Patriarchal values of Victorian Britain have heavily influenced the legal framework of erstwhile British colonies across Asia, Africa and beyond.  

Many of the countries that gained independence from Britain and other imperial powers post-World War II have adopted the legal and administrative frameworks of their colonizing nations.  It is unsurprising that many of the biases - hierarchies on the basis of gender, class, or race that existed in 19th Century Europe - have seeped into the various pillars of governance of our countries.  This is evident across many strata, including the police, military, educational systems, and the law.  The omission of marital rape as a criminal offence in many former colonies of Britain, for instance, is a legacy of institutionalized gender norms of the Victorian society.  As per latest data, only 14 African nations have specific laws criminalizing marital rape.

Firstly, I admit that the origin of this legal oversight is no excuse for inaction in the post-independence era.  Nevertheless, I argue that it is important to highlight the foreign origin of these legal misgivings, as many a time, efforts to address institutional injustice towards women and other marginalized groups are met with opposition from a significant section of the society who believe such change would harm the culture and traditions of the local society or nation.  The fact that the very roots of many of our laws lie in the same policies that led to our enslavement and colonization should liberate us from such misgivings.

A second important consideration relates to re-visiting our pre-colonial histories.  Works by African scholars such as Ifi Amadiume and Oyèrónkẹ́ Oyěwùmí throw light on the many diverse gender ideals present in pre-colonial Africa, including matriarchal, matrilineal, and non-gendered societies.  For instance, Dr. Oyewumi’s research on the history and traditions of Yoruba people of West Africa reveal that the Yoruba were, in fact, a non-gendered society.

On the Yoruba, she writes, “kinship roles and categories are not gender-differentiated.  Significantly then, power centers within the family are diffused and are not gender-specific.”

Recently, international media reported the resurgence of an age-old practice in Tanzania, where women of the tribe Kurya marry each other.  The tradition called Nyumba ntobhu is an arrangement within the patriarchal Kurya tribe to allow husbandless women to keep their property which, once married, would be transferred to the husband and sons.  Though same-sex marriage is not allowed under Tanzanian law, these unions are respected within the Kurya communities.

“They (the women) realize the arrangement gives them more power and freedom … It combines all the benefits of a stable home with the ability to choose their own male sexual partners” writes Dinna Maningo, a local reporter.

How then are colonial hetero-patriarchal laws that many a time undermine women’s dignity and marginalize minority groups supposed to be guarding ‘African values’?  

Colonial-era British laws

Following the argument of scholars who identify diverse gender norms and social values in African society, it is essential to reject the imperial project - that is relevant even today - of dividing the world into the ‘civilized’ west and the ‘primitive’ non-west.  Critical analyses of histories of the colonial powers is necessary to dispel such notions.  For instance, as per the 1860 British Law of Coverture, a husband became legally responsible for his wife’s actions upon marriage, as women had no independent legal existence.  This meant that men could beat/chastise their wives for disobeyal.  The infamous London byelaw of 1895 imposing a curfew on wife beating from 10pm to 7am is another example of the sexist laws of colonial Europe, for husbands were banned from beating their wives during this interval because it would disturb their neighbors’ sleep. These examples demonstrate the social and legal approval of domestic violence in colonial Britain. Unfortunately, many of the modern-day legal traditions of former British colonies were formulated in 19th century Europe and require critical revision.

Marital rape: Why is it vital to criminalize it?

The most common form of violence that women face across the world does not emanate from the stranger prying in the dark alleyway, but rather, from men with whom they are familiar - mostly from their close circles, the largest category within this subset being intimate partners.  According to a 2012 report by the World Health Organization (WHO), Intimate partner violence is “one of the most common forms of violence against women and includes physical, sexual, and emotional abuse and controlling behaviors by an intimate partner.”  The definition of sexual violence, obviously, includes marital rape.  A recent World Bank publication estimates that one in three African women experience intimate partner violence, yet over half of African countries fail to recognize forced sex within marriage as a criminal offence.

Consent

It is now near-universally accepted that no person - man, woman or gender non-conforming - should be subject to sexual contact without their fully informed and enthusiastic consent.  How, then, does a woman’s right to her own body get abridged upon marriage? To not criminalize marital rape amounts to depriving women of the fundamental right to their own body and sexuality.  One of the most crucial steps in securing women’s equity and well-being in society is to ensure they have access to a life of dignity.  Any law that defies this violates the tenet of equality that has been written into sovereign constitutions, as well as the UN Declaration of Human Rights.  Having to give away ownership of one’s body upon marriage is utterly sexist and patriarchal.

The United Nations Declaration on the Elimination of Violence against Women (1993) specifically mentions marital rape as a criminal offence.  It is disappointing that nearly 25 years later, many countries are yet to make this essential legal amendment.  Nevertheless, the debate is slowly gaining momentum; most recently in Uganda, Malawi, and Kenya.  Activists and organizations across the continent must adopt awareness-building around the notion of marital rape as part of their individual and global agendas to secure justice for women.   A practical way of going about this would be to file Public interest litigations (or the equivalent of it in respective countries) to the highest court, urging the judiciary to recognize marital rape as a violation of a woman’s fundamental right to equality and life of dignity. As the experiences of countries where this law has been implemented show, criminalization itself may not be the panacea.  However, it will mark a mighty step forward.

 

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