THE LEGAL INVALIDITY OF THE KADUNA STATE PENAL CODE (AMENDMENT) LAW, 2020: MY VIEW ON THE NEW LAW VIS-A-VIS OUR CONSTITUTION AND EXTANT LAWS IN NIGERIA
The horror of rape in recent times is at the apogee. Nigeria, in the year, has recorded manifold cases of rape. As shocking and preposterous as this is, more particularly, Nigerians express indignation for the ugly turn of the latest dimension where children and the aged are the victims. Consequently, there has been a conscious search for reliable panacea to cushion the effect of escalated rape scandals in the country. This has activated mixed reactions and various emotional variables from all quarters. One of those searches was the presentation of a bill intending to make ”outright castration” the punishment for rape to the House of Representatives sometime in 2019. The bill proposed by Muhammed Kuzaure Gudaji argued that stiffer punishment of castration should be imposed on convicted rapists. It was the belief of the lawmaker that when the weapon for rape is taken, it will serve as a deterrent to others who might contemplate it. However, the bill was jettisoned thereafter.
Our interest in this article is on the propriety or otherwise of the Kaduna State Penal Code (Amendment) Law, 2020. In this discourse, we shall juxtapose the said amendment law with a plethora of existing laws in Nigeria on the focal point, determine its compatibility with existing laws and its constitutional validity. We will also make references to judicial authorities, make our submissions and recommendations in the light of the law.
In the first place, it is a desideratum to recall that the Kaduna State Penal Code (Amendment) Law, 2020, came into operation on the 11th of September, 2020, following the Governor’s assent. Upon coming into force, it repealed and replaced section 258 of the Principal Law, being the Penal Code Law (No 5) of Kaduna State, 2017.
For ease of clarity and better appreciation, we hereby state, ipsisima verbis, the provision of section 4 of the new amendment law under consideration thus:
“The Principal Law is hereby amended by substituting section 258 as follows:
*258 (1) Whoever commits rape of a child below the age of fourteen (14)years shall on conviction, be punished with surgical castration and death.
(2) Whoever has sexual intercourse with a male child below the age of fourteen(14)years shall be punished with surgical castration and death.
(3) Where a female adult is convicted for the offence of rape of a child, the court shall punish the accused with Bilateral Salpingectomy and death.
(4) Where the victim is above fourteen (14) years, the court shall, on conviction, sentence the accused with the punishment of surgical castration and life imprisonment.
(5) Where the convict is a child, the court shall order as appropriate under the Children and Young Persons Law Cap 26 Laws of Kaduna State,1991.
(6) Where the victim is a child, the court shall, in addition to the conviction under subsections 1 and 2, order that the convict is listed in the Sex Offenders Register to be published in the media by the Attorney General.
(7) Where the court is trying the offence of rape involving a child below the age of fourteen (14) years, corroboration of the medical report shall be necessary.
In a holistic view, the law has provided for the combined penalty of surgical castration and death to be imposed on one convicted of rape of a person below 14 years. When the victim is above 14 years, the sentence is surgical castration and life imprisonment. In the case where the rapist is a female adult, the law has imposed bilateral salpingectomy in addition to death or life imprisonment as the case may be. In both cases, if the victim is below 14 years, the court shall also order the name of the convict to be listed in the Sex Offenders Register to be punished in the media by the Attorney General. Without prejudice to the legislative immunity of the Kaduna State House of Assembly, it is our humble opinion that subsections 1,2,3,4 and 6 of section 4 of the new amendment law is not only anti-human, barbaric, emotionally driven, unresponsive to the current proliferation of rape menace but unconstitutional and repugnant to nature.
On the unconstitutionality of the law, we will like to go on a statutes comparison voyage, but, before this, let us examine the imports of the keywords. Surgical castration of a male rapist in accordance with the amendment law involves the removal of the testicles of a male person, while bilateral salpingectomy means the removal of the fallopian tubes of a female convict rapist. The effect of this operation is that the convict will become sterile and infertile, and sexual drive may also reduce. Drawn from the foregoing, it is logical to conclude that once the convict undergoes surgical castration or bilateral salpingectomy, he or she is denied the choice to decide whether to reproduce or not, thereby placing infraction on their fundamental human right of reproduction and constitute a violation of the right to dignity. It is our vehement contention that the punishment is not just an affront to nature but also a gross breach of the convict’s fundamental human right enshrined in Article 7 of the International Covenant on Civil and Political Right (hereinafter referred to as the ICCPR). It provides:
“No one shall be subject to torture or to cruel, inhumane or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experiments.”
The purports of the above provision are, in our mind, in tandem with the reproductive right of every person, even a convict. Reproductive Right has been defined by the World Health Organization to wit:
“Reproductive right rests on the recognition of the basic right of all couples to decide freely and responsibly the number, spacing, and timing of their children and to have the information and means to do so and the right to attain the highest standard of sexual and reproductive health. They also include the right of all to make decisions concerning reproduction free from discrimination, coercion, and violence.”
Our view is that any law that desires to proscribe reproduction or abridge a lineage on the ground of punishment militates against nature and should be declared dead on arrival. What about the generation yet unborn of the convict? What about the conjugal rights of the spouse, if married? The right of reproduction and the adverse social implication of sterilization has been judicially recognized by the United State Supreme Court in the case of SKINNER V. OKLAHOMA EX REL WILLIAMSON 316 US 535(1945) where the unanimous court reasoned, inter alia, that because of the social and biological implications of reproduction and the irreversibility of sterilization operations, compulsory sterilization laws should be subject to strict scrutiny.
By way of digression, our minds are hereby adverted to the fact that the International Covenant on Civil and Political Rights (ICCPR) was ratified by and came into force in Nigeria on the 29th of July and 29th of October, 1999 respectively, pursuant to which it is enforceable in Nigeria. The said Artice 7 is virtually in pari material with section 34(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (hereinafter referred to as the Constitution).
The effect of Article 7 of ICCPA and Section 34(1)(a) of the Constitution on section 4 of the Kaduna State Penal Code(Amendment) Law, 2020, is that the later lacks every modicum of constitutionality. Aside from breach of Reproductive Right, which had been established, surgical castration or bilateral salpingectomy cannot be conducted without effecting torture, pain, degrading treatment, and more particularly when the law did not specify the process of carrying out the punishment. In the circumstance of such lacuna tied to where the lawmakers intend surgical castration or bilateral salpingectomy to serve as a deterrent and punishment to the convict and others, the presumption will most likely favour the expectation that such convict shall be castrated or the fallopian tubes cut off without medical anaesthetization. This, being the intension, is anti-human and, therefore, not a good law. No matter how grave, we are not oblivious of the truth that rape is a horrible crime against humanity, with much poignant sensation of physical, psychological, and emotional paralysis on the victim. Nonetheless, the issue of the dignity of the human person is fundamental, so much so that even when a convict has been sentenced to death, the law still ensures it is not tampered with. It is also noteworthy that, and more particularly why, section 45 excludes section 34 of the Constitution, which borders on the dignity of the human person, from a list of rights that can be limited or derogated. The implicature is that a person, even when convicted of any crime whatsoever and sentenced, is entitled to his dignity inalienably. It is not a derogable right. In our mind, committal to sentence of any kind and for whatever offence, no matter how grave, is subject to the unfettered dignity of the convict. Plainly posited, there is unsolicited dignity for the human person, not even when the sentence of the court is being executed. To further highlight the attitude of the law towards the dignity of the human person, the court in SOLOMON ADEKUNLE V. ATTORNEY-GENERAL OF OGUN STATE (2014) LPELR-CA/I/297/2008, opined that a convict sentenced to death could bring an action under the Constitution to enforce his right for torture or inhumane or degrading treatment, although such cause of action shall not vitiate the sentence.
To further substantiate our terra firma, the Nigeria Anti-Torture Act, 2017, by the purview of its section 2, prohibits mutilation, such as amputation of any body parts, including the genitalia, and any degrading or cruel pharmacological treatment. Therefore, on the strength of Article 7 ICCPR, section 34(1)(a) of the Constitution, section 2 Nigeria Anti-Torture Act, 2017, and the case laws cited, surgical castration and bilateral salpingectomy cannot be justified.
For a better appraisal of the legislative propriety and prudence or otherwise of surgical castration or bilateral salpingectomy as an elixir to the scourge of rape, let us allude to some argument in favour. It is widely canvassed that imposition of surgical castration or bilateral salpingectomy as punishment for rape will not only serve as a deterrent but reduce rape because when the organ of rape is removed there will be no rape. How? The removal, to our mind, will only lead to infertility. What next? Libido remains. And what next? Rape is still possible. This is because rape is brought into actualization by uncontrolled sexual desire. It is a thing of the mind. Destroying the testicles or fallopian tubes does not mean destroying all organs of rape. Rape in our current laws presupposes unlawful anal or oral sex. The instrument of rape does not have to be a penis. It can be another part of the body, e.g., hand, leg, or an object like a stick. To buttress out point, the Violence Against Persons(Prohibition) Act, 2015 (VAPP Act), applicable in the FCT, and which has been domesticated, mutatis mutandis, by 13 States of the Federation, including Kaduna State to wit: Oyo, Ogun, Lagos, Osun, Ekiti, Edo, Anambra, Enugu, Ebonyi, Benue, Cross River, Kaduna, and Plateau, defines rape and the punishment. Section 1 of the Act states:
1.(1) A person commits the offence of rape if-
(a) he or she intentionally penetrates the vagina, anus, or mouth of another person with any other part of his or her body or anything else;
(b) the other person does not consent to the penetration; or
(c) the consent is obtained by force or means of threat or intimidation of any kind or by fear of harm or any means of false and fraudulent representation as to the nature of the act or use of additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse.
In light of the above definition, our above explanation of rape is deducible. Our humble argument when this provision is placed side by side with the Kaduna State Penal Code(Amendment) Law, 2020, which makes surgical castration or bilateral salpingectomy punishment for rape, is that the latter is in conflict with the intendment of the enactment, which undoubtedly, is to discourage rape. The new amendment is a futile voyage, legislative frolicking glorified with remarkable splendour of cosmetic superfluidity. Our reason is that the rapist can still perpetuate the act with other instruments, and the problem persists.
Rape, though a heinous crime against humanity, cannot reasonably ground punishment against humanity itself. Castration or bilateral salpingectomy, as the case may be, in addition to the death penalty and list of the rapist’s name in the Sex Offenders Register to be published by the Attorney General, is disproportionate to the gravity of the offence. In COKER V. GEORGIA, 433 U.S.584 (1977), the court held that capital punishment is disproportionate to the crime of rape. Later in the case of KENNEDY V. LOUISIANA,128 S.Ct.2641 (2008), the court extended the disproportionality principle to invalidate the death penalty for child rape. This then means that the death penalty coupled with surgical castration or bilateral salpingectomy and publication of the offender’s name on the media is outrageously hyper-disproportionate. Any law with such provision can be said to kill an ant with a sledge harmer.
On a different side of the coin, the said Kaduna State Penal Code (Amendment) Law, 2020 is in contradistinction to our law. Section 283 of the Penal Code applicable in Northern Nigeria provides:
“Whoever commits rape shall be punished with imprisonment for life or for any less term and shall also be liable to fine.” Section 1(2) of the VAPP Act (supra) has a similar provision. Comparing the new Kaduna amendment law with these laws, one can validly, and without apology, conclude that the Kaduna Law is harsh, draconian, without a human face, repugnant to natural justice, equity, and good conscience, at variance with the law in place for the time being with respect to the subject matter, does not pass the validity test for assessing the acceptability of new enactment, and therefore, to say the least, unconstitutional. Our argument is premised on the Doctrine of Covering the Field and Supremacy of the Grundnorm.
Section 4(6) of the Constitution empowers the State House of Assembly to make laws for the state, which laws are not without qualification. It is subject to any law validly made by the National Assembly on the subject matter. For the avoidance of doubt, section 4(5) of the Constitution provides:
” If any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
The laws already cited on punishment for rape are laws made by the National Assembly pursuant to its legislative power conferred by the Constitution. The Kaduna State Amendment Law being in excess of what those other laws provide as per punishment for rape, is bound to be tantamount to a nullity. See BENSON V. MOBIL PRODUCING (NIG.) UNLTD (2012) LPELR-CA/PH/84/2010, wherein the Court of Appeal on the effect of state law is inconsistent with a federal law stated that such state law is certainly unconstitutional and cannot be interpreted to curtail the provision of the federal law and cannot apply on the subject matter. In SOFEKUN V. AKINYEMI & ANOR (1980) LPELR-SC.22/1979, the Supreme Court was of the view that the constitutional validity of legislation depends upon its aim and purpose. Obviously, the intendment of the law under discourse is to impose stiff punishment, which is not compatible with our laws and, therefore, cannot survive the crucible of the constitutional test of validity.
We hereby recommend that the legislature should exercise its power of judicial review on the Kaduna State Penal Code(Amendment) Law, 2020. Until this is done, the harsh law might be activated in motion against the subjects, and this will work a hardship on nature and mankind. To avert this, timely intervention is imperative as the law is that any legislation, once made remains valid and until declared invalid by a court of competent jurisdiction. See MADUMERE V. ONUOHA & ANOR (1999) LPELR- CA/PH/138/92.
In conclusion, The judiciary is hereby called upon to apply the Supremacy Clause of the Constitution in section 1(1)(2), to review the Kaduna State Penal Code (Amendment) Law, 2020, and make consequential order. Persons, institutions, authorities with the requisite locus standi are also called upon to activate the court to do the needful. In generality, It is our candid opinion that rape, as rampant as it is in the present time, can actually be mitigated, if not, completely obliterated in Nigeria. However, though our resentment for the heinous crime of rape is no less, we do not either share the belief that stringent punishments, especially ones that pose infractions on the fundamental right of the convict’s dignity, Supremacy of the Constitution, etc., can do the job. I think that encouraging victims to report rape cases to the police and other relevant authorities expeditiously upon the occurrence and not shy away or settle in close doors is the solution. Once a report is made, a proper investigation should be done, and the culprit tried, and if convicted, should be committed to life imprisonment as the various laws on rape provide. That way, such a rapist will be put off the society and no further havoc from him or her. We believe firmly that life or long-term imprisonment with the option of fine, as the case may be, is stiff enough to deter both the offender and others from indulgence in rape. The aim of the law is not to punish but to proffer lasting solutions to societal problems. So it is in my view!
This article was written by Sunday Nelson Ogboso, Student of Ebonyi State University Law Faculty, Abakaliki, Nigeria.