The Violence Against Persons Prohibition Act, the Maputo Protocol and the Rights of Women in Nigeria

The Violence Against Persons Prohibition Act, the Maputo Protocol and the Rights of Women in Nigeria Abstract This article examines the Violence against Persons Prohibition Act, 2015, to assess the extent to which its provisions guarantee the protection of women in Nigeria from violence. It also considers the degree to which the provisions of the Act align with Nigeria’s obligations at the international level to legally protect the dignity of women. Following a discussion of the antecedent statutory framework and its limitations, the article compares the Violence against Persons Prohibition Act with the Maputo Protocol, highlighting gaps in the Act and making recommendations for reform. 1. INTRODUCTION As a public health and human rights issue, violence against women (‘VAW’) in Africa has recently occupied the attention of developed and developing countries, international organizations, and human rights practitioners. Over the past two decades, an increasing amount of research and literature has demonstrated the magnitude of VAW in Africa and the extent to which it has continued to rise.1 The Protocol on the African Charter on Human and Peoples’ Rights (‘ACHPR’), popularly known as the Maputo Protocol, was adopted by the African Union in July 2003 to obligate State Parties to protect women from all forms of violence, particularly sexual and verbal violence.2 Currently, the Maputo Protocol has been ratified by 37 member countries of the African Union. Some of these countries have subsequently initiated legislative, policy, and institutional measures focused on VAW. The United Nations defines VAW as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or in private life’.3 The primary categories of VAW include intimate partner violence and sexual violence, both of which are issues of major public health concern.4 Specific forms of VAW include domestic violence, forced pregnancy, female genital cutting, femicide, sexual harassment, child marriage, trafficking in women and young girls, and other forms of violence perpetrated by persons who are not the intimate partners of the victim (referred to as non-partner violence).5 In 2015, the Violence against Persons Prohibition Act (‘VAPP Act’) was enacted by the Nigerian government. This law substantially addresses diverse forms of VAW and represents a political commitment to stem the problem of VAW in Nigeria. It may also be viewed as a reflection of Nigeria’s willingness to comply with its human rights obligations under international law.6 In this article, we set out to examine the VAPP Act against the Maputo Protocol, to assess whether the provisions of Nigeria’s VAPP Act aligns with the country’s obligations at the international level to ensure respect for women and protect them from violence. We will consider the extent to which the provisions of the Act can effectively address the problem of VAW in Nigeria. Following a discussion of the strengths and weaknesses of the Act against the Maputo Protocol, the article highlights issues that have not been adequately addressed in the Act and makes recommendations for reform. The discussion is set out in three sections. The first section deals with a discussion of the concept of VAW, some of its forms, and recent trends in regulatory approaches, globally and in Nigeria. The second section examines the rights of women in Nigeria against violence within the context of the existing national, regional, and international legal frameworks on VAW. The last section compares the provisions of the VAPP Act with the African Protocol on Women’s Rights, based on the three main foci of the Protocol’s provision on VAW: prevention, punishment, and rehabilitation, and sets out the conclusions. 2. INCIDENCE OF VAW IN NIGERIA The most recent Nigerian Demographic and Health Survey conducted in 2013 shows that from age 15, 3 in every 10 women have experienced violence.7 Available data from this survey show that women encounter violence in both public and private spheres on a daily basis.8 Also, one in every four married women reported experiencing sexual, physical, and emotional violence from their partners. While only 25 per cent of men aged 15–49 years were convinced that spousal violence is justified, 35 per cent of women aged 15–49 years attempted to justify the practice.9 3. LEGAL FRAMEWORK ADDRESSING VAW IN NIGERIA Over time, the Nigerian government has attempted to redress the incidence of VAW in the country through local statutes and international treaties. We shall consider the most pertinent of these below. (A) Domestic Laws Prior to the enactment of the VAPP Act, the fundamental human rights provisions of the Constitution of the Federal Republic of Nigeria,10 the African Charter on Human and Peoples’ Rights,11 and the applicable criminal law components relating to physical assault comprised the core of the legal framework which addressed VAW in Nigeria. (a) The Nigerian Constitution: Fundamental Human Rights The Constitution of the Federal Republic of Nigeria, 1999 and the African Charter on Human and Peoples’ Rights constitute the core framework for the recognition and protection of fundamental human rights in Nigeria, including the right to the dignity of the human person. These laws provide a general framework available to all classes of individuals for the redress of specific rights violations. In general, physical violence whether by the State, any of its agencies, or private actors constitutes a violation of an individual’s fundamental human right to dignity under the Nigerian Constitution. Section 34(1) of the Constitution provides that every individual is entitled to respect for the dignity of his person, and accordingly, no person should be subjected to torture or to inhuman or degrading treatment; no person is to be held in slavery or servitude; and no person ought to perform forced or compulsory labour. The right to dignity implies that all individuals should be treated with respect and is therefore violated by VAW, which undermines the dignity and humanity of women.12 However, this section does appear, upon careful reading, to restrict unlawful violence only to the specified instances of subjugation to torture, inhuman or degrading treatment, slavery or servitude, forced or compulsory labour, and no more. This was also the view rightly taken by the Nigerian Court of Appeal in the case of Uzoukwu v. Ezeonu II,13 where it stated that no tribunal had the jurisdiction to go beyond the categories explicitly mentioned in the constitution, in search of additional acts of violation. Under section 33 of the 1999 Constitution, the right to life of every individual is guaranteed. Section 33(1) provides that ‘Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria’. Within the context of VAW, the right to life would require the Nigerian government to take appropriate steps and measures to safeguard women from all acts of violence. This is because VAW constitutes threats to the enjoyment of the right to life and physical well-being. Traditionally, the right to life is viewed as a negative right, which imposes obligations on the state to refrain from taking life unless when permitted by law. However, recent developments in human rights jurisprudence would seem to suggest that the right to life should also be viewed as a positive right, which imposes obligations on governments to prevent the loss of life.14 For instance, failure on the part of a government hospital to provide emergency treatment to a citizen has been held to amount to a violation of the right to life guaranteed under a similar provision of the Indian Constitution.15 (b) Criminal Legislation As mentioned above, certain provisions in the general criminal laws applicable in Nigeria prohibit VAW. However, these laws gradually prove inadequate as they focus largely on acts of assault which are physical and direct in form. They also relate mostly to offences of a sexual kind. The implication of this is that because most victims are more concerned about their privacy and would like to avoid stigmatization, they are usually reluctant to prosecute their aggressors. Furthermore, these laws do not entitle the victims directly to any substantial reliefs. It is noteworthy that most of the criminal laws are inherited from the country’s colonial era (pre-1960) and therefore have not adequately coped with the ever-increasing categories and complexities of gender-based violence in modern society. The provisions of the Criminal Code Act16 and the Penal Code Act,17 which represent the definitive criminal statutes applicable in the southern and northern regions of Nigeria respectively are discussed below. (i) Criminal Code. Chapter 30 of the Criminal Code18 applicable in the southern part of Nigeria makes specific prohibitions against assault on women and, in this regard, criminalizes rape and the attempt to commit the same, indecent assault on women, and the abduction of females of any age. Indeed, judicial interpretation of these offences has significantly demonstrated the narrowness of their scope as defined under the Criminal Code and the cumbersome burden of providing the required evidence.19 (ii) Penal Code. The provisions of the Penal Code applicable in the northern part of Nigeria contain fewer specific provisions relating to VAW, and even those are couched in relatively general and conservative language. The most noteworthy of these provisions relate to rape20 and trafficking.21 Indeed, what is even more unfortunate is that the Penal Code permits the use of a certain degree of force by a husband to correct his wife, such husband and wife being subject to any customary law in which the correction is recognized as lawful.22 (B) International and Regional Treaties (a) The United Nations Convention on the Elimination of All Forms of Discrimination against Women 1979 The Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’) was adopted by the United Nations General Assembly in 1979 and ratified by several countries including Nigeria.23 It represents the definitive universal document which sets out most common forms of discrimination against women and an agenda for national action to end such discrimination. It is therefore noteworthy that the CEDAW Treaty does not explicitly mention violence. Notwithstanding, the CEDAW Committee through its subsequent interpretations of the Convention strongly canvass the view that gender-based violence does fall within the latitude of the CEDAW framework, whether its provisions specifically mention violence or not,24 and conclude that an effective implementation of the Convention obligates States to take positive measures to eliminate all forms of VAW.25 To this extent, State parties to the CEDAW are required to provide periodic reports detailing the legislative, administrative, or other measures that have been adopted to protect women from violence and eradicate such violence; the existence of any support services for women victims; and relevant statistical data.26 Yet, it may be argued that the inferences drawn by the CEDAW Committee, even if credible, do not provide an effective substitute for an explicit bill of rights which specifically addresses VAW. There is, in this regard, a lack of objective clarity as to the scope of State parties’ obligations under the CEDAW regarding VAW.27 Notwithstanding the foregoing, what is even more critical is that although Nigeria has signed and ratified the CEDAW, it is yet to domesticate this treaty. Under Nigerian law, treaties become locally enforceable only to the extent that they have been domesticated by legislative enactment.28 Therefore, while Nigeria has signified its intention on the international plane to be bound by provisions of the CEDAW by ratifying the same, it would require the enactment of a local law to enforce the provisions of the CEDAW Treaty. (b) The African Charter on Human and Peoples’ Rights African member states of the African union, including Nigeria, adopted the ACHPR (also known as the Banjul Charter) in 1981. Essentially, the ACHPR is an international human rights instrument that seeks to promote and protect human rights and basic freedoms in the African continent. It recognizes and gives equal legal protection to both civil and political rights as well as economic, social, and cultural rights. Unlike the CEDAW, Nigeria domesticated the ACHPR by virtue of the African Charter on Human and Peoples’ Rights Enforcement and Ratification Act,29 thereby giving the ACHPR provisions force of law in the country. The ACHPR contains similar provisions as the Nigerian constitution on the rights to life, liberty, dignity, and inviolability of the human person. Therefore, it can be invoked to oppose VAW relating to certain forms of human exploitation and degradation, particularly through slavery, torture and cruel, inhuman or degrading punishment and treatment.30 Notwithstanding, the ACHPR goes further to specifically address the issue of VAW in the Maputo Protocol discussed in detail below.31 (i) The Maputo Protocol. The Protocol was adopted by member countries of the African Union, including Nigeria, on 11 July 2003 in Maputo, Mozambique—hence it is also styled the Maputo Protocol.32 So far, it remains the most detailed and cogent instrument at the international level specifically addressing VAW in Africa and has been widely commended for its ground-breaking significance for African women’s rights.33 The Protocol defines VAW broadly to cover various acts which cause or could cause women physical, sexual, psychological, and economic harm, including the threat to undertake such acts against the woman.34 Also, Article 4 entitles women to respect for their life and integrity and security of person and requires States Parties to take appropriate and effective measures to: enact and enforce laws to prohibit all forms of VAW including unwanted or forced sex whether the violence takes place in private or public; adopt such other legislative, administrative, social, and economic measures as may be necessary to ensure the prevention, punishment, and eradication of all forms of VAW; identify the causes and consequences of VAW and take appropriate measures to prevent and eliminate such violence; actively promote peace education through curricula and social communication to eradicate elements in traditional and cultural beliefs, practices, and stereotypes which legitimize and exacerbate the persistence and tolerance of VAW; punish the perpetrators of VAW and implement programmes for the rehabilitation of women victims; establish mechanisms and accessible services for effective information, rehabilitation, and reparation for victims of VAW; provide adequate budgetary and other resources for the implementation and monitoring of actions aimed at preventing and eradicating VAW. The Protocol would seem to have adopted a three-pronged approach to addressing VAW, namely prevention (prevent gender-based violence), punishment (punish perpetrators of gender-based violence), and rehabilitation (rehabilitate victims of gender-based violence). Unfortunately, despite the far-reaching provisions on VAW in the Protocol, few attempts have been made to hold states accountable through litigation on this issue before the African Commission on Human and Peoples’ Rights (‘African Commission’). So far, there are about two cases directly touching on VAW. First, in Curtis Francis Doebbler v. Sudan,35 a group of female students on a picnic were arrested and charged with committing, in a public place, acts contrary to public morality, prohibited under Article 153 of the Sudanese Criminal Law of 1991. The law prohibits acts such as ‘girls kissing, wearing trousers, dancing with men, and sitting or talking with boys’. The girls were subsequently convicted and sentenced to fines and lashes, which would be carried out in public under the supervision of the national court. The African Commission, upon a complaint brought by the students, ruled that the relevant provision of the Sudanese law contravened Article 5 of the African Charter. According to the Commission, Article 5 of the Charter prohibits cruel as well as inhuman and degrading treatment, such as those actions which cause serious physical or psychological suffering or humiliation or force the individual [to act] against his or her will or conscience. The second case is the Egyptian Initiative for Personal Rights & INTERIGHTS v. Egypt.36 While this case touches on various acts of human rights violation, our focus here will be on its implications for VAW and women’s enjoyment of their rights to dignity and non-discrimination. In this case, four female journalists alleged various acts of human rights abuses against the government of Egypt claiming that they had experienced violence and physical abuse from the hands of government’s security agents during the 2005 referendum to amend the Egyptian Constitution. The complaints upon a petition to the African Commission specifically alleged a violation of their rights under Articles 1, 2, 3, 5, 7(1)(a), 9(2), 16, 18(3), and 26 of the African Charter by the respondent State, Egypt. The Commission held that gender-based violence, including sexual violence, is a gross violation of women’s rights for which states must be held accountable. It adopted the doctrine of due diligence by holding that failure of a state to protect women from acts of violence perpetrated by a third party—in public or private—will render the state vicariously responsible for such violation of rights. It reasoned that acts of VAW amount to discrimination in violation of the African Charter and its Protocol as well as a violation of the provision on equality enshrined in the Charter and the Protocol, respectively. 4. THE VAPP ACT The VAPP Act came into force in Nigeria in 2015, as a response to the high incidence of VAW in Nigeria and the inadequacy of existing laws to effectively address the same. The Act adopts a generous approach to the definition of violence to include not only physical acts but also psychological, economic, and emotional abuse of a person.37 Indeed, the Act’s definition of violence draws greatly from the spirit and letters of the Maputo Protocol and the CEDAW. This approach is significant because it serves to protect women and girls who otherwise may be subjected to non-physical forms of violence. Experience has shown that in some parts of the country, women have been denied rights of inheritance, ejected from their homes, and made to undergo degrading treatment and practices.38 For instance, for the Igbo people of Southeast Nigeria, devolution of property is customarily based on the principle of primogeniture and primarily patrilineal, with both the rights of control and property itself flowing to the eldest son who holds the property on trust for himself and his brothers or, if there is none, to the brother of the deceased.39 Where the deceased had no sons, the property will pass to the brother, even if there are female children in the family.40 Based on recent decisions, however, it appears that the Nigerian courts will now view with disfavour, the local customs, and practices, which discriminate on the basis of gender.41 In addition, the Act covers and defines broadly various aspects of violence including sexual assault, sexual intimidation, sexual harassment, and sexual exploitation. It further provides a broad definition of harmful cultural practices. According to the Act, harmful cultural practices mean all traditional behaviour, attitudes, or practices, which may negatively affect the fundamental rights of women and girls.42 Examples of such practices as identified in the Act include widowhood practices, denial of the right to inheritance or succession, female genital mutilation/cutting, forced marriage, and forced isolation.43 To the extent that the Act broadly defines various aspects of violence, including what constitutes ‘harmful cultural practices’, it can be argued that it exceeds the African Protocol on Women’s rights and the CEDAW, as neither the Protocol nor the CEDAW provides the definition of ‘harmful cultural practices’. Rather the Protocol in Article 1 and the CEDAW Committee in its General Recommendation 31, merely define ‘harmful practices’ and chose to exclude the use of the word ‘cultural’. It remains unclear why this is so. However, it could be a form of compromise given that issues relating to culture and religion are often contentious.44 Therefore, in explicitly defining what will amount to harmful cultural practices, the Act has left no room for ambiguous contextual interpretations. The inclusion of economic abuse as constituting violence is unique, innovative, and commendable. According to the Act, economic abuse includes forced financial dependence, denial of inheritance rights, and unreasonable denial of financial resource. This provision, which has no equivalent provision in the Protocol, will no doubt further protect women from financial or material deprivation. Section 6 of the VAPP Act prohibits female genital mutilation/cutting (‘FGM/C’) and makes it punishable by a minimum imprisonment term of four years or a monetary fine not exceeding N200000 in local currency. This provision is a welcome development given the threat that the practice poses to the health and well-being of girls in the country. For so many years, the international community, including human rights treaty bodies and women’s rights advocates, have been unequivocal in their condemnation of this practice as a gross violation of women’s fundamental rights and freedom.45 This aspect of the Act would also seem to correspond with the duty of states to prevent violence and punish perpetrators of violence under the Maputo Protocol. Unfortunately, the section does not contain any provision relating to the rehabilitation of the victims of FGM/C. This is a serious omission by the drafters of the VAPP Act, which is regrettable. It is not enough to impose punishment on perpetrators and make no provision for the overall well-being of those who have suffered from this practice. Also, the fact that the VAPP Act entirely relies on criminal sanction as a way of addressing FGM/C can be problematic. The Act could have adopted the same approach as the Maputo Protocol and CEDAW where criminal sanction is complemented by the need to educate people and create awareness about FGM/C. This is more likely to be effective and lead to behavioural change in society. Experience has shown that merely resorting to criminal sanctions to address FGM/C may not be effective.46 The provisions of the Act dealing with rape are very timely and laudable. Studies have shown high incidence of rape in the country, which may potentially contribute to women’s susceptibility to sexually transmitted infections, including HIV/AIDS.47 As a result of the alarming rate of the practice and its negative impact on the well-being of women, commentators have argued for the reform of the law governing rape in the country.48 The ‘lenient’ provision of the Criminal Code Act on rape, which imposes a maximum sentence of 14 years is not only inadequate but also insensitive to the plight of women and girls. The VAPP Act has adopted a broad and radical definition of rape that is not limited to penetration of the vagina. Anal and oral penetration are also defined as rape.49 This is consistent with the broad interpretation of rape under international law.50 One of the major challenges victims of rape often encounter is the need to prove penetration to find an accused person guilty. This requirement not only overlooks the trauma and emotional suffering women and girls undergo during sexual abuse but may also dissuade women and girls who have been sexually abused from seeking legal redress. Therefore, by broadening the definition of rape to go beyond vaginal penetration, the Act would seem to have adopted a gender-sensitive approach that reflects the sad experiences of women and girls. Also, the imposition of life sentence for offenders of rape appears to be a response to the inadequacy of the provisions of existing law. However, the VAPP Act misses the opportunity to include marital rape as an offence, especially as this has remained a topical and controversial issue in the country. Experience has shown that many women suffer in silence as a result of violence, including sexual abuse, from their partners. While the VAPP Act recognizes spousal violence as a crime, it is inexplicable why ‘marital rape’ should be excluded as an offence under the Act. Another vital opportunity unexplored by the Act relates to the evidentiary proof for the offence of rape. Trial judges in Nigeria have, as a matter of practice, often required the corroboration of a rape victim’s testimony as an essential condition for the conviction of the accused person in the case, in spite of the absence of clear legal justification for such a procedure.51 Even the appellate courts are divided on the issue and have acknowledged that the law of corroboration in the offence of rape is unsettled in Nigeria.52 This uncertainty undoubtedly puts a victim of rape at a disadvantage. The failure of the VAPP Act to address this gap renders it ripe for reforms. The Act introduces a new development into Nigerian criminal law system with a view to protecting women from violence using a protective order to thwart acts of violence or harassment. For example, section 28(1) of the VAPP Act provides that a complainant may make an application to the court to seek a protective order following a complaint of violence. This is a welcome development because this process has been used successfully in other countries such as South Africa where there is a high rate of violence.53 Nonetheless, a major challenge with this process under the Act is that the success or otherwise of the order depends largely on the effectiveness of the Nigerian police. It remains uncertain how this process will work, especially as there have been reports of varying degrees of scepticism and a lack of cooperation by the Nigerian police with victims of sexual violence in the past. Clearly, there will be a need to educate and train the police on how to deal with issues of sexual violence. There is also the need to build the confidence of the public to be able to approach and trust law enforcement agents to secure their rights in this regard. Perhaps one of the most significant introductions in the Act is its provision on economic abuse. This new provision recognizes the salient travails of women who are compelled to live with financial and material deprivation. A major problem for women in the country, the issue of economic deprivation and abuse received little attention prior to the passage of the Act. Nonetheless, despite these noteworthy provisions, the VAPP Act fails to make adequate provisions towards effective enforcement of the law. Factors that can limit the effectiveness of a law such as the VAPP Act include established conceptions regarding gender roles, spousal control of their partners, and the supposed private nature of violence as between husbands and wives—all of them, factors that can affect law enforcement attitudes and practices. In a country, such as Nigeria, with historic gaps in the enforcement of legislation, there needs to be concrete provisions on implementation and enforcement, without which the Act may be an exercise in futility. 5. CONCLUSION In this article, we have provided an analysis of the VAPP Act against the antecedent legal framework for the protection of Women’s rights in Nigeria, especially the Maputo Protocol. In outlining the features of the historical framework, we considered how the disadvantaged position of Nigerian women and the resulting vulnerability to violence should be important focal points for a law that contemplates justice for Nigerian women. In other words, given that women are more susceptible to violence than their male counterpart in Nigeria, it may be expected that a definitive law such as the VAPP Act should attempt to redress the inequalities. Beyond the introduction of a protective order regime for women potentially facing violence or the threat of it, the VAPP Act significantly strengthens current criminal legislation protecting women from abuse. Altogether, the VAPP Act brings succour and remedies to victims of violence who have suffered in silence without recourse to justice and provides rehabilitative-psycho-social support for their recovery and reintegration. The Act affords access and better services for victims/survivors of violence, such as hotlines, shelters, legal advice, access to justice, counselling and police protection. A major drawback in relation to this federal Act may be its limited application to the Federal Capital Territory, Abuja. It is expected that the other 35 states of Nigeria will take necessary action to enact and enforce a similar law on VAW. Footnotes 1 Notwithstanding, most forms of VAW occurring in African societies were under-reported because of the sensitivity of the subject. 2 L Asuagbor ‘Status of Implementation of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa’ (Commission on the Status of Women New York 2016) 2. 3 WHO ‘Violence against Women, Intimate Partner and Sexual Violence against Women’ (Fact sheet no. 239), www.who.int/mediacentre/factsheets/fs239/en (accessed January 2016). 4 Ibid. 5 United Nations The World’s Women 2015: Trends and Statistics (United Nations, Department of Economic and Social Affairs, Statistics Division New York 2015) Vol. E.15.XVII.8, p. 139, https://unstats.un.org/unsd/gender/downloads/WorldsWomen2015_report.pdf. 6 International and regional human rights instruments such as the Convention on Elimination of All forms of Discrimination against Women (‘CEDAW’) and the Protocol to the African Charter on the Rights of Women (‘Protocol to the African Charter’) contain provisions that can be applied towards addressing VAW and mandate States to take steps towards eliminating VAW. 7 Ibid at 17. 8 Nigerian Demographic and Health Survey, 2013 at 6. 9 Ibid. 10 CAP. C23 Laws of the Federation of Nigeria, 2004 as amended, otherwise known as the Nigerian Constitution. 11 Domesticated in Nigeria by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act CAP A9 Laws of the Federation of Nigeria, 2004. 12 In Vishaka v. State of Rajasthan (1997) 6 SCC241, the Indian Supreme Court held that sexual harassment constitutes a violation of the right to dignity of women. 13 [1991] 6 NWLR (Pt. 200) 708, per Justice Niki Tobi. 14 See for instance General Comment No. 3 on The African Charter On Human And Peoples’ Rights: The Right To Life (Art. 4) adopted during the 57th Ordinary Session of the Commission in Banjul, The Gambia 4–18 November 2016; see also, AE Yamin ‘Not Just a Tragedy: Access to Medication as a Right under International Law’ [2003] Boston Univ Int L J 21, 370. 15 Art. 21 of the Indian Constitution; see Pachim Banga Khet Majoor Samity v. State of West Bengal (1996) 4 SCC 37. 16 CAP. C38 Laws of the Federation of Nigeria, 2004. 17 CAP 53 Laws of the Federation of Nigeria, 1990 (Abuja); CAP 89 of the Laws of Northern Nigeria, 1963. 18 See generally, sections 357–363 of the Criminal Code Act. 19 CEDAW ‘The Convention on the Elimination of All Forms of Discrimination against Women’, http://www.un.org/womenwatch/daw/cedaw/ (accessed 27 February 2016). 20 Section 282 of the Penal Code Act. 21 Sections 276 and 281 of the Penal Code Act. 22 See section 55(1)(d) of the Penal Code Act. 23 Nigeria first became a signatory on 23 April 1984 and further ratified the treaty on 13 June 1985. 24 See UN Committee on the Elimination of All Forms of Discrimination against Women, General Recommendation 19, 1991. The CEDAW Committee has positively identified gender-based violence as a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men. 25 See Art. 4 of the CEDAW Committee General Recommendation 19. 26 See Committee on the Elimination of All Forms of Discrimination against Women, General Recommendation 12, 1989. 27 In Art. 4 of its General Recommendation 19, the CEDAW Committee notes that not all the CEDAW compliance reports of States parties adequately reflected the close connection between discrimination against women, gender-based violence, and violations of human rights and fundamental freedoms. 28 Section 12(1) of the Nigerian Constitution, 1999. 29 CAP A9 Laws of the Federation of Nigeria, 2004. 30 Art. 5 of the ACHPR. 31 Note the provisions of Art. 66 of the ACHPR, which provides that special protocols or agreements may, if necessary, supplement the provisions of the present Charter. This protocol was signed and ratified by the Nigerian government in 2004 and 2005, respectively. 32 Adopted by the second Ordinary Session of the African Union General Assembly in 2003 in Maputo CAB/LEG/66.6 (2003); it came into force on 25 November 2005 and has been ratified by about 37 African countries. 33 See, for instance, F Banda ‘Blazing a Trail: The African Protocol on Women’s Rights Comes into Force’ [2006] J Afr L 50, 72; see also E Durojaye ‘Advancing Gender Equity in Access to HIV Treatment Through the Protocol to the Rights of Women’ [2006] Afr Hum Rights L J 6, 187. 34 See Art. 1 of the Protocol. 35 Doebbler v. Sudan (2003) AHRLR 153 (ACHPR 2003). 36 Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt Communication 323/06 decided during the 10th Extra ordinary session of the of African Commission on Human and Peoples’ Right held between 12 and 16 December 2011. 37 Section 46. 38 See, for instance, E Durojaye ‘Woman but not Human’ Widowhood Practices and Human Rights Violations in Nigeria’ [2013] Int J L Policy Fam 27, 176–96. 39 See BW Harvey The Law and Practice of Nigerian Wills, Probate and Succession (Sweet & Maxwell London 1968) 88; see also EI Nwogugu ‘Family Law’ in CO Okonkwo (ed) Introduction to Nigerian Law (Sweet & Maxwell London 1980) at 303. 40 Uboma v. Ibeneme (1967), E.N.L.R. 251; Udensi v. Mogbo (1976) 7 S.C. 1. 41 See for instance Ukeje v. Ukeje (2014) 11 NWLR (PT.1418) 384. 42 See section 46 of the VAPP Act. 43 Ibid. 44 UN Committee on Elimination of All Forms of Discrimination against Women (CEDAW) Joint general recommendation/general comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices CEDAW/C/GC/31. 45 See for instance General Recommendation 5 of CEDAW on Female Genital Mutilation/Cutting; see also General Recommendation 31 of CEDAW and 18 of CRC (n 14 above). 46 I Iyioha ‘Public Health, Cultural Norms and the Criminal Law: An Inconvenient Union? A Case Study of Female Genital Cutting’ [2012] Med L 31, 451–72. 47 See M Afolayan et al. ‘Rape in Nigeria: A Silent Epidemic Among Adolescents with Implication for HIV Infection’ [2014] Global Health Action 7, 10. 48 OA Olatunji ‘Penetration, Corroboration and Non-consent: Examining the Nigerian Law of Rape and Addressing Its Shortcomings’ [2012] Univ Ilorin L J 8, 79–105. 49 See section 1(1) of the VAPP Act. 50 See the for instance the decisions of the International Criminal Tribunals on Rwanda in Prosecutor v. Akayesu, Case No. ICTR96-4-T, Judgment, 416, 437 (2 September 1998). 51 See generally the Nigerian Supreme Court in Ogunbayo v. the State (2007). 8 NWLR (Pt. 1035), per Niki Tobi (JSC). 52 Above. 53 See for instance the Prevention of Family Violence Act 133 of 1993 of South Africa. © The Author(s) 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

The Violence Against Persons Prohibition Act, the Maputo Protocol and the Rights of Women in Nigeria

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Abstract This article examines the Violence against Persons Prohibition Act, 2015, to assess the extent to which its provisions guarantee the protection of women in Nigeria from violence. It also considers the degree to which the provisions of the Act align with Nigeria’s obligations at the international level to legally protect the dignity of women. Following a discussion of the antecedent statutory framework and its limitations, the article compares the Violence against Persons Prohibition Act with the Maputo Protocol, highlighting gaps in the Act and making recommendations for reform. 1. INTRODUCTION As a public health and human rights issue, violence against women (‘VAW’) in Africa has recently occupied the attention of developed and developing countries, international organizations, and human rights practitioners. Over the past two decades, an increasing amount of research and literature has demonstrated the magnitude of VAW in Africa and the extent to which it has continued to rise.1 The Protocol on the African Charter on Human and Peoples’ Rights (‘ACHPR’), popularly known as the Maputo Protocol, was adopted by the African Union in July 2003 to obligate State Parties to protect women from all forms of violence, particularly sexual and verbal violence.2 Currently, the Maputo Protocol has been ratified by 37 member countries of the African Union. Some of these countries have subsequently initiated legislative, policy, and institutional measures focused on VAW. The United Nations defines VAW as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or in private life’.3 The primary categories of VAW include intimate partner violence and sexual violence, both of which are issues of major public health concern.4 Specific forms of VAW include domestic violence, forced pregnancy, female genital cutting, femicide, sexual harassment, child marriage, trafficking in women and young girls, and other forms of violence perpetrated by persons who are not the intimate partners of the victim (referred to as non-partner violence).5 In 2015, the Violence against Persons Prohibition Act (‘VAPP Act’) was enacted by the Nigerian government. This law substantially addresses diverse forms of VAW and represents a political commitment to stem the problem of VAW in Nigeria. It may also be viewed as a reflection of Nigeria’s willingness to comply with its human rights obligations under international law.6 In this article, we set out to examine the VAPP Act against the Maputo Protocol, to assess whether the provisions of Nigeria’s VAPP Act aligns with the country’s obligations at the international level to ensure respect for women and protect them from violence. We will consider the extent to which the provisions of the Act can effectively address the problem of VAW in Nigeria. Following a discussion of the strengths and weaknesses of the Act against the Maputo Protocol, the article highlights issues that have not been adequately addressed in the Act and makes recommendations for reform. The discussion is set out in three sections. The first section deals with a discussion of the concept of VAW, some of its forms, and recent trends in regulatory approaches, globally and in Nigeria. The second section examines the rights of women in Nigeria against violence within the context of the existing national, regional, and international legal frameworks on VAW. The last section compares the provisions of the VAPP Act with the African Protocol on Women’s Rights, based on the three main foci of the Protocol’s provision on VAW: prevention, punishment, and rehabilitation, and sets out the conclusions. 2. INCIDENCE OF VAW IN NIGERIA The most recent Nigerian Demographic and Health Survey conducted in 2013 shows that from age 15, 3 in every 10 women have experienced violence.7 Available data from this survey show that women encounter violence in both public and private spheres on a daily basis.8 Also, one in every four married women reported experiencing sexual, physical, and emotional violence from their partners. While only 25 per cent of men aged 15–49 years were convinced that spousal violence is justified, 35 per cent of women aged 15–49 years attempted to justify the practice.9 3. LEGAL FRAMEWORK ADDRESSING VAW IN NIGERIA Over time, the Nigerian government has attempted to redress the incidence of VAW in the country through local statutes and international treaties. We shall consider the most pertinent of these below. (A) Domestic Laws Prior to the enactment of the VAPP Act, the fundamental human rights provisions of the Constitution of the Federal Republic of Nigeria,10 the African Charter on Human and Peoples’ Rights,11 and the applicable criminal law components relating to physical assault comprised the core of the legal framework which addressed VAW in Nigeria. (a) The Nigerian Constitution: Fundamental Human Rights The Constitution of the Federal Republic of Nigeria, 1999 and the African Charter on Human and Peoples’ Rights constitute the core framework for the recognition and protection of fundamental human rights in Nigeria, including the right to the dignity of the human person. These laws provide a general framework available to all classes of individuals for the redress of specific rights violations. In general, physical violence whether by the State, any of its agencies, or private actors constitutes a violation of an individual’s fundamental human right to dignity under the Nigerian Constitution. Section 34(1) of the Constitution provides that every individual is entitled to respect for the dignity of his person, and accordingly, no person should be subjected to torture or to inhuman or degrading treatment; no person is to be held in slavery or servitude; and no person ought to perform forced or compulsory labour. The right to dignity implies that all individuals should be treated with respect and is therefore violated by VAW, which undermines the dignity and humanity of women.12 However, this section does appear, upon careful reading, to restrict unlawful violence only to the specified instances of subjugation to torture, inhuman or degrading treatment, slavery or servitude, forced or compulsory labour, and no more. This was also the view rightly taken by the Nigerian Court of Appeal in the case of Uzoukwu v. Ezeonu II,13 where it stated that no tribunal had the jurisdiction to go beyond the categories explicitly mentioned in the constitution, in search of additional acts of violation. Under section 33 of the 1999 Constitution, the right to life of every individual is guaranteed. Section 33(1) provides that ‘Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria’. Within the context of VAW, the right to life would require the Nigerian government to take appropriate steps and measures to safeguard women from all acts of violence. This is because VAW constitutes threats to the enjoyment of the right to life and physical well-being. Traditionally, the right to life is viewed as a negative right, which imposes obligations on the state to refrain from taking life unless when permitted by law. However, recent developments in human rights jurisprudence would seem to suggest that the right to life should also be viewed as a positive right, which imposes obligations on governments to prevent the loss of life.14 For instance, failure on the part of a government hospital to provide emergency treatment to a citizen has been held to amount to a violation of the right to life guaranteed under a similar provision of the Indian Constitution.15 (b) Criminal Legislation As mentioned above, certain provisions in the general criminal laws applicable in Nigeria prohibit VAW. However, these laws gradually prove inadequate as they focus largely on acts of assault which are physical and direct in form. They also relate mostly to offences of a sexual kind. The implication of this is that because most victims are more concerned about their privacy and would like to avoid stigmatization, they are usually reluctant to prosecute their aggressors. Furthermore, these laws do not entitle the victims directly to any substantial reliefs. It is noteworthy that most of the criminal laws are inherited from the country’s colonial era (pre-1960) and therefore have not adequately coped with the ever-increasing categories and complexities of gender-based violence in modern society. The provisions of the Criminal Code Act16 and the Penal Code Act,17 which represent the definitive criminal statutes applicable in the southern and northern regions of Nigeria respectively are discussed below. (i) Criminal Code. Chapter 30 of the Criminal Code18 applicable in the southern part of Nigeria makes specific prohibitions against assault on women and, in this regard, criminalizes rape and the attempt to commit the same, indecent assault on women, and the abduction of females of any age. Indeed, judicial interpretation of these offences has significantly demonstrated the narrowness of their scope as defined under the Criminal Code and the cumbersome burden of providing the required evidence.19 (ii) Penal Code. The provisions of the Penal Code applicable in the northern part of Nigeria contain fewer specific provisions relating to VAW, and even those are couched in relatively general and conservative language. The most noteworthy of these provisions relate to rape20 and trafficking.21 Indeed, what is even more unfortunate is that the Penal Code permits the use of a certain degree of force by a husband to correct his wife, such husband and wife being subject to any customary law in which the correction is recognized as lawful.22 (B) International and Regional Treaties (a) The United Nations Convention on the Elimination of All Forms of Discrimination against Women 1979 The Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’) was adopted by the United Nations General Assembly in 1979 and ratified by several countries including Nigeria.23 It represents the definitive universal document which sets out most common forms of discrimination against women and an agenda for national action to end such discrimination. It is therefore noteworthy that the CEDAW Treaty does not explicitly mention violence. Notwithstanding, the CEDAW Committee through its subsequent interpretations of the Convention strongly canvass the view that gender-based violence does fall within the latitude of the CEDAW framework, whether its provisions specifically mention violence or not,24 and conclude that an effective implementation of the Convention obligates States to take positive measures to eliminate all forms of VAW.25 To this extent, State parties to the CEDAW are required to provide periodic reports detailing the legislative, administrative, or other measures that have been adopted to protect women from violence and eradicate such violence; the existence of any support services for women victims; and relevant statistical data.26 Yet, it may be argued that the inferences drawn by the CEDAW Committee, even if credible, do not provide an effective substitute for an explicit bill of rights which specifically addresses VAW. There is, in this regard, a lack of objective clarity as to the scope of State parties’ obligations under the CEDAW regarding VAW.27 Notwithstanding the foregoing, what is even more critical is that although Nigeria has signed and ratified the CEDAW, it is yet to domesticate this treaty. Under Nigerian law, treaties become locally enforceable only to the extent that they have been domesticated by legislative enactment.28 Therefore, while Nigeria has signified its intention on the international plane to be bound by provisions of the CEDAW by ratifying the same, it would require the enactment of a local law to enforce the provisions of the CEDAW Treaty. (b) The African Charter on Human and Peoples’ Rights African member states of the African union, including Nigeria, adopted the ACHPR (also known as the Banjul Charter) in 1981. Essentially, the ACHPR is an international human rights instrument that seeks to promote and protect human rights and basic freedoms in the African continent. It recognizes and gives equal legal protection to both civil and political rights as well as economic, social, and cultural rights. Unlike the CEDAW, Nigeria domesticated the ACHPR by virtue of the African Charter on Human and Peoples’ Rights Enforcement and Ratification Act,29 thereby giving the ACHPR provisions force of law in the country. The ACHPR contains similar provisions as the Nigerian constitution on the rights to life, liberty, dignity, and inviolability of the human person. Therefore, it can be invoked to oppose VAW relating to certain forms of human exploitation and degradation, particularly through slavery, torture and cruel, inhuman or degrading punishment and treatment.30 Notwithstanding, the ACHPR goes further to specifically address the issue of VAW in the Maputo Protocol discussed in detail below.31 (i) The Maputo Protocol. The Protocol was adopted by member countries of the African Union, including Nigeria, on 11 July 2003 in Maputo, Mozambique—hence it is also styled the Maputo Protocol.32 So far, it remains the most detailed and cogent instrument at the international level specifically addressing VAW in Africa and has been widely commended for its ground-breaking significance for African women’s rights.33 The Protocol defines VAW broadly to cover various acts which cause or could cause women physical, sexual, psychological, and economic harm, including the threat to undertake such acts against the woman.34 Also, Article 4 entitles women to respect for their life and integrity and security of person and requires States Parties to take appropriate and effective measures to: enact and enforce laws to prohibit all forms of VAW including unwanted or forced sex whether the violence takes place in private or public; adopt such other legislative, administrative, social, and economic measures as may be necessary to ensure the prevention, punishment, and eradication of all forms of VAW; identify the causes and consequences of VAW and take appropriate measures to prevent and eliminate such violence; actively promote peace education through curricula and social communication to eradicate elements in traditional and cultural beliefs, practices, and stereotypes which legitimize and exacerbate the persistence and tolerance of VAW; punish the perpetrators of VAW and implement programmes for the rehabilitation of women victims; establish mechanisms and accessible services for effective information, rehabilitation, and reparation for victims of VAW; provide adequate budgetary and other resources for the implementation and monitoring of actions aimed at preventing and eradicating VAW. The Protocol would seem to have adopted a three-pronged approach to addressing VAW, namely prevention (prevent gender-based violence), punishment (punish perpetrators of gender-based violence), and rehabilitation (rehabilitate victims of gender-based violence). Unfortunately, despite the far-reaching provisions on VAW in the Protocol, few attempts have been made to hold states accountable through litigation on this issue before the African Commission on Human and Peoples’ Rights (‘African Commission’). So far, there are about two cases directly touching on VAW. First, in Curtis Francis Doebbler v. Sudan,35 a group of female students on a picnic were arrested and charged with committing, in a public place, acts contrary to public morality, prohibited under Article 153 of the Sudanese Criminal Law of 1991. The law prohibits acts such as ‘girls kissing, wearing trousers, dancing with men, and sitting or talking with boys’. The girls were subsequently convicted and sentenced to fines and lashes, which would be carried out in public under the supervision of the national court. The African Commission, upon a complaint brought by the students, ruled that the relevant provision of the Sudanese law contravened Article 5 of the African Charter. According to the Commission, Article 5 of the Charter prohibits cruel as well as inhuman and degrading treatment, such as those actions which cause serious physical or psychological suffering or humiliation or force the individual [to act] against his or her will or conscience. The second case is the Egyptian Initiative for Personal Rights & INTERIGHTS v. Egypt.36 While this case touches on various acts of human rights violation, our focus here will be on its implications for VAW and women’s enjoyment of their rights to dignity and non-discrimination. In this case, four female journalists alleged various acts of human rights abuses against the government of Egypt claiming that they had experienced violence and physical abuse from the hands of government’s security agents during the 2005 referendum to amend the Egyptian Constitution. The complaints upon a petition to the African Commission specifically alleged a violation of their rights under Articles 1, 2, 3, 5, 7(1)(a), 9(2), 16, 18(3), and 26 of the African Charter by the respondent State, Egypt. The Commission held that gender-based violence, including sexual violence, is a gross violation of women’s rights for which states must be held accountable. It adopted the doctrine of due diligence by holding that failure of a state to protect women from acts of violence perpetrated by a third party—in public or private—will render the state vicariously responsible for such violation of rights. It reasoned that acts of VAW amount to discrimination in violation of the African Charter and its Protocol as well as a violation of the provision on equality enshrined in the Charter and the Protocol, respectively. 4. THE VAPP ACT The VAPP Act came into force in Nigeria in 2015, as a response to the high incidence of VAW in Nigeria and the inadequacy of existing laws to effectively address the same. The Act adopts a generous approach to the definition of violence to include not only physical acts but also psychological, economic, and emotional abuse of a person.37 Indeed, the Act’s definition of violence draws greatly from the spirit and letters of the Maputo Protocol and the CEDAW. This approach is significant because it serves to protect women and girls who otherwise may be subjected to non-physical forms of violence. Experience has shown that in some parts of the country, women have been denied rights of inheritance, ejected from their homes, and made to undergo degrading treatment and practices.38 For instance, for the Igbo people of Southeast Nigeria, devolution of property is customarily based on the principle of primogeniture and primarily patrilineal, with both the rights of control and property itself flowing to the eldest son who holds the property on trust for himself and his brothers or, if there is none, to the brother of the deceased.39 Where the deceased had no sons, the property will pass to the brother, even if there are female children in the family.40 Based on recent decisions, however, it appears that the Nigerian courts will now view with disfavour, the local customs, and practices, which discriminate on the basis of gender.41 In addition, the Act covers and defines broadly various aspects of violence including sexual assault, sexual intimidation, sexual harassment, and sexual exploitation. It further provides a broad definition of harmful cultural practices. According to the Act, harmful cultural practices mean all traditional behaviour, attitudes, or practices, which may negatively affect the fundamental rights of women and girls.42 Examples of such practices as identified in the Act include widowhood practices, denial of the right to inheritance or succession, female genital mutilation/cutting, forced marriage, and forced isolation.43 To the extent that the Act broadly defines various aspects of violence, including what constitutes ‘harmful cultural practices’, it can be argued that it exceeds the African Protocol on Women’s rights and the CEDAW, as neither the Protocol nor the CEDAW provides the definition of ‘harmful cultural practices’. Rather the Protocol in Article 1 and the CEDAW Committee in its General Recommendation 31, merely define ‘harmful practices’ and chose to exclude the use of the word ‘cultural’. It remains unclear why this is so. However, it could be a form of compromise given that issues relating to culture and religion are often contentious.44 Therefore, in explicitly defining what will amount to harmful cultural practices, the Act has left no room for ambiguous contextual interpretations. The inclusion of economic abuse as constituting violence is unique, innovative, and commendable. According to the Act, economic abuse includes forced financial dependence, denial of inheritance rights, and unreasonable denial of financial resource. This provision, which has no equivalent provision in the Protocol, will no doubt further protect women from financial or material deprivation. Section 6 of the VAPP Act prohibits female genital mutilation/cutting (‘FGM/C’) and makes it punishable by a minimum imprisonment term of four years or a monetary fine not exceeding N200000 in local currency. This provision is a welcome development given the threat that the practice poses to the health and well-being of girls in the country. For so many years, the international community, including human rights treaty bodies and women’s rights advocates, have been unequivocal in their condemnation of this practice as a gross violation of women’s fundamental rights and freedom.45 This aspect of the Act would also seem to correspond with the duty of states to prevent violence and punish perpetrators of violence under the Maputo Protocol. Unfortunately, the section does not contain any provision relating to the rehabilitation of the victims of FGM/C. This is a serious omission by the drafters of the VAPP Act, which is regrettable. It is not enough to impose punishment on perpetrators and make no provision for the overall well-being of those who have suffered from this practice. Also, the fact that the VAPP Act entirely relies on criminal sanction as a way of addressing FGM/C can be problematic. The Act could have adopted the same approach as the Maputo Protocol and CEDAW where criminal sanction is complemented by the need to educate people and create awareness about FGM/C. This is more likely to be effective and lead to behavioural change in society. Experience has shown that merely resorting to criminal sanctions to address FGM/C may not be effective.46 The provisions of the Act dealing with rape are very timely and laudable. Studies have shown high incidence of rape in the country, which may potentially contribute to women’s susceptibility to sexually transmitted infections, including HIV/AIDS.47 As a result of the alarming rate of the practice and its negative impact on the well-being of women, commentators have argued for the reform of the law governing rape in the country.48 The ‘lenient’ provision of the Criminal Code Act on rape, which imposes a maximum sentence of 14 years is not only inadequate but also insensitive to the plight of women and girls. The VAPP Act has adopted a broad and radical definition of rape that is not limited to penetration of the vagina. Anal and oral penetration are also defined as rape.49 This is consistent with the broad interpretation of rape under international law.50 One of the major challenges victims of rape often encounter is the need to prove penetration to find an accused person guilty. This requirement not only overlooks the trauma and emotional suffering women and girls undergo during sexual abuse but may also dissuade women and girls who have been sexually abused from seeking legal redress. Therefore, by broadening the definition of rape to go beyond vaginal penetration, the Act would seem to have adopted a gender-sensitive approach that reflects the sad experiences of women and girls. Also, the imposition of life sentence for offenders of rape appears to be a response to the inadequacy of the provisions of existing law. However, the VAPP Act misses the opportunity to include marital rape as an offence, especially as this has remained a topical and controversial issue in the country. Experience has shown that many women suffer in silence as a result of violence, including sexual abuse, from their partners. While the VAPP Act recognizes spousal violence as a crime, it is inexplicable why ‘marital rape’ should be excluded as an offence under the Act. Another vital opportunity unexplored by the Act relates to the evidentiary proof for the offence of rape. Trial judges in Nigeria have, as a matter of practice, often required the corroboration of a rape victim’s testimony as an essential condition for the conviction of the accused person in the case, in spite of the absence of clear legal justification for such a procedure.51 Even the appellate courts are divided on the issue and have acknowledged that the law of corroboration in the offence of rape is unsettled in Nigeria.52 This uncertainty undoubtedly puts a victim of rape at a disadvantage. The failure of the VAPP Act to address this gap renders it ripe for reforms. The Act introduces a new development into Nigerian criminal law system with a view to protecting women from violence using a protective order to thwart acts of violence or harassment. For example, section 28(1) of the VAPP Act provides that a complainant may make an application to the court to seek a protective order following a complaint of violence. This is a welcome development because this process has been used successfully in other countries such as South Africa where there is a high rate of violence.53 Nonetheless, a major challenge with this process under the Act is that the success or otherwise of the order depends largely on the effectiveness of the Nigerian police. It remains uncertain how this process will work, especially as there have been reports of varying degrees of scepticism and a lack of cooperation by the Nigerian police with victims of sexual violence in the past. Clearly, there will be a need to educate and train the police on how to deal with issues of sexual violence. There is also the need to build the confidence of the public to be able to approach and trust law enforcement agents to secure their rights in this regard. Perhaps one of the most significant introductions in the Act is its provision on economic abuse. This new provision recognizes the salient travails of women who are compelled to live with financial and material deprivation. A major problem for women in the country, the issue of economic deprivation and abuse received little attention prior to the passage of the Act. Nonetheless, despite these noteworthy provisions, the VAPP Act fails to make adequate provisions towards effective enforcement of the law. Factors that can limit the effectiveness of a law such as the VAPP Act include established conceptions regarding gender roles, spousal control of their partners, and the supposed private nature of violence as between husbands and wives—all of them, factors that can affect law enforcement attitudes and practices. In a country, such as Nigeria, with historic gaps in the enforcement of legislation, there needs to be concrete provisions on implementation and enforcement, without which the Act may be an exercise in futility. 5. CONCLUSION In this article, we have provided an analysis of the VAPP Act against the antecedent legal framework for the protection of Women’s rights in Nigeria, especially the Maputo Protocol. In outlining the features of the historical framework, we considered how the disadvantaged position of Nigerian women and the resulting vulnerability to violence should be important focal points for a law that contemplates justice for Nigerian women. In other words, given that women are more susceptible to violence than their male counterpart in Nigeria, it may be expected that a definitive law such as the VAPP Act should attempt to redress the inequalities. Beyond the introduction of a protective order regime for women potentially facing violence or the threat of it, the VAPP Act significantly strengthens current criminal legislation protecting women from abuse. Altogether, the VAPP Act brings succour and remedies to victims of violence who have suffered in silence without recourse to justice and provides rehabilitative-psycho-social support for their recovery and reintegration. The Act affords access and better services for victims/survivors of violence, such as hotlines, shelters, legal advice, access to justice, counselling and police protection. A major drawback in relation to this federal Act may be its limited application to the Federal Capital Territory, Abuja. It is expected that the other 35 states of Nigeria will take necessary action to enact and enforce a similar law on VAW. Footnotes 1 Notwithstanding, most forms of VAW occurring in African societies were under-reported because of the sensitivity of the subject. 2 L Asuagbor ‘Status of Implementation of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa’ (Commission on the Status of Women New York 2016) 2. 3 WHO ‘Violence against Women, Intimate Partner and Sexual Violence against Women’ (Fact sheet no. 239), www.who.int/mediacentre/factsheets/fs239/en (accessed January 2016). 4 Ibid. 5 United Nations The World’s Women 2015: Trends and Statistics (United Nations, Department of Economic and Social Affairs, Statistics Division New York 2015) Vol. E.15.XVII.8, p. 139, https://unstats.un.org/unsd/gender/downloads/WorldsWomen2015_report.pdf. 6 International and regional human rights instruments such as the Convention on Elimination of All forms of Discrimination against Women (‘CEDAW’) and the Protocol to the African Charter on the Rights of Women (‘Protocol to the African Charter’) contain provisions that can be applied towards addressing VAW and mandate States to take steps towards eliminating VAW. 7 Ibid at 17. 8 Nigerian Demographic and Health Survey, 2013 at 6. 9 Ibid. 10 CAP. C23 Laws of the Federation of Nigeria, 2004 as amended, otherwise known as the Nigerian Constitution. 11 Domesticated in Nigeria by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act CAP A9 Laws of the Federation of Nigeria, 2004. 12 In Vishaka v. State of Rajasthan (1997) 6 SCC241, the Indian Supreme Court held that sexual harassment constitutes a violation of the right to dignity of women. 13 [1991] 6 NWLR (Pt. 200) 708, per Justice Niki Tobi. 14 See for instance General Comment No. 3 on The African Charter On Human And Peoples’ Rights: The Right To Life (Art. 4) adopted during the 57th Ordinary Session of the Commission in Banjul, The Gambia 4–18 November 2016; see also, AE Yamin ‘Not Just a Tragedy: Access to Medication as a Right under International Law’ [2003] Boston Univ Int L J 21, 370. 15 Art. 21 of the Indian Constitution; see Pachim Banga Khet Majoor Samity v. State of West Bengal (1996) 4 SCC 37. 16 CAP. C38 Laws of the Federation of Nigeria, 2004. 17 CAP 53 Laws of the Federation of Nigeria, 1990 (Abuja); CAP 89 of the Laws of Northern Nigeria, 1963. 18 See generally, sections 357–363 of the Criminal Code Act. 19 CEDAW ‘The Convention on the Elimination of All Forms of Discrimination against Women’, http://www.un.org/womenwatch/daw/cedaw/ (accessed 27 February 2016). 20 Section 282 of the Penal Code Act. 21 Sections 276 and 281 of the Penal Code Act. 22 See section 55(1)(d) of the Penal Code Act. 23 Nigeria first became a signatory on 23 April 1984 and further ratified the treaty on 13 June 1985. 24 See UN Committee on the Elimination of All Forms of Discrimination against Women, General Recommendation 19, 1991. The CEDAW Committee has positively identified gender-based violence as a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men. 25 See Art. 4 of the CEDAW Committee General Recommendation 19. 26 See Committee on the Elimination of All Forms of Discrimination against Women, General Recommendation 12, 1989. 27 In Art. 4 of its General Recommendation 19, the CEDAW Committee notes that not all the CEDAW compliance reports of States parties adequately reflected the close connection between discrimination against women, gender-based violence, and violations of human rights and fundamental freedoms. 28 Section 12(1) of the Nigerian Constitution, 1999. 29 CAP A9 Laws of the Federation of Nigeria, 2004. 30 Art. 5 of the ACHPR. 31 Note the provisions of Art. 66 of the ACHPR, which provides that special protocols or agreements may, if necessary, supplement the provisions of the present Charter. This protocol was signed and ratified by the Nigerian government in 2004 and 2005, respectively. 32 Adopted by the second Ordinary Session of the African Union General Assembly in 2003 in Maputo CAB/LEG/66.6 (2003); it came into force on 25 November 2005 and has been ratified by about 37 African countries. 33 See, for instance, F Banda ‘Blazing a Trail: The African Protocol on Women’s Rights Comes into Force’ [2006] J Afr L 50, 72; see also E Durojaye ‘Advancing Gender Equity in Access to HIV Treatment Through the Protocol to the Rights of Women’ [2006] Afr Hum Rights L J 6, 187. 34 See Art. 1 of the Protocol. 35 Doebbler v. Sudan (2003) AHRLR 153 (ACHPR 2003). 36 Egyptian Initiative for Personal Rights and INTERIGHTS v. Egypt Communication 323/06 decided during the 10th Extra ordinary session of the of African Commission on Human and Peoples’ Right held between 12 and 16 December 2011. 37 Section 46. 38 See, for instance, E Durojaye ‘Woman but not Human’ Widowhood Practices and Human Rights Violations in Nigeria’ [2013] Int J L Policy Fam 27, 176–96. 39 See BW Harvey The Law and Practice of Nigerian Wills, Probate and Succession (Sweet & Maxwell London 1968) 88; see also EI Nwogugu ‘Family Law’ in CO Okonkwo (ed) Introduction to Nigerian Law (Sweet & Maxwell London 1980) at 303. 40 Uboma v. Ibeneme (1967), E.N.L.R. 251; Udensi v. Mogbo (1976) 7 S.C. 1. 41 See for instance Ukeje v. Ukeje (2014) 11 NWLR (PT.1418) 384. 42 See section 46 of the VAPP Act. 43 Ibid. 44 UN Committee on Elimination of All Forms of Discrimination against Women (CEDAW) Joint general recommendation/general comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on harmful practices CEDAW/C/GC/31. 45 See for instance General Recommendation 5 of CEDAW on Female Genital Mutilation/Cutting; see also General Recommendation 31 of CEDAW and 18 of CRC (n 14 above). 46 I Iyioha ‘Public Health, Cultural Norms and the Criminal Law: An Inconvenient Union? A Case Study of Female Genital Cutting’ [2012] Med L 31, 451–72. 47 See M Afolayan et al. ‘Rape in Nigeria: A Silent Epidemic Among Adolescents with Implication for HIV Infection’ [2014] Global Health Action 7, 10. 48 OA Olatunji ‘Penetration, Corroboration and Non-consent: Examining the Nigerian Law of Rape and Addressing Its Shortcomings’ [2012] Univ Ilorin L J 8, 79–105. 49 See section 1(1) of the VAPP Act. 50 See the for instance the decisions of the International Criminal Tribunals on Rwanda in Prosecutor v. Akayesu, Case No. ICTR96-4-T, Judgment, 416, 437 (2 September 1998). 51 See generally the Nigerian Supreme Court in Ogunbayo v. the State (2007). 8 NWLR (Pt. 1035), per Niki Tobi (JSC). 52 Above. 53 See for instance the Prevention of Family Violence Act 133 of 1993 of South Africa. © The Author(s) 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

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Statute Law ReviewOxford University Press

Published: Oct 11, 2018

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