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Lawyers differ over Kaduna castration law for rapists

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The new law prescribing castration for rape convicts in Kaduna state is generating more concern as lawyers differ over its legality.

While some argue that the law violates people’s reproductive right as guaranteed by the constitution, others
said any convict has lost his or her fundamental rights.  

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Prof. Mamma Yusufari (SAN) of the Faculty of Law, Bayero University, Kano, believes that castration is a much lesser penalty compared to a death sentence, which some are recommending for the same offence.  

According to the senior advocate, if the right to life, which is most fundamental, could be tested and subjected to a criminal penalty, castration also, should be subject to criminal penalty.

“Honestly, I don’t believe the law has impeded any fundamentals because by the section 4 of the constitution, the legislature has the powers to make laws and they have followed due process to pass this law.

“It was signed and it became law. Castration as a penalty for rape may look strange but the Kaduna people believe the punishment is appropriate to reduce the menace considering the rising cases.

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Also, Bar. Abubaka Sani maintained that the Kaduna state government has not violated any constitution having subjected the said law to the legislative process and duly passed into law sequel to final signing into law by the chief executive of the state. 

Sani said: “The law does not violate any provisions of the constitution, for the simple reason that the same constitution recognises that the highest right of all – the right to life – can be derogated from under certain, well-defined circumstances, pursuant to laws which prescribe capital punishment for specified crimes, such as homicide (murder), treason, terrorism, kidnapping and others.” 

Castration according to him is certainly the lesser of two evils as it falls short of the ultimate punishment and spares the life of the rapist, giving him the chance to repent. “The constitutional right not to be subjected to inhuman and degrading treatment is not absolute, and it will be a stretch to regard castration as such.

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But deputy national president of the Muslim Lawyers of Nigeria (MULAN), Bar. Saeedu Muhammad Tudun Wada said castration is unknown to the Administration of Criminal Justice and penal system in Nigeria.

He insisted that the law clearly violates the reproductive rights of the offenders. 

“Our constitution, which is the ground norm, clearly spelt out certain rights that are referred to as inalienable rights, rights for which the law has made specific and special provisions. These rights are contained in Chapter IV of the 1999 Constitution and are officially known as fundamental rights. 

“For example, the right to life and dignity is inalienable. Right to privacy and family life are jealousy guaranteed under the constitution.

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“In Section 17 (3) (h) the constitution directs its policy towards “ensuring that the evolution and promotion of family life is encouraged. When you castrate someone, obviously his reproductive rights have been invariably curtailed,” he stated.

According to him, the law enacted by the Kaduna State House of Assembly is, “in my opinion jaundiced, alien and an unusual punishment. It is jaundiced, for the fact that by the provisions of Section 36(12) of the Constitution, any punishment for any offence must first be prescribed and defined by an extant law.” 
 
He argued that the punishment for rape is expressly provided for in Section 358 of the Criminal Code Act and Section 283 of the Penal Code Act.

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