Marital Rape In Nigeria – A Right Without A Remedy – By U.O.Okocha ESQ

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THE INCIDENCE

There is a story. A narrative we may already be familiar with. It is a sad tale involving a married teenager, Salma Hassan “17”. You see, Salma Hassan confessed to killing her beloved husband in their home, Bauchi State. The dagger she used on his chest was recovered by the police. Why did she do such evil? That is not up for riddles, really. Her husband needed to consummate their blessed union that very night but Salma Hassan claims she had no idea that sexual intercourse was part of her marital obligations. She admits denying consent. She asserts that she got physically assaulted for denying her husband what we know as “his right to consortium”. When things got ugly, Salma Hassan swung a knife across his face sending the “back-off” signal. Her beloved husband dared his chi and Salma Hassan had cause to thrust her dagger in some delicate part of his chest. Rushed to the hospital, but the rest of him is history. It is to the quasi-chattel status of women that this work would consider in bits, briefly.

THE BAD LAWS

Bride price (the million dollar bride list especially) creates an ugly picture of women being items to be bought in the market by the highest bidder – highest bidder because there is the need to obtain parental consent. Whether parents’ blessings are overrated is a topic for another day. Uglier, a woman is a prospective married woman with a price on her head thus attracting bounty hunters from all parts of the earth – these days, persons of same gender status dare to dream of the bounty in Nigeria. Yes, customs and traditions are mammoth practices we inherited and must respect – does not mean we cannot tweak it here and there to bringing it in conformity with s.35 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter referred to as CFRN 1999) which vests fundamental right to personal liberty on citizens (women included). The “selling” of women by their parents, births this quasi-chattel status of Salma Hassan as there is this underlying owner-slave status created when the love waxes cold – it is admitted that the choice between personal liberty and property sometimes present difficulty especially remembering the case of ONWUCHEKWA v ONWUCHEKWA [1991] 5 NWLR (Pt. 194) 739 where women were referred to as properties of men.

Another bit is the issue of consortium. There is nothing wrong with this right to marital company and affection, ordinarily. It expressly means that Salma Hassan’s husband had a right to demand sexual connection from his newly wedded bride. The inquiry becomes “does she have a right to say NO?” The thing about “right to personal liberty” means Salma Hassan had a choice to consent to sexual pleasures. If the refusal to consummate was wilful and persistent, then a petition for dissolution of the marriage was a remedy for the late husband vide s.15 (2) (a) of the Matrimonial Causes Act (hereafter referred to as MCA). The right to consortium does not rank higher than the right to personal choice of the other spouse and if the deceased had known better he would have slept that night calling “the swung knife across his face” a little marital misunderstanding. Take home that a basic liberty of a person ranks superior to property and contract (a contact to marry).

A bit more on the unravelling, is the question whether Salma Hassan enjoyed an independent legal personality upon marrying her deceased husband? It is necessary to understand that it would be a misconception to hold tenaciously the biblical account of a man and a woman becoming “one” in every sense such that a husband cannot kill his wife and be charged for murder; rather he kills his wife to justify the sin that is suicide. Fallacious it is! The true position is that Salma Hassan enjoyed her independent legal rights and protection under the Constitution. Why this comes up is because this misconception was impliedly told the society from the wordings of pieces of legislation that would be produced hereunder.

Section 6 of the Criminal Code (Nigeria) reads:

“unlawful carnal knowledge” means carnal connection which takes place otherwise than between husband and wife.

 Section 357 of the Criminal Code (Nigeria) reads:

Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of an offence which is called rape.

Section 282 of the Penal Code (Nigeria) reads:

A man is said to commit rape when he has sexual intercourse with a woman, against her will, without her consent, with consent obtained under duress, et al.

It is true that from sections 357 and 282 of the codes, a woman cannot be said to rape a man. Admittedly, the provision is archaic – and to the entire boy child, it is regrettable that the Violence Against Persons (Prohibition) Act 2015 (hereafter referred to as VAPPA 2015) which expands the scope of rape is applicable solely in the Federal Capital Territory. The point that is most relevant is Section 6 of the Criminal Code which excludes possibility of rape between spouses. It is regrettable that marital rape is not an offence known to law save in Lagos State vide its Domestic Violence Laws. Yes, it is for that reason that The Law wants us to disregard the viewpoint of “an attempted rape of Salma Hassan” and see her as a murderer.

The mischief in section 6 is that it aids the rapists or sociopaths who find pleasure in applying brute force to secure a sexual connection – the connection not being a meeting of minds but engagement of the private organs for a spouse’s selfish gratification (this law opens its doors to rapists who need a form of legal protection via marriages to bask further in their evil habits of raping women). You may not know this but section 282 (2) of the Penal Code, applicable in Northern Nigeria, says it is not a case of rape where a man has sexual connection with his wife forcefully provided she has attained the age of puberty. One may say the deceased husband had a right under the law to forcefully consummate the marriage and her ignorance of the law is not excusable. But it is unintelligent the treat a constitutionally guaranteed right to choice or liberty as having no say in this matter. Basic liberty would mean that Salma Hassan is not a property to be tossed, used at will and disposed as at when due. The right to privacy would mean Salma Hassan’s marriage to the deceased did not mean she lost a say over her body. The above constitutional provisions must ensure that s.282 (2) (supra) dies a natural death to the extent of its inconsistency with our Constitution.

THE FATE OF SALMA HASSAN

Some report that she was 17 at the commission of the offence, others say 18. Well, it is not exactly going to change the outcome should Salma Hassan be 17 or 18. Understand that under the law, a Juvenile Court can only try a young person who is under the age of 16 (sixteen) years notwithstanding the definition of “young persons” – a young person is a person who is above 14 years but below the age of 18. If Salma was 16 years at the time of commission of the homicide, she would be found guilty and detained at the pleasure of the governor or the president (as the case may be) vide MODUPE v STATE (1989) 9 SCNJ 1. To be mentioned is that Juvenile Courts lack jurisdiction to try offences where a child or young person is charged with homicide. Thus, if Salma was 16 years, she would have been tried in regular courts save that all the rules applicable to the sentence of a young person will apply vide s.3 of the Children and Young Persons Law, Kwara State, for instance (later referred to CYPL). If at the age of 17 years, there is a commission of a capital offence, then the outcome takes a twist. At 17, Salma Hassan can be found guilty of a capital offence and sentenced to death vide GUOBODIA v STATE [2004] 6 NWLR (Pt. 869) 360 – time of commission, not conviction is what determines the relevant age of the young person: See UWA v STATE (1965) 1 ANLR 356.

The reality becomes that Salma Hassan will be tried in regular courts for culpable homicide and the defence like “self-defence” may not cut it if we consider the fact that a man can forcefully gratify himself off his wife vide s.282 of the Penal Code (supra) – effect is, she cannot claim to be defending herself from a threat to life or unlawful force by her deceased husband since he was doing all he had to do within the law to consummate his sacral marriage. As a result of this bad law, Salma Hassan is in a very precarious situation and there is need to pick placards carrying “justice for Salma!”

THE WAY OUT

1. Lagos has recognized marital rape. All other states should. The VAPPA 2015 should be domesticated in all 36 states if we must protect the girl child and the boy child from sexual violence. If we have this law reform, Salma would clearly have a day in court.

2. If the legislature will not see to domesticating the VAPPA 2015, then the courts must ensure judicial reforms are in place. It was held in ORIANZI v A.G., RIVERS STATE [2017] EJSC (Vol. 60) 1 S.C., inter alia:

There cannot be a right without a remedy for want of right and want of remedy are reciprocal. The maxim ‘ubi jus ibi remedium’ is the latin rendition of the principle. The maxim is so fundamental to the administration of justice that where there is no remedy provided by common law or statute, the courts have been urged to create a new one. The courts cannot therefore be deterred by the novelty of an action. In other words, the law is an equal dispenser of justice and leaves none without a remedy for his right. Wherever there is a wrong, there must be a remedy to redress that wrong. Justice must not only be done but must be seen to be done.

It can be argued, under distinguishing, that from the penal statutes relied upon above, there was never a recognized right for Salma Hassan as she owed a duty to her husband to consummate the marriage. Yes, she had a duty and she can as well choose not to comply with the duty as she had rights to independent choices under the Constitution. Thus, Salma had a right to say “NO!” and the laws on rape excluding a married woman from persons who can give consent to sexual intercourse, is ridiculously insidious. Marriage is not a prison; “for better or for worse” does not mean a married woman should succumb to modern-day slavery! We have seen in LABOUR PARTY v INEC & ANOR (SUIT NO. FHC/ABJ/CS/399/2011) as well as SENATOR KALU’s case, the power the court wields to render null and void provisions of laws inconsistent with the Constitution. Salma needs justice and the society, our girls in particular, would indeed benefit from this judicial reform as it offers protection and recognizes the fundamental right of women to privacy and basic liberty in a world where it is constantly marginalised.

3. It is about time we stopped incidence of child marriage in Nigeria. It is sad that in Nigeria, there is no marriage age. Section 21 of the Child Rights Act 2003 (hereafter referred to as CRA 2003) pegged age of marriage at 18 years but it unfortunate that the Act borders on “child welfare” rather than “formation, annulment and dissolution of marriages” which is contained in item 61 of the 2nd schedule to the Constitution – the Marriage Act and the Matrimonial Causes Act, being the relevant laws made pursuant to the exclusive legislative list of the Constitution, failed to give the age of marriage. The effect of this is that it breaches the constitutional arrangement for CRA 2003 to make marriageable age in Nigeria. It is hoped that a legislative reform be in place to effect the intendment of the drafters of the CRA 2003 in the Marriage Act.

Item 61 was clear enough to restrict the law making powers such that the National Assembly cannot make laws as to formation of marriage and give age of marriage in the process with respect to Islamic Law and Customary Law. But it should be stated that due to the enormous child marriages springing up every now so often from customary practices and traditions – a wife of 13, for instance, will be expected to consummate a marriage and it would not be a case of defilement since s.6 of the Criminal Code excludes ‘husband’ and ‘wife’ from persons suable for unlawful carnal connection – some states have had cause to prescribe marriageable age. Some of the laws and their ages are s.2 (1) Age of Customary Marriage Law, Cap. 5 Laws of Rivers State, 1999, Girl-Child Marriages and Female circumcision or Genital Mutilation Law, No 2 of 2000 (Cross River) and s.3 Harmful Traditional Practices Against Women and Children Law, No. 10 of 2001 (Ebonyi) which peg the age of consent at 18 years. It is time all states have similar laws to protect the girl child from becoming subjectless properties or quasi chattels.

FEW WORDS

Salma Hassan was almost raped. She should be getting all adulations rather than seeing the chains or knowing prison bars. She is an example of a woman who attained liberation from slavish practices and the knife to her deceased husband’s chest symbolizes the voice of a true black woman. Justice must be seen to be done!

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