The prevalence of rape cases in Nigeria has reached an alarming rate. The Nigeria Police Force has disclosed that it received a total of 717 (Seven Hundred and Seventeen) rape cases between January and May 2020. Despite the atrocity that is associated with the offence, persons accused of the offence, most times go scot-free, because of lack of evidence.

This article x-rays the impracticability of the restrictive standard of corroboration of an unsworn evidence of a child in rape cases, and proposes a realistic reform of the law on corroboration.

Requirement of Corroboration under Section 209 of the Evidence Act and its Impracticability

Rape is a lack of sexual choice. A child lacks the ability to make a choice concerning her sexuality due to age. Consequently, any choice/consent given by a child is null. In proof of the offence of rape, the prosecution has the burden to prove the following ingredients in order to secure a conviction against the Defendant:

  • That the accused had sexual intercourse with the prosecutrix;
  • That the act of sexual intercourse was done without the consent or that the consent (if any) was obtained by fraud, force, threat, intimidation, deceit or impersonation;
  • That the prosecutrix was not the wife of the accused;
  • That the accused had the mens rea, the intention to have sexual intercourse with the Prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not; and
  • That there was penetration.

Corroboration is not an ingredient of the offence of Rape. See Afor Lucky V. State (2016) LPELR-40541 (SC). However, it has become a critical rule of procedure in establishing the offence. Thus, the courts have held that that it is not safe to convict on the uncorroborated evidence of the prosecutrix. The court may, after paying due attention to the warning, nevertheless convict the accused person if it is satisfied with the truth of her evidence. See Inspector Dantalle Mohammed V. Kano State (2018) 13 NWLR (pt. 1635).

Due to this rule of procedure, a conundrum is faced where a child has been raped. This is because a child can only give an unsworn evidence on behalf of the Prosecution. See Section 209 of the Evidence Act 2011, which provides that:

“(1) In any proceeding in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation. if in the opinion or the court. he is possessed or sufficient intelligence justify the reception of his evidence and understands the duty of speaking the truth.

(2) A child who has attained the age of 14 years shall. subject to sections 175 and 208 of this Act give sworn evidence in all cases.

(3) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of subsection (1) of this section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant

(4) If a child. whose evidence is received under this section, willfully gives false evidence in such circumstances that he would, if the evidence had been given on oath have been guilty of perjury. he shall be guilty of an offence under section 191 of the Criminal Code and on conviction shall be dealt with accordingly”.

This rule of procedure portends a huge challenge for prosecutors and the judex in instances where a child is raped. This is because rape usually occurs in private and in the absence of any witness or third party who can testify or corroborate the evidence of the child. Also, under the Evidence Act, evidence that can be used to sustain a charge must be either direct or circumstantial. Therefore, in a majority of cases where the rapist was not caught in the act and was not subjected to medical examination, there is usually no direct/ circumstantial evidence that the Defendant raped the child. Most times, the only evidence implicating the Defendant in many child rape cases, is the evidence of the child.

Thus, a Prosecution who has successfully proved the five ingredients of the offence of Rape against the Defendant on the basis of an unsworn evidence of a child, would fail to secure a conviction against the Defendant in the absence of any corroborative evidence.  Unfortunately, this position has guided the Nigerian Courts over the years.

In Albert Igbine V. The State (1997) LPELR-6253(CA), the appellant was convicted of nasty indecent assault called rape under the Penal Code. He was found guilty of raping a 7-year-old girl. The prosecutrix as PW3 gave unsworn evidence of the incident. Her father also testified as PW 1 while the mother of the victim gave evidence in court as PW4. The senior brother of the victim, also testified as PW2. Though the evidence of both victim and PW2 directly implicated the appellant they are both children of tender age. The court agreed that the unsworn evidence of the victim and her brother directly implicated the appellant, but acquitted the Appellant because the unsworn evidence was not corroborated.

Similarly, in Isaac Sambo V. The State (1993) 6 NWLR (Pt 300) 399, the Apex Court held that a Defendant could not be convicted on the basis of the unsworn testimony of a child, except such unsworn evidence of the child is corroborated.

The resultant effect is that the restrictive standard of corroboration imposed on the testimony of a child permits rape offenders go unpunished and perhaps encourages the prevalence of rape in our society.

To what end is justice, if the instrumentality of the Law enacted to protect victims and punish offenders is comatose?

Recommendation

The current Criminal Statutes are inadequate to tackle the issue of child rape in our society. A voyage to other jurisdictions reveals that most countries have obviated the requirement of corroboration of unsworn testimony in proof of rape cases. In the United States for example, the Criminal Justice Act has been amended. The evidence of children is now regarded as that of adults; it is presumed that all children with sufficient language skills are qualified to testify, and there is no longer a requirement that a child’s testimony should be corroborated. All that is required is for the jury to warn itself before basing a conviction on such evidence.

Consideration should be given to allow the unsworn testimony of one child to convict the Defendant provided that the Court warns itself before basing a conviction on such evidence. For example, Bauchi State has abolished the requirement of corroboration in proof of the offence of rape. See section 11(2) of the Kidnapping, Theft of Cattle and Rape (Special Provision Law of Bauchi) 2017 which provides that “when a court is trying the offence of rape, corroboration shall be immaterial”.

Indeed, the provision of section 11(2) of the Kidnapping, Theft of Cattle and Rape (Special Provision Law of Bauchi) 2017, is very commendable. However, it is trite that a state law passed by State House of Assembly and assented by a Governor cannot override a Federal Act. The implication is that in any case where a child gives an unworn evidence of rape, the provision of Section 11(2) of the Kidnapping, Theft of Cattle and Rape (Special Provision Law of Bauchi) 2017, must give way to the application of section 209(3) of the Evidence Act.

In the light of the above, it cannot be over emphasized that due consideration ought to be given to amend the provision of the Evidence Act on unsworn testimony and corroboration as they apply to cases of child rape in Nigeria.

Furthermore, in order to give more credence to the sole evidence of the child, it should be mandatory under our law that DNA evidence be collected from the child in the immediate aftermath of the assault and preserved in a Bank. In most jurisdictions, the victims of rape have a right to medical forensic examination and evidence collected and preserved in a DNA Bank.  This is done using an evidence collection kit, e.g. a Rape kit.

A Rape Kit is a container which includes a checklist, materials, and instructions, as well as envelopes and containers for packaging specimens obtained during a rape incidence and forensic examination. With its groundbreaking methods of detailed data collection and analysis, investment in evidence collection kits provides an added benefit of more in-depth reporting beyond the simple assessment of basic medical examination. Most importantly, the evidence in the rape kit can be a very powerful tool to bring a perpetrator to justice.

The legal maxim of “ubi jus ubi remedium” contemplates a remedy whenever a right exists. The right of a child whose innocence has been desecrated should find succor and remedy in modern technology and a quick amendment of legislation. It is only then that the scales of justice would be fairly administered.

 

The information provided in this article is for general informational purposes only and does not constitute legal advice. If you require specific legal advice on any of the matters covered in this article, please contact lawyers@mcphersonllp.com