The Burden of Proof for Sexual Offences in Nigeria Is Still Ridiculously High

In large parts of the country, victims can only prove their case if there were multiple eyewitnesses.

Toyin Fadairo was starting her first year in secondary school in Ibadan, a city in south-west Nigeria, when rapper, Eedris Abdulkareem dropped his now classic hit, Mr. Lecturer. While the song – with the lyrics: “Oh my Lord, can you save my soul? / I’m in school wanna keep my head up high / My lecturer wants to have sex with me” – conveyed an all too familiar story, it wasn’t until Fadairo sat across a lecturer who demanded sex in exchange for her actual grades, that it finally hit her. “For some reason that song kept playing in my head,” Toyin told VICE World News. “It wasn’t a song anymore, it was real. I had become that…girl.”

On the 7th of October, 2019, journalist Kiki Mordi released her documentary, Sex for Grades: Undercover inside Nigerian and Ghanaian Universities, exposing an open secret in Nigeria. Plucking inspiration from stories similar to Fadairo’s, as well as a sexual harassment case of her own, Mordi interviewed dozens of students about their experiences with sexual harassment at the hands of their lecturers. With actual footage implicating lecturers from two of West Africa’s most prestigious universities, Nigeria was strong-armed into confronting an endemic predatory culture, permitted by a lethargic justice system and an eerie culture of silence.

“The reaction I got from women in general was a sense of relief,” Mordi said. “For younger women specifically, it was a case of finally being seen. And for older women, it was grief over the fact that their daughters still face the same issues they had to deal with.”

“The camera was pointed at the perpetrator, not the victim. I feel like a lot of women were grateful for that because for the first time, we were not victim shaming or slut shaming since the focus was on the actual crisis – men who abuse their power.”

In a quick move to score points with the general public, the Nigerian government introduced the Anti-Sexual Harassment in Tertiary Institution Bill. The measure, which was eventually passed into law in July this year, prescribes a 14-year jail term for educators guilty of sexual harassment. Unfortunately, despite being a landmark legislation in its own right, this bill barely scratches the surface when it comes to tackling sexual assault in Nigeria.

So far, Nigerian sexual assault laws have by and large been inadequate. The Criminal Code – which largely governs the Christian south of the country – fails to recognise that sexual assault is not limited to rape, giving room for other equally traumatic instances of assault to go unpunished. The Criminal Code, according to section 30, also states that a male person under the age of 12 years is presumed to be incapable of carnal knowledge – a questionable presumption that absolves him of rape or attempted rape.

Meanwhile, a Penal Code for the northern, predominately Muslim states, provides a narrower definition of rape than the Criminal Code. Using the term “sexual intercourse”, the Penal Code Act limits sexual assault cases to penile penetration only; ignoring that assault could be done with anything including a foreign object.

To fill in some of the potholes of the aforementioned laws, the Violence Against Persons (Prohibition) Act (VAPP) was enacted to expand the definition of sexual and gender-based violence. With VAPP came the elevation of unlawful anal and oral sex to the status of rape, a recognition of gang-rape and a minimum penalty of 12 years imprisonment for the crimes. But just like the Child Rights Act (CRA) which stipulates the age of consent as 18 years-old, VAPP has only been domesticated in 15 states across the country.

Augusta Yaakugh, a barrister and executive director of the Lex Initiative for Rights Advocacy and Development (LIRAD) – an NGO supporting equality and globalisation of human rights standards – explained that these regressive laws play a part in the wide gap that exists between reported cases and actual convictions. Revealing that only about 65 rape suspects have been charged in a country of over 200 million people, Yaakugh stressed that the biggest impediment to seeking justice for sexual assault, outside religious and cultural factors, lies in a flawed legal system. “The law puts the burden of proof on the prosecution, thus, proving a rape case can be quite tedious and technical,” she admitted.

Towards the end of Nigeria’s coronavirus lockdown, the Ministry of Women Affairs announced that it had recorded a total of 3,600 rape reports during the lockdown alone. Similarly, the Nigerian Police Force also revealed that it had received 717 reports of rape between January and June 2020. Notable among these numbers is the case of 22-year-old university student Vera Uwaila Omozuwa who was sexually assaulted and killed by unknown men, while studying in a nearby church in Benin. Her case, buoyed by the relative silence of lives during the lockdown, leveraged on the power of social media, sparking a demand for change and justice with the hashtag #WeAreTired.

The Stand to End Rape (STER) initiative is a Nigerian nonprofit advocacy organisation that has been at the centre of the ongoing fight against sexual gender based violence in the country. Providing logistical and research support for Mordi’s documentary, as well as playing a crucial role in a high profile rape case involving Afropop star, D’banj, STER understands the importance of social media in fueling this movement.

Wuraola Abulatan. who works with STER, said that while social media might not lead to legal action, it has become a powerful conversation starter, and a platform for survivors to share their stories, call out their abusers and holding them accountable to a certain extent.

“A lot of people who work or are acquainted with these alleged abusers and even the alleged themselves are called out and held accountable through ostracisation. Their social currency is taken away, while others are deplatformed,” she explained. “It also helps in reduction [of cases] to an extent, in terms of people knowing who has been accused, and who to stay away from.”

Accountability through social media by way of the #ArewaMeToo movement has also reached a northern Nigeria that is fraught with regressive laws (Arewa is a local term for the northern regions of Nigeria). Under the Sharia Penal Code, which has been adopted by 12 northern states, proving the offence of zinā (rape) requires either a confession by the accused or concurring testimonies of four male witnesses (or eight female witnesses in Kano and Zamfara). The witnesses in question must have seen the act happen, or the accuser could be sentenced to eighty lashes for qadhf or false accusation of zinā.

But while social media has provided a platform, the Nigerian Police Force has also been accused of being a stumbling block. In February 2019, Maryam Aiwasu, one of the leaders of the #ArewaMeToo movement was arrested. Similarly, at the height of the case against D’banj, the police, allegedly hired by the musician, arrested and kidnapped his accuser in a bid to force a recantation. Both D’banj and the police deny the accusations.

The most nefarious act the police have been accused of so far occurred in 2019 during the infamous Abuja Women’s Raid. Under the guise of fighting prostitution, police in the nation’s capital of Abuja, performed random arrests, picking up women from restaurants and clubs. Over 60 women were unlawfully detained, with the police allegedly demanding sex from those who couldn’t afford to post bail.

Yaakugh who worked on several cases at the time, described the period as a “dark time for women in Abuja”. She recalls showing up to secure the release of her clients at odd hours of the night and having to deal with police officers who called her degrading names. “I feared for myself also,” she said.

STER has also accused the police of victim blaming, performing invasive and humiliating “medical” procedures, and the intimidation of survivors to either recant their statement or settle out of court.

While the new Anti-Sexual Harassment Bill signals a fresh beginning, there is still a long way to go to effect actual change. “Where we really need action is with the government because it’s not just by talking” Mordi says with certainty. “If not, you’re just pouring water into an empty basket. And people will keep doing it because they are getting away with it. We cannot be an unequal society and think we can successfully stamp out rape culture when the people perpetuating it are the ones in power.”

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