By Takyiwaa Manuh
The experience of using law to address the issue of domestic violence in Africa contains both positive and negative lessons for gender-equality campaigners, says Takyiwaa Manuh.
The annual mobilisation of women around the world around the theme of "16 Days of Activism against Gender Violence" from 25 November - 10 December 2007 represents a tremendous global effort to increase awareness of violence against women in all its forms. In light of the 2007 theme - demanding implementation, challenging obstacles - this article looks at the issue of domestic violence from the perspective of African experience, and examines the impact of attempts to address it by legal means. It poses three questions:
This article is the first in a series on openDemocracy marking the "16 Days of Activism against Gender Violence" from 25 November - 10 December, an annual mobilisation aimed at heightening global awareness of violence against women:
A new agenda
The past two decades have witnessed heightened activity by women's organisations and movements in several African countries to promote women's rights by redressing a range of discriminatory practices against women and unequal gender relations in public and domestic life, which work to prevent women from exercising their full rights as citizens. The link between the public and domestic arenas is important here, for (as Amina Salihu and her colleagues noted in a 2002 memorandum on women's citizenship rights in Nigeria), women's experience of citizenship is multilayered and interconnected: what happens at the level of the domestic arena is in turn carried over to what is generally called the public space.
The phenomenon of violence is only one aspect of the discriminatory practices and unequal relations women in Africa face, but it is a significant and widespread one. This is most shockingly on display in conditions of war, where (as in the current conflict in North Kivu province of the Democratic Republic of Congo, for example) women have been subjected to systematic assault and abuse. It is also apparent in more "normal" circumstances, such as the campaign for the presidential elections in Kenya in December 2007, where several women candidates have been targeted in an effort to prevent their campaigns from penetratating the largely male spaces of decision-making and national life.
The African Platform for Action (Dakar declaration) of 1994 was a landmark document in highlighting the problem of violence against women on the continent. Before and since, however, such violence has often gone unreported, and until recently there were across Africa few supporting pieces of legislation or official practice that could be used to challenge it. True, several states had signed and/or ratified international conventions and treaties such as the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) of 1979 or the African Charter on Human and Peoples' Rights, but these had not been incorporated into domestic law.
The protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa was ratified by the required fifteen member-states, and came into force on 26 November 2005. It places an obligation on state-parties to take measures to address not only violence against women but also other aspects of women's rights: in public or private life, in peacetime and during periods of war or conflict. It also explicitly includes marital rape and other forms of forced or unwanted sex.
Women activists have been emboldened by these developments to push states as far apart as Mauritania and Rwanda to enact legislation addressing gender-based violence; Sierra Leone is the latest country to have successfully enacted legislation (although the practice of female genital mutilation has not yet been outlawed). Uganda, Kenya, Nigeria and Ghana have also attempted to pass domestic-violence laws; here, however, the experience has been disparate.
Four countries, four experiences
In Nigeria, a draft domestic-violence bill prepared by the Legislative Advocacy Coalition on Violence against Women has been lodged in the house of representatives (the lower house of parliament) since 2003, but has not even been listed in the order paper for hearing. The provision on marital rape, which some view as "western" and "against the culture of Nigeria" has been invoked to explain the slow progress of the bill; settling it would, it is claimed, allow the bill to be passed into law. The contradiction here is that Nigeria has already ratified the protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, which prohibits marital rape without any reservations.
The Kenyan experience highlights a different face of misogyny. A sexual-offences bill that seeks harsher penalties for perpetrators of sexual violence became mired in controversy when a legislator (male, as were 204 of the 222 expected to vote on the bill) alleged that some provisions would criminalise men's advances towards women. Civil-society groups demanded that their votes should be transparent; when gun-toting policemen blocked activists from entering parliament to press this demand, they chanted anti-rape songs and chanted at the police: "Kill us today so that we do not get raped tomorrow!"
The Ugandan situation represents a further interesting contrast. In December 2003, a domestic-relations bill was tabled before parliament, containing a host of provisions to deal with discriminatory laws and practices in marriage, divorce, inheritance, property ownership, and violence and equality within marriage and the family. Sylvia Tamale charts what happened next: the bill reached the committee stage in early 2005, only to generate massive controversy that stretched beyond parliament to the media and the streets (see "The Right to Culture and the Culture of Rights: A Critical Perspective on Sexual Rights in Africa", Feminist Legal Studies [forthcoming]). A scathing attack on the bill's contents by the legal and parliamentary affairs committee was echoed in a demonstration on 29 March 2005 by hundreds of women (the majority of them wearing the hijab) in the streets of Kampala. They described the bill as a "coup against family decency", and swore to oppose its passage. A few weeks later, parliament shelved the bill for "more extensive consultations." When President Yoweri Museveni declared during the election campaign in February 2006 that "it (the domestic-relations bill) was not urgently needed", the debate was effectively closed. It was a severe setback for Uganda's women's movement.
A more positive legislative outcome was witnessed in Ghana. Here, a domestic-violence bill was subject to more than three years of extensive national consultations led by the government ministry of women's and children's affairs; the Domestic Violence Coalition, formed to support the passage of the bill, also played a key role in the process. There was early resistance from a surprising source, the then minister of women's affairs (who argued that the law would "destroy families"); and the coalition's demand for the repeal of S42(g) of the criminal code (the so-called "marital-rape exemption" also caused bitter acrimony. Those opposed to the bill portrayed it and its gender-activist supporters as purveying "foreign" ideas that threatened Ghanaian cultural beliefs and practices - in particular, the sanctity of marriage and men's rights within it.
This reaction highlighted the lack of understanding of gender-based violence as an equality issue that surrounded the debate over the proposed legislation in Ghana. Even within the state and among the general public, fixed and regressive attitudes remained prevalent - that women in social life and within marriage had an inferior status, and that women were to blame for provoking acts of violence by the way they dressed or for being unfaithful.
In the event, the Domestic Violence Act was passed on 21 February 2007, without the express repeal of S42(g), although with the provision that "(the) use of violence in the domestic setting is not justified on the basis of consent." However, within a few weeks of the passage of the law, the statute law commissioner, acting on his own initiative, removed the offending S42(g) from the statute-book.
This new legislation has been hailed as a triumph, but much work remains to be done to ensure that it is fully implemented. This will require - so activists and human-rights advocates in Ghana argue - a comprehensive, nationwide domestic action plan and the provision of necessary human and budgetary resources (partly in light of the fact governments have in practice relied on donors to fund gender work in Ghana). Some aspects of the social environment - in which most Ghanaian women still live in poverty, depend on men, and are surrounded by attitudes and codes that tolerate oppressive behaviour or allow serious violations of women's rights to be "settled" without justice or accountability - reinforce the argument that implementation mechanisms are vital.
The next stage
Violence, including domestic violence, deprives women of their ability to achieve their full potential by threatening their safety, freedom and autonomy. This variety of African experiences shows that the formulation of laws is an important instrument in countering this threat; but it is not enough to eliminate gender-based violence or (as in the Ugandan case) to ensure its general acceptability, even among women. Rather, multiple strategies and approaches are needed that recognise the differing interests, lived realities and contradictions among women of different class, religious and cultural backgrounds; and to find ways to express proposed changes in language and practices that better approximate women's lived realities and experiences.
This article was originally published in the independent online magazine www.opendemocracy.net, as part of coverage of 16 Days Against Gender Violence. It is republished by kind permission of the author, and openDemocracy. You can view the blog at http://opendemocracy.net/blog/5050
Takyiwaa Manuh has been the Director of the Institute of African Studies, University of Ghana, Legon since 2002 and is an Associate Professor at the University of Ghana.
This article is reprinted with permission from Pambazuka News, published by Fahamu. Fahamu aims to contribute to social movements and social change in Africa through information and communication technologies, education, media, publishing and advocacy. Fahamu is headquartered in Oxford, with regional offices in South Africa, Kenya and Senegal.