AFRICANEWS

Malawi

Women press for legislation of marital rape

Women's rights

Participants at a recent workshop of the Malawi Chapter of Women In Law in Southern Africa (WILSA) debated whether marital rape should be made a criminal offense, with some very interesting arguments on both sides.

Women in Malawi are pressing for the enactment of a law that will make marital rape a criminal offence punishable by jail sentence.

The Malawi Chapter of Women In Law in Southern Africa (WILSA) this week held a gender workshop in southern Malawi where delegates, among other things, commenced drafting a proposed bill that would criminalise marital rape.

Seodi White, Executive Director for WILSA Malawi, said in an interview that their proposal on marital rape would reduce the occurrence of this form of domestic violence. White attributed the rampant incidence of marital rape to the silence of Malawi's laws on the issue.

"Courts have generally viewed [the incidence of] rape, as created under the penal code, as not applying to married couples," she said. "Based on our cultural believes, the consent to marriage has been recognised as an extremely prevalent form of abuse. "

White described marital rape as a conduct that abuses, degrades, humiliates, and violates the integrity of a spouse. "The exemption of husbands from prosecution under the offences of rape, therefore, totally fails to provide equal protection for all women, " she says.

The conference, at which the issue was discussed, drew participants from the judiciary, police, media, non-governmental organisations, the Malawi Human Rights Commission, and the Ministry of Gender.

"Rape in the family? So I can rape my own wife? This is a new development," many participants at the workshop asked in amazement.

But Justice Duncan Tambala, a judge at the Malawi Supreme Court of Appeal who attended the conference, said that marital rape, spousal battering, and emotional abuse are not against the laws of Malawi. "These are not offences under the penal code as adopted from the English law, which forms the basis of our law. As for marital rape, I have problems accepting that such an offence should be created.

"The offence would be inconsistent with the continued existence of marriage," said Justice Tambala when he officially opened the two-day workshop. "A person cannot be punished for having sex with a spouse because by entering into marriage, each spouse is taken to have consented to sexual intercourse with the other spouse during the existence of their marriage. Then this means that there cannot be rape be rape between spouses while their marriage subsists."

Malawians, especially men, have expressed different feelings about the issue, with some supporting the proposed bill, while others viewing it as senseless.

Chief Ndanga of Mulanje district in southern Malawi said such a piece of legislation will change the behaviour of most husbands who force their wives to have sex with them.

"Indeed such a law must be enacted," said Ndanga. "Some men are beasts. I know sex is supposed to be enjoyed by both the man and the woman. This therefore means that where one forces the other, one is already at a disadvantage. These things are in families but the problem is, who can go and report about [it]?"

One Presbyterian minister, however, said such a law should not be legislated because the Bible says husbands and wives should not deny each other sexual services in marriage.

Pastor Semion Ngana of Ntcheu rural district in central Malawi observes that, "the issue is very complex," adding that there is nothing like forced sex in the family. "I will cite the Bible, so it speaks for me. Doesn't the Bible say men and women should be submissive to each other? What does it mean when it says the body of the man belongs to the woman and so is the woman's? It is strange how we are trying to bring up these strange issues. What I know is that sex is holy as long as it is in the family."

But Sam Kandodo Banda, a legislator of the opposition Alliance for Democracy Party, said that if the marital rape proposal would be tabled before Parliament, he would vigorously support it. He said loopholes in Malawi's statutes on gender issues are another element that will make women suffer.

"We should strive to search for ways in which age-old practices can be modified or eased in order to reduce the humiliating impact on women even if it means enacting new pieces of legislation," said the lawmaker.

Some women have said, however, that even if such proposals would be passed into law, it will not change much on the ground. The women admit to having suffered psychologically for being forced to have sex, but point out that if they bring such issues to courts it would cost them a lot.

Marina Thomson, a small-scale food vendor in the commercial city of Blantyre, hints: "That is not new. The problem with that [legislation] will be two-fold: firstly, the moment you report that your husband raped you, automatically that is the end of the family; and then you have to think of how you are going to look after the children."

She adds: "Then one has to think about how society as a whole is going to view you as a woman. If you can take that issue to the marriage counsellors, they will just say something like, 'don't you know sex is part of marriage?' And you go back a fool of some kind. Surely, I cannot go out to say 'I was raped by my husband," Thomson stressed.

Malawi WILSA's White admits that even if such a proposal is legislated, some women will continue suffering in silence for fear of breaking up their marriages.

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