Prosecuting Conflict-Related Sexual Violence: Challenges and Opportunities

Paper delivered at NIGERIAN BAR ASSOCIATION WOMEN FORUM on Friday, June 27 2025 by Oluwemimo Ogunde, SAN, Principal Counsel at Wemimo Ogunde & Co.

 INTRODUCTION

1. It could be asserted, almost without any fear of contradiction that in almost every civilisation and culture, sexual violence has been, and is still regarded as not only abominable, but also cruel in the extreme. Every act of sexual violence is classified as a felony in every society, even from ancient times, and Nigeria is no exception. In Kazeem Popoola vs The State¹, the Supreme Court of Nigeria held regarding rape, a crime that usually involves sexual violence (per Ngwuta JSC of blessed memory) as follows: “I join my learned brother in expressing disappointment that the appellant was given a lenient term of five years in prison. I think that the severity of punishment for rape, with particular reference to statutory variety, should rank next to capital punishment.”²ĥ The Supreme Court was adjudicating in this case on rape in peacetime. It is no different, in my view, even in wartime.

The topic to be examined in this paper is the challenges and opportunities that confront a prosecutor of conflict-related sexual violence. A leading authority on this subject, Prof. Elisabeth Wood in her seminal article³ defined “conflict-related sexual violence to mean ‘sexual violence by armed organisations during armed conflict.’ By ‘armed organisations’ or ‘armed actors’ she means State actors (military, police, paramilitary organisations under the direct command of other State actors) and non-State actors (rebel and militia organisations). Prof. Wood gives the same meaning to “sexual violence” as the Rome Statute of the International Criminal Court (ICC) which includes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced 1 (2013) 17 NWLR (Pt 1382) p 96 2 See p 122 Conflict-related sexual violence and the policy implications of recent research Int. Rev. Red Cross 96(894):457-78) 2 sterilisation or any other form of sexual violence of comparable gravity.

The commonest form of conflict- related sexual violence is rape, in whatever manner it occurs. The ICC Elements of Crime⁴ defines rape as a conflict-related sexual violence to mean ‘the invasion of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. The invasion was committed by force or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.’ In the context of Nigeria, even though we are not witnessing any war declared against another State, and there is no civil war, there are many insurgent activities, secessionist armed conflicts, banditry, organised kidnappings and other forms of internal conflicts.

In practical terms therefore, there are many States, towns and cities in Nigeria that are currently witnessing conflict-related sexual violence, even though Nigeria is not at war in the real sense. The Lakurawa, an armed group affiliated with the Islamic State Sahel Province, is currently committing conflict-related sexual violence in five local government areas of Sokoto State.⁵ There is the Boko Haram group that has terrorised Borno and Yobe States for many years. In fact, the beginning of Islamist insurgency is traced to July 2009 when Boko Haram started an armed rebellion against the Nigerian Government. The most documented act of terror perpetrated by the group was the abduction of 276 girls in Chibok, Borno State, many of whom are still not accounted for till today. Another group is the Islamic State West Africa Province (ISWAP), a splinter group of Boko Haram formed in 2015. This group has also operated largely from Borno State, committing conflict-related sexual violence. Finally, there is the Mahmuda, a terror group that operates in Niger and Kwara States, occupying territories around the Kainji Lake National Park. Although many of these insurgents and bandits have been captured and killed, while some have even been prosecuted and convicted, it appears none of them was convicted of conflict-related sexual violence.⁶

There has not only been the failure to prosecute conflict-related sexual violence within Nigeria, the efforts by international organisations to bring about international prosecutions against terror groups and the Nigerian military have yielded little or no success.

On 2nd December 2024, Amnesty International submitted a legal filing to the Pre-Trial Judges of the ICC on behalf of several victims’ networks, to request an end to the ICC’s inexplicable delay to the start of the Court’s investigation into war crimes and crimes against humanity in Nigeria.⁷ There is clear evidence of conflict-related sexual violence perpetrated by these insurgents groups.

A 2019 study which included data from 4868 internally displaced persons found that about a third of them experienced a form of sexual violence. Of the perpetrators of the sexual violence, 51 % were Boko Haram insurgents and about 18% were members of the Nigerian security forces.⁸ The question to ask is why domestic or international prosecution of perpetrators of conflict- based sexual violence has been almost non-existent since insurgency began in Nigeria in 2009.In this paper, I will examine the logistical, structural, and cultural challenges.

LOGISTICAL CHALLENGES

The current solution that the Nigerian Government appears to focus on in dealing with the insurgency problem is elimination of insurgents rather than prosecution of offenders. This solution, though unsatisfactory, seems to be a practical one. First, the resources that the country can deploy to fighting insurgency are limited as there are many other sectors competing for the revenue generated. The limited resources are then used to pursue insurgents on many fronts, which are spread across at least seven States in the northern part of Nigeria (Sokoto, Kebbi, Kaduna, Borno, Yobe, Niger, Kwara). This has been further complicated by the growing strength of these insurgent groups, who re now amassing a lot of money from illegal mining, taxation of locals and external funding from other groups seeking to further destabilise the country. The second logistical challenge is that apart from these insurgent groups, there are other armed groups that the security forces have to contend with, such as ethnic militias like the Indigenous People of Biafra (IPOB) and Movement for the Yoruba Nation (YNN) led by Nnamdi Kanu and Sunday Igboho respectively. There are Fulani herdsmen who are also terrorising farmers all around the country, particularly Benue and Plateau States and the now muted Movement for the Emancipation of Niger Delta (MEND).

At the inception of the military operation to curb insurgency, secessionist movements and economic sabotage by MEND, many of the rebels and insurgents were captured and put in prison. However, this led to many jailbreaks in which insurgents not only freed their compatriots, but civilians convicted and sentenced by the regular courts. The attempt to deradicalise captured insurgents, under a so-called amnesty programme, by which insurgents were absorbed into the Nigerian military to act as informants also backfired. These “repentant” insurgents indeed became informants for their various groups, exposing the military personnel to great danger by giving details of planned attacks to the commanders of these groups. All these resulted in a change of strategy, in which elimination rather than capture became the preferred solution, thus making it unnecessary for any prosecution to occur. This logistical may likely remain for some time as insurgency groups keep increasing and military spending keeps decreasing, besides the problem of even managing the insurgents that are captured. In the absence of increased spending, building military detention camps becomes impracticable, thus making capture and prosecution logistically impossible.

 STRUCTURAL CHALLENGE

Nigeria is a signatory to the Rome Statute of the ICC. It signed it on June 1 2001 and deposited its instrument of ratification of the Statute on 27 September 2001.⁹ The challenge of repatriating insurgents to be tried by the ICC, given the inexplicable delay in getting the ICC prosecutor to investigate conflict-related sexual violence by these people has already been mentioned. The other problem is the absence of any law in Nigeria specifically criminalising conflict-based sexual violence, thereby making prosecutors to try insurgents under domestic laws criminalising sexual offences. There seems to be no precedent for a successful execution of this experiment, but Adejoke Babington- Ashaye et al in their short article “The Tide Turns: The Prosecution of SGBV Crimes as a Terrorist Offence in Nigeria”¹⁰ seem to be optimistic that the prosecution of an insurgent, Suleiman Garba Mohammed for rape, forced marriage, sexual slavery forced pregnancy as acts of terrorism under the Terrorism Prevention Act. Undoubtedly, sexual violence by a Boko Haram insurgent is conflict-related and the absence of a specific legislation to criminalise such acts will pose a serious challenge in criminal prosecution. Ukraine has led the way in promulgating a specific legislation for that purpose. It is important for Nigeria to legislate specifically on the matter. In addition, the Ukrainian Criminal Code contains two sections which could be applied to cases of conflict-related sexual violence. Article 433 envisages criminal responsibility for violence against the civilian population in a conflict area, which may include sexual violence. Article 438 foresees criminal responsibility for the violation of laws and customs of war, which could be used to prosecute perpetrators of sexual violence in armed conflicts.

As far as I am aware, neither the federal nor the states criminal legislations contain similar provisions. It cannot be denied that an insurgent can be charged under the domestic laws, but many conflict-based sexual violence are not covered under those legislations. Furthermore, rape in peacetime cannot be compared to rape as a conflict-related sexual violence. In peacetime, rape is used as a means of sexual satisfaction or at the worst a means of domination or proof of masculinity.

In wartime, rape becomes a tool of war, to drive out civilian populations from areas that soldiers wish to occupy, weaken morale in men and women, bring about forced pregnancies, destroy fertility and generally instill fear and trauma in civilian populations. It is doubtful whether Nigerian domestic legislations on sexual offences were drafted to take care of these wartime exigences. That is why I suggest that the National Assembly enact a specific legislation aimed at protecting the civilian population during armed conflicts of any kind and criminalising every conduct that violates their fundamental rights to life, dignity of their persons, property and freedom from torture and all forms of abuse. In my view, it is doubtful also if the Terrorism¹¹ can also be of any meaningful help.

In defining “terrorism” it does not appear as if conflict-related sexual violence is intended to constitute an act of terror. The whole infrastructure of counterterrorism is national security and not citizen dignity. This is obvious from the definition of terrorism as it affects the individual citizen. An act of terrorism, as it affects a person is that which ‘seriously intimidates a population¹², ‘involves, causes or results in attack on a person’s life, in the form of grievous bodily harm or death, or kidnapping of a person’.13 It will amount to stretching the legislation to an absurd level of interpretation to argue that an insurgent “intimidated a population” by raping, or causing forced abortion or any of such kindred conflict-based sexual violence which were not specifically criminalised by the Act.

It is a fundamental right of a criminal defendant in Nigeria that no one can be tried for any conduct which was not a crime at the time it was done. It is one thing to frame a country in a charge and it is another thing altogether to ground the country in an offence created by law. Even if SULEIMAN is successfully prosecuted and convicted, the most satisfactory solution is to enact a specific domestic legislation to criminalise conflict-based sexual violence to solve this structural problem once for all. Such legislation will take care of sexual violence that occur in ‘armed conflict’ which would be any situation in which any member of an armed organisation, whether individually or as a group commit sexual violence on the civilian population. This will then include sexual violence, by militia organisations by whatever name called, whether or not their aim is secession, overthrow or destabilisation of a duly constituted government at any level. 11 (Prevention and Prohibition) Act 2022(Act No 15 of 2022 12 secꢀon 2(3)(c)(10 13 section 2(3)(g)(i) and (ii)

CULTURAL CHALLENGES 

The Supreme Court has held that in terms of severity of punishment sexual violence must rank next to capital offences. However, it does not appear as if this view is shared by the society, except the female folk. The cultural and traditional prejudice of patriarchy stands as an obstacle to criminal prosecution of sexual offences, whether conflict- related. My guess is that it is that prejudice that influenced the scant attention paid to it in the definition of acts of terror in the Nigerian legislation that criminalises terrorism. The ideology of patriarchy in Nigeria is prevalent even in the adjudication of sexual offences in Nigerian courts. The sentence to be imposed on any person convicted of the offence of rape in most Southern States of Nigeria is life imprisonment and no discretion is granted to any court in sentencing any such person.¹⁴

Notwithstanding these clear provisions, many Judges of various State High Courts (all male judges) have ignored this mandatory sentencing section and imposed far lesser prison terms, even sometimes, giving an alternative option of fine. In Afor Lucky vs The State,¹⁵ the High Court of Delta State convicted the Appellant of rape but sentenced him to a prison term of 5 years with an option of fine of N300,000. The Supreme Court, describing this sentence as “the sham of prison term” and “an attack on law and moral basis for prison term” held thus: “One has only to turn the pages of national newspapers to appreciate the enormity and frequency of immoral acts perpetrated against women and helpless young people, including incest committed on toddlers by men approaching their graves.”¹⁶ see, for example sections 357 and 358 of the Criminal Code Law of Ogun and Delta States (12). 15 (2016)13 NWLR Pt 1528 p 128 16 see pages 164-165 9 11. In Kazeem Popoola vs The State (supra) (see note 1), the High Court of Ogun State, after convicting the appellant of rape, proceeded to sentence him to a term of 5 years in prison, notwithstanding the mandatory provision of section 358 of the Criminal Code Law which imposes imprisonment for life. For this reason, the prosecutor, even after he may have secured conviction, may find that all his hard work would be in vain as a sentencing judge with a patriarchal mindset would simply impose a prison sentence with an option of fine and the rapist would be a free man on the day of judgment. If the problem in the Southern States is adjudicatory, the problem in the Northern States is far graver.

It is legislative leniency for sexual offenders. The sentence imposed by law on any person convicted of rape is a MAXIMUM sentence of life imprisonment. Thus, whereas life imprisonment for the offence of rape is mandatory in the South, it is discretionary in the North. Unfortunately, even the discretion has been severely abused by judges. In Habibu Musa vs The State,¹⁷ a man convicted of raping a seven-year-old child was sentenced to 14 years in prison, thankfully without an option of fine. In Yahaya Muhammadu¹⁸ a man convicted of raping a 7-year-old child got 7 years. In another case, a man convicted of raping a 5-year-old child was sentenced to 10 years in prison.What it will take to impose the maximum sentence of life imprisonment will never be known as it is doubtful whether the rape of a one-year-old would achieve that. There is clearly a cultural obstacle that prosecutors face and the problem of conviction and sentence just constitute a part of it. 

It is true that more women are now becoming judges and prosecutors and for that reason, patriarchy may be on the back foot. The other major cultural challenge may be getting witnesses to secure conviction.

In conflict-related sexual violence, witnesses may have been sold into slavery, killed or kept in the commanders’ harem. To secure conviction, there may be the need for corroboration of evidence unless the specific legislation earlier suggested does away with that requirement found in municipal legislations. Even when witnesses are found, fear of reprisals may make them lie on oath, even denying that rape occurred in order to save their pride.

In all, the prosecution of sexual offences represents the acid test for societal acceptance of feminine rights. More often than not, every society faces the shame of admitting that women have not been fully liberated and that patriarchy still looms large, though there is great pretence to the contrary. Nigeria, unfortunately lower rung of the ladder in the protection of feminine rights. The dispute as to whether a person who is under the age of 18 should be regarded as a child has arisen only because some ethnic groups do not agree that a female under 18 should not get married. That is the reason for many States in Nigeria refusing to adopt the Child Rights Act. Even prosecutors who have been brought up with a patriarchal mindset may deliberately bungle a charge of rape, if incentivised. This accounts for a low number of appeals against sentence in circumstances where a judge violates mandatory sentencing provisions. The prosecutor may himself be a challenge to prosecution

 OPPORTUNITIES IN PROSECUTION OF CONFLICT- RELATED SEXUAL VIOLENCE

Undoubtedly, impunity has been the clearest fruit of the absence of prosecution of conflict-based sexual violence. As more of the insurgents commit such offences without being arrested, much less prosecuted, the tendency for committal of more heinous crimes grows. It may well be that Nigeria has become the breeding ground for all forms of terrorist groups for this reason. Prosecution and severe punishment are the quickest forms of deterrence whilst condonation promotes impunity. Prosecution also offers opportunities for collaboration. Many international organisations who have the experience and resources to help Nigeria would rally round us once they discover that we are ready to punish these grave offences.

They can help with capacity building, establishment of legal framework, training and even funding. Even though many of these insurgents would be prosecuted in the municipal courts, competency levels must be enhanced. It is obvious that many would-be prosecutors of conflict – related sexual violence lack the requisite skills in international criminal law, particularly the prosecution of war crimes and crimes against humanity. Once the resolve is demonstrated, opportunities for exposure to resource building will become available across the board – for judges, prosecutors, witnesses, record keepers and other paralegal staff of courts. 

 Apart from the help in prosecution, opportunities would open up even for the military. It is undeniable that some of these atrocities are perpetrated by our own armed personnel. Many of them lack the requisite discipline in managing civilian population in war zones. They see them as booty of war, even though the civilians are their compatriots. There is the need for the military personnel to be trained to ensure that the insurgents don’t implicate them when facing trials and through such implications escape punishment. There may also be opportunities for civilian education in conduct during war, particularly to help them constitute resistance forces to help the military.

The National Youth Service Corps, which should have been the opportunity for compulsory military service has failed to achieve this noble purpose. Nigeria has no specific programme for compulsory military service and the result is a docile, frightful and defenceless civilian population. Even if civilians are not allowed to purchase firearms, there is no reason for them not being trained on how to disarm, an armed robbery or bandit, treat gunshot wounds or even use firearms themselves. The ease with which herdsmen kill innocent civilians may be the lack of paramilitary training for citizens. It is time to revisit the National Youth Service programme to serve the purpose of compulsory military service, or at the least, some form of paramilitary training for young graduates. If the civilian population can be vulnerable to attacks from untrained herdsmen, the damage that an organised external aggressor would pose is better imagined. The civil defence corps, introduced during the civil war to prepare civilians for an army invasion, has metamorphosed into a military organisation and abandoned its core mandate. There is the need to fill the gap of civilian training.

 CONCLUSION

In developing the infrastructure for the prosecution of conflict-based sexual violence, it is clear that the journey is yet far. In this short paper, I have tried to analyse the challenges that confront such prosecution, chief of which are logistical, structural and cultural. I have also briefly examined the opportunities that would open up for Nigeria once we begin the journey. Many of the challenges that are discussed here are centuries old and it would be futile to believe that they may be removed very quickly. The aim of this paper is not to pretend that the problems are gargantuan, but to show that there has even been no effort made at confronting them.

That proverb says that only the child who raises up his arms as a sign of the desire to be carried that the mother helps to lift up. It is time to lift up our hands as a nation that we may be helped. The starting point is to chart a roadmap for prosecuting conflict-related sexual violence. We must announce to the world that Nigeria as a nation has woken up from its slumber and is now ready to protect the dignity of our civilian population, men, women and¹³ children. We must show that we have decided to confront impunity and bring it to an end. The reason we have received no support or even sympathy is that there appears to be no institutional resolve to punish conflict-related sexual violence. We have witnessed the giant strides made by the National Drug Law Enforcement Agency (NDLEA). We may not have won the war against drugs, but there appears to be institutional resolve to combat drug syndicates and cartels. It is time to do the same for conflict-related sexual violence. It will certainly be a bumpy ride, with no assurance of success, but there should be the determination to confront the problem and the will to carry it through.

Footnotes 

1. (2013) 17 NWLR (Pt 1382) p 96
2. See p 122
3. Conflict-related sexual violence and the policy implications of recent research Int. Rev. Red Cross 96(894):457-78)
4. Document No. ICC-PIDS-LT-03-002/11_Eng, The Hague, 2011, Art.8(2)(b)(xxii)-1
5. Tangaza, Gudu, Illela, Binji and Silame
6. Reuters Daily News of July 27, 2024
7. https://www.amnesty.org/en/latest/news/2024/12/nigeria-amnesty-international-petitions-icc-judges-to-endprosecutors-delaying-of-justice-for-atrocity-crimes/
8. https://www.thelancet.com/journals/langlo/article/PIIS2214-109X (19)30091-9/fulltext accessed on 22nd June 2025
9. https://asp.icc-cpi.int/states-partiesafrican-states/nigeria accessed 20th June 2025
10. https://icct.nl/publication/tide-turns-prosecution-sgbv-crimes-terrorist-offence-nigeria accessed 21st June 2025
11. (Prevention and Prohibition) Act 2022(Act No 15 of 2022
12. section 2(3)(c)(10
13. section 2(3)(g)(i) and (ii)
14. see, for example sections 357 and 358 of the Criminal Code Law of Ogun and Delta States (12).
15. (2016)13 NWLR Pt 1528 p 128
16. see pages 164-165
17. (2012)3 NWLR Pt 1286 p 59(15)
18. (2020)17 NWLR Pt 1753 p 252
19. Mohammed Ali vs The State (2021) 12 NWLR Pt 1789 p 159

Source: loyalnigerialawyer