Authors: Sally Armstrong
That’s why an intrepid collection of women human rights lawyers from Canada, Kenya, Malawi and Ghana were bivouacked in a hotel room in Nairobi when I caught up with them in 2009, putting the finishing touches on a plan that would criminalize marital rape. The Three to Be Free program targeted three countries—Kenya, Malawi and Ghana—with three strategies—litigation, policy reform and legal education—over three years to establish a woman’s equality rights and in particular her right to refuse to have sex with her husband.
When the African women in the room wondered if the model used in Canada in the early eighties to reform the law on sexual assault—which relied on rewriting the statute, educating the judiciary and raising awareness with the public—could work in Africa, Fiona Sampson, executive director of the Equality Effect, an organization that uses human rights law to transform the lives of women and girls, told them that it could indeed work, and very
well, in fact. She’d connected with the women lawyers in Kenya, Malawi and Ghana, as well as women across Canada, who were willing to work pro bono on this potentially precedent-setting initiative. Now they’d gathered to advance their ambitious agenda. They knew it would take at least two to three years to litigate an issue like marital rape through the courts and that test cases could only be mounted once they had lobbied to change the law and had built public awareness to support it.
Most people predicted a ferocious backlash to any new law that said women could refuse to have sex. When on that same trip I travelled “up country” to Kanjuu in the district of Kirinyaga, ninety minutes northeast of Nairobi, and asked men there how they felt about the proposed new law that would criminalize marital rape, I got an earful. “I own her. The dowry I paid for her means she’s my property,” said Linus Kariuki, forty, a usually soft-spoken man who sits on the town council in Kanjuu, a village of about five hundred families. He believed that the controversial proposal to make marital rape a crime in Kenya was not in keeping with African tradition. “If my wife refuses to have sex with me, I will rape her. And then I’ll beat her because she didn’t obey me.” His fury on that February day in 2009 when we met was being fuelled by the meeting in Nairobi that I had just come from.
So I asked the women of Kanjuu how they felt about the proposed law. “Women need to have the right to say no, but men here have the authority, and women have no power at all,” said Jedidah Wanjiku, twenty-nine. Six women had gathered inside her home to meet with me, not just to escape the blistering noonday sun but also because they wanted to voice their approval for the new law safe from their husbands’ scrutiny. They told me that the consequences for refusing sex were harsh and immediate.
“He’ll kick you out of the house, send you to the bush to spend the whole night outside with the kids; he’ll burn your clothes, kill your chickens and eat them and sell your goats,” Wanjiku said, and also confided that she was the only woman in the room whose husband didn’t follow these old traditions: he worked as a photographer in Nairobi and believed in women’s emancipation. Her friend Ann Wanjiku, thirty-four, said, “When you come back to the house, he [a husband] will beat you for disobeying him. After a man marries you, he owns you completely. He can do whatever he wants to you. That’s the way it is here.”
Getting rid of the dowry and therefore the sense of ownership a man has over a woman would seem a place to start, but the lawyers thought it would be easier to change the law than to tackle ancient customs. They also thought that the criminalization of marital rape would have a trickle-down effect. “Women will achieve increased equality under the law and will be recognized as persons rather than property,” said Sampson. “Furthermore, it will establish a culture of accountability for women’s human rights and improve the physical safety and security of women.”
Building public awareness was a critically important step, as evidenced by the brouhaha in the villages before the law was even written. Everyone knew the change in the law was coming eventually; there were regular radio broadcasts alerting citizens all over Kenya. But the men, for the most part, pretended it was not happening. Jedidah Wanjiku said, “We need a delegation to come from Nairobi and tell the people here to change the way we behave. They need to say that women have feelings, that a bully in the house is not good and women are the same as men. The men in the village will listen to people who come from outside.” So far, no one had come.
The sticking point for these women, as well as the reformers in Nairobi, is customary law. All three countries operate with two distinct sets of laws—the formal laws of the state, and customary laws that aren’t codified, aren’t written down and are determined by men. The customary law regarding marital rape is that neither wife nor husband can deny sex to the other unless one is “sick, menstruating, in childbirth or attending a funeral.” The chiefs enforce these customary laws, and most villagers, as well as the lawyers discussing the laws, agreed that they worked against the rights of women, either out of ignorance or in collusion with men.
Ngeyi Kamyongolo, a law professor at the University of Malawi, told me, “Customary law is what we live with. It defines a woman’s identity, how she relates to others, and it is the most accessible form of dispute resolution.” Because it regulates marriage, divorce, inheritance and property, because it’s patriarchal, biased and goes against gender equality, women pay a mighty price for obeying its rules. Elizabeth Archampong of the faculty of law at Kwame Nkrumah University said, “When you get married there’s the presumption you will give yourself up, any time, every time and all the time for sex.” And Seodi White, a lawyer from Malawi, said that violence is often a part of the marital bargain and gave me some graphic examples: a man jamming a broken piece of furniture into his wife’s vagina, another applying a python to her vagina because a witch doctor told him it would spit out coins after doing so, still another cutting off his wife’s labia majora and selling it as a charm—all these terrible acts considered legal as she is his property. In Ghana, Marceline Kabir, a nurse, told me, “When a woman tries to run away from her husband, other villagers will catch her and bring her back. Even a child of a forced marriage or a woman with wounds from female genital
mutilation will be sent back to her husband. And even if he’s drunk and abusive, the woman has no say.” She told a story about a woman in her village who ran for her life when her husband was beating her. She was caught, trussed up like a goat and brought back to her husband. What’s more, if a woman reported the rape or the abuse, she was likely to suffer more grief from the other villagers. One woman walked around for more than a year with a dislocated shoulder because she didn’t dare ask for help for fear that her husband would throw her out of the house to fend for herself if she exposed the fact that he had beaten her.
Customary law is seen as the personal law of all citizens, so no one can opt out of it. Kamyongolo gave me another example. “A man killed his wife because she refused to have sex with him. He was arrested by the state and charged with murder. But since a woman has no right to say no, the customary law court declared her behaviour provocative and found her husband guilty only of manslaughter.”
Malawi, Ghana and Kenya reformed some of their laws around sexual violence in 2006 and 2007, and marital rape was part of the package, but in each jurisdiction the parliamentarians on the review committee said, “Get rid of the marital rape section—it will never pass—our men will never allow it.” The reformers in all three countries succumbed, and the reforms went through without mention of marital rape.
The Canadian women on the Three to Be Free team had faced a similar resistance back home in Canada. Jennifer Koshan, a professor of law at the University of Calgary, told her African colleagues the story of how many male members of Canada’s House of Commons had burst out laughing, joking to each other across the floor about beating their wives, when MP Margaret
Mitchell presented the sexual-assault law-reform package in the House in 1982. “Before 1983 there was immunity for men who raped their wives in Canada for the same reasons African women are struggling with now: women were assumed to be property once married and there was implied consent because of marriage vows,” she said. Even today some judges rely on old adages like “When a woman says no she means yes.”
Mary Eberts, who has spent most of her career pursuing cases that promote equality in Canadian law, says, “Marital rape is one of the toughest barriers to the full equality of women, conceptually at least, since it is a remaining incident of married women’s inferior, or non-existent, legal position. I do not, though, see that it is the only keystone to change. Each barrier will still have to be taken, one by one.” Eberts, too, believes that it’s often easier to change the jurisprudence first, because there you are dealing with educated elites who have less allegiance to “the way it was” in many areas than do the people who hold “custom” dear. “They also know in their heart of hearts that changing the jurisprudence gives them the best of both worlds: they can look progressive without necessarily affecting real change, because changing the jurisprudence is not the whole story. There remain enforcement issues, i.e., maybe the law will be changed on the books but won’t be enforced with vigour. But for those to whom symbolism is important, it seems like a victory.”
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In Nairobi that February, just three years ago, the women sat like a posse around the long meeting table, creating their strategy to change the law, sharing the stories of rape and domestic violence
that brought authenticity to the project, poised to pounce when the time is ripe. They debated the wording of the new statute, parsing every sentence, trying out the vocabulary. Were the language and interpretation broad enough? What about consent—was the definition precise enough?
Effie Owuor, a recently retired judge who is a driving force for women’s rights in Kenya, blazed the trail as the first woman magistrate (officiating in a lower court), then as the first woman judge. She was currently the chair of her country’s task force on sexual offences. She said, “It’ll be difficult for a judge in Kenya to convict on marital rape in view of the clear omission of marital rape in the code.” She suggested it might be better to catch the person with an assault charge rather than try to make sexual violence stick.
Other women at the table asked this icon of women’s progress questions such as, “How would you deal with marital rape when it’s a child in a forced marriage?” The no-nonsense judge replied, “I would put it under the Children’s Act and say ‘customary law is in conflict with written law. This is a child. I argue for the child. I don’t want to hear any other argument.’ That’s all I would say.”
And if it was an adult rather than a child?
“I’d use the ‘person’ argument. Move away from the issue of marriage. Tell them, ‘She didn’t consent to a beating through marriage. It is nonsense to say there’s consent here.’ I’d go with that until I convict.”
The judge said she’d already seen the signs of change. “It used to be that a woman’s role was to read the closing prayer at the village meeting. Not anymore. Change isn’t coming from on high down. It’s coming from the grassroots up.”
The discussion at that table was history in the making. A lawyer from each country described the existing laws in Ghana,
Malawi and Kenya, as well as in Canada. Then together they dissected each one. They thrashed out the details—where to delete a section or add an amendment. Judge Owuor reminded them, “We need to remove certain sections of the penal code such as ‘this does not apply to married women.’ ” Then she advised that they sneak the marital rape law into the middle of the code and presume that most MPs wouldn’t read the whole thing. “Or wait for a day when the members who are against it are not in the Parliament.”
Some felt that they needed to tread softly with language, dressing up the law with phrases acceptable to villagers—for example, positioning it from a perspective of caring about and protecting women rather than using words like
marital rape
, and using phrases seen to be free of violence rather than to be equal. “Play on humanity,” suggested Seodi White. “Use non-politicized language such as ‘a man who loves his wife wouldn’t beat her.’ ”
That approach didn’t get much support at the table.
Together these women underscored the consequences for a woman who reports violence: she may have to get up at four o’clock in the morning and pay bus fare out of scant resources to get to the court in the city. She gets home at eight at night, after waiting her turn in the court and catching a bus back to the village; her children are hungry, and it’s too dark to plant the fields, which is the work she needs to do to grow food for the family. Her case gets postponed over and over again.
“No wonder she gives up,” said Judge Owuor. “When you go to court, the social worker is there collecting your children because you aren’t at home taking care of them and your man is next door carrying on.” They all agreed that a woman can’t have access to justice without looking at these issues. “Sexual assault
and abuse affect us physically, but also socially and emotionally; it affects families, jobs, the entire country,” said Judge Owuor.
Her views were backed up by the Kenyan member of parliament Millie Odhiambo, who said, “This new law being proposed will not be very well received. They’ll say it’s not African style.” But she also said, “Domestic violence used to be a topic no one would talk about; now, people are being prosecuted left, right and centre.”
Seodi White summed up the conundrum. “The issue is about a law that gets into the blankets, the bedroom. We’re not criminalizing all men. We’re criminalizing the act—and the bad men. It’s doable. It’s a process we need to negotiate with the general public, hear their views, give a little, take a little. Somewhere along the line, we’ll get it right.”
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When I asked Fiona Sampson in August 2012 how the reform process was going, she said, “We have been researching the treatment of consent in sexual assault law and discovered a sticking point relating to the legal treatment of marital rape, i.e., wives are understood to have consented to any/all sex upon marriage.” They have scheduled another strategy workshop to vet the research completed to date, and to decide whether next steps will be more public legal education and awareness-building, a formal request for marital rape to be written into the penal code, or litigation, which, if successful, could force the hand of the court.