24 May 2022

Criminalising marital rape: Can a rights-based approach change Nigeria’s current position on gender-based violence against married women?

For our masters blog, Onome discusses the human rights-based approach development cooperation in the context of women's bodily autonomy.

Masters student blog series: Ideas and practice in International Development

By Onome Etim

Onome is currently a student on our MPH International Development. Connect with her on LinkedIn: search Onome Etim.


The SDGs, particularly SDG 4, have sparked a myriad of international development discourses on gender-related issues. In particular, the subject of marital rape is one of many issues that are being highlighted. Marital rape is a form of sexual violence that is typically perpetrated by the victim’s spouse. However, for many countries in the global south, such as Nigeria, the subject remains controversial. 

Nigeria is a country in West Africa with a large population of about 211 million people. It is highly patriarchal, implying that religious and cultural norms accentuate the infringement of women’s rights (Ekhator, 2015). This is reflected in several aspects of the law, including the decriminalization of marital rape. The criminal offence of rape is established under 2 major statutes in Nigeria: The Criminal Code Act implemented in Southern Nigeria, and Penal Code implemented in Northern Nigeria. However, both laws do not recognize rape within the institution of marriage.

This begs the question- Is it feasible to approach a law that is deeply entrenched in culture, through a rights-based framework? 

It is imperative to clarify that denying women of their rights to bodily autonomy is a human rights violation. Although Nigeria is one of many countries that have ratified several international human rights treaties, many of these laws are yet to be domesticated. 

A person standing at a podium

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Mohammed Bello Adoke, Attorney General of the Federation and Minister of Justice of Nigeria during the High-Level Segment of the 28th Session at the Human Rights Council (UN Photo / Jean-Marc Ferré, 2015). 

The Human rights-based approach (HRBA) is a development framework that seeks to develop the capacity of the State (duty-bearers) to fulfil their obligations; and empower the citizens (rights-holders) to claim their existing rights. It does this using these key guiding principles: Participation, Accountability, Non-discrimination, Empowerment and Legality.

HRBA seeks to develop the capacity of rights-holders to claim their existing rights through advocacy as a tool for empowering marginalized groups (Broberg & Sano, 2018). This could trigger a culture shift in the minds of Nigerian women, consequently empowering them to speak up against marital rape, and seek redress for infringements on their rights. Likewise, this encourages increased female participation in judicial, political, and human rights matters (Broberg et al., 2018). 

A picture containing tree, person, outdoor, people

Description automatically generatedThe image Sign at the 16 October women's empowerment rally in Nigeria by Africa Renewal (2010) shows a rally to empower Nigerian women to participate in the 2011 Nigerian elections. 

Ola & Ajayi (2013) contend that the first step towards the criminalization of marital rape in Nigeria, is by clarifying the values and beliefs of the people. For instance, in Nigeria, men are considered the head of the household, having control of all matters relating to the family including reproductive capacities (Latif & Nasir, 2017). By implication, criminalizing spousal rape contradicts the cultural rights of Nigerian men in this context.

One limitation to the application of HRBA is that it does not take into consideration multi-culturalism and contextualism. Contextual factors such as culture and religion significantly influence the implementation of HRBA in different parts of the world. Although HRBA is an important development framework, it is not applicable in every context (Broberg et al., 2018). 

In conclusion, the indigenous cultures and religions largely shape the belief system in Nigeria. Approaching this culturally backed statute through the lens of an international human rights framework, although feasible, will pose some challenges with regard to achieving contextual change. 


References 

  • Broberg, M. and Sano, H.O. (2018) ‘Strengths and Weaknesses in a Human Rights-based Approach to International Development – An Analysis of a Rights-based Approach to Development Assistance Based on Practical Experiences’, The International Journal of Human Rights, 22(5), pp. 664-680. doi: 10.1080/13642987.2017.1408591 
  • Ekhator, E.O. (2015) ‘Women and the Law in Nigeria: A Reappraisal’, Journal of International Women's Studies, 16(2), pp. 285-296. Available at: http://vc.bridgew.edu/jiws/vol16/iss2/18 (Accessed: 28 October 2021)
  • Latif, A.R. and Nasir, M.A. (2017) ‘Legal Concept of Marital Rape: The Perspectives Within West-African Customary Laws’, South-East Asia Journal of Contemporary Business, Economics and Law, 14(4), pp. 25-35. Available at: http://seajbel.com/wp-content/uploads/2018/01/LAW-61.pdf (Accessed: 17 January 2022) 
  • Ola, T. M. and Ajayi, J. O. (2013) ‘Values Clarifications in Marital Rape: A Nigerian Situation’, European Scientific Journal, 9(35), pp. 291-306. Available at: https://eujournal.org/index.php/esj/article/view/2199 (Accessed: 17 October 2021)

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