By

Colleen Mahlert

On September 11, 2020 the Nigerian State Kaduna amended its Penal Code Law No. 5 of Kaduna State 2017 1 as a response to the increasing number of reported rapes during the ongoing COVID-19 pandemic. While previously the maximum penalty for people convicted of raping a child under 14 years old was life imprisonment, the amendment introduces surgical castration followed by the death penalty. Convicted female rapists will have their fallopian tubes removed. 2
The State’s governor Nasir el-Rufai argued that these measures are necessary to protect children. 3 Morally, one could find surgical castration before execution unnecessary and cruel. However, what is the legal perspective on this matter?

Nigeria ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 2001. 4 Although it can be disputed whether surgical castration constitutes ‘torture’ after Article 1 CAT, because not “not all forms of inhumane treatment constitute torture” 5 , Article 16 CAT can be applied here. It states that “[e]ach State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture” 6 . The Kaduna state is not an autonomous region and falls, therefore, under the jurisdiction of Nigeria. As a Member to the treaty, the government has an obligation to ensure its enforcement.
The main legal issue is whether surgical castration constitutes a “cruel, inhuman or degrading” punishment. This question was also addressed by the Council of Europe's Committee for the Prevention of Torture (CPT) in its report against the Czech Republic, which also practices surgical castration as a punishment for sex offenders. 7 In its report, the Committee “calls upon the Czech authorities to end immediately this practice” 8 , as it found “surgical castration of detained sex offenders amounts to degrading treatment” 9 . The CPT is linked to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which states in Article 3 that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment” 10 . This wording is similar to Article 16 CAT. Although the CPT found surgical castration to be a degrading treatment, the issue was never addressed at the ECtHR. Nevertheless, the South Carolina Supreme Court held in State v Brown (326 S.E.2d 410 (1985)) that “surgical castration was a form of mutilation and thus illegal and void as cruel and unusual punishment in breach of amendment eight of the US Constitution, which is the equivalent of Article 3” ECHR and, 11 therefore, also equivalent to Article 16 CAT.
Within the context of Nigeria’s amended Penal Code, the imposition of surgical castration can be seen as additionally cruel, as offenders will be executed afterwards.

It can be concluded that surgical castration will – with a high probability – be held to be a degrading and cruel punishment, which is in violation of Art. 16 CAT, and the Nigerian government should acknowledge its international obligations under the CAT and ensure the abolishment of the amended law in the Kaduna State. If the government is unwilling or unable to do so, the matter can, and should, be brought to the African Court on Human and Peoples’ Rights by the African Commission, which is responsible for adjudicating human rights violations under the African Charter of Human and Peoples’ Rights. 12

1 Kaduna State Penal Code (Amendment) Law, 2020
<https://twitter.com/GovKaduna/status/1306309119893221380/photo/1> accessed October 20, 2020
2 “Rapists to Be Surgically Castrated under New Law in Nigerian State” (Sky News September 17, 2020)
<https://news.sky.com/story/rapists-to-be-surgically-castrated-under-new-law-in-nigerian-state-12074477> accessed
October 20, 2020
3 Ruth Maclean, “A Nigerian State Plans to Castrate Convicted Child Rapists” (The New York Times September 17,
2020) <https://www.nytimes.com/2020/09/17/world/africa/nigeria-rape-castration.html> accessed October 20, 2020
4 “UN Treaty Body Database” (United Nations Human Rights Office of the High Commissioner)
<https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=127> accessed October 20,
2020
5 Michael J. Garcia, “U.N. Convention Against Torture (CAT): Overview and Application to Interrogation
Techniques” Congressional Research Service <https://fas.org/sgp/crs/intel/RL32438.pdf> accessed October 26,
2020, p.2
6 UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 10 December 1984, Art. 16
7 De Putter J, “In the Czech Republic, Prisoners Can Still Be Castrated” (De Correspondent September 23, 2015)
<https://thecorrespondent.com/3349/in-the-czech-republic-prisoners-can-still-be-castrated/188836714-89c5a998>
accessed October 20, 2020
8 “Council of Europe Anti-Torture Committee Publishes Report on the Czech Republic” (Council of Europe
February 5, 2009) <https://www.coe.int/en/web/cpt/-/council-of-europe-anti-torture-committee-publishes-report-on-
the-czech-republ-1> accessed October 20, 2020
9 Ibid.
10 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols Nos. 11 and 14, 4 November 1950, Art. 3
11 Harrison K, “Legal Aspects of Surgical Castration” (November 2010)
<https://www.researchgate.net/publication/49593773_Legal_Aspects_of_Surgical_Castration>, p.2
12 “The African Commission on Human and Peoples’ Rights” (Somo) <https://www.somo.nl/wp-
content/uploads/2018/07/ACHPR-brochure-final.pdf> accessed October 20, 2020

About the Author

 

Leave a Reply

SecJure