In the year 2023, a person can rape their spouse and face no legal repercussions. The notion that anyone especially someone's spouse could rape them and not be held legally responsible to most people would be unbelievable. The reality of it is that marital rape is still legal in many nations especially African nations which will be the focus from here on out. The nations that were examined in-depth are South Africa, which does have a marital rape law, and Nigeria, which does not have a law explicitly making marital rape illegal. An in-depth look at marital rape laws or lack of them in South Africa and Nigeria will be used to answer one question. Does the existence of a marital rape law have a positive impact on the security of women in an African nation?
Creating Context: Marital Rape in Africa
In order to understand the specifics of marital rape in Nigeria and South Africa, it is necessary to take a look at the continent of Africa as a whole in order to give context to the situation. To understand marital rape laws in Africa, one first has to understand how and why marital rape occurs in Africa. The primary reason husbands will commit marital rape is after their wives have given birth and when their wives refuse sex due to not yet being fully healed, concerns about infections, or they just don't want to have sex their husbands will force them to have sex. This is in part due to a cultural phenomenon in Africa that a husband cannot rape his wife because husbands are seen as being entitled to sex with their wives regardless of what their wife actually wants. This then leads to women being encouraged to solve things like marital rape, which is seen as a domestic issue in the family through mediation. Women are further encouraged to deal with marital rape in the family because their husbands are typically the primary breadwinner and putting them behind bars only causes women more issues. Having acknowledged those cultural factors, it goes a long way in explaining why marital rape laws are not commonplace in African nations. Around half of all sub-Saharan African countries have no law that specifically states a man cannot force his wife to have sex. In fact, there are three nations with laws preventing women from bringing rape charges against their husbands. Although, there are some nations that have laws against marital rape. South Africa was in fact the first nation to do so back in 1993 with twenty countries following suit. Those laws have varying degrees of punishment which can include fines and prison time which are dependent upon the country. However, just because those laws and punishments exist does not mean that people in these nations actually see marital rape as a crime. In regard to the changes made to existing rape laws that had previously made husbands exempt from being charged with rape, there were two specific changes the first being that marriage was no longer a blanket form of consent by women and that "a husband may be convicted of the rape of his wife" (Look).
Security and All of Its Components
Analyzing the security of women in regard to marital rape will start by examining the existing laws on marital rape in South Africa and laws on rape in Nigeria. Additionally, the punishments and their severity for an individual convicted of these crimes will be covered. Then, the most recent national action plans for Women, Peace, and Security in Nigeria and South Africa will be examined. This will be done to see what each nation has said they will do in regard to women and security. From there the security of women will be assessed by examining laws and rates in regard to rape, domestic violence, and femicide in South Africa and Nigeria. Assessing this data will also be helpful in determining if Nigeria and South Africa are actually implementing any parts of their national action plans. Additionally, the aforementioned cultural attitudes of the continent of Africa as a whole will be examined to address their potential impacts on the implementation of marital rape laws and the prosecution of marital rape cases.
Legalities of Marital Rape in Nigeria and South Africa
In South Africa, up until 1993, a husband could legally rape his wife. That was changed under section 5 of the Prevention of Family Violence Act of 1993, which made it so a husband could be convicted of raping his wife. Those convictions could now take place because being married was no longer a valid criminal defense for rape. These changes in South African law were bolstered by the Criminal Law (Sexual Offences and Other Related Matters) Act of 2007 also known as SORMA, which created specific legal definitions of rape in which rape is defined as someone who commits an act of unlawful and intentional sexual penetration with an individual who did not give consent. Additionally, SORMA allowed a longer reporting window for victims of sexual offenses with the understanding of the psychological impact of rape as well as the fear victims may have about being revictimized or ostracized by their communities if they report. South Africa has a Sexual Offences Court, which is designed to deal with sexual offenses and each member of the court has been specially trained to work with victims of sexual violence. In regard to punishment for these offenses, it is up to a judge upon conviction, but it is worth noting that in several cases judges are seen as having been lenient instead of making examples of defendants to show that marital rape is not tolerated and will be punished (Yebisi & Balogun).
Nigeria has no law against marital rape. This is due to the fact that marriage is seen as a blanket form of consent for all sexual activity, which is based on previous British law as Nigeria was a British colony (Philips-Kemenanabo). Nigeria does have rape laws. Before going into those laws, it is necessary to note that because Nigeria has multiple states with different religious makeups their laws differ due to the region. In the north, criminal law is based on the Penal Code Act which is based on Sharia Law. In the South, criminal law is based on the Criminal Code Act. The Penal Code and Criminal Code, definitions of rape are similar in that rape is when a man has sexual intercourse with a woman without her consent; gains consent through force or threat of violence; gains consent by pretending to be the woman's husband and that is why the women consents. Although the Penal Code adds that rape also includes sex between an adult man and a woman who is less than fourteen regardless of if consent is given or if the woman is not mentally capable of consenting then it is rape. While the Criminal Code uses the term 'carnal knowledge,' which is about a sexual encounter that takes place outside of marriage. Both the Penal Code and Criminal Code state that unwanted sex between a husband and wife is not illegal. In regard to punishment in Nigeria a person convicted of rape can be imprisoned for life regardless of whether or not they were whipped (Yebisi & Balogun).
Impact of Women, Peace, and Security
Moving to Women, Peace, and Security national action plans starting with South Africa. South Africa's most recent national action plan is from 2020 and has an implementation period from 2020 to 2025. At the time this plan came out South Africa was ranked 17 out of 153 on the Global Gender Gap Index. This plan has several different objectives including violence prevention for women, girls, and gender non-conforming people, promoting a safe society by operationalizing the WPS agenda, and ensuring the participation of women in peace and security processes at all levels. Additionally, the plan seeks to create an annual National Policy Forum with representatives from the government, academia, civil, and private society to evaluate the progress that has been made toward the national action plan. To implement this national action plan, South Africa has a proposed budget of 560,000,000 ZAR (South Africa).
Moving to Nigeria's most recent national action plan which is from 2017 with the implementation period being from 2017 to 2020. As of 2020 which was the final implementation year for this plan Nigeria was ranked 128 out of 153 on the Global Gender Gap Index. The national action plan had five pillars: prevention and disaster preparedness, protection and prosecution, participation and representation, crisis management, early recovery, post-conflict reconstruction, partnerships, coordination, and management. All five pillars had their own corresponding set of indicators to determine the progress made toward each pillar. For this national action plan, Nigeria had no set budget for implementation (Nigeria).
Data and the Reality of Women's Security in Nigeria and South Africa
Map 1
Estimate of Martial Rape Victimization from 2015
Source: WomenStats
Map 1 shows the estimated prevalence of marital rape as of 2015 the two countries that will be looked are Nigeria which is labeled with a blue N and South Africa which is labeled with a blue SA. That same labeling will be used on all other maps going forward. Onto the map itself which shows that both South Africa and Nigeria have higher rates of prevalence for marital rape. In regard to Nigeria, this can be explained through the fact that marital rape is not illegal therefore there are no legal routes to inhibit marital rape. It is worth noting that part of the reason marital rape is legal is that women are seen as property in Nigeria, which is displayed through the use of bride price Nigeria is religious, so religion has been used to explain why marital rape is okay (Philips-Kemenanabo). Moving on to South Africa which made marital rape illegal back in 1993 there is a cultural phenomenon that may be useful in understanding why marital rape is still prevalent. There is a cultural practice in South Africa called ukuthwala which is when women and young girls are carried away or abducted for the purpose of marriage. There are three types of ukuthwala in the first type: the abduction is fake, and the woman is pretending to be kidnapped in the second and third types violence, coercion, and rape are used. The practice of ukuthwala has been around for decades in South Africa but was not publicly discussed until 2009 which is sixteen years after marital rape was made illegal (Karimakwenda). This means that marital rape laws were created and implemented without taking that practice into account which means current marital rape laws are not equipped to tackle ukuthwala. Finally, it is worth noting that since this data is from 2015 that the prevalence may have changed.
Map 2
Adequacy of Domestic Violence Laws Overall from 2020
Source: WomenStats
Map 2 is from 2020 and looks at all domestic violence laws in a country to determine their adequacy. For South Africa, their domestic violence laws have been deemed mostly adequate. On the other hand, Nigeria's domestic violence laws have been deemed seriously deficient. These deficiencies can be explained through the fact that culturally women are seen as their husband's property and are thus expected to surrender to and be open to their husband's needs. Women are expected to meet their husbands' needs psychologically, physically, and sexually if they don't meet those needs then men will attempt to right the order through violence or coercion (Nwabunike and Tenkorang). Not only do those cultural expectations of women explain why domestic violence laws are not up to par but further explain why marital rape can occur in Nigeria.
Map 3
Murder Rate of Women of All ages from 2019
Source: WomenStats
Map 3 shows the murder rate for women of all ages in 2019. For both Nigeria and South Africa, the frequency is high. This shows that in both nations there is not a high value for women's lives and that the legal system is not tackling the high rate of deaths for women in these countries. This data is from four years ago so these numbers may have changed, and new laws could have been implemented to seek to prevent the deaths of women.
Map 4
Societal Sanctions for Femicide from 2016
Source: WomenStats
Map 4 looks at the societal sanctions for femicide from 2016. Both South Africa and Nigeria have considerable societal sanctions for femicide. This is an interesting piece of data considering Map 3 shows both nations have high murder rates for women of all ages. This data is from seven years ago so societal sanctions may have changed in both countries for better or worse.
Does the existence of a marital rape law have a positive impact on the security of women in an African nation? The answer is no marital rape laws do not have a positive impact on the security of women in an African nation. Despite South Africa's marital rape law marital rape is still present at a high rate, domestic violence laws are not fully adequate, and women are being killed at high rates despite the fact there are high societal sanctions for femicide. All of these factors are on par with what the data shows for Nigeria which doesn't have a marital rape law. This does not mean that marital rape laws are the problem and that they make women less secure. The laws can only do so much especially if they don't cover all ways marital rape may occur or if the societal view is that marital rape is not real. Making marital rape illegal is a step forward but a cultural shift needs to happen if marital rape is going to be taken seriously. Cultural shifts cannot be forced they take time and that means that for marital rape to be seen as the problem it is people will have to realize that women are more than property and husbands are not entitled to whatever they want from their wives.
By AB
References:
[1] Karimakwenda, Nyasha. "Deconstructing Characterizations of Rape, Marriage, and Custom in South Africa: Revisiting the Multi-Sectoral Campaign Against Ukuthwala." African Studies Review 63.4 (2020): 763-81. ProQuest. Web. Accessed 22 April 2023.
[2] Look, Anne. "In Africa, Criminalizing Marital Rape Remains Controversial." VOA, Voice of America (VOA News), 12 Nov. 2013, https://www.voanews.com/a/in-africa-criminalizing-marital-rape-remains-controversial/1786061.html. Accessed 15 April, 2023.
[3] "Nigeria." 1325 National Action Plans, 2017, http://1325naps.peacewomen.org/index.php/nigeria/. Accessed 23 April 2023.
[4] Nwabunike, Collins, and Eric Y. Tenkorang. "Domestic and Marital Violence among Three Ethnic Groups in Nigeria." Journal of Interpersonal Violence, vol. 32, no. 18, 2015, pp. 2751–2776., https://doi.org/10.1177/0886260515596147. Accessed 22 April 2023.
[5] Philips-Kemenanabo, Nicole. "Why Does Nigerian Law Fail to Criminalise Marital Rape?" Afrocritik, 10 Feb. 2022, https://www.afrocritik.com/why-does-nigerian-law-fail-to-criminalise-marital-rape/. Accessed 22 April 2023.
[6] "South Africa." 1325 National Action Plans, 2020, http://1325naps.peacewomen.org/index.php/south-africa/. Accessed 23 April 2023.
[7] "WomenStats Map." WomanStats Maps, https://www.womanstats.org/maps.html. Accessed 22 April 2023.
[8] Yebisi, Oyebanke, and Victoria Balogun. "Marital Rape : A Tale of Two Legal Systems | Obiter." Journals.co.za, 2017, https://journals.co.za/doi/10.10520/EJC-d1feceba9. Accessed 16 April 2023.
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