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IMPEDIMENTS TO JUSTICE FOR RAPE AND SEXUAL RELATED OFFENCES SURVIVORS IN NIGERIA:. Pelumi Olajengbesi Esq.

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IMPEDIMENTS TO JUSTICE FOR RAPE AND SEXUAL RELATED OFFENCES SURVIVORS IN NIGERIA: AN APPRAISAL OF NIGERIA INVESTIGATIVE AND JUDICIAL SYSTEM AND AN URGENT CALL FOR ROBUST REFORM

By. Pelumi Olajengbesi Esq.

I have interrogate sufficiently the Nigeria Justice system to appreciate the inadequacies and challenges survivors of sexual related offences will continue to undergo. Not just the law, the Nigerian rape or sexual assault narrative is habitually one with its victim or survivor coming up against not just the accused within the framework of a difficult justice system but also pitches them against a set of cultural norms with certain biases against the victim. Those cultural norms some of which shifts blame to the victim have infiltrated the justice system, and influences outcomes much more than is often talked about. As a result, all over the country, sexual violence is employed as a weapon of demoralization against the victims and their relatives.The demoralization is characterized by a violent invasion of the interior of the victim’s body, which thereby constitutes an attack upon the intimate self and dignity of the individual human being. How this attack impacts on its victims and their rela-tionships is however, unanswered. This article aim at unfolding the impact that a failed system has on the victims of sexual violence and an urgent need for rehabilitation of our system before citizens resort to self help.

What then is justice to a rape or sexually assaulted victim? Conventionally, justice in this instance is a linear conceptualisation of state-run retributive systems premised on a set of formal legality from the incidence to police investigation, prosecution, judgement and punishment. Justice here is dichotomous- one either gets it or doesn’t, and more often than not, the victims do not have a say in defining what shape punitive justice should take. Consequently, many victims had been knocked out of the race in pursuit of Justice on grounds of technicalities and strict legal principles with the society forgetting that law is made for man and not man for law. One may now ask; what then is the essence of the principle of law which categorically states that where there is a wrong there must be a remedy.

The Nigeria justice system places rape or sexual assault survivors in rather difficult and compromised positions. For one, the very nature of this crime means that it occurs mostly in private with the victim as the only witness. Although the Evidence Act makes provisions touching the fact that conviction can be secured on account of single witness, but the question that begs for an answer is whether any rape victim had succeeded on account of her sole testimony. I will definitely answer the question in the negative. Many a times, the perpetrator is clothed with the position above that of the victim and uses his overridden filthy conscience and prowess to suppress his prey. In addition, disclosures do not happen in time and even when it does, our primitive society is characterised with ignorance of documentary evidence, as such concrete evidence such as physical vaginal bruises or residual sperm evidence are often lost, medical reports not obtained or get damaged as result of delay in the judicial trial, thus centring proof of the case on credibility of the victim’s words against the accused. Unfortunately, victims in this condition are trapped in the general rule of law that; he who asserts must proof, and rape being a criminal case requires proof beyond reasonable doubt. In essence, a strict adherence to this provision of the law had obstructed the cause of Justice for many rape victims earning them media sympathy rather than justice.

Cultural misconceptions entrenched in stereotypes throughout the Nigerian society about victims/survivors who are mostly women, that they lie about these experiences for sympathy or to simply scorn or subject their alleged abusers to ridicule, and also that women are partly responsible for their own victimization, infiltrates the justice system. Historically, the barriers to reporting crimes of rape and sexual assault have included personal shame, concern for privacy, distrust of criminal justice proceedings and fear of perpetrator retaliation. Though, this is a universal phenomenon, however, the social conservatism and prejudice against rape victimisation in Nigeria is strong enough to inhibit survivors from reporting in order to avoid social scorn and cynicism. Together, these aspects pose a unique set of challenges to the traditional/conventional processing of cases.

The near impossibility of securing convictions, poor and ridiculous experiences in legal proceedings or requirements conspire to work against victims’ reprieve or sense of comeuppance against their rapist. Our criminal administration system in Nigeria wastes so much time that victims get tired of the litigation and abandon the case. On the other hand, many exhibits got damaged as a result of the delay thereby preventing the victim from getting access to justice. There is thus the need for robust judicial reform on reducing victim’s trauma during the process of seeking justice through the courts and policy directions that see victims as survivors with a say on their justice needs.

A system that gives preferential treatment to its defendants, the presumption of innocence nonetheless, is ill-prepared for the hard questions and actions that a crime with a personal and psychological effect on its victims poses. Key to rejigging the whole Nigerian justice system, without prejudice to the accused’s right of presumed innocence, is identifying what justice means to rape victims and what aspects victims find crucial in the criminal justice procedure – from the framing of legal addresses to the gathering of a body of evidence. Our courts have to be more alive to letting substantial suits proceed on the merit of its subject matter rather than have same buried by the defence under an avalanche of technicalities. It is my understanding that procedures are there to guide or aid along the course of justice and not thwart same.

Poor investigative system: The strength of any successful legal battle begins with proper and well documented investigation. Unfortunately, this is lacking in Nigeria system as the burden of investigation rest on the Nigerian Police; the body without any specific unit or trained personnel in the rape investigation. Looking at other jurisdictions across the globe, there are specially trained personnel in charge of sexual violence cases. These individuals are mostly captured under a canopy as an agency within the Police force with special mandate to track, investigate and prosecutes sexual violence cases and to keep proper documentations for future appraisal of how effective is the system helpful to victims and survivors in the pursuit of Justice against the culprit. The reverse is the case in Nigeria, the police force is without specially trained personnel nor do they have proper documentations of evidence gathered during the cause of investigations. Even when investigation is being carried on, the victims are questioned in a way that is difficult to ascertain whether she’s being questioned to elicit facts from her or to accuse her of lying, thus many of the survivors returned home dejected and rejected. More so, Seeking expert opinion is not part of the investigation in Nigeria and as such many critical aspects are left untouched thereby rendering the case of the victim vulnerable and ready to be slaughtered on arrival at the court. An agency within the Police force such as *”Anti-Sexual Violence Agency”* is strongly recommended. This agency is to be properly trained and given the mandate to track, investigate and prosecutes sexual offenses cases and with well documentation system.

Harassment and intimidation: Nigeria is such a country where you have the right to freedom of speech but your right to life after the speech is not guaranteed. We have witnessed harassment and intimidation meted out to rape victims in an attempt to suppress them from getting justice. These have killed the hope of many in the system of administration of Justice and one may not be surprised when we see jungle justice all over the nation. There have been reported cases of victims who were victimized to surrender and withdraw criminal charges against the culprit, we have read cases of police taken bribe to protect the perpetrators, we have seen cases where hoodlums are being sent to the victim or her relatives to intimidate them in a way to obstruct the cause of Justice, many even use media and social platforms against the victim. All these happens simply because there is no working system that guarantees a protective trial. In many cases, lawyers who volunteered to help in prosecuting the case get sanctioned by the court with heavy fines for what the court terms as “frivolous case”. One will wonder if indeed the court is the last hope of common man.

We do not need a soothsayer to tell us that major reason while we have a lot of unreported cases of rape in Nigeria is the fear of being stigmatized. This has caused many victims access to justice as they rather battle with their ordeal in the corners of their rooms than to be exposed to public trial and this is the major reason why we have seen of recent, many who were sexually abused when they were young speaking up after several years of the event. There are reported cases of fathers who have been having sex with their daughters and threatening them not to voice out, uncles who have been sleeping with their cousins since tender age, lecturers who defiles their students, clergymen who had overpowered their subjects and have their ways between their laps. Indeed our laws prohibits child abuse and sexual offenses but how far have we gone in the process of bringing the offenders to book. Unfortunately, there is no working system in the country that guarantees privacy in the investigation and trials of rape cases.
Another form of harassment against the survivors is the misplacement of sense of Justice, this is to the extent that once a lady is raped, the first set of questions that come up are; what did she wear? How did she dress, why did she go there? What was she doing outside at that odd hour? But those who asks these questions failed to explain how the questions even if they are answered in affirmative, triggered criminality out of the culprit. It’s indeed pathetic and an urgent need has arisen for individuals and authorities to arise and call a spade a spade rather than playing the game of shifting blames which gives no regard to the psychological and emotional trauma of the victims.

Corrupt investigative and judicial system: The two most vital arms that will enable justice in a rape case are the Police and the judicial arms. Sadly enough, the victims are being confronted by corrupt individuals in this sectors. Many will rather take bribe from perpetrators and discard the case instead of bringing them to book. With all due respect to the judiciary but in all honesty, to whom much is given much is expected. It is sad to behold how sexual offense cases are being treated with levity hands in courts today and the kind of psychological infiltration the victims pass through in the hands of judges during the trial. In addition, no thanks to our criminal provisions which make express provision that “rape is complete upon penetration”. In other words, a victim must proof penetration in order to succeed no matter how obviously she was brutalized, except for the new Violence Against Persons law which is yet domesticated across the country. . The implication is that the survivor must have to recount to court in public the ordeal she passed through. This is indeed one areas of our laws that need urgent amendment.

Status of the perpetrators and the victim:

It appears that in Nigeria settings, the status of a person matters most in the eyes of the law or whether equality before the law is which is an essential arm of a democratic society had been laid to rest in Nigeria. Thus, influential persons get away with illegal acts often than been made to face the consequences of their actions. Without pointing fingers, this generation have witnessed a lot of high profile persons that had escaped sanctions even when the two arrows point to their direction as the perpetrators of sexual offenses. This is simply because of their status in the society with many of them being famous either in one industry or ministry or lecturers in high institutions, therefore using their status as immunity under a weak system and toothless law enforcement agencies. On the other hand, the status of victims often considers from a more tragic angle. It’s worst if the victim is of low level in the society or from poor background, the judgement of the public which often pronounce by our failed system is that she’s a gold-digger. If the allegation is against a reputable person in the society, the song in the mouth of everyone would be that she only want to tarnish his image, forgetting that the innocent lady also has her integrity to protect and a constitutional right to human dignity.

In conclusion, this article has disclose reason behind the negative attitude towards reporting sexual violence cases in Nigeria as well as the rational behind lack of trust in the investigative and judicial process. The findings of this study indicate the need for the criminal justice system of the country to be revamped in such a way that it will become more effective in treating rape cases. It is suggested that the police should establish an Anti-Sexual Assault unit within its ranks to specially attend to rape cases. This unit should be adequately equipped with necessary forensic technologies to aid its investigations. This will enable the courts to possess more incontrovertible evidences to prosecute rape cases. A robust reform in the judicial system is also strongly recommended so as to boost the confidence of common citizens in the system. Substantive matter should be allowed to go through full trial rather than being held hostage at the corner of technicalities. More so, law amendments is as well suggested hold the perpetrators in a way that notwithstanding the standard of proof that the victim is bound by law to establish, the culprit should also proof his innocence at least on balance of probability. There is no gain saying about the fact that if the justice system is more receptive to victims, it will positively impact on rape reporting behaviour and reduce sexual violence victimisation as well as encourage victims to seek remedy under the ambit of the law

Thank you.

Pelumi Olajengbesi Esq., is a Public Interests Lawyer and the Principal Partner at Pelumi Olajengbesi & Co. Law Corridor.
Lawcorridor@gmail.com

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