be put in the position of spending unnecessarily in an attempt to castrate, and if the victim is diabetic, it could result in some complications.

“The sociological reasons for the growth of sexual offences should be studied and looked into. Crime is not natural to any society; there is always a cause. Nigeria should investigate the causes and tackle them.

“We have existing provisions in all our penal laws to take off the menace. We could review some of the provisions to accommodate the surge and be in line with the requirements of the 21st Century. Enacting a castration law is just playing to the gallery and emotions,” he emphasised.

Coordinator of Child Protection Solutions, Taiwo Akinlami, gave fresh insight into the discourse. While agreeing that castration is not too harsh as punishment for rapists, he also wondered if castration would stop incidences of rape.

Akinlami said: “Castration may be good. I’m not talking of an accused rapist; I am talking about the convicted rapist. But the question is: How would death sentence or castration stop rape? We are trying to place hope on punitive measures.

“Despite armed robbers being sentenced to death, some people still rob with arms. Death sentence does not deter people from committing crime; our investment must be on prevention. There must be social justice before criminal justice.

“We are interested in the causes of these crimes and how to prevent crime, one of which is to invest in people. Until we address this impunity, the idea of somebody committing a crime and not being caught because the security system is porous, crime will prevail.”

Constitutional lawyer and erstwhile Benue State chairman of NBA, Mr. Donatus Zuanah, also said the law is barbaric and uncivilised.
He stated that the law would not necessarily provide the panacea for cases of rape, saying other heinous crimes, such as kidnapping and homicide, have not been stopped by severity of punishment, including life imprisonment or capital punishment.

“Castration of rapists is not a real answer to a problem that is multifaceted, including moral and societal decay, ritualistic and religio-cultural dimensions. Other states should not copy wholesale, the Kaduna template for anti-rape legislation

“While not defending rapists, it would appear that castration as punishment for rape is rather extreme, because there is possibility that the victim, particularly of adult age, may end up forgiving the offender or if compensation is paid or there is a pardon, in which case, castration would have done irreversible harm.

“Long jail term with hard labour may just be better,” Zuanah advised. He asserted that the law is hypocritical on one hand and could create a lot of problems if not properly applied and rightly interpreted, wondering: “What about those in Kaduna State and many other states who marry 11, 12 or 13 year olds? Are they not rapists? They ought to be castrated under the law too.”

Saying the law would also violate reproductive rights of others, Zuanah added: “This would give jealous lovers or partners room to easily manipulate the law to inflict undeserved life-long harm on their partners.”

In the same vein, rights activist, Andrew Emelieze, said castration is primitive, ridiculous, irritating and against the natural law, noting: “Anybody making that law is living in the past. The real rapists are those who govern us, but they are not castrated.

“The law should be put in place for those in power, those raping our collective patrimony. The law should be resisted.” Another lawyer, Dansee Ogochere, agreed the wave of rape in the country today deserves serious action, but added that the Kaduna law is not in tune with the constitution of Nigeria.

Similarly, Babajide Adebayo, representing Ibadan North in the Oyo State House of Assembly, said: “It is not the best, in my own opinion. We can look for other options instead of castration, because some people can use this as advantage in there own way.”

Oyo State Chairperson of NAWOJ, Mrs. Jadesola Ajibola, said: “A lot of women organisations and individuals are excited about the new law. At least, there will be stiffer penalty for those that may be violating the Child Rights Law or Violence Against Persons or Women Prohibition Law.

“For us, basically as good as that law is, we are also made to realise that it is not in tandem with the constitution, as it violates a particular section.

“Therefore, there is a need to first of all amend the constitution, where it has to do with violation of human rights, to make it in tandem. It means the National Assembly, as part of the ongoing amendment, should take care of that particular law. It violates law on reproductive health and should be harmonised.

“Other states, before taking such step, should look into it very well. It will solve part of the problem as regards rapists being castrated and let perpetrators know that they risk castration.

“We also call on the judiciary to do the needful, do justice, so that at the end of the day, we have a better society we can live in.”

On his part, Ibadan-based lawyer, Fatai Akinsanmi, said the law is complex and might not bring any positive outcome, noting: “It violates human rights and reproductive health.

“Unfortunately, the case is difficult to prove and there is compensation for the victims. It may not be a deterrent; the more you are doing this, the worse it comes.”

Executive Director of Access to Justice, Joseph Otteh, decried the law as cruel, inhumane and degrading to the citizens of the state, saying castrating someone, given the fact that it has a permanent, irreversible effect on the person, is a bit extreme.

He stated that in as much as sexual offences and rape are terrible crimes, the Kaduna law is harsh, noting that no justice system in the world is perfect; hence the need to give room for miscarriage of justice.

To him: “If there is a mistake in the sentencing and the person is castrated, there is no way to reverse it and given the frailty of our justice system, it may end up punishing the wrong person.

“We have seen people in other climes acquitted of rape after DNA tests proved their innocence and if they have been castrated, what would have happened when they were acquitted?

“Without looking at it ethically or morally, should the state even be involved in castrating its residents if it values human dignity? I don’t think it should be right for the state to inflict that kind of punishment.

“I don’t mean to minimise the impact of rape and its impact on victims, but we cannot say an eye should be taken for an eye and this is the reason why the death penalty has been abolished in many countries. We should be teaching and upholding the value of life and castration is not upholding the dignity or value of life.”

Nkechi Obiagbaoso-Udegbunam stressed that the 1999 Constitution (as amended) provides for fundamental rights in Chapter IV, but did not expressly provide for the right to health or reproductive health as a fundamental right, irrespective of the very important nature of the right to health to human life.

She added that Chapter II, Section 17(3)(c) provides that the State shall direct its policies towards ensuring that there are adequate medical and health facilities for all persons, but these provisions cannot be brought before the court for adjudication to compel the government to comply with it, because they only serve as a guide and are unenforceable and non-justiciable, due to Section 6(6)(c).

Similarly, Dr. Ibrahim Banaru Abubakar, Sexual and Reproductive Health Rights specialist, said castration for male offenders and bilateral salpingectomy for female offenders is but a paradox and a reductionist attempt.

“This statute reduces rape to an idea of ‘libido show;’ it comes with the street sense that, cut down the urge and you reduce the incidence of rape. That is, in fact, not true, because a person who undergoes castration or salpingectomy only loses fertility, but sexual desire remains albeit reduced. Thus, the power differential that influences rape may still come into play.”

He added: “Coercive or punitive sterilisation (castration/salpingectomy) amounts to cruel and a degrading treatment denying the offenders the rights and choice to procreation.

“The Nigerian constitution prohibits torture and other inhuman or degrading treatment. The equality of rights to procreation is a basic human right that the state must uphold. This is in agreement with international laws, which prohibits inhuman or degrading treatment or punishment.

“Similarly the Nigeria Anti-torture Act of 2017, in Section 2, prohibits mutilation, such as amputation of body parts, including the genitalia, and any degrading or cruel pharmacological treatment; hence there are clear genuine clamour for reprimand and justice as a panacea for rape.

“However, degrading treatment of offenders only serves populist ideation and presages to miscarriage of justice, because in the end, a reductionist idea on rape will not address the root cause of rape, but takes away the reproductive rights of offenders.”

He concluded that forced sterilisations, as in this case of non- consented castration and bilateral salpingectomy, has been framed torturous, cruel and inhuman treatment, noting that since the inception of the UN Convention against Torture, the prohibition of torture has been accepted as a customary international law, thus under no circumstance can a state set aside this obligation prohibiting torture.

He stressed that a tradeoff and right administration of justice is imperative and giving the scourge of rape and the debilitating effect of rape that survivors live with, stern reprimands that conform to international laws should be prescribed.

 
 

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source: Guardian