Entries A–Z

Domestic violence is a form of aggression perpetrated by one family member against another. It includes a pattern of behaviors involving physical, sexual, economic, and emotional abuse, used alone or in combination, by an intimate partner often for the purpose of establishing and maintaining power and control over the other partner (Human Rights Watch 1995). Studies have shown that women are the primary victims of domestic violence (Greenfeld 1998; Neubauer 1999; Rennison and Welchans 2000). This is particularly true of women in Africa, where studies show that 35 to 75 percent of women are victims of violence at the hands of fathers, husbands, intimate partners, or male members of their families at some point in their lives (AFROL News 2002; Hajjar 2004; Human Rights Watch 2003; Mulama 2005; Okereke 2002). Given this situation, this article examines the role the law plays in the problem of domestic violence in Africa. First and foremost, most African countries do not

have specific laws prohibiting domestic violence and the associated gender-specific abuses women and girls suffer in Africa. The South African 1998 Domestic Violence Act is a notable exception in that it

prohibits not only domestic violence but rape within marriage and other forms of violence in both marital and nonmarital relationships, including abuses by parents, guardians, other family members, and anyone who resides with the victim (Human Rights Watch 2003a). InMauritania, a Protection fromDomestic Violence Act was passed in 1997 (Bowman 2003). Additionally, as a result of pressure from the United Nations, AfricanUnion,World Health Organization, international and domestic human rights organizations, international and domestic nongovernmental organizations (NGOs), and human rights activists from around the world, a number of countries (including Ghana, Kenya, Nigeria, Tanzania, and Uganda) have drafted domestic violence bills which are at various stages of parliamentary discussions (Human Rights Watch 2005; Sarpong 2002). Other countries, such as Senegal, Tanzania, and Zimbabwe have laws prohibiting violence against women and girls, but such laws are rarely enforced. Even the constitutions of several countries in Africa guarantee equal rights to all citizens, including clauses that bar discrimination on the basis of sex; however, as Human Rights Watch (2000)

points out, the governments of African countries have failed to enforce existing laws and implement policies that reflect the principles of gender equality found in both regional and international human rights documents. Although passing gender-sensitive laws that re-

flect the principles of human rights found in international documents such as the Convention on the Elimination of All Forms of Discrimination against Women (UN CEDAW 2000) and regional documents such as the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa of the African Union are moves in the right direction, such laws become mere formalities if they are not enforced. For example, in 1998, the Ghanaian Parliament passed the Criminal Code Amendment Bill banning all forms of ritualized enslavement, but according to Aird (2003), ritualized forced labor is still practiced in Ghana. Similarly, female genital mutilation-a practice that is widespread in Africa-has been outlawed in twelve countries, but according to the Ark Foundation Ghana (2005) and Human Rights Watch (2002), the practice still goes on, and perpetrators have been prosecuted only in Burkina Faso, Ghana, Senegal, and Sierra Leone. Further, in Uganda, the 1972 Succession (Amendment) Decree, intended to recognize women’s right to inherit from their husbands and fathers, and the 2003 Land Act (Amendment) Bill, intended to provide widows greater protection from eviction from their matrimonial homes following the death of their husbands, are usually not enforced. Tanzania’s Marriage Act of 1971 prohibits corporal punishment of wives by husbands and grants spouses equal rights to property acquired through joint efforts. In practice, however, Tanzanian women are still denied these rights (Gonza´lez-Brenes 2004). Furthermore, the Penal Code in Zambia prohibits virtually all abuses associated with sexual violence, coercion, and discrimination based on sex, but these provisions are not enforced by the state (Human Rights Watch 2003a). From the foregoing, it is evident that enforcing existing statutes while drafting new legislations would stem down the tide of domestic abuse in Africa. Also relevant to the problem of domestic violence

in Africa is the fact that most African countries have multiple legal systems: statutory law, civil law, customary law, and religious law. When these legal systems conflict, as they often do, the dictates of customary law and/or religious law are generally adhered to. For example, in Cameroon, marital rape is recognized as an offense under statutory law but tolerated under customary law because it

is culturally accepted that consent to marriage constitutes unlimited consent to sexual intercourse (Human Rights Watch 2002 and 2003a; Tetchiada 2005). Further, rape, according to Hajjar (2004), is a punishable offense in every Muslim society, but under dominant interpretations of Sharia, forced sex within marriage is not an offense. Also, in Sierra Leone and Cameroon, the statutory age of marriage is twenty-one and fifteen, respectively, while under Islamic and customary laws in both countries, a girl is marriageable at twelve (Human Rights Watch 2003d). In Nigeria, the Criminal Code stipulates that the age of marriage is sixteen, but under customary law, girls can be married off at twelve; in Ethiopia, the age of marriage according to statutory law is eighteen, but under customary law, girls can be married off at the tender age of eight (United Nations 2002). Further, civil law in Liberia prohibits polygyny but customary law permits men to have two or more wives simultaneously (U.S. Department of State 2004). In light of the above, the problem of domestic violence in Africa is partially due to the conflicts that exist among the multiple legal systems that operate in Africa. Another area where the law in Africa tends to

contribute to the problem of domestic violence is in its stance to rape. There is generally a narrow definition of the crime of rape in most African countries (Gyau 2004; Okungu 2003). The laws in many countries (East Timor, Liberia, Nigeria, Sierra Leone, Tanzania, Zambia, Zimbabwe), when referring to ‘‘sexual violence,’’ specifically talk about rape as the penetration of a female victim’s vagina by a male perpetrator’s penis; at times, the definition goes further to require ejaculation for the elements of the crime of rape to be complete (Advocates for Youth 2005; Amnesty International 2004 and 2005a; Klein 2004; Nduna 2004). Acts of forced oral or anal sex or penetration by foreign objects are not considered rape. The confusion in rape laws in Africa is worse in Sierra Leone, where the rape of a person over the age of sixteen is considered a felony and carries a maximum sentence of life imprisonment, but the rape of a thirteen-year-old girl is misconstrued as a misdemeanor and carries a maximum sentence of two years. Even more confusing is the fact that to be classified as rape in both cases, the victim must have been a virgin, because forced sexual intercourse with a nonvirgin is not considered rape in Sierra Leone (Standley 1999). Also, statutory law in Sierra Leone requires that all serious criminal cases be tried under general law, but rape cases are frequently prosecuted under customary law, under which the alleged perpetrator is generally required to pay ‘‘virgin money’’ to the

family of his victim and to the chiefs who oversee such cases. In Muslim communities, the ‘‘virgin victim’’ is sometimes forced to marry the offender, as a girl or woman who is not a virgin is considered less eligible for marriage (Human Rights Watch 2003d). In other countries, the rules of evidence require the corroborating testimony of a witness to the sexual assault before a rape survivor’s statement can be admissible in court (Amnesty International 2005b; Hajjar 2004). Consequently, families of rape survivors in those countries seek monetary compensation rather than criminal prosecution. In some ways, statutory laws in Africa discrimi-

nate against women and in so doing contribute to the problem of domestic violence. For example, Article 7 of the Trade Code in Cameroon allows a husband to oppose his wife’s right to work if the protest is made in the interest of the household and family, and according to Articles 1421 and 1428 of the Civil Code, women are not fully entitled to use, enjoy, or sell their own property. Article 1421 grants husbands the right to administer communal property, which means that the husband has the legal right to sell or mortgage the couple’s property without the wife’s consent (UN CEDAW 2000). Also, Section 361 of the Penal Code in Cameroon criminalizes adultery, but the provisions differ depending upon whether the adulterer is the wife or the husband. The law provides that ‘‘any married woman having sexual intercourse with a man other than her husband shall be punished’’ and that ‘‘any married man having sexual intercourse in the matrimonial home, or habitually having sexual intercourse elsewhere, with a woman other than his wife or wives, shall be punished’’ (International Women’s Rights Action Watch 1999). While in the case of women all adultery is a criminal offense, for men, it is or is not a crime depending on the venue or frequency. Under the Personal Status Code of Morocco and

Egypt, women are treated as legal minors and denied the legal autonomy to conclude their own marriage contracts. The code establishes male authority over female members of the family (Alami 1992). Furthermore, women in Africa seeking to formally terminate violent marriages through divorce face enormous legal obstacles. In most countries, a woman cannot simply accuse her husband of adultery to terminate their marriage; she must couple her claim with a claim of cruelty and/or desertion or claim that the adultery was incestuous or bigamous. There is no such legal requirement for men. Marriage and divorce laws in Uganda discriminate against women and contravene constitutional guarantees for nondiscrimination, equal protection of the

law, and equal rights in marriage, during marriage, and at its dissolution. For example, Section 27 of Uganda’s Divorce Act stipulates that if a wife’s adultery is the cause of a divorce, a court may order that all or part of her property be settled for the benefit of the husband and/or the children (Human Rights Watch 2003a). There is no such provision for men. Nationality laws in Egypt, Liberia, Morocco, Nigeria, and Zambia also discriminate against women. While men from these countries can transmit their nationality to their children wherever they are born and whoever their mothers are, women, on the other hand, do not have the same right (International Women’s Rights Action Watch 1999). Furthermore, immigration rules in Nigeria require that a wife obtain her husband’s endorsement before she can be issued an international passport and that for the children to be endorsed on her passport, their father must give written consent (Embassy of Nigeria 2005). Religious laws in Africa are also discriminatory

against women and as a result can contribute to the prevalence of domestic violence. Sharia tends to be interpreted in ways that give men power over women family members; dominant interpretations of Sharia treat women as legal minors and accord men the status of heads of their families with guardianship authority over and responsibility for women. As a result, women have a duty to obey their guardians-husbands, fathers, or other male heads of the family (Hajjar 2004). Consequently, a male legal guardian of an adult woman can oppose her choice of husband (Human Rights Watch 2001). Also, under the Sharia penal code in Nigeria-as in other African countries with large Muslim populations-a husband has the right to beat his wife as long as the beating does not result in grievous harm, which is defined as loss of sight, hearing, power of speech, facial disfigurement, or other life-endangering injuries (Women’s International Network 1998). In effect, while divorce is a permissible option to end a marriage under Islam, in many largely Islamic countries, it tends to be treated as a male prerogative; women can easily be divorced but not seek divorce (Amnesty International 2005a and 2005b). Additionally, dominant/fundamentalist interpretations of Sharia, according to Hajjar (2004), allow men to have up to four wives, to whom they have unabridged sexual access and who cannot refuse, because such refusal can be conceived as a defiance of their duties and can give rise to accusations of disobedience, thereby triggering legal justification for beating. Such interpretations are evident in decisions handed down by Sharia courts in predominantly fundamentalist

countries. For example, an appellate Sharia court in Nigeria upheld a sentence of death by stoning against a woman for having sex outside marriage, while setting free the man she allegedly had sex with on the ground that the court lacked sufficient evidence to prosecute him for the alleged adultery (Human Rights Watch 2001). This growing Islamic fundamentalism led the Egyptian government to amend its constitution in 1981 to provide that the principles of Sharia would constitute the main source of legislation in Egypt (Hajjar 2004). There is no doubt that such legislations would adversely affect women. Another way the law could affect the incidence

of domestic violence in Africa is in its recognition of customary laws and practices. Due to the multiplicity of ethnic origins and cultural differences reflected in the various beliefs and practices found in most African countries, national governments allow local governments and authorities to interpret and apply local norms and values to issues that arise from within their communities without interference as long as such norms and values pass the ‘‘repugnancy test.’’ This test, according to Okereafoezeke (2001), is the government’s legal requirement that for a customary law to be enforced, it must neither be repugnant to natural justice, equity, and good conscience nor be contrary to any written law. Since African traditional society is highly patriarchal, the resulting body of customary laws is highly discriminatory against women (U.S. Department of State 2005a). For example, under African customary law, a man can marry two or more wives simultaneously and can divorce any one of them without any verifiable justification (Human Rights Watch 2001). Women have no such right. Also, once married, an African woman is considered her husband’s inheritance property, comparable to her spouse’s personal property and real estate, and upon his death, she herself can be inherited by her husband’s brother (AFROL News 2004; Human Rights Watch 2003c; U.S. Department of State 2004). As an old custom, wife inheritance was a way for men to take responsibility for their dead brothers’ children and household, but the fact that it can be and is frequently forced on the woman contributes to the problem of domestic violence against women in Africa. Most marriages under customary law require the

family of the prospective husband to pay a ‘‘bride price,’’ or dowry, in the form of money or a gift to the family of the prospective wife (U.S. Department of State 2005a and 2005b). Historically, this payment indicated appreciation for the characteristics and skills of the bride and a bonding of the two

families and the extended family on both sides. Now, a bride price is frequently regarded simply as payment for a commodity and, as in any commercial transaction, entitles the husband-essentially, the buyer-to full ownership rights over his acquisition (Amnesty International 2005b). As property, many women married under customary law have no authority within what is seen as the man’s home (Amnesty International 2005a). According to human rights organizations and the United Nations, this practice subjugates women to the unbridled authority of their husbands because it reinforces the inferior status of women within customary marriages (League of Democratic Women 2005; United Nations 2002) and forces women to remain in abusive relationships (Okereke 2002). Furthermore, under customary law, husbands have numerous grounds for divorce available to them, including infidelity, infertility, adultery, witchcraft, or insubordination. The grounds available to wives are limited to impotence, excessive cruelty, and desertion. Also under customary marriage laws, spouse

abuse is not a legitimate ground for divorce. In fact, interviews by Human Rights Watch and other human rights organizations across Africa show that neither men nor women see anything wrong with a husband beating his wife every now and then (Human Rights Watch 2001, 2002, 2003c). The League of Democratic Women (2005) holds that in addition to approving of physical abuse of wives, women also perpetrate psychological violence on other women, especially in the observance of widowhood rites, which include shaving the woman’s head bald; making her sit/ sleep on the floor for a certain length of time; making her drink water used to bathe the corpse; making her jump over the corpse/grave; making her sit/sleep with the corpse; making her eat from a broken plate and not allowing her to wash the hand used to eat; expecting her to cry/wail early in the mornings; keeping her in seclusion or restricting her movement for a certain period of time; making her take an oath of innocence; and disinheriting her of property acquired with her deceased spouse. In contrast, a widower is showered with sympathy and compassion on the death of a wife. To console him, a woman could be procured for the widower even on the night of the wife’s death to keep him ‘‘company.’’ Although most African countries do not have

laws specifically prohibiting domestic violence and related gender-specific violence perpetrated against women and girls, it can be argued that the greatest problemwith regard to domestic violence in Africa is nonenforcement of existing laws and constitutional

provisions that bar discrimination on the basis of sex. By the same token, amending laws that directly or indirectly discriminate against women would be a move in the right direction.