The Criminal Laws and the Violations of the Rape Victim Rights in Nigeria (a Case Study of Lagos State).
CHAPTER ONE
Objectives
The objectives of this research are to,
- describe the general nature of the offence rape;
- recognize the rights being often violated in relation to victims of rape and the available protection level of complying the standards of the Human Rights Law and principles of Criminal law;
- pronounce and distinguish the prevailing laws and established norms in the domestic context on the protection of the victims of rapes;
- review the level of rights in danger and the problems encountered by the above mentioned group in Nigeria;
assess how far those of legal standards applicable in Nigeria are complying with the standards of the Human Rights Law and principles of Criminal law to protect the rights of the victims of rapes, particularly access to justice and right to remedy; analyze the level of measures available in Nigeria and evaluate the level of available possibilities to implement any conceivable legal measures to be initiated to protect the rights of those of with special reference to the comparative jurisdiction.
CHAPTER TWO
Literature Review
Introduction
This part reveals an analysis of some of the existing literature on the general principles of the protection of victims of crimes, historical development coupled with the accepted principles/norms of protecting the rights of the victims of rape and analysis on the research conducted on Criminal laws and procedures followed by the contemporary jurisdictions; evaluation of the protection of the rights of victims of rapes. Finally, the chapter will highlight the significance of the study in identifying the research gap as suggested.
Defining victims of crimes
It is vital to notice that there is no any single definition to clarify the term victim as at the international level. Presently, the most of the definitions cover the aspects of secondary victims.
The general approach of defining a victim of crime is the limits of the individual who have been directly affected on activity. Another definition is limited to victims of Traditional crimes – primarily crimes of violence. This definition also excludes certain victim groups, for example, victims of economic or environmental crimes. There exist more universal definitions, which also include victims of natural disasters, environmental catastrophes, traffic accidents, etc. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power(hereinafter referred as BPJVC)9 specifies a victim as a person who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or Magnus Lindgren and Nikolić Ristanović, Crime Victims: International And Serbian Perspective (1st edn, Organization for Security and Cooperation in Europe, Mission to Serbia, Law Enforcement Department 2011)
<https://www.osce.org/serbia/85268?download=true> accessed 17 February 2018. Ibid. 30 Basic Principles and Guidelines on the Right to a remedy and Reparation for Victims of gross violations of international human rights law and serious violations of humanitarian law (adopted 16 December 2005 UNGA Res 60/147) art A-1 omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. A secondary victim is two types of, either a person who is present at the scene of a violent crime and who is injured as a direct result of witnessing that crime; or person injured as a direct result of subsequently becoming aware of an act of violence and who is the parent/guardian of the primary victim who was under the age of 18 at the time the criminal act was committed. Further, according to the Assistance to and Protection of Victims of Crime and Witnesses Act, Nigeria (VCWA), No. 4 of 2015, a “victim of crime” means a person, who has suffered any injury, harm, impairment or disability, whether physical or mental, emotional, economic or other loss, as a result of an act or omission which constitutes an alleged offence under any law; or infringement of a fundamental right guaranteed under Articles 13(1) or (2) of the Constitution.11 Moreover, this definition covers the range of child and secondary victims. In terms of the Canadian context, there ismuch legislation passed by both central and territorial governments. The Criminal Code defines ‘victim” for the purpose of victim impact statements reads as a person to who harm was done of who suffered physical or emotional loss as a result of the commission of the offence. Considering the West region of Canada, per se, British Colombia, the following statutes have different meaning in defining the victims of crime in accordance to Victim of Crime Act. Crime Victim Assistance Act15 specifies a victim as means a person, other than a witness, who is killed or injured as a direct result of a prescribed offence; particularly, the offences.
CHAPTER THREE
Theoretical framework
Introduction
This chapter provides an outline of the theories associate with the study area particularly, HLA Hart’s reading of legal positivism and radical feminism analysis of rape of Catherine A. MacKinnon.
Legal positivism
Legal positivism reading according to the H.L.A.Hart consists of five different meanings as follows.
The contention that laws are commanded of human beings.
The contention that there is no necessary connection between law and morals or laws as it is and ought to be.
The contention that the analysis of legal concepts is (a) worth pursuing and (b) to be distinguished from historical inquiries into the causes or origins of laws.
The contention that a legal system is a closed logical system in which correct legal decisions can be deducted by logical means.
The contention that moral judgments cannot be established or defended.
The objective of the application of this theory is to establish that law is superior and sanction shall be imposed where any breach of legal command.
Radical feminism
Professor Catherine A. MacKinnon is one of the pioneers of the feminist legal thought with much emphasis on the radical feminism. In her radical feminism analysis of rape had been used in this study to illustrate the seriousness of the offence against the rights of the women.
According to her, sexuality is a social construct of male power. Defined by men forced on women and constitute of the meaning of gender. Sexuality is permeated through and through by gender inequality and male dominance of women. This is true not only of some, but of all sex: from “normal” intercourse to prostitution and pornography to sexual harassment and rape.
Rape is both in the category of violence and harassment. Rape must be acknowledged as indigenous, not exceptional, to women’s social condition.
CHAPTER FOUR
PROTECTING THE RIGHTS OF THE VICTIMS OF RAPE IN CONTEMPORARY JURISDICTIONS
Introduction
Both the Nigerian and Canadian context relating to Criminal Law and its jurisprudence had been developed through the influence of the English Common Law, adversarial litigation. The international sphere encourages the necessity and the importance of the imposing the positive obligation in the part of the state to promote sexual violence against women, particularly rape.
CHAPTER FIVE
A CRITICAL ASSESSMENT ON PROTECTING THE RIGHTS OF THE VICTIMS OF RAPE DURING THE PROCESS OF PROSECUTION IN NIGERIA
Introduction
This chapter outlines the analysis of the conceivable measures/protection available to shield the right of access to justice and equality of the victims of the rape during the criminal prosecution of Nigeria. The approach of the chapter is to examine the procedural gaps of the existing legal standards in Nigeria promoting access to justice and right to remedy in the domestic sphere with reference to the reported case studies. Further, the same will compared with the Canadian context. Finally, the chapter elaborates how far the existing legal practices have been violated or above to be violated the domestic and international standards.
Critical analysis of the conceivable measures/protection available to shield the right of access to justice and remedy of the victims of the rape
The statistics of the graph 1.1 shows that, the right of access to justice of the majority victims of rapes had been violated dueto the amount of the pending investigations and the less number of auctioned filed in the courts. The Nigeria Police and Attorney Generals Department are the authoritative bodies at the pre-trial stage of criminal prosecution. The right of access to justice and equality shall be the prominent areas of concern at this stage. Therefore, it is vital to explore the powers and duties of the aforementioned parties established by the law in order to protect the rights of access to justice of the victims of rape.
CHAPTER SIX
CONCLUSION AND RECOMMENDATIONS
The final chapter of this study is focused on presenting a summary of the entire study along with marking concluding thoughts on statutory examination of the level of protection available for the victims of rape in contemporary jurisdictions with reference to the rights specified.
The chapter summarizes the study and concludes with presenting the possible recommendations in order to protect and upgrade the standards of protection of the rights of the victims of rape in particular, right of access to justice and right to remedy.
Further, the chapter concerns on recommending the essential and/or necessary laws, policies, practices and in relation to the right of access to justice and right of remedy of Nigerian context in terms of protecting the rights of the victims of rape during the different stages of criminal prosecution.
Conclusion
It is observed that, a sound legal background had been established by the two comparative jurisdictions, British Colombia, Canada and Nigeria in relevance to their social, cultural, religious, political and technological segments. This factor may be elaborated even with relevance to the recognition of the offence of rape and its elements by the two states.
It is to be notified that the two jurisdictions by now have establish and practice their own regulatory framework for the protection of the rights of the victims of rape in protecting rights of access to justice and right of remedy. Further, that of frameworks had been influenced with the salient features of the traditional adversarial structure and the values and the principles of common law. Moreover, many blessings for the accuse party may evident in each and every suit due its inherit characteristics of the adversarial tradition, especially in the behavior of officials involved in the justice seeking process.
Additionally, the issues and inadequacies in the both systems may be observed with the practical implementation or operation of the statues, laws, rules, policies and international standards due to the conflict of interest in human behavior of the parties involved in the different stages of the justice seeking process.
Further, neither jurisdiction may have established the absolute operation of both the substantive and/or procedural equality and stability of the parties involved in the various stages of the process of prosecuting rape in the adversarial setup, yet the Canadian legal standards shall achieve the considerable level of protection of the rights of the victims of rape.
Recommendations
In this phase of the study describes and recommends the appropriate measures the level of advancing the means existing in order to protect the rights of the victims of rape in the domestic context, particularly on the right to access the justice and right to remedy.
Measures that may be adopted and followed by Nigeria are as follows;
Ensuring the effective function of the National Authority for the protection of victims and witness of crimes.