*RAPE CANNOT BE SETTLED OUT OF COURT (NO ROOM FOR PAY-OFF/FORGIVENESS/WITHDRAWAL OF COMPLAINTS).* Daily Law Tips (Tip 596) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

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There is a great difference between civil cases and criminal cases. Civil cases are matters of dispute among private persons, corporate persons and or government. Criminal cases are matters where the society (through government and its agencies) charges and seeks to punish offenders for violating written laws.

Generally, civil cases and disputes can be settled out of court by parties (Arbitration, Mediation and Negotiation, apply). Criminal cases cannot be settled out of court (plea bargaining is not a settlement out of court). A criminal case is a matter

/action of the state, being fought by the state on behalf of a victim of crime and the entire society. A victim has no control over the process, maybe apart from being used as a witness, if necessary.

Criminal offences in Nigeria are created by laws. They are never created by morals, customs, families, schools, religious centers, communities, town unions, royalties and clergies. No matter who sacrilegious an act may be, until there is a written law making it a crime, no person can be arrested, charged, prosecuted or convicted for it. Every crime must be known to law. Where a crime is created, there is always a punishment for offenders. Rape is a crime in Nigeria, created by several laws in Nigeria, it’s maximum punishment is life imprisonment in all parts of Nigeria.

It is only a court of law that can determine whether a person has violated any law. Also, only a court can sentence (order punishment to be served by a convict).

There is no discretion on the part of law enforcement agencies, where there is a crime with adequate evidence. The law enforcement agencies have no rights to pardon cases of rape and suspects. It is their statutory duty to investigate and prosecute criminals, including rapists. Hence, law enforcement agents are not negotiators of or for victims’ compensation or seekers of forgiveness on behalf of alleged offenders.

The family, community and religion of a victim have no powers to stop the prosecution of a defendant. Even where a victim has forgiven an offender, it doesn’t waive or vacate the powers of law enforcement agencies to prosecute such offender. Where an offender has sworn that he regrets his own action and will never repeat same, it does not stop his being prosecuted. The victims of crime have no power to stop or withdraw criminal complaints or cases. Criminal cases are not the cases of victims rather the cases of state (the society); they can be prosecuted without the consent and cooperation of victims.

The Court of Appeal in the case of SHONEYE v. STATE has ruled that, “Once someone or a victim reports a crime to the police, his task ends there. The victim has no right to withdraw. A crime has been committed, the victim’s family can no longer withdraw their complaint.” However, I am not unaware of the misconduct by victims (especially victims of rape), who frustrate trial by refusing to give evidence or correct evidence, for fear of stigmatization and threat to life. They must be protected and encouraged!

The only thing that can delay or stop the prosecution of an offender (suspect) is lack of adequate evidence and not bribes, prayers, consultations, compensation and forgiveness. Payment of compensation, covering welfare of victim of rape and even marrying such victim does not exonerate a rape suspect. The good deeds, metanoia (spiritual change of heart) and compensation of an offender can not absolve an offender from prosecution but may fetch him/her a lower punishment. Evidence of good character is not needed during trial but during allocutus (period for pleading for reduced punishment, after an offender is found guilty but before he is sentenced by court).

A rape victim that has collected compensation or has been cajoled to seek for the withdrawal of criminal charges against an offender, can still get justice. Generally, there is no limitation period (expiration time) for criminal cases in Nigeria. Alleged criminals can be arrested and prosecuted even after decades, so far as there are adequate evidence. Victims of rape that were made to sign any non-disclosure agreement or any agreement whatsoever, waiving their rights to seek justice have lost nothing. Such agreements are illegal, invalid, fraudulent, unenforceable and dead on arrival. No case can arise against a rape victim for signing such document, whether signed freely, by force or for money!

Rapists and alleged rapists still have human rights, too. Two wrongs can never make a right. Only a court of competent jurisdiction can lawfully determine a criminal case. Courts must be allowed to perform their constitutional duties, at all times. Every law enforcement agent that seem complicit or unprofessional in handling investigation or prosecution must be reported to his employer and the National Human Rights Commission or the Public Complaints Commission.

My authorities are:

1. Sections 34, 35 and 36 of the Constitution of the Federal Republic of Nigeria, 1999.

2. Sections 1, 5, 6, 357 and 358 of the Criminal Code Act, 1916.

3. Sections 1, 3, 4, 5, 282 and 283 of the Penal Code Act, 1960.

4. The Supreme Court judgment on “Offence Unknown To Law” in the case of CHIEF OLABODE GEORGE v. FRN(2013) LPELR-21895(SC)

5. The Court of Appeal judgment on “Offence Unknown To Law” in the case of OMATSEYE v. FRN (2017) LPELR-42719(CA)

6. The Supreme Court’s judgement on “Purpose of Criminal trial and the nature and scope of Plea Bargain” in the case of PML (SECURITIES) CO. LTD v. FRN (2018) LPELR-47993(SC). Below are the words of the court.

7. The Court of Appeal’s judgement “on the issue that victims cannot withdraw their complaints to law enforcement agencies, once made” in the case of SHONEYE v. STATE (2015) LPELR-25862(CA)

8. The Court of Appeal’s judgement “on when good character is required in criminal trials” in the case of SHONEYE v. STATE (2015) LPELR-25862(CA)

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