In the court of public opinion cases are won based on emotion; but in the court of law, cases are won based on evidence.

The social media has been agog with the case of a rape saga, allegedly committed by Pastor Fatoyinbo of the Commonwealth of Zion Assembly with his then church member and now wife of popular Nigerian musician, Timi Dakolo. Busola Dakolo alleged that the cleric, General Overseer of COZA, had raped her 20 years ago, taking away the most precious gift of her womanhood: virginity. The fact that the pastor has denied the allegation opens a new chapter of legal battle, though for the court of human opinion the pastor may have been long crucified. However, the sympathisers could not manage to do more than a protest, one that was met by a counter-protest from others loyal and sympatheticto the pastor.

Those who want to go beyond that would then be forced to ask: How can we jail Pastor Fatoyinbo?

According to Wikipedia, rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority; or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent. The Criminal Code, which is the law applicable to criminal offenders in Nigeria, also defines rape in section 357 of the code as: “Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threat or intimidation of any kind; or by fear of harm or by means of false and fraudulent representation as to the nature of the act, or, in case of married woman, by personating her husband, is guilty of an offence which is called rape.”

Under the Nigerian law, rape falls under the category of sexual assault and comes with a heavy punishment of imprisonment for life. For the case of rape to be established, the onus of proof lies on the prosecution. It is a trite principle in law that "he who alleges must proof."

To successfully jail a rapist, it has to be established that the man is in full capacity to commit the rape. Capacity includes that the defendant has attained age of majority. Section 30 of the code established that a 12-year old is presumed to be incapable of committing rape. The law further establishes that the offence of rape is complete upon penetration. It is the duty of the prosecutor to proof this to the court.

Of importance is consent, and seems the only thing that distinguishes lawful sexual intercourse with rape. It has to be proven that the accused has the carnal knowledge of a woman or girl without her consent. A consent given under threat and force is not a valid consent. Consent cannot also be validly given by a minor. The Criminal Code provides that sexual intercourse with someone under 13 has committed an offence known as defilement and is liable to imprisonment for life with or without whipping. However, a caveat exist, the prosecution must begin within two months. Sexual intercourse with a girl 13 and under-16 is liable to imprisonment for two years, with or without whipping.

Section 31of the Child Right Act provides for unlawful sexual intercourse with a child, etc.

Sub-section (1) provides that “No person shall have sexual intercourse with a child” and sub-section (2) a person who contravenes the provision of sub-section (l) of this section commits an offence of rape and is liable on conviction to imprisonment for life. Sub-section (3) established that where a person is charged with an offence under this section, it is immaterial that:

(a) the offender believed the person to be of or above the age of 18 years; or

(b) the sexual intercourse was with the consent of the child.

•Asoro Abubakri Olantuji is a NOUN law student/youth activist.

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