The Act recognizes customary marriages solemnized in accordance with customary law. Customary law is defined as, “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.” Both monogamous and polygamous marriages are recognized under the Act. Although registration of a customary marriage is peremptory, a failure to register a customary marriage does not affect the validity of that marriage. The definition of customary law in this Act does not apply to Hindu and Muslim customary marriages.
The Act defines and prohibits human trafficking. The PCTP Act adopts a broad definition of human trafficking, namely, that a person is guilty of human trafficking if he or she delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person, through various means, including the use of force, deception, or coercion, aimed at the person or an immediate family member for the purpose of exploitation. Furthermore, a person who adopts a child, facilitated or secured through legal or illegal means; or concludes a forced marriage with another person, for the purposes of exploitation of that child or person, is guilty of an offence. The PCTP Act criminalizes various acts that constitute or relate to trafficking in persons and imposes harsh penalties, including life imprisonment for trafficking in persons; 15 years’ imprisonment for engaging in conduct that causes a person to enter into debt bondage or benefiting from services of a trafficking victim; and 10 years’ imprisonment for facilitating trafficking. The PCTP Act also provides for severe fines and enables the state to confiscate the assets of traffickers.
The Act abolishes the customary rule of primogeniture in as far as it applies to the law of succession and further extends the application of the Intestate Succession Act to the deceased estates of Africans who die intestate (without a will) and provides guidelines for interpreting the Intestate Succession Act in order to give effect to the new provisions and to ensure the protection of the rights of women to inherit.
Section 51 of the Act provides for certain mandatory sentences and sentencing guidelines which a regional court or high court may impose and consider for, inter alia, rape and compelled rape (minimum sentences may be reduced for compelling and substantial circumstances). The Act specifically provides that when considering imposing a sentence in respect of the offence of rape, a court must not consider the following circumstances as constituting compelling circumstances to deviate from the minimum sentencing guidelines: the complainant’s sexual history, lack of physical injury, culture or religious beliefs of accused or any relationship of the parties prior to assault.
The Act was adopted to comprehensively and extensively deal with all sexual offences under a single statute. The act, inter alia, repeals the common law offences of rape and replaces it with an expanded definition of rape applicable to all form of sexual penetration without consent irrespective of gender and repeals other common law offences related to indecent assault and penetration and replaces them with broader statutory offences.
The Sexual Offences Act recognizes in its preamble that women are particularly vulnerable to becoming victims of sexual offences, particularly adult prostitution. The Act prohibits prostitution, the operation of brothels, and other activities related to prostitution and brothel-keeping.
The Domestic Violence Act and the Domestic Violence Regulations promulgated thereunder offer complainants (any person in a domestic relationship who alleges she/he is the subject of domestic violence, including a child in the care of the complainant) the maximum protection possible from domestic abuse by imposing obligations on the police and other organs of state to prevent and assist the elimination of domestic violence (defined as including, inter alia, sexual abuse, physical abuse, stalking and harassment). Persons deemed to be in a domestic relationship include, inter alia, persons married by any law or custom, persons living (or who recently lived) together, parents of a child and parties in a romantic or sexual relationship. The Act allows any complainant to obtain a protection order against a respondent by application to the court and allows for interim orders to be granted without the respondent having received notice of such application in certain circumstances. When granting a protection order the court must make an order for the arrest of the respondent and may make an order to confiscate any weapons in the respondent’s possession.
The purpose of the Promotion of Equality and Prevention of Unfair Discrimination Act is to give effect to section 9 of the Constitution of the Republic of South Africa, read in conjunction with item 23(1) of its sixth schedule. The effect of this is to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith. Section 8 expands on the provisions of Section 9 by setting out, without limitation, the following specific examples of such prohibited discrimination: (a) gender-based violence; (b) female genital mutilation; (c) the system of preventing women from inheriting family property; (d) any practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child; (e) any policy or conduct that unfairly limits access of women to land rights, finance, and other resources; (f) discrimination on the ground of pregnancy; (g) limiting women’s access to social services or benefits, such as health education and social security; (h) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons; and (i) systemic inequality of access to opportunities by women as a result of the sexual division of labor. The Act further regulates which party will bear the burden of proof in discrimination cases and further sets out which factors should be taken into account in determining whether discrimination is fair or unfair.
Section 9 of the Constitution provides for the right to equality. Section 9(1) provides that "Everyone is equal before the law and has the right to equal protection and benefit of the law." Section 9(3) states that "The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth". Section 9(4) provides that "No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination." Finally, subsection (5) provides that "Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair." This includes discrimination on the basis of gender, sex or pregnancy.
if the continuation of the pregnancy is a serious threat to the mother’s health; (iii) if there is a serious risk that, if the child is born, it will suffer from a physical or mental defect that will cause the child to be severely disabled; (iv) where the pregnancy is a result of unlawful intercourse. Unlawful intercourse includes rape (this does not include marital rape), incest and mental handicap. However, a legal abortion can only be performed by a medical practitioner in a designated institution with the written permission of the superintendent of the institution. In cases where the mother’s life is in danger, the superintendent will not give permission until they have two different medical opinions regarding the danger to the mother. In circumstances of rape/incest, the superintendent must give permission after he receives written confirmation from a magistrate that the woman complained about the rape or the incestuous conduct. Contravention of the act by a medical practitioner in terminating a pregnancy or superintendent in providing permission not in accordance with the TPA constitutes an offense for which they could be liable for a fine not exceeding USD 5000, and/or to imprisonment for a period not exceeding five years.
The AE Act removed inheritance laws unfavorable to widows in civil and registered customary marriages. It recognizes a union contracted according to customary rites, even without formal registration under the Customary Marriages Act of 1951 (currently under Parliamentary review as of July 17, 2019). The AE Act provides that the property of an estate is to be divided by the surviving spouse and the children, regardless of the sex of the children. It also stipulates that a widow whose husband died intestate retains rights to the family’s land upon the death of her husband.
The DVA protects and provides relief for victims of domestic violence. It defines and prohibits domestic violence in the form of physical, emotional, sexual, and economic abuse as well as acts of abuse derived from any cultural or customary practices that discriminate against or degrade women. Examples include, but are not limited to, forced virginity testing, female genital mutilation, pledging women and girls to appease spirits, forced marriage, child marriage, forced wife inheritance or sexual intercourse between fathers-in-law and newly married daughters-in-law. The penalty for committing an act of domestic violence as defined under section 3 is a fine not exceeding USD 5,000 and/or imprisonment for a period not exceeding ten years. The DVA also imposes duties on the police. Stations must have, where possible, one police officer with domestic violence expertise. Further, a police officer who receives a complaint of domestic violence must advise the complainant about how to obtain shelter or medical treatment and about their right to seek relief under the DVA. The DVA also requires that complaints made to police officers should be taken by officers of the same sex as the complainant, if complainant so requests. Moreover, police officers have the authority to arrest a person suspected of committing an act of domestic violence without a warrant and bring that person before a magistrate within 48 hours. Finally, the DVA provides for protection and relief to survivors of domestic violence by enabling them to apply for a protection order when an act of domestic violence has been committed, is being committed, or is threatened. It also allows someone acting with the consent of the complainant to make an application for a protection order on his or her behalf with the leave of the court. A person who fails to comply with a protection order is guilty of an offense and liable for a fine not exceeding USD 200 and/or imprisonment for up to five years.
Zimbabwe’s new 2013 Constitution addressed women’s rights and gender equality, and its bill of rights addressed damaging cultural and discriminatory practices. A gender commission was also established to accelerate the implementation of provisions related to women. More specifically, the Constitution recognized gender equality and women’s rights among Zimbabwe’s founding values and principles. It mandated that the State and all its institutions consider gender equality in laws and policy, to implement measures that provide care and assistance to mothers, and to grant women opportunities to work. The State must also prevent domestic violence, ensure marriages are consensual, and that there are equal rights in marriages. In the event of dissolution of marriage, the State must provide for the rights of spouses and children. The state is also obliged to afford girls and boys equal educational opportunities. The bill of rights specifically stipulates that women are equal to men, including deserving equal opportunities in political, economic, and social activities. Provision was also made for legislative seats reserved for women in the National Assembly. Finally, gender equality must be considered in making judicial appointments.
The Local Authorities Act establishes local authority councils within local government and defines their powers, duties and functions. The Act provides that the slate of candidates from any given political party up for election in a municipal, village or town council election must contain at least three female persons where the council consists of 10 or fewer members and at least five female persons where a council consists of 11 or more members, in an attempt to increase the presence of women in decision making positions.
The Combating of Immoral Practices Act aims to prevent and reduce prostitution and the existence of brothels. The Act imposes a criminal penalty for keeping a brothel of imprisonment for a period not exceeding three years or imprisonment and a fine. The Act punishes procuring or attempting to procure any female to have unlawful carnal intercourse with imprisonment for a period not exceeding five years. The Act also imposes criminal sentences for offenses related to prostitution and various immoral acts, such as the owner or occupier of a property permitting such acts, living on earnings of prostitution, or enticing someone to commit an immoral act.
The Social Security Act provides maternity benefits to women through a compulsory combined scheme for sickness, maternity and death benefits through matching employer and employee contributions. The Act establishes the National Medical Benefit Fund to administer the payments for such benefits and the National Pension Fund for pension benefits for those who have retired. The Act also makes a provision for the funding of training programs for disadvantaged and unemployed persons through a Development Fund.
The Communal Land Reform Act 2002 aims to regulate the allocation of customary land rights in communal lands and to establish Communal Land Boards. Communal land that previously belonged to indigenous communities is now vested in the state, which then distributes and allocates the land among the rural communities. This Act takes precedence over customary law and is much more favorable to women’s rights. Under the Act, four women must be appointed to the Communal Land Boards. Furthermore, the Act provides that a customary land right that was allocated to a particular holder of such right shall upon the death of such holder be re-allocated to the surviving spouse. This provides protection to a surviving wife who may now remain on the communal land where previously she would lose the rights to such land upon the death of her husband.
The aim of this Act is to achieve equal employment opportunities through affirmative action plans to redress the conditions of designated persons in the Act who have been previously disadvantaged by past discriminatory laws and practices with the aim of eliminating discrimination in the workplace. The Act also establishes an Employment Equity Commission. Women are specifically mentioned as a designated group. An affirmative action plan achieves its purpose by obliging employers to make equitable efforts to accommodate and further the employment opportunities of those in designated groups. Employers must also fill positions of employment by giving priority and preferential treatment to those in designated groups. Where employers do not adhere to the Act, they may be referred to the Commission or to mediation, and may be placed under review. Furthermore, any person who discriminates against a person who has participated in the proceedings provided for in the Act, or obstructs or prevents compliance with the Act by any party, or fails to comply with certain provisions of the Act can be held criminally liable and on conviction be liable to a fine not exceeding N$16,000 or to imprisonment for a period not exceeding 4 years or both.
This Act states that where a co-operative has more than five female members, or if more than one-third of its members are women (whichever is the lesser) and no woman has been elected as a member of its board, the board must appoint a woman as a board member within its first meeting to increase the representation of women in management positions. A similar provision is provided for sub-committees of boards.
The Labour Act (the “Act”) establishes protections for employees and regulates the employer/employee relationship. In particular, this Act prohibits any form of child labor, forced labor, or discrimination and/or sexual harassment in the workplace. The Act also provides for basic conditions of employment to which an employer must adhere, including maternity leave for female employees. An employer may not provide disadvantageous terms in an employment contract or promote unfair labor practices. Violations of this Act expose employers to various penalties. Employees may refer disputes to the Labour Commissioner or the Labour Court to obtain relief.
The Maintenance Act (the “Act”) imposes equal rights and burdens in relation to the payment of child support (and enforcement of child support orders) on both parents and abolishes customary laws to the contrary. The Act also states that husbands and wives are equally responsible for each other’s maintenance.
Among other things, the Children’s Status Act gives children born out of wedlock the same legal privileges as children born to married couples (e.g., inheritance rights, custody, guardianship, etc.) and provides various legal mechanisms (e.g., court orders) to protect these rights.
The Married Persons Equality Act (the “Act”) abolishes the marital power of the husband over his wife and her property and amends community property laws. It further provides women with the power to register immovable property in their own name, gives them legal capacity to litigate and contract, and allows them to act as directors of companies. The Act also establishes that the minimum age for marriage is 18, thereby prohibiting child marriages.
The Abortion and Sterilization Act (the “Act”) was adopted from South Africa and prohibits abortions, except in extreme circumstances where either: (i) the mother’s life is in danger; (ii) not having an abortion would constitute a serious threat to the mother’s mental health; (iii) there is a serious risk that the child will be born with physical and/or mental defects; or (iv) the child is a product of rape or incest. It also criminalizes performing abortions, except in the circumstances listed above. Finally, the Act states the circumstances in which sterilizations may be performed, including on people incapable of consent.
The Combating of Rape Act (the “Act”) seeks to prevent rape and provides minimum imprisonment sentences for rape. It also abolishes the previous law, which presumed that a boy under the age of 14 was incapable of rape and sexual intercourse. This Act also regulates the granting of bail to perpetrators to further protect the rights of the victim, and provides protection to victims of rape and sexual abuse. Finally, it abolishes the customary rule, common among rural areas, that marriage is a justification for, or a defense to, rape.
The Combatting of Domestic Violence Act (the “Act”) prohibits domestic violence, which it broadly defines to include physical abuse, sexual abuse, economic abuse, intimidation, harassment, entering the private residence of the complainant without consent, emotional, verbal or psychological abuse, and any threats of the above. Various types of relationships are also covered, including customary or religious marriages and relationships where the parties are not married. The Act amends the Criminal Procedure Act 1977, and allows courts to issue protection orders for victims and to punish perpetrators with a fine not exceeding N$8,000 and/or imprisonment not exceeding two years.
The Constitution serves as the fundamental law of Namibia and establishes the Republic of Namibia as an independent, secular, democratic, and unitary state safeguarding the rights to justice, liberty, dignity, and equality. Chapter 3 of the Constitution protects fundamental rights and freedoms, including the right to equality and freedom from discrimination, including on the grounds of sex. It also bans child marriages and mandates equal rights for men and women entering into marriage, during the marriage, and at the dissolution of the marriage. Additionally, Parliament may not make any laws that contravene the Constitution, nor can the Executive take any action that abolishes or contravenes Chapter 3 of the Constitution. Any such laws or actions would be invalid.
The Ethiopian Criminal Code criminalizes most forms of violence against women and girls including physical violence within marriage or cohabitation (Article 564), Female Genital Mutilation/ Circumcision (Articles 565-6), trafficking women (Article 597), rape (Articles 620-28), prostitution/exploitation of another for financial gain (Article 634), and early marriage (Article 648). The Criminal Code outlaws abortion, except in cases of rape or incest, risk to the life of the mother or fetus, severe or incurable disease or birth defect, a mother who is mentally or physically incapable of raising a child, or “grave and imminent danger” that can only be addressed by terminating the pregnancy.
The current family law in Ethiopia provides that there must be, inter alia, consent by both spouses to constitute a valid marriage (Article 6); respect and support between spouses (Article 49); equal rights in the management of the family (Article 50); fidelity owed by both husband and wife (Article 56). This is a substantial step forward in Ethiopian law.
Article 9 of the FDRE Constitution provides that all international treaties ratified by Ethiopia are integral parts of the law of the land. Similarly, Article 13.2 provides that fundamental rights and freedoms shall be interpreted in a manner conforming to the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia. Ethiopia has ratified many of these treaties including ICCPR, ICESCR, and CEDAW. Article 35 of the FDRE Constitution pertains to the Rights of Women. The article provides for equal rights under the constitution, equal rights with men in marriage, entitlement to affirmative measures, protection from harmful traditional practices, the right to maternity pay, the right to consultation, property rights (including acquiring and controlling and transferring property), employment rights, and access to family planning education. It is worth noting that this article explicitly imposes an obligation and accountability on the state to protect women from violence at Article 35.4: “The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs and practices that oppress or cause bodily or mental harm to women are prohibited.”
Section 7 (Gender Equity, Equality and Empowerment) provides for: (a) gender equality through gender policy aimed at the elimination of structural gender biases and increased participation in education; (b) strengthening the activities of Ministry of Gender Development and women’s rights NGOs; (c) adequate protection from violence through penal and civil sanctions; (d) protection of female children, notably from female genital mutilation, early marriage, and teenage pregnancy; (e) increasing women’s participation in labour force and policy and economic institutions; (f) elimination of legal and customary practices which are barriers to ownership of land, capital and other property; and (g) establishing reproductive health services.
The Act to Amend the New Penal Code Chapter 14 Section 14.17 and 14.71 (the “Law”) and to address Gang Rape provides the definition for rape, gang rape and the concept of consent. Under Section 1(a)(i) and (ii), a person (male or female) commits rape if they intentionally penetrate the vagina, anus, mouth or any other opening of another person’s body with their penis or a foreign object or any other part of their body without the victim’s consent. Under Section 1(b), rape is committed where the victim is less than 18 years old, provided the perpetrator is above the age of 18 years. Under Section 2, the Law provides that the crime of gang rape has been committed if (i) a person purposefully promotes or facilitates rape (ii) a person agrees with one or more other person(s) to engage in or cause rape as defined in Section 1 above. Additionally, consent is defined as agreeing to sexual intercourse by choice where that person has a) freedom of choice and b) the capacity to make that choice. The Law also provides a number of circumstances where there is a presumption of a lack of consent. These fall into three categories: 1) where violence is used or threatened against the victim; 2) where the victim was unable to communicate to the accused at the time of the act (e.g. because of disability or unconsciousness); 3) where the perpetrator impersonated a person known to the victim in order to induce the victim to consent.
HIV, Control of the Disease and Related Issues (Amending Title 33) (the “Law”), institutes various government initiatives and provides guidance in dealing with HIV-related issues specifically affecting women. For example, the Law provides that the Ministry of Health and Social Welfare and/or National AIDs Commission (the “Health Institutions”) must take into consideration differences in sex and gender when providing education about HIV. Additionally, the Law lists a number of key issues which the Health Institutions should address in their strategies and programs for protecting and fulfilling the human rights of women in the context of HIV. These include:
- The equality of women in public and domestic life (Section 18.9(i));
- Sexual and reproductive rights, including the concept of consent and a woman’s right to refuse sex and her right to request safe sex (Section 18.9(ii));
- A woman’s right to independently utilise sexual health services (Section 18.9(ii));
- Increasing educational, economic, employment and leadership opportunities for women (Section 18.9(iii));
- Strategies for reducing differences in formal and customary law which prejudice women’s rights (Section 18.9(v)); and
- The impact of harmful traditional practices on women (Section 18.9(vi)).
Furthermore, the Law directs the Ministry of Health and Social Welfare, the Ministry of Justice, and the Liberian National Police to implement educational programs for their personnel in relation to sexual assault perpetrated on women. These are designed to provide personnel working for these government agencies with a better understanding of sexual assault and protect the rights of sexual assault victims.
The Law also provides a number of rights and remedies for victims of human trafficking. Section 3 provides that a victim has a right to restitution including damages to compensate for costs of medical treatment, rehabilitation, transportation costs, lost income, legal fees, and general compensation for distress and pain as well as any other loss he or she suffered. Compensation is paid by the defendant directly to the victim upon conviction. The right to restitution is not affected by the victim returning to his or her home country or by the victim not being present in Liberian jurisdiction. Section 9 provides immunity to any immigration offence that may have been committed as a direct result of being trafficked. Additionally, under Section 8, the Law confirms that consent to sex is not a valid defence to trafficking when violence is used to commit the crime. The Law also imposes corporate liability on international transport companies that fail to verify that passengers in company vehicles which enter other countries have the requisite travel documentation. A company may be fined for failing to comply. Additionally, a company that knowingly facilitates trafficking is liable for the cost of accommodating and providing meals to the victim and any dependent.
Under Section 16.1 of the Penal Law, bigamy and polygamy are illegal unless a legal defence is provided. Such defences include a defendant’s belief that his or her former spouse is dead. Under Section 16.3, abortion beyond the twenty-fourth week of pregnancy is illegal. An abortion is legal if it occurs only after a licenced physician determines there is a substantial risk that continuing the pregnancy would gravely impair the mother’s physical and/or mental health. An abortion may also be justified if the child would be born with grave physical or mental defects or if the pregnancy was the result of illegal intercourse such as rape. Additionally, the abortion must be sanctioned by two physicians who have certified in writing the reasons why the abortion is necessary. The Penal Law also prohibits a woman from carrying out an abortion herself by any means once beyond the twenty-fourth week of pregnancy.
The Equal Rights of the Customary Marriage Law of 1998 (the “Law”) repeals previous Liberian marriage laws and provides various rights and protections for women within the context of marriage. These include:
- Entitling a wife to one-third of her husband’s property (Section 2.3).
- Providing that a husband must respect his wife’s human rights (Section 2.5).
- Affirming that a wife’s property acquired before and during the marriage is exclusively hers; she can deal with this property in her own name as she sees fit without consent of her husband (Section 2.6(a)).
- Confirming that every woman has a right to marry a man of her choosing (Section 2.10).
- Entitling a wife to one-third of her husband’s property when her husband dies (Section 3.2).
- Entitling a widow to remain on the premises of her late husband (or to take another husband of her choice and vacate the late husband’s premises) (Section 3.3).
- Entitling a widow to administer her husband’s estate by making a petition to the probate court of their jurisdiction (Section 3.5).
The law also prohibits some of the common harmful practices towards wives, including: 1) husband taking a dowry from his wife or his wife’s parents (Section 2.2); 2) arranging for a girl under the age of 16 to be given in marriage to a man (Section 2.9); 3) compelling a widow to marry a member of her late husband’s family (Section 3.4(a)).
The applicant was a woman married according to Hindu rites. Accordingly, when her husband died intestate, his parents stood to inherit his estate. The applicant sought a declaratory judgment that the word “spouse” as used in the Intestate Succession Act 81 of 1987 includes a surviving partner to a monogamous Hindu marriage. The Court granted the declaratory judgment and held that the applicant was entitled to inherit from her deceased husband.
The deceased was married to the second and third applicant under Islamic law. The marriage of the deceased and the third applicant was entered into before the marriage between the deceased and the second applicant. However, the deceased and the second applicant entered into a civil marriage to qualify for a home loan. Following the death of the deceased, The Registrar of Deeds, Cape Town, refused to register the title deed to the family home in the name of the third applicant. The Registrar’s refusal was premised on the meaning of the term “surviving spouse” as contemplated in terms of section 2C(1) of the Wills Act 7 of 1953 (the “Wills Act”). According to the Registrar, the only recognised surviving spouse of the deceased is the second applicant as they entered into a civil marriage. The Court declared section 2C(1) of the Wills Act unconstitutional as it does not recognise the rights of spouses married under Islamic law nor multiple female spouses married to a deceased testator in polygynous Muslim marriages.
The applicant was in a polygamous Muslim marriage. After her husband died intestate, the respondent, the executor of the deceased’s estate, refused the applicant’s claims on the basis that polygynous Muslim marriages were not legally recognised under the Intestate Succession Act. The court held that precluding the applicant from an inheritance unfairly discriminated on the grounds of religion, marital status, and gender, and was therefore inconsistent with section 9 of the Constitution. The court found that section 1 of the Intestate Succession Act was inconsistent with the Constitution and invalid to the extent that it did not include more than one spouse in a polygynous Muslim marriage in the protection afforded to “a spouse.” Accordingly, the applicant could inherit from her late husband’s estate.
The applicant was a woman married according to Muslim rites and whose husband had died intestate. The marriage was not solemnized by a marriage officer under the Marriage Act 25 of 1961. The house in which the applicant and her husband had lived was transferred to the deceased’s estate. The applicant was told that she could not inherit from the estate of the deceased because she had been married according to Muslim rites, and therefore was not a “surviving spouse.” A claim for maintenance against the estate was rejected on the same basis. The Court held that the word “spouse” as used in the Intestate Succession Act includes the surviving partner to a monogamous Muslim marriage and that the word “survivor” as used in the Maintenance of Surviving Spouses Act 27 of 1990, includes the surviving partner to a monogamous Muslim marriage.
This judgment constituted three related cases (Bhe, Shibi and SAHRC), which were decided together and concerned the African customary law rule of primogeniture. In Bhe, a mother brought an action to secure the property of her deceased husband for her daughters. In Shibi, the applicant was denied the right to inherit from her deceased brother’s intestate estate under African customary law. In SAHRC, the South African Human Rights Commission and the Women’s Legal Centre Trust brought an action in the public interest to declare the rule of male primogeniture contained within section 23 of the Black Administration Act 38 of 1927 invalid. The Constitutional Court declared section 23 invalid, meaning that all deceased estates were to be governed by the Intestate Succession Act 81 of 1987, under which widows and children can benefit regardless of their gender or legitimacy. The Court also ordered the division of estates in circumstances where the deceased person was in a polygamous marriage and was survived by more than one spouse and ordered that, in such instances, a surviving spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed by the Minister for Justice and Constitutional Development by notice in the Gazette.
The appellant was shot by her husband, who subsequently committed suicide. Her husband was employed by the South African Police Service, so she sued the Minister of Safety and Security for general damages, medical expenses, loss of earnings, and loss of support arising from her injuries and the deceased’s suicide. She also sued for loss of support on behalf of her infant triplets with the deceased. The appellant alleged that the shooting and suicide were caused by, inter alia, the negligence of the station commander and/or certain police officials. The appellant claimed that these police officers failed to (a) dispossess the deceased of the firearm, (b) initiate disciplinary steps against him, and (c) have him criminally charged despite her previous requests and their knowledge that the deceased abused alcohol, had a violent temper and suicidal tendencies, had assaulted her, pointed a firearm at her and threatened to shoot her and thereafter kill himself, which led her to obtain a protection order against him under the Domestic Violence Act 1998. The Supreme Court of Appeal found that: (a) the police had a legal duty to investigate the appellant’s complaints once she reported that she feared for her safety; (b) the police negligently breached that duty by failing to take measures to protect the appellant from being injured by the deceased (and prevent the deceased from killing himself); and (c) the appellant had established wrongfulness on the part of the police due to the causal connection established between the police’s negligent breach of duty and the harm suffered by the appellant. The court therefore upheld the appeal.
The plaintiff attempted to bring a charge of assault against her former husband under the Domestic Violence Act of 1998 (“the DVA”). She was incorrectly advised by a police officer that she required a protection order from the Magistrate Court before she could receive police assistance. She was then told by a second officer that her former husband would bring a similar charge of assault against her if she persisted. The plaintiff, along with her former husband, was arrested. She filed a claim for damages against, inter alia, the Minister of Police, arguing that (i) the officials involved were acting in the course and within the scope of their employment and (ii) the Minister of Police was vicariously liable for failing to comply with the DVA. The court agreed that the DVA requires the police to assist and provide the maximum protection possible to victims of domestic abuse.
The plaintiff petitioned to bring three consolidated actions directly to the Constitutional Court. They sought a declaratory order that the President recognize Muslim marriages as valid for all purposes in South Africa. The Constitutional Court dismissed the plaintiffs’ plea for direct access and instead directed them to the High Court. The High Court held that the State’s failure to enact legislation recognising religious Muslim marriages violated the rights of Muslim women based on religion, marital status, gender, and sex. The court directed the President, Cabinet, and Parliament to prepare and bring into operation legislation to recognise marriages performed in accordance with Sharia law.
The accused took a concoction of herbs with the intent to procure an abortion when she was six months pregnant and buried the fetus. She pled guilty to contravening the Termination of Pregnancy Act, which bans abortions subject to enumerated exceptions. She was sentenced to nine months imprisonment that were suspended on the condition that she complete 305 hours of community service. The issue under review was whether the conviction was proper without medical evidence to prove that the ingested herbal concoction could induce an abortion. It was held that before a person is convicted for abortion it must be proved that the instrument or method used can induce an abortion. Except for a few obvious cases were the conduct of the accused is known to cause abortions, medical evidence must prove that the terminated pregnancy was not spontaneous but induced by the actions of the accused. Here, there was no proof that the herbal concoction was, in fact, capable of inducing an abortion. Therefore a conviction for abortion was an error, accused was guilty solely of attempting abortion.
The 47-year-old male applicant requested bail pending the appeal of his conviction and 15-year sentence for raping the 16-year-old complainant. The applicant appealed, arguing that the intercourse was consensual because the victim did not scream or immediately report the rape after a witness stumbled upon the incident. The applicant had to show, among other things, the likelihood of success of his appeal to obtain bail. The court dismissed the bail application after rejecting the state's concession that the applicant had a meritorious appeal because complainant's failure to scream or to immediately report the rape cast doubts upon her lack of consent. Citing research about cultural inhibitions on gender violence victims, the court concluded that silence could not be equated to acquiescence. With women often held culturally as custodians of appropriate sexual conduct, and with the responsibility for sexual restraint being placed on a woman, regardless of her age or power imbalances, the court found it understandable that the complainant failed to make an immediate report. The court noted that a young girl may not make a voluntary report because her cultural context makes it difficult for her to do so without being re-victimized. Consequently, the proposition that the victim's initial silence implied consent was untenable and could not be ground for bail.
This was a dispute involving property in the name of the plaintiff and occupied by the defendant. The plaintiff sought an order for the eviction of the defendant, claiming that he had lawfully acquired the property. The defendant claimed that she was the rightful owner as the surviving spouse of the previous owner of the property through an unregistered customary law union. The court held that defendant had no right to the property as there was no concrete evidence supporting the existence of her customary marriage. The court explained that although the absence of a formal marriage certificate is not fatal to the recognition of a customary law union in matters of inheritance and constitutional protections for surviving spouses and children, the union must be proven to exist. Payment of a roora/lobola, or bride price, remains the most cogent and valid proof of a customary union/marriage, particularly where it has not been formally registered because the ceremony itself involves representatives from both families and others who could attest to the process having taken place. Furthermore, there is often documentary evidence of what had been paid and what remained to be paid. Here, the court held for the plaintiff because there was no evidence of a roora/lobola payment and the defendant could not prove her customary marriage to the deceased.
A month after the rape, the appellant’s pregnancy was formally confirmed, she then informed the investigating police officer of her pregnancy who referred her to a public prosecutor. She was told by the prosecutor that she had to wait until the rape trial had been completed to have her pregnancy terminated. At the direction of the police, she returned to the prosecutor’s office four months later and was advised that she required a pregnancy termination order. The prosecutor requested that a magistrate certify the termination. The magistrate said he could not assist because the rape trial had not been completed. She eventually obtained the necessary magisterial certificate nearly six months after the rape, the hospital felt that it was no longer safe to carry out the termination procedure. The appellant carried to full term and gave birth to a child. The applicant brought an action against the Ministers of Home Affairs, Health and Justice for damages for the physical and mental pain, anguish and stress she suffered and care for the child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned were negligent in their failure to prevent the pregnancy or to expedite its termination. The particulars of negligence were itemized. Her claim was dismissed. The questions for determination on appeal were (i) whether or not the respondents’ employees were negligent in responding to the appellant, (ii) if they were, whether the appellant suffered any actionable harm as a result of such negligence and, (iii) if so, whether the respondents were liable for damages for pain, suffering, and the care of her child. The Supreme Court held, on appeal, that the State was liable for failing to provide the appellant with emergency contraception to prevent the pregnancy and ordered it to pay damages. However, the court dismissed the claim that the State was liable for failing to ensure a timely termination of the pregnancy and in turn that they were liable to pay for the care of the child. The case was referred back to the High Court for a determination of the amount of damages.
This was a review of a sentence imposed by a trial magistrate at the request of the regional magistrate. In the opinion of the regional magistrate, the sentence imposed by the trial magistrate was too harsh and a community service sentence would have been just in the case. The accused was charged with physical abuse as defined under the DVA. The 20-year-old accused assaulted the complainant, his18-year-old wife, over a denial of conjugal rights. He was sentenced to two months’ imprisonment with a further two months suspended. The issue to be determined on review was whether the trial magistrate, by imposing a custodial sentence on a repeat violator of the DVA, erred in the exercise of discretion. The court found no misdirection on the part of the magistrate, holding that a custodial sentence is not required because the purpose of the DVA was to bring families closer together. Rather, the court explained that judges should apply a multi-factor sentencing analysis that includes, among other factors, considering both the DVA’s purpose to bring families together and whether the accused was a repeat offender. The DVA makes repeat offenders liable for imprisonment not exceeding five years. Here, the accused was a repeat offender, and therefore, liable for a custodial sentence at the discretion of the trial magistrate.
The respondent, a German national, was denied permanent residence in Namibia despite being in a committed relationship with a Namibian woman, residing in Namibia for many years, and having a highly skilled job in Namibia. The respondent claims that the only reason her application was denied is because she was a lesbian woman in a homosexual relationship. She therefore filed suit against the Immigration Selection Board (“ISB”), arguing that it had discriminated against her in denying her application. The lower court found in favor of the respondent and ordered the ISB to grant the respondent’s application. On appeal, the Supreme Court reversed the decision, finding that the respondent had not proven discrimination and that the ISB had wide discretion to deny applications. However, the Supreme Court judge explicitly stated: “I must emphasize in conclusion: Nothing in this judgment justifies discrimination against homosexuals as individuals, or deprive [sic] them of the protection of other provisions of the Namibian Constitution.”
The respondent was charged with two counts of sexual harassment of female coworkers and with the verbal abuse of another female coworker. His employer (the “company”) found that he had violated the company’s policies and fired him. The respondent brought a claim for wrongful termination to the Office of the Labour Commissioner, and the dispute was referred to arbitration. The arbitrator found in favor of the respondent and ordered the company to reinstate him and pay him N$102,000 in lost wages. The company appealed the decision to the courts. The judge overturned the arbitrator’s decision, finding that he overlooked numerous relevant facts in making his conclusions, which “no reasonable court or tribunal court have reached.” The court held that the company acted appropriately in terminating the respondent’s employment because sexual harassment and discrimination in the workplace are serious offenses that create obstacles to equality in employment.
The accused murdered her newborn child and pleaded guilty to the crime. In determining her prison sentence, the judge took into account mitigating circumstances such as her young age (21 years old), the fact that the child’s father denied responsibility for the child, and the fact that her family nearly kicked her out of their home when she had her previous child. The judge also acknowledged that she was a first-time offender and showed remorse for the crime. However, he reiterated the seriousness of the crime and stated that he did not want his leniency in this case to serve as a message to other young women that infanticide was acceptable. He further stated that newborn infants have just as much a right to life as anyone else. For the murder, he sentenced the accused to three years imprisonment with 30 months suspended for five years on the condition that the accused not be convicted of murder during the suspension. For the concealment of the birth of her newborn child, the judge sentenced the accused to six months imprisonment to run concurrently with the murder sentence.
The accused conceived a child after incestuous sexual intercourse with her brother. After the child was born, the mother tied a scarf around its neck and buried it alive. At trial, she claimed that the child was strangled by its own umbilical cord and was already dead when she buried it. However, medical and forensic evidence showed that the child died from strangulation and suffocation due to the mother’s actions. She was convicted of murder.
The accused was charged with raping a 10-year-old girl (the “complainant”). The trial judge convicted the accused of attempted rape, finding that the prosecution did not prove penetration beyond a reasonable doubt. The prosecutor was not satisfied with the sentence and appealed to the Supreme Court, seeking a conviction for rape. The Supreme Court agreed with the trial court that penetration had not been proven beyond a reasonable doubt. However, the Supreme Court stressed that the slightest unwanted penetration of a woman’s genitalia by a man’s genitalia is sufficient to constitute the crime of rape.
The appellant was convicted of rape under the Combating of Rape, Act 8 of 2000 (the “Act”) in the Regional Court for inserting his finger into the vagina of his friend’s eight-year-old daughter (the “complainant”). This insertion caused bruising to the complainant’s vagina that lasted longer than 72 hours. The complainant’s hymen, however, remained intact. The appellant was sentenced to 15 years in prison, of which five were conditionally suspended. On appeal, the appellant argued that he had not committed rape under the Act because he had not penetrated the complainant’s “vagina” as that term is defined under the Act, but rather touched the areas around her vagina. Accordingly, he argued that, at most, he had committed indecent assault, and therefore his sentence should be reduced. The appellate court denied the appeal and upheld the original sentence, finding that the labia minora, labia majora and the para-urethral fort all form part of the complainant’s genital organs and therefore satisfy the definition of “vagina” within the Act.
The accused was an 18-year-old woman charged with the crime of abortion under the Abortion and Sterilization Act, 2 of 1975 (the “Act”). The Act outlaws abortion and prescribes no minimum sentence for the crime. The accused pleaded guilty and testified that she performed the abortion on herself, which terminated a two-month-long pregnancy. The Court sentenced her to pay N$3,000 or serve two years in prison. On review, the High Court found the sentence to be “completely” disproportionate to the crime. The Judge referred to the Old Authorities and stated that sentences for abortion should be less harsh in cases where a very young fetus is involved. The Judge also found that the accused personal circumstances and the particular circumstances of her trial, including the fact that she was a minor at the time, did not have counsel to represent her, and was not given the opportunity to explain her actions, warranted mitigation of the penalty. Finding that the lower court did not factor in any of these mitigating circumstances, the High Court reduced the sentence to N$300 or three months in prison, which he suspended on the condition that during that period the accused was not convicted of any abortion-related crime.
The accused was convicted of pre-meditated murder and sentenced to life imprisonment after stabbing his girlfriend (“the victim”) 27 times and locking her in a room until she bled to death. Prior to murdering the victim, the accused sent her a text message describing how he would kill her. At trial, the court determined the crime was aggravated by the fact that the accused had a direct intention of murdering his girlfriend and did so in a domestic setting. In imposing a sentence, the court took into account retribution, prevention of crime, deterrence and reformation. The court further found that the accused did not care about the victim’s right to life, but rather his own wellbeing, that he “played victim,” and that he showed no remorse. The judge stated that it “is high time that men in relationships with women should understand that once a woman tells them that they are no longer interested in continuing with the relationship, she means just that and her views and feelings should be understood and respected.”
The accused was charged with assaulting and murdering a woman. At trial, the accused filed an application for his discharge at the close of the prosecution’s case, arguing that the prosecution failed to make a case requiring the accused to answer. According to prosecution evidence, after buying alcohol and drinking it with a group of women he did not know, including the deceased, an argument began because the accused stated that he could have sex with all the women. The driver stopped the car when the accused hit the deceased with a bottle. The accused continued to beat the woman outside of the car and the others drove away in fear for their lives to report the attack the police. Upon their return to the scene, they found and picked up the deceased, who was running down the road after escaping the accused. She later passed away from her injuries. At trial, prosecutors presented several eye-witnesses to testify against the accused, as well as direct and circumstantial evidence to support their case. The accused argued that the eye-witnesses had been intoxicated at the time of the assault and therefore their testimony was unreliable. He also argued that the prosecutors failed to meet their burden to convict him. However, the court agreed with the prosecution and refused to discharge the accused, finding that the prosecution’s evidence presented a prima facie case that the accused was legally obliged to answer.
The accused stabbed and murdered a pregnant minor girl with whom he was in a relationship when he was approximately 18 and she was 15 years old. Their relationship was one filled with domestic abuse and violence. He was convicted of murder and assault with intent to do grievous bodily harm. He was also convicted of assault for unlawfully and intentionally threatening to kill the deceased’s grandmother, thereby causing her to believe that the accused intended, and had the means, to carry out his threat.
The appellant was charged with the rape and indecent assault of a three-year-old girl (“the complainant”). He pled “not guilty” to both counts but was convicted on the first count and sentenced to 14 years’ imprisonment. The trial court acquitted the appellant on the second count. On appeal, the appellant argued that (a) the charge did not contain adequate particulars of the date and time of the alleged crimes; (b) the degree of the injuries to the complainant made it doubtful that he could have raped her; and (c) the cautionary rule was not correctly applied when the trial court reviewed the complainant’s evidence. The Supreme Court confirmed that the trial court was not only aware of the risks associated with the evidence presented by a sole young witness, but also exercised appropriate caution in considering the complainant’s evidence. It further found that the evidence presented at trial, including testimony by the complainant’s mother and older sister provided sufficient details to uphold the conviction. The appeal was accordingly denied.
The accused was convicted of culpable homicide for kicking his girlfriend to death, despite his claims that her death was caused by falling on a rock. In sentencing the accused to 10 years imprisonment, the court noted that violence against women is a serious problem in Namibia and that this should be taken into account in sentencing decisions as an aggravating factor.
The accused negligently killed his daughter by beating her to death with a stick, which he meant as punishment. He also intentionally shot and killed his son with a shotgun and attempted to shoot his wife. He was convicted of culpable homicide, murder, attempted murder, obstructing the course of justice, possession of a firearm without a license, and the unlawful possession of ammunition. The court sentenced him to 44 years imprisonment. With respect to the conviction for negligent homicide, the court found that parents do not have carte blanche to punish their children. The court also found that the accused’s previous acts of violence against his wife and children constituted aggravating circumstances. The court further emphasized the seriousness of domestic violence and noted that sentencing in such cases should serve as retribution for those harmed, including the community at large and as deterrence to others.
The appellant and respondent are divorced parents of three children. At the time of the divorce, custody of the children was awarded to the respondent. The appellant then moved for an interim protection order, claiming that the respondent physically abused their minor children. A court granted the interim protection order on October 3, 2011, and awarded the appellant interim custody of the children, subject to visitation by the respondent, and ordered respondent to cease abusing the children. The Magistrate’s Court subsequently discharged the interim order on October 24, 2011, based on Section 12 of the Combating of Domestic Violence Act 4 of 2003, reasoning that the beatings were an isolated incident and were only meant to punish the children for bad behavior. The appellant challenged the discharge. The appellate court agreed with appellant and granted a final protection order effective through July 2013, which awarded the appellant custody of the children with visitation for the respondent on alternate weekends and holidays. In its decision, the appellate court stated the importance of rooting out the “evil that is domestic violence in order to give effect to the protection of the constitutional value of human dignity.”
The respondent in this appeal is the biological daughter of the deceased. The respondent’s mother was not married to the deceased, and thus, the respondent was considered an “illegitimate child” under Namibian law. The appellant is the sister of the deceased and the respondent’s aunt. The deceased died intestate on May 30, 1991, and his estate was administered per Namibian law on intestate succession. Because the respondent was classified as an illegitimate child, she was not entitled to inherit from her father’s estate. The respondent challenged the constitutionality of this common-law rule, which the High Court had declared unconstitutional in July 2007. The Supreme Court confirmed the High Court’s finding.
The Sexual Crimes Court, New Chapter 25 Establishing Criminal Court “E” – Title 17 – Liberian Code of Laws Revised (the “Law”) establishes a Sexual Offences Court and Special Divisions of Circuit Courts. The Law gives exclusive jurisdiction to these courts for dealing with the prosecution of sex crimes. These courts have the authority to prohibit publication of a victim’s personal information. This includes the right to expunge their names from public records. Additionally, the Law grants these courts the ability to provide interim relief to protect victims. In this respect, the Law specifically refers to the ability of the court to ensure that child victims are placed in protective custody.
Upon divorce, the husband claimed he was entitled to a property acquired during the marriage because a married woman cannot acquire property in her maiden name solely for herself. The court held that: (a) there is no legal significance of a woman choosing to use her husband’s surname; it does not affect the right of a woman to own property while married; (b) a woman can purchase property in her maiden name during marriage; (c) unless freely consented to, property which is owned solely by a husband’s wife cannot be controlled by her spouse.
The Defendant appealed a homicide conviction for the shooting of his wife arguing that the killing resulted from the discovery of her adultery and could; therefore, only amount to manslaughter. In a charge of homicide, the law requires a showing of malice (i.e., a murder committed with premeditation). Implied malice (i.e., murder committed in the “heat of passion;” without premeditation) is nullified by sufficient provocation. The Court found that the murder was premeditated because express malice was proven to the Court. Thus provocation was not considered and the conviction was upheld.
The Appellants were accused and convicted of armed robbery and gang rape. The trial court found that the Appellants raped the victim at gun point. The Supreme Court of Liberia upheld that under circumstances of violence or threats of violence to have sexual intercourse with a person, there is a presumption that the person being violated or threatened did not consent. In such circumstances, the burden of proving affirmative consent from the victim is on the accused.
The Appellant was convicted of raping his step-daughter on three occasions and sentenced to life imprisonment. He appealed the decision on the basis of lack of evidence. The prosecution’s case relied on evidence provided by the victim (deceased at the time of the trial), her nine-year-old sister, and a medical professional who examined the victim at the hospital immediately after she was raped. The defence argued that evidence provided by the victim immediately before her death was hearsay. The court held that, while under Liberian law hearsay cannot form the basis of a criminal conviction, “a dying declaration” (i.e., when a victim provides evidence concerning her or his attacker whilst at impending death in extremis) can be admitted as evidence and is not hearsay. The court also pointed out that, despite her young age, the victim’s sister’s evidence, which was admitted, was not hearsay because she was a direct witness to the attack and was subject to comprehensive cross examination. Finally, the court rejected the defence’s claims that the medical professional who inspected the victim in the hospital was not an expert witness because of her credentials that included a medical degree and over ten years of experience treating children victims of sexual violence. The conviction was upheld.
The Act Creating Criminal Court E, Section 25.3(a), requires magistrates to forward a case alleging a sexual offense to the circuit court within 72 hours of arrest without first investigating the charge. However, the Constitution of Liberia, Article 21(f), requires courts in general criminal matters to conduct an investigation, known as a preliminary examination, within 48 hours to determine whether a prima facia case exists, thereby prohibiting preventively detaining the accused. The petitioner was arrested for rape, and the magistrate forwarded the case to the circuit court without first conducting a preliminary examination. The Supreme Court of Liberia held that forwarding such a case to the circuit court under the Act does not violate the Constitution, notwithstanding the additional time and its potential characterization as preventive detention, because magistrate courts are not equipped to protect witnesses from public exposure and the psychological harm resulting from directly facing the defendant. The objective of promoting witness protection having outweighed the additional time required by forwarding such cases to the circuit court, the Constitution is not violated, and Section 25.3(a) stands.
The appellant was convicted of (i) aiding the commission of female genital mutilation (“FGM)” on several girls, (ii) failing to report the commission of FGM, and (iii) allowing her premises to be used to perform FGM. She pled guilty to the crimes and was sentenced to pay a fine of Kshs. 200,000 (or 3 years of imprisonment if she defaulted on the payment). On appeal, she argued that the sentence was overly harsh and oppressive because she was a single mother of three children. Justice M. Muya upheld her sentence, as it was the minimum allowed under the Female Genital Mutilation Act. The Justice in this case noted that within this case “lies the clash between traditional values and the law of the land.” Even though the appellant was abiding by a customary practice, it was in violation of Kenyan criminal law, and thus the appellate court upheld her sentence.
The appellant appealed his conviction and sentence for injuring his wife, who he inherited according to customary practice after her husband died in 2002. On November 8, 2013, his wife attempted to pack clothes to visit her children in Nairobi. The appellant refused to let his wife travel and threatened to murder her. The appellant cut both of his wife’s arms using a panga (machete), but she managed to escape to her nephew’s home. The nephew saw the appellant armed with the panga and a knife before taking his aunt to the police station and later the hospital. The appellant was convicted of Grievous Harm Contrary to Section 234 of the Penal Code and sentenced to seven years imprisonment. He appealed, arguing that the trial court failed to consider that this was a mere domestic issue that could have been resolved by village elders. The appellant asked for a non-custodial sentence citing the fact he was an elderly man (78 years old). The High Court upheld the conviction and the sentence, noting, “The appellant’s actions amounted to violence against women. It is my view a gender-based violence which the court cannot condone or tolerate and let perpetrators of violence against women and girls go unpunished.” This case demonstrates the relationship between the criminal courts in Kenya and customary law.
The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip. Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her. He booked a single hotel room, while the claimant believed she would have her own room. As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference. Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference. Her salary for May was unpaid. Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her. The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.” The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000. This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law. In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace. The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.
The appellant was convicted of defilement for having intercourse numerous times with a 16-year-old, which is under the age of consent. A.M.L. appealed his conviction and ten-year sentence on four grounds: (i) failure to conduct a voir dire examination on the victim before obtaining her testimony, (ii) failure to conduct a DNA test on the appellant, (iii) insufficiency of evidence, and (iv) the court’s failure to adequately consider his defense. The State wished to enhance A.M.L.’s sentence on appeal. The appellate court found that adequate evidence had been presented at trial that justified the charge of defilement. However, the court found ten-year sentence imposed by the trial magistrate unlawful because 15 years is the legal mandatory minimum sentence for the defilement of a girl aged between 16 and 18 years. Accordingly, AML’s sentence was enhanced to 15 years and his conviction upheld.
The defendant was accused of the killing of her husband. She entered into a plea agreement to reduce the charge of murder to manslaughter. The deceased returned home on May 7, 2016, intoxicated and accused the defendant of infidelity. A violent domestic fight ensued and the defendant used a kitchen knife to fatally stab the deceased. The defendant was also injured by the deceased during the altercation. The defendant asked the court for a non-custodial sentence based on a number of mitigating circumstances including the fact that the defendant is the primary caregiver of her three children with the deceased, aged five, three, and one. Relatives and friends of the deceased confirmed that he was verbally and physically abusive to the defendant and the killing occurred in “the heat of the moment.” Furthermore, the defendant had no prior record, demonstrated remorse, and the deceased’s family and the community had forgiven her and were willing to help her raise her children. The High Court agreed that these factors merited a non-custodial status, adding that the defendant is both the accused and the victim, and was acting in self-defense even though she used excessive force. The High Court handed down a three-year non-custodial sentence. This case marks an important example of Kenyan courts treating victims of domestic violence with leniency where excessive force is used while defending themselves from their abuser.
The appellant was convicted in a regional magistrates' court of one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm, and one count of common assault against a 14-year-old schoolgirl, whom he had married in accordance with customary marriage laws. After she ran away from the appellant, the appellant took the complainant to Cape Town by taxi, where they resided with the appellant's brother and his wife. There, the incidents of rape and assault occurred. The appellant raised as one of his defenses and as a ground of appeal that the alleged rapes took place in the context of a customary arranged marriage, or ukuthwala. According to expert evidence, ukuthwala was an irregular form of initiating a customary marriage. Experts have stated that, in its traditional form, ukuthwala was consensual and innocuous, but there existed an 'aberrant' form in which young girls were abducted and often raped and beaten to force them into marriage. The magistrate held that the matter was not about ukuthwala and its place in our constitutional democracy, but about whether the state had shown that the accused had committed the offences he was charged with and, if so, whether he acted with the knowledge of wrongfulness and the required intent. The court held that child-trafficking and any form of abuse or exploitation of minors for sexual purposes is not tolerated in South Africa’s constitutional dispensation. Furthermore, it ruled that the appellant could not rely on traditional ukuthwala as justification for his conduct because practices associated with an aberrant form of ukuthwala could not secure protection under the law. Thus, the Court could not find that he did not traffic the complainant for sexual purposes or that he had committed the rapes without the required intention ̶ even on the rather precarious grounds of appellant’s assertion that his belief in the aberrant form of ukuthwala constituted a 'traditional' custom of his community.
The case was initially brought to the High Court by individuals who had suffered childhood sexual molestation by the deceased, a prominent financier and philanthropist, in the 1970s and ‘80s. The applicants were unable to pursue criminal charges due of the effect of s18(f) of the Criminal Procedure Act 1997, which imposed a 20-year statute of limitations for most sexual offences (excluding rape, sexual trafficking, and using a child or a mentally disabled person for pornographic purposes). However, the High Court found s18(f) to be unconstitutional. The Constitutional Court affirmed, removing the statute of limitations for prosecuting all sexual offences.
After a Methodist Church minister (applicant) announced to her congregation her intention to marry her same-sex partner, the Methodist Church (respondent) suspended and subsequently discontinued her role as an ordained minister in early 2010. In March 2010, the applicant referred the matter to arbitration according to the Laws and Discipline of the Church. The parties could not agree on the applicant’s procedural rights and the arbitration convener proceeded with the process as provided by the Laws and Discipline of the Church. On her behalf, the convener then entered into a final agreement with the Church in May 2011. In 2012, the applicant approached the Western Cape High Court, Cape Town seeking an order to set aside the arbitration agreement in terms of the Arbitration Act. She contended that she was unfairly discriminated against on the basis of her sexual orientation. The High Court held that the applicant had not shown good cause to set aside the arbitration agreement. She then appealed to the Supreme Court of Appeal. The majority judgment of that Court agreed with the finding of the High Court. The applicant sought leave to appeal to the Constitutional Court. In a unanimous judgment, the Constitutional Court made four findings. First, the applicant had not shown good cause to set aside the arbitration agreement. Because the issue related to interpretation of religious doctrine, arbitration would be the appropriate forum. Second, since the applicant had unequivocally disavowed her unfair discrimination claim before the High Court, she was not free to raise the claim for the first time on appeal. Third, pursuant to the principle of constitutional subsidiarity, the applicant should have first brought her unfair discrimination claim to the Equality Court. Finally, the applicant failed to file a notice in terms of the Uniform Rules of the High Court, an omission that deprived other interested parties including religious communities of the opportunity to intervene as parties to the dispute or seek admission as amicus curiae in the High Court. The Court accordingly dismissed the appeal.
The case concerned a referral for confirmation to the Constitutional Court of an order made by the Witwatersrand High Court. The referral sought to affirm that the following laws are unconstitutional and invalid (a) the common law offence of sodomy, and (b) the inclusion of sodomy in schedules to, inter alia, the Criminal Procedure Act 51 of 1977, which prohibits sexual conduct between men in certain circumstances. Although technically the Constitutional Court only had to decide on the constitutionality of the inclusion of sodomy in the schedules and of the section of the Sexual Offences Act, it could not do so without also considering the constitutionality of sodomy as a common law offence. The Constitutional Court found that the offences, all aimed at prohibiting sexual intimacy between gay men, violated the right to equality by unfairly discriminating against gay men on the basis of sexual orientation. Such discrimination is presumed to be unfair since the Constitution expressly includes sexual orientation as a prohibited ground of discrimination.
The applicant, a male, applied for a senior managerial position previously occupied by a woman. After undergoing a psychometric assessment, he was recommended for appointment. The recommendation was turned down “due to the gender imbalance at SMS level”. The applicant claimed that he had been unfairly discriminated against on the basis of his sex because the target, set by the Gauteng Provincial Legislature, did not comply with the provisions of the Employment Equity Act (EEA), 55 of 1998. The respondent contended that, although it had not adopted an equity plan, it had set itself a target of 50% females in senior management positions. The Court noted that when the second respondent took the decision not to appoint the applicant, there was great confusion regarding the actual gender balance at the senior management level. However, the Court was prepared to accept that, at the time, females filled only 29% senior management posts. The EEA requires that equity plans must provide objectives for each year, their duration, and procedures for evaluating their implementation. The Court noted that, in SA Police Service v Solidarity obo Barnard (Police and Prisons Civil Rights Union as amicus curiae  11 BLLR 1025 (CC)), the Constitutional Court had confirmed that competent courts must ensure that validly adopted equity plans are applied lawfully. Apart from the fact that the respondent had no plan, it had no mechanism to track the levels of gender representation. The second respondent had applied the target without considering the panel’s reasons for its recommendation. Affirmative action had been applied ad hoc, in a haphazard, arbitrary, and random manner. The responsible official had applied a quota system and raised an absolute barrier, both of which were impermissible. The affirmative action measure applied by the respondents conflicted with both the Constitution and the EEA. Accordingly, the measure had unfairly discriminated against the applicant. The respondents were directed to appoint the applicant to the post concerned and pay him compensation equal to the difference between the salary he had earned and the salary he should have earned, with retrospective effect.
The respondent was employed by the appellant to bottle Aquelle spring water. The appellant’s plant was located on property belonging to a religious mission, and to gain access to the workplace, the appellant’s employees had to cross the mission’s property. The mission’s security guards were instructed to bar entry to any persons who did not comply with its code of conduct; one provision, for example, prohibited “amorous relationships between any two persons outside of marriage”. The respondent and a colleague were denied access because they became pregnant outside of marriage. Consequently, the respondent and her colleague were not able to access the workplace, as they were refused access to the mission’s property. They were subsequently fired. The court ruled that the dismissal of the respondent employee was automatically unfair because she had been dismissed for her pregnancy. The court noted that all persons have a constitutional right to equality. Discriminatory dismissals, such as this one, are accordingly automatically unfair and higher compensation is allowed in such cases. Employers are obliged to avoid discriminating against employees directly or indirectly ̶ protection against being discriminated against on the ground of pregnancy is not a preserve of married women. An agreement that denies pregnant employees access to the workplace is accordingly prima facie unenforceable unless it can be justified on grounds consistent with constitutional norms. The mission’s code of conduct interfered with the employment relationship between the appellant and its employees and created a situation in which breaches could lead to dismissal. Such provisions blurred the line between the appellant’s terms and conditions of employment and the mission’s code. That the employee was not a party to the mission’s code proved decisive. As lessee, the appellant had legal remedies to compel the mission to allow full use and enjoyment of the leased property. The appellant’s faint plea of operational necessity could not serve as a defense because it had failed to exercise its rights as lessee to protect its pregnant employees. The employee had tendered her services, and the appellant’s refusal to accept the tender constituted a breach of contract. The court further held that the appellant’s acquiescence in the mission’s discriminatory practice of barring unwed pregnant women from the leased premises violated the appellant’s constitutional duty to treat its employees fairly and was a breach of its common law duty to accept the employees into service. The court, therefore, confirmed that the employee had been dismissed and that her dismissal was automatically unfair. The court also confirmed the remedy of 12 months’ compensation.
The South African Police Service (“SAPS”) had adopted the Employment Equity Plan (“EEP”), which sets numerical goals to produce gender and racial diversity. The appellant, Ms. Barnard, applied twice for a position in the National Evaluation Service of the SAPS in 2005. Despite being shortlisted, interviewed, and recommended as the best-suited candidate, she did not get the position on either occasion. This case concerns her second attempt, where the National Commissioner did not appoint Ms. Barnard on the grounds that it would not enhance racial representation at that salary level and that it was not necessary to fill the vacancy immediately because the post was not critical. While the Labor Court found that SAPS had unfairly discriminated against the appellant, the Labor Appeal Court found in favor of SAPS. On further appeal, the Supreme Court of Appeal (“SCA”) reversed the Labor Appeal Court’s decision and held that Ms. Barnard had been the victim of unfair discrimination on the basis of race, in violation of Section 9(3) of the Constitution and Section 6(1) of the Employment Equity Act (the Act). The Constitutional Court granted SAPS leave to appeal and unanimously reversed the SCA’s ruling in favor of Ms. Barnard. As the Court noted, the SCA found that SAPS had failed to rebut the presumption that the discrimination against Ms. Barnard was unfair. But, since the EEP was a valid affirmative action measure, the issue was not whether the Plan could overcome such presumption, but whether the decision the National Commissioner made under it was open to challenge. The Court found that the Commissioner properly exercised his discretion. Appointing Ms. Barnard would have aggravated the overrepresentation of white women at that salary level. And, the decision did not bar Ms. Barnard from future promotions.
The appellant was charged with defilement contrary to Section 138 of the Penal Code, Chapter 87 of the Laws of Zambia (unlawful carnal knowledge of a girl under 16 years) and was sentenced to the minimum mandatory sentence of 15 years’ imprisonment. On behalf of the appellant, the appeal was filed on two grounds. On ground one, it was contended that the Court had erred in law by deciding not to conduct a voir dire and proceeding to receive the sworn evidence of a child. On ground two, it was contended the court below erred by finding corroboration and concluding the appellant was guiltywwww. Relative to the first grounds, the Court held that, while there had been no voir dire and while the Magistrate had failed to inquire as to whether the child understood the nature of the oath, this did not necessitate a re-trial, given that such orders are typically discretionary and this was not the only evidence tendered at trial. Relative to the second grounds, the Court observed that the question of identity was not in dispute and that there was substantial corroborative evidence that the crime had been committed. Accordingly, the Court concluded that the grounds lacked merit, as the Court was competent to convict the appellant even without the victim’s evidence. The Court further noted that the crime was compounded by the breach of trust that the appellant (who was the prosecutrix’s step-grandfather and exercising parental responsibility over her at the time) had committed against the victim and, therefore, set aside the 15-year minimum sentence in favor of a 20-year hard labour sentence.
The petitioner filed a petition for the dissolution of his marriage. Under Zambian law, there is only one ground for divorce: that the marriage has broken down irretrievably. A marriage has irretrievably broken down when there is no chance of the parties resuming cohabitation. The High Court observed that, on the facts, the conduct and lifestyle of the parties, especially during the period when the suit’s hearing was pending, was utterly inconsistent with that of a couple whose marriage has irretrievably broken-down. In particular, the parties still continued to enjoy family life, the petitioner was still supporting the respondent financially, and the parties continued to enjoy a sexual relationship. In this light, the High Court rejected the submission that there was no mutual love between the parties and concluded that the respondent had not behaved which would preclude the petitioner from reasonably being able to live with the respondent. Accordingly, the High Court dismissed the petition.
The petitioner and the respondent were divorced in the local court where the petitioner was granted custody of the couple’s three children, with the respondent retaining rights of access. The couple were also ordered to share their household goods equally. The petitioner appealed to the High Court in relation to the property adjustment in respect of the matrimonial property and the two houses built on it, acquired during the subsistence of the marriage and in particular, against the award of the smaller house to the respondent on the basis that this was not a just and proper order of property adjustment. In support of his argument, the respondent argued that: (i) the plot was too small to share; (ii) the petitioner should not be compelled to live with his former wife using a single gate and in limited space; and, (iii) the smaller house allocated to the respondent by the court was already occupied by the three children of the family. The High Court held that there is no family property too small to for a former husband and wife to share after divorce. Moreover, the husband’s inconvenience in this context was deemed immaterial; if the physical structures could not be shared, for whatever reason, then, the couple should share the market value of the properties once sold. The High Court noted, on the facts, that the lower court’s decision to grant the petitioner the option to buy the smaller from the respondent after valuation or in the alternative, sell the entire property, and share its market value was perfectly just and correct under the circumstances. Accordingly, it dismissed the appeal with costs.
The defendant alleged that he was induced to make and execute an agreement to pay the plaintiff various amounts following the breakdown of their 10-year relationship, including: payment of US $50,000 (with US $30,000 to be paid initially followed by the remainder; this was subsequently amended to US $60,000), payment of the plaintiff’s rental and medical expenses for 12 months, the purchase of furniture and a computer, and the provision of financial support to the plaintiff’s daughter who was studying. The defendant freely paid the plaintiff US $30,000 but did not honor the rest of the proposed agreement. The defendant claimed that the agreement had been entered into by duress on the part of the plaintiff or alternatively, should be set aside for lack of consideration, and therefore counterclaimed the US$30,000 paid under that agreement. In reply, the plaintiff claimed that: (i) there was a common law marriage between the parties for the defendant held himself out as the plaintiff’s husband and father to her children and for all intents and purposes they lived as husband and wife; and, (ii) the defendant entered into the agreement willingly. The Supreme Court concluded that, in the present case, there was no celebration of marriage and, therefore, the parties could not be presumed to have been married under common law. Further, the Supreme Court noted that there was evidence in support of the position that the agreement was the result of blackmail on the part of the plaintiff who held various sensitive documents of the defendant and threatened to report the defendant to the Zambia Revenue Authority if he did not agree to enter into the agreement. The Supreme Court noted that the evidence established that the agreement had been entered into under duress and therefore was capable of being set aside on this basis. However, a party who enters into a contract under duress has the option of ratifying the contract or seeking to avoid it once the duress has come to an end. The Supreme Court noted that while the defendant paid the US $30,000 with full knowledge of all the circumstances (including suspecting that the plaintiff no longer had any sensitive documents in her possession), the defendant could not have legally ratified the contract, as it was invalid for lack of consideration (in particular, any consideration would be past consideration because the relationship had ended and the plaintiff was supposed to move out of the defendant’s house anyway as she had no legal right to continue staying there). Accordingly, the Supreme Court ordered the plaintiff to refund US$30,000 without interest to the defendant on the basis that the plaintiff should not be unjustly enriched by the threat (with costs to be borne by the plaintiff, to be agreed upon or taxed in default of agreement).
The appellant was charged with the offence of indecent assault on a female contrary to Section 137(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The victim worked for the appellant as a maid when she was indecently assaulted. The appellant advanced four grounds of appeal: (i) the trial court erred when (i) it found the appellant had a case to answer at the close of the prosecution’s case; (ii) it convicted the appellant of the offence in the absence of corroborative evidence; (iii) the trial court erred when it convicted the appellant on the evidence of the victim who suffered from unsoundness of mind without satisfying itself that the victim understood the nature of an oath and was capable of giving rational testimony; and, (iv) it held that the findings in the medical report supported the prosecution’s evidence and when it held that the appellant had corroborated the evidence of the victim when he admitted touching the victim. The Court dismissed all grounds for appeal on the following bases: (i) the Court was satisfied that the victim’s testimony was presented in a very coherent manner and that the three ingredients of the offence had been established and that the victim’s testimony was not discredited at all; (ii) there was medical evidence which corroborated the crime as well as evidence that the victim did not consent to the indecent assault; (iii) the victim’s testimony was very consistent and was given with ‘lucid clarity’, therefore there was nothing in the victim’s testimony that could have compelled the trial court to conduct a voir dire; and, (iv) there was medical evidence which corroborated the victim’s testimony and there was no evidence of a romantic relationship between the parties which would indicate consent. Further, the Court held that, because of the ‘master and servant’ nature of the relationship, the minimum sentence of 15 years imprisonment was inappropriate and should be set aside and replaced by a sentence of 20 years imprisonment with hard labor effective from the date of conviction.
The accused was charged with one count of rape contrary to Sections 132 and 133 of the Penal Code, Chapter 87 of the Laws of Zambia. The accused denied the charge. However, following the trial (during which the prosecution called five witnesses, and after considering the evidence of the accused which was given on oath), the trial magistrate found the accused guilty and convicted him of the subject offence. The case was then remitted to the High Court for sentencing pursuant to Section 217 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia. Before passing any sentence, the Court was required to satisfy itself that the relevant legal and procedural provisions had been observed by the trial court. The Court held that there was medical evidence in support of the violent nature of the act as well as other corroborative evidence, such as the distressed state of the victim when she reported the act. Furthermore, the Court concluded there was sufficient evidence in support of the identification of the accused by the victim including the trial magistrate’s finding that the victim was a truthful witness. On the totality of the evidence, the High Court held that the trial judge’s finding of guilt and the conviction was ‘anchored on firm ground’ and, therefore, concluded that it should be upheld. The High Court sentenced the accused to 25 years imprisonment with hard labor effective from the date of arrest.
The appellant was charged with incest contrary to Section 159(1) of the Penal Code but was convicted of the lesser charge of indecent assault contrary to Section 137(1) as amended by Act No. 15 of 2005, Cap 871, as the medical evidence ‘left a lot to be desired’ (as described by the Magistrate). However, when the matter was sent to the High Court for sentencing, the sentencing judge substituted the charge of indecent assault with incest and sentenced the appellant to 20 years imprisonment with hard labor. The appellant appealed this conviction and sentence on the basis that the Magistrate “erred in law and fact when he tried and convicted the appellant without the Director of Public Prosecutions’ consent.” In support of this argument, the appellant noted that the instructions of the Director of Public Prosecutions were to try the appellant for rape not incest. Therefore, in the absence of express consent by the Director of Public Prosecutions as required by Section 164 of the Penal Code, Cap 871, the trial court had jurisdiction neither to hear the matter nor to proceed to convict the appellant on indecent assault and sentence him to 20-year term for incest. The Supreme Court reviewed the letter from the Director of Public Prosecutions and noted that, while the first paragraph gave the impression that he had sanctioned the prosecution to go ahead with the charge of incest, the remainder of the letter made it clear that he had also sanctioned the appellant’s prosecution on a charge of either rape or defilement. The Supreme Court also noted that the latter could potentially enable a conviction of indecent assault under the relevant provisions of the Penal Code. Thus, the Supreme Court confirmed that the Director of Public Prosecutions rightly guided the prosecution and the court below to invoke whichever of these provisions as necessary. Moreover, the Supreme Court stated that the Magistrate rightly concluded that ‘the medical evidence left a lot to be desired.’ Ultimately, it concluded that the appellant was not guilty of the offence of rape, but that he was guilty of the offence of indecent assault contrary to Section 137 of the Penal Code and that the sentencing judge was mistaken to sentence the appellant for incest. The Supreme Court quashed the incest conviction, but still upheld the conviction for indecent assault and imposed a 20-year prison sentence.
The appellant was charged in the Subordinate Court of attempted rape contrary to Section 137 of the Penal Code, Chapter 87 of the Laws of Zambia. The statement of offence read defilement, contrary to Section 138 of the Penal Code. The appellant was convicted of indecent assault, a minor offence per Section 181(2) of the Criminal Procedure Code. The appellant appealed on two grounds. First, the statement of offence was defective, as (i) it did not specify the offence by section and subsection of the provision of the law contravened, and (ii) it was amended late which was unjust. Second, on the available evidence, a court could not have properly convicted appellant for attempted rape or indecent assault because the allegation of attempted rape impliedly includes both an allegation of assault and of indecency; on the facts, there was only an element of indecency (and not assault). The Supreme Court rejected both grounds of appeal on the basis that: (i), indecent assault, attempted rape, rape and defilement are offences of the same genus and therefore a defendant charged with attempted rape may be convicted of a lesser related charge like indecent assault; (ii) the appellant had an opportunity to defend himself in relation to the alternative charge, so there was no constitutional violation of the fairness of the trial; and (iii) the findings of fact were in accordance with the evidence on the record, as the appellant was ‘caught in the act’ and there was medical evidence of injuries sustained by the victim. Accordingly, there was no reason to interfere with the findings of fact or the minimum sentence of 15 years’ imprisonment imposed by the sentencing judge. The Court dismissed the appeal.
This case was brought by the complainant, who was attacked and raped by robbers at her home. She immediately reported the matter to police and requested a medical practitioner to prescribe emergency contraception. The medical practitioner said he required the presence of a police officer to do so. Because she was advised at the police station that the officer who had dealt with her case was not available, the victim returned to the hospital, where she was refused treatment without a police report. The next day she went to the hospital with another police officer and was informed that the prescribed 72 hours had already elapsed. When the complainant was confirmed pregnant, she indicated to the prosecutor that she wanted her pregnancy terminated, but was told that she had to wait until the rape trial had been completed. She finally obtained the necessary magisterial certificate, but when she sought the termination, the hospital matron felt that it was no longer safe to carry out the procedure. After the full term of her pregnancy, the complainant brought an action against the Ministers of Health, Justice and Home Affairs for pain and suffering endured as well as maintenance of the child. The High Court dismissed her claim that the employees of the respondents had been negligent in their failure to prevent the pregnancy, and subsequently to facilitate its termination. She appealed the decision to the Supreme Court, which determined the claim by applying the test for negligence, finding the doctor negligent for having failed to take reasonable steps to prevent the pregnancy and the police negligent for failing to timely take the victim to the doctor for her pregnancy to be prevented. The Supreme Court recognized the relevance of regional and international human rights norms and standards, making reference to various provisions relating to the reproductive rights of women in CEDAW and the Maputo Protocol, but held that, pursuant to Constitutional terms, these cannot operate to override or modify domestic laws until they are internalized and transformed into rules of domestic law. Furthermore, the Supreme Court determined that it was the responsibility of the victim of the alleged rape to institute proceedings for the issuance of a magisterial certificate allowing the termination of her pregnancy. Ultimately, the Supreme Court partially allowed the appeal and granted the complainant general damages for pain and suffering arising from failure to prevent her pregnancy. Although conceding that Zimbabwe’s Termination of Pregnancy Act is “ineptly framed and lacks sufficient clarity as to what exactly a victim of rape is required to do when confronted with an unwanted pregnancy,” the Supreme Court dismissed the complainant's claim for damages for pain and suffering beyond the time her pregnancy was confirmed and for the maintenance of her minor child, as the authorities could not be liable for not assisting her to terminate the pregnancy because they do not have any legal duty to initiate and institute court proceedings on her behalf.
Mrs. and Mr. Gumede, both domiciled in KwaZulu-Natal, entered into a monogamous customary marriage in 1968 and four children were born during their marriage. Because she was forbidden by her husband to take up employment, Mrs. Gumede never worked and could not contribute to the accumulation of the family’s estate, which included two family homes. She was always the primary caregiver of the children. After forty years, the marriage broke down irretrievably. Mrs. Gumede had no family and was dependent for financial support upon her children and her old-age pension. In 2003, Mr. Gumede instituted divorce proceedings before the Divorce Court. Mrs. Gumede also approached the High Court and obtained an order invalidating the discriminatory legislative provisions on which the Divorce Court could rely. The Constitutional Court subsequently was approached by the Minister of Home Affairs and the KwaZulu-Natal Member of the Executive Council for Traditional Leaders and Local Government Affairs who resisted the order, for the reevaluation of the order of the High Court declaring constitutionally invalid certain sections of the Recognition of Customary Marriages Act, of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and certain sections of the Natal Code of Zulu Law (Proc R155 of 1987), which regulate the proprietary consequences of customary marriages. In a lengthy judgment, the Constitutional Court took great pains to explain that any distinction between the consequences of customary marriages entered into before and after the Recognition of Customary Marriages Act came into operation is discriminatory, inconsistent with the Constitution, and invalid. The Constitutional Court noted the international instruments that South Africa has ratified that prohibit forms of discrimination against women, including CEDAW. It held that the two provisions are patently discriminatory, unfair, and not justifiable. In terms of the judgment, all monogamous customary marriages entered into before the Recognition of Customary Marriages Act came into operation are now ipso facto in community of property, excluding customary marriages which had been terminated by death or by divorce before the date of the judgment. The Constitutional Court further held that the constitutional invalidity of Section 7(1) was limited to monogamous marriages and should not concern polygynous relationships or their proprietary consequences, determining that polygynous marriages should continue to be “regulated by customary law until parliament intervenes.”
The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief. Because there were no firstborn males in his immediate family, upon his death, the late Chief’s wife and the petitioner’s mother was appointed as a caretaker Chief in accordance with the Chieftainship Act. Following the death of the late Chief’s wife in 2008, the late Chief’s younger brother instituted a claim for inheritance of the chieftainship before a magistrate’s court, which was challenged by the late Chief’s son from a second wife, as well as that son’s mother. The petitioner, who had not been included in the proceedings before the lower court, subsequently intervened to request a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was precluded from seeking to succeed to the chieftainship, as she was the first-born child. Masupha argued that the Chieftainship Act does not necessarily preclude her from inheriting the chieftainship and that, even if the Chieftainship Act in fact precludes her from doing so, it should be struck down, because it violates multiple provisions of the Constitution. The High Court highlighted the fact that, in acceding to CEDAW, Lesotho specifically excluded itself from the provisions of that Convention in so far as it concerns the customary practices relating to succession to the throne and to chieftainship. It therefore dismissed Masupha’s petition seeking to declare the Chieftainship Act provision preventing female offspring from inhering chieftainships discriminatory and therefore unconstitutional, finding that the Chieftainship Act was not discriminatory, because it allows the senior wife to inherit the title as a caretaker, if there are no living first-born males from any of the deceased’s marriages. The High Court concluded that, when a wife succeeds her husband as a caretaker, the right to inherit reverts back to the male line of the family upon the death of the female chief. The judgment was appealed to the highest court in the country, the Court of Appeal, which affirmed the High Court’s decision and upheld the customary law effectively denying women the ability to succeed to chieftainship.
Lerionka Ole Ntutu was survived by multiple wives, sons, and daughters. After his sons filed an application asking the High Court to issue to them the letters of administration to administer their father’s estate, their sisters and stepsisters filed an objection and claimed their inheritance. The sons contested the objection, arguing that the distribution of their father’s estate was governed by Masai customary law, which did not recognize the right of daughters to claim an inheritance from their father’s estate. The judge in the first instance found that, because Ntutu was Masai and lived in an area excluded from the Succession Act, his estate should be divided accorded to Masai custom. The judge thus held that none of the daughters could inherit from their father’s estate. In ruling on the daughters’ appeal, the Court of Appeal invoked international treaties and covenants, including CEDAW, in finding that the daughters of the deceased person in that case were entitled to a share of his estate. On appeal before the High Court, the definitive question before Lady Justice K. Rawal was whether the Court should apply the Law of Succession Act or the customary law of the Masai community. The High Court was satisfied that, even if the Law of Succession Act allowed Ole Ntutu’s community to apply customary law in the distribution of his estate, any tenet of such customary law that would abrogate the right of daughters to inherit the estate of a father would be repugnant to justice and morality and could not be applied. The High Court thus ruled that Ole Ntutu’s daughters were entitled to inherit their father’s land.
Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them. The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs. The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child. The rest of the property was to be divided among the children, regardless of gender. The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew. The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under s 3(a) of the Constitution of Botswana. On 12 October 2012, the High Court subsequently awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property. On 3 September 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.” This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana.
In December 2003, members of the Congolese army (FARDC) under the command of Lieutenant-Colonel Bokila Lolemi stationed in the village of Songo Mboyo mutinied over unpaid wages. They targeted the local population and committed mass rapes across two nights with as many as 119 victims. Lolemi was charged with crimes against humanity for rape of 32 women by forces under his command and effective control. The court of first instance was the Military Garrison Tribunal of Mbandaka, which found 7 of the 12 defendants guilty, including Lolemi. Lolemi was found to have failed to exercise appropriate control over his soldiers and prevent the mass rapes, which he knew or should have known his soldiers were committing. The decision was appealed to and confirmed by the Military Court of Equateur. Though the defendants denied the rapes, the courts disagreed, citing survivors’ testimony and medical reports. This case is significant because it is one of the first instances of a Congolese Military Court directly applying the Rome Statute (in addition to DRC law n ° 024/2002 of November 18, 2002). The decision was issued by the same court and in the same year as the Mutins de Mbandaka case. The case is also significant because it represented the first time that government soldiers were put on trial for rape as a crime against humanity or war crime, a fact which is significant because the FARDC are believed to be responsible for a large proportion of sexual attacks in the DRC in recent times. The decision therefore struck a blow against military impunity for such crimes. (Lower court decision available at: https://www.legal-tools.org/doc/166854/pdf/)
The Civil Party brought suit on behalf of his 13-year-old daughter and sought criminal sanctions against four men whom he accused of violently raping his daughter. The four men jumped on her, held her down and one by one proceeded to engage in sexual relations with her when she was returning home from laundering clothes with her little sister. The case proceeded in expedited fashion as a flagrant intentional crime. The Tribunal found the four men guilty of violent rape, noting that even if the girl consented, her mere thirteen years of age prevented any clear and free consent to sexual relations which would mitigate the charges. The Tribunal imposed criminal sanctions of five years imprisonment for each of the four men, imposed equitable damages equivalent to $100 each payable to the girl’s father, and charged the men with paying court fees.
Busudu Tina (“the accused”) was prosecuted by the State for having aborted her pregnancy, punishable under Articles 165 and 166 of the Congolese Penal Code. She attempted to abort her pregnancy using different methods, including ingesting quinine, manioc infusion, and a product described as ‘cloveganol’, and admitted to the Tribunal that she had aborted a previous pregnancy in 1991. The Tribunal became aware of the abortion when an acquaintance, worried for the accused’s health, sought assistance despite being sworn to secrecy by the accused. The fetus was hidden in a laundry bag, which found its way to the prosecutor’s office. The Tribunal applied the minimum sentence of five years imprisonment, taking into account as a mitigating factor that she and her husband were estranged after six months of pregnancy. (Available at pages 128-130 on the linked website.)
Tthe “Civil Party” brought a case against his “ex-wife” and Bahige Kanywabahize “Bahige”, or together with the ex-wife, the “Accused”, for abandoning the conjugal home and adultery. The Civil Party and his ex-wife cohabitated as a married couple until she decided to leave their home, obtained a divorce from the Tribunal for the City of Bukavu, and decided to get married to Bahige. The Civil Party claims his ex-wife abandoned him with the intent to marry Bahige. The Civil Party seeks customary reimbursement of the dowry he paid to his ex-wife (6,000 zaires, a goat, two cases of beer, a case of Fanta, a can of a local drink called Kasiksi and a hoe) and damages of 150,000 zaires from the Accused under the Congolese Family Code. The Tribunal determined the Civil Party was not entitled to the customary reimbursement of dowry since his spousal rights ceased upon divorce; adultery and abandonment of the conjugal home occurring subsequent to a duly obtained divorce are not subject to sanction. (Available on pages 144-46 on linked site.)
The “Civil Party” brought allegations of adultery against her husband and the “cohabitant”, claiming her husband abandoned her to live with the cohabitant despite her earlier marriage with her husband in 1980. The Civil Party and her husband had three children before he moved away. A dowry was regularly paid on the marriage throughout and no party contests the 1980 marriage. As such, the marriage could generally qualify under Congolese law as a ‘monogamous customary marriage’ under the law of November 30, 2000, which does not require the date of the marriage or any registry number to be filed with the State. The Civil Party’s husband and his cohabitant claim the civil party knew and authorized their cohabitation because she refused to relocate with her husband when his work required him to do so and that she visited them at their home, all of which she contests. Despite the lack of contest by any party to the prior marriage and recognition that a monogamous customary marriage exists here, the Tribunal suspended the case until the marriage was registered because Article 380 of the Congolese Family Code requires a ‘monogamous customary marriage’ to be registered before either party can exercise rights in court. (Available on pages 136-137 on linked site.)
The Constitutional Court considered a challenge to the internal provincial government’s procedural rules which included, among other claims, that one Article of the procedural rules violated the gender equality requirement of Article 14 of the Constitution. The Court found the procedural rules to conform to Article 14, provided that they must be understood and interpreted in light of line four of Article 14, which requires equitable representation of women in provincial institutions (available at pages 46-50 on linked site).
The applicant, Salome Jumbo, claimed she was dismissed as a result of her pregnancy. In 1999, the applicant started as a temporary nurse aid at a clinic and continued in that position until 2001. In 2001, the manager of the clinic assured the applicant that her job had become permanent. On April 4, 2001, the manager discovered that the applicant was pregnant. He immediately warned the applicant that he would not allow her to keep her job if she remained pregnant, as they wanted a permanent nurse aid. The manager also enquired into the applicant’s private affairs and made inappropriate sexual remarks. On June 1, 2001, the manager terminated the applicant’s employment explicitly informing her that her termination was due to her pregnancy. The applicant asked for a reference letter, but the manager refused saying that she was a temporary employee and did not deserve one. The Industrial Relations Court of Malawi (the “Court”) ruled that the termination was contrary to the spirit of the Employment Act and ordered that the clinic immediately re-instate the applicant. The Court found that the respondent specifically violated the applicant’s rights under §31(1) of the Employment Act, which requires employers to provide a reference if the employee requests one on termination of an employment contract. In addition, the respondent violated § 49 (1) of the Employment Act, which dictates that “terminating a woman’s employment because of pregnancy amount[s] to an offence [that is] punishable with a fine of K20,000 and imprisonment of five years” (p. 3). The Court also found that the manager’s inquiries into the applicant’s private affairs with her husband amounted to sexual harassment. This case is notable in Malawi because it set the precedent that inquiring into a married woman’s private affairs with her husband is an unfair labor practice.
The respondent employed the applicant on a fixed term contract as a data entry clerk. The applicant’s contract term was four years expiring on January 10, 2005. However, the respondent terminated her on December 22, 2003. The reason given for her termination was that she had become pregnant out of wedlock. The applicant challenged the dismissal and took legal action against the respondent. The respondent conceded that the reason for termination was invalid and asked the court to decide on a remedy. The applicant asked for reinstatement as the remedy. The Industrial Relations Court of Malawi (the “Court”) found that reinstatement was an inappropriate remedy because the applicant’s fixed contract had already lapsed in time. Instead, the Court awarded the applicant compensation for the employment benefits lost between the effective date of her termination (March 22, 2004) and the expiration of her contract (January 10, 2005). The Court cited § 63 (4) of Malawi’s Employment Act, which “provides that compensation shall be just and equitable” (p. 2). The Court awarded additional compensation to the applicant pursuant to §§ 63(5)(d), 57(3) and 49 of the Employment Act. Section 57(3) “prohibits discrimination on the basis of one’s sex, marital status or other status;” whereas, § 49 prohibits “dismissal on grounds of pregnancy (p. 3).”
The applicant and her husband were both employed by the respondent as an accounts clerk and teacher, respectively. After the applicant’s husband resigned to join the Public Service, the respondent terminated the applicant’s employment contract noting that her employment was tied to her husband’s. The applicant challenged the dismissal alleging that it was invalid. The Industrial Relations Court of Malawi (the “Court”) found that the respondent discriminated against the applicant on the basis of her marital status. The Court reasoned that “the effect of the reason used by the respondent was to prevent the applicant from entering and sustaining an employment contract and pursuing a livelihood in her own right because she was married” (p. 2). In reaching its decision, the Court consulted § 5 of Malawi’s Employment Act and §§ 20, 24(1)(i), 24(2)(b) and 31 of Malawi’s Constitution. The Court held that the applicant’s termination was invalid because the reason for her termination “denied her right to engage in economic activity through employment” and “her right to fair labor practices” (p. 2). Therefore, the applicant’s termination was also prohibited under section 57(3)(a) of Malawi’s Employment Act. The Court awarded the applicant compensation for the unfair dismissal and discrimination.
In 2013, the appellant, 24-year-old Matthews Kyria, was found having sexual intercourse with the victim, Sarah K., who was 15 years old. The next day the victim admitted that she had been having sexual relations with the appellant since June 2011. Malawi charged the defendant with defilement contrary to § 138(1) and indecent assault contrary to § 137(1), both of Malawi’s Penal Code. Section 138(1) provides, “Any person who unlawfully and carnally knows any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment to life” (¶ 7.1). In the lower court, the appellant pleaded not guilty arguing that the victim consented to the sexual acts and that she showed him an identification card that she had doctored to state that she was 17 years old at the time. The lower court found the appellant guilty on both counts. The appellant filed two grounds of appeal asking: (i) “whether the conviction of the appellant was proper with regard . . . to the circumstances of the case;” and; (ii) “whether the sentences were manifestly excessive considering the” fact the victim had mislead the appellant with respect to her age (¶ 3.1). The High Court upheld the conviction citing the strict liability nature of the crime. The Court noted that the victim was clearly underage at the time of the sexual intercourse and rejected the defendant’s consent defense noting that “girls under the age of . . . [sixteen] are incapable of giving consent due to immaturity (¶ 7.4).” Notwithstanding, the Court reduced the appellant’s sentence to four years for defilement and one year for indecent assault to run concurrently, noting that the appellant did not know that the victim was under age.
The plaintiff, Phiri, was a security guard. She was employed on a fixed term renewable contract, renewable upon satisfactory performance. On December 26, 2005, near the end of her employment term, one of Phiri’s colleagues attacked her and attempted to rape her, only stopping after being apprehended when the plaintiff shouted for help. The plaintiff reported the incident to her employer’s management. In response, the company’s management accused her of misconduct for revealing to the public what the company considered an internal matter. On December 31 2005, the company fired the plaintiff citing the expiring fixed term contract for support. The plaintiff brought her case in front of the Industrial Relations Court of Malawi (the “Court”). The Court found that she had reason to believe her contract would have been renewed and that the company’s failure to renew her contract was based on the attempted rape incident. According to the Court, the company’s action breached an implied term of Phiri’s employment contract relating to mutual trust and confidence as well as the company’s obligation under the contract to protect female employees. The Court found that this incident was sexual harassment. Until recent amendments to the Employment Act, the labor laws of Malawi did not address sexual harassment. The closest Malawi’s labor regulation came to prohibiting sexual harassment in the workplace was § 5 of the Employment and Labor Relations Act read with § 20 of Malawi’s Constitution, which prohibits unfair discrimination in all forms. Despite the lack of a legal provision specifically addressing sexual harassment, the Court found that inappropriate sexually based behavior (e.g. sexual advances) creates a hostile work environment and leads to unfair labor practices. Therefore, the Court found Phiri’s dismissal invalid and held that the company violated Phiri’s “right to fair labor practices, the right to work, her right to safe working environment and personal dignity” (p 4).
On February 23, 2016, 19 women were arrested by police and jointly charged “for the offence of living on the earnings of prostitution” in violation of § 146 of the Penal Code of Malawi (the “Penal Code”) ( ¶ 1.1). A Fourth Grade Magistrate in Dedza convicted them “on their own plea of guilt” and fined them MK 7,000.00 each (¶ 1.2). The police lacked evidence to prove the charge against them. In addition, the women did not have legal representation during the proceedings, including when their guilty plea was recorded. The women challenged the conviction on July 28, 2016 on numerous grounds including (i) that the Fourth Grade Magistrate did not have jurisdiction, (ii) that the women were charged together when they should have been charged separately, (iii) that the High Court should not have accepted a unanimous plea, (iv) that “the charge was wrong in law as living on the earnings of prostitution does not target the sex worker herself” but those who live parasitically and exploitatively off her earnings, and (v) that the plea of guilty should not be accepted because the court did not comply with mandatory procedures regarding the defendants’ knowledge. The High Court found that the Fourth Grade Magistrate did not have jurisdiction to hear the case. In addition, the Court held that the arrest of the women was unconstitutional and not based on evidence. Citing the legislative history of the offense, the Court clarified that § 146 of the Penal Code did not criminalize sex work but was mainly intended to protect sex workers from those who would exploit them. The High Court held that even though sex workers may be arrested in circumstances under this section, the arrest must be properly supported by evidence. Consequently, the High Court vacated the convictions and ordered that fines be repaid to the women.
The appellant, E.S., was a 38-year-old mother of three. She was practicing Jehovah’s Witness who consistently maintained that blood transfusions were against her religion. She told her obstetrician at her last pre-delivery appointment that she would refuse a blood transfusion if complications arose during delivery. After that appointment, E.S. gave her husband, also a Jehovah’s Witness, Durable Power of Attorney for Health Care. Nonetheless, her brother, A.C., filed an ex parte application to serve as her “curator to the person,” for the purpose of authorizing medical procedures on E.S., including blood transfusions after she suffered complications including a hysterectomy after giving birth. In support of his application, E.S.’s brother argued that, as a parent, E.S.’s individual autonomy had to be weighed against the interests of her family. He also offered testimony from her doctor, who explained that her blood and oxygen levels were too low to support full brain function. The trial court granted the application. The Supreme Court addressed three issues: whether the matter was moot after E.S.’s medical recovery, whether the lower court erred in granting A.C.’s application to be appointed his sister’s curator and have blood transfusions administered, and whether young children’s right to be raised by their parents supersedes the right of an individual to refuse a blood transfusion in life-threatening circumstances. The Supreme Court reversed the lower court, finding that “written advanced directives which are specific, not compromised by undue influence, and signed at a time when the patient has decisional capacity construe clear evidence of a patient’s intentions regarding their medical treatment” (¶56) and “the right to choose what can and cannot be done to one’s body, whether one is a parent or not, is an inalienable right” (¶ 71). The court made clear that a woman’s status as a mother does not restrict her right to liberty and privacy, especially where decisions of medical treatment are involved.
Plaintiff filed for divorce from her abusive husband after he threatened to kill her. Under Namibian law, before a judge can issue a final divorce decree, the plaintiff must ask the defendant to restore his or her conjugal rights. This process effectively requires the filing spouse to give the other party, in this case an abusive husband, a chance to re-enter the marital home to restore his/her conjugal rights. The High Court of Namibia (“High Court”) recognized the danger of applying this requirement in domestic violence cases, where the respondent may use the judicially-mandated restitution of conjugal rights as an opportunity to access and further abuse the filing spouse. In light of this risk, the High Court held that a spouse who files for divorce based on acts of domestic violence is exempt from the restitution of conjugal rights requirement.
The defendant, an 18-year-old uncle of the complainant, was criminally charged for housebreaking with intent to rape and raping his 12-year-old niece. The complainant alleged that the defendant, on three separate occasions, came to the complainant’s home and raped her. The complainant’s mother found out after take the complainant to a clinic, which confirmed that she was pregnant, and confronting the defendant through the headman, as tradition dictates. According to the defendant, the complainant invited him to her home and agreed to have sex with him for money, specifically N$6. Given the conflicting testimony, the High Court of Namibia (“High Court”) found that the prosecution failed to prove the housebreaking with the intent to rape and rape charges beyond a reasonable doubt. In explaining its reasonable doubt, the Court cited the facts that complainant did not mention until her cross-examination that her uncle in fact gave her money on the day of the first rape, that she did not wake her seven-year-old brother or otherwise raise an “alarm” when her uncle arrived at her hut at night, and that she continued to withhold information from her mother “after her mother created a secure environment and the accused failed to execute his threat” to beat the complainant if she told anyone. Still, the Court did not believe the defendant’s testimony that his niece was a “great temptress.” Instead of homebreaking with intent to rape and rape as charged by the State, the High Court convicted the defendant under section 14, sexual offences with youths, of the Immoral Practices Act, 21 of 1980, which carries a maximum penalty of 10 years imprisonment and/or a fine not exceeding N$40,000. The Court found that the State proved the three elements of that offense: the defendant (1) committed a sexual act with a child under the age of 16 (2) when he was more than three years older than her and (3) not married to her. Although the defendant claimed that he did not know the complainant’s age, the High Court held that, in order to avoid conviction, the defendant had the burden of proving that the complainant deceived him regarding her age. The defendant failed to provide such proof.
In 2014, the Supreme Court of Namibia (“Supreme Court”) affirmed the High Court of Namibia’s (“High Court”) decision in LM and Others v. Government of the Republic of Namibia that sterilization procedures require informed consent. The three respondents sued the Namibian government, alleging that doctors at state hospitals forcibly sterilized them without their consent in violation of their constitutional rights. They claimed that the forced sterilizations left them unable to bear children, ruined their marriage prospects, constituted discrimination against them based on their HIV status, and caused ongoing pain and suffering. The defendants argued that the plaintiffs’ claims lacked merit because they consented to the procedures. The court found that the alleged “consent” was deficient because the defendants failed to prove that they adequately informed the plaintiffs of the consequences of sterilization, or that the plaintiffs clearly and knowingly consented to the procedures before they went into labor. However, the Court found no evidence that the complainants were sterilized because of their HIV status and dismissed that claim. Emphasizing the serious personal nature of the decision, the Supreme Court stated that the decision to be sterilized “must be made with informed consent, as opposed to merely written consent” (¶ 3). The Supreme Court stated that the choice to undergo a sterilization procedure must lie solely with the patient noting that “there can be no place in this day and age for medical paternalism when it comes to the important moment of deciding whether or not to undergo a sterilisation procedure.” (¶ 106). The Supreme Court also denounced the practice of obtaining “consent” for sterilization during labor noting that patients may not fully appreciate the consequences of giving their consent when experiencing the immense pain involved in labour. The Supreme Court also agreed with the lower court that plaintiff-respondents did not provide any evidence that they were sterilized because of their HIV status.
Mrs. Lesia filed an application for relief against her husband, alleging that he abandoned his family, abused her, and was attempting to sell their home without her consent. She alleged that she built and paid for the home, and so sought to have her husband enjoined from selling it. The court issued an interim order granting the requested relief. The defendant disregarded the court order, continued his efforts to sell the home, and threatened to kill Mrs. Lesia if she kept interfering. To justify his rejection of the court order, the defendant claimed that he was not married to Mrs. Lesia, and that she had no right to file any applications against him. The court upheld Mrs. Lesia’s right to seek judicial intervention and sentenced the defendant to 30 days in jail for willfully disobeying the court’s order.
The complainant alleged that the defendant raped her. The defendant vehemently denied the allegations and testified that the sex was consensual. The High Court treated the defendant’s claim of consent as an affirmative defense ruling that he had the burden of proving consent. The Court found that the defense was unable “through cross examination, to show that the sex was consensual” (p. 4). Consequently, the Court convicted the defendant of rape. This was a landmark case because it essentially shifted the burden of proof in rape cases. Instead of requiring the prosecution to prove a lack of consent, the court made the defendant prove that the victim consented to the sexual encounter.
While considering the appeal of a rape conviction, the High Court condemned the trial court’s failure to punish the defendant in accordance with the severity of his crime. The Court found that where a trial court finds sufficient evidence of rape, the sentence should be more than a mere “slap on the wrist.” The court stated that “rape is always serious even without aggravating circumstances” because the victim’s “virginity has been assaulted and undoubtedly her dignity and reputation have been compromised blighting her prospects for marriage” (p. 1). The Court found that those factors should always be considered before a sentence is imposed. The Court affirmed the conviction and increased the defendant’s prison sentence from five to ten years.
The defendant was convicted of persistent sexual abuse of a minor child. The trial evidence showed that the defendant was the victim’s uncle and that he convinced her that, in accordance with tradition and custom, he was supposed to teach her to have sex. As instructed, the minor allowed the defendant to perform sexual acts on her. Since the child was below the legal age of consent, the High Court did not consider her level of resistance. The Court found the defendant guilty of sexually abusing a minor and sentenced him to fifteen years in prison.
The plaintiff was a male citizen who planned to run for office. The electoral commission advised him that the seat he desired was reserved only for female candidates pursuant to the electoral quota instituted by the Local Government Election Act of 1998. The plaintiff challenged the constitutionality of the electoral commission’s refusal to register his candidacy based on his sex. The High Court acknowledged that the Election Act disadvantaged men by reason of their sex alone. It also noted that, although 51% of the population of Lesotho was female, only 12% of the seats in the National Assembly were held by women. The Court ultimately upheld the constitutionality of the Election Act as a carefully designed measure intended to achieve the important national goal of increasing the number of women in the National Assembly.
The plaintiff sued the government for false arrest and assault. The plaintiff, who worked for the government as an accounts clerk, claimed she was robbed by two armed men while she was transporting government funds. The next day, the police arrested her. The plaintiff alleged that she was taken to a police post, stripped down to her underwear, placed on her back, beaten, and interrogated, while the officers beat her and poured water over her head. The High Court determined that the plaintiff’s arrest was lawful but the torture was not. A medical certificate entered into evidence showed that plaintiff had injuries when she was released from police custody. Because there was no proof that she had those injuries before she was detained, the Court found that the plaintiff was entitled to relief.
The defendant was charged with violating the Sexual Offence Act of 2003 for the attempted rape of a 71-year-old woman. The trial evidence showed that the victim’s daughter intervened and was able to stop the rape after the defendant threw the victim to the ground but before he could commit the actual rape. As such, the defendant maintained at trial that he was innocent because the Sexual Offences Act of 2003 did not criminalize attempted rape. The High Court disagreed with the defendant’s interpretation of the Sexual Offenses Act. The Court held that, in order to sustain a conviction for attempted rape, the prosecutor simply had to provide evidence of the defendant’s intent to commit rape and any actions taken to commence the actual crime. Here, the defendant struggled with the victim, threw her to the ground, and stated his intention to have sex with her against her will. Consequently, the Court found the defendant guilty of attempted rape.
The defendant was convicted for sexual assault and attempted rape of his 16-year-old niece. The appellate court upheld the conviction, but overturned the sentence imposed by the trial court. The appellate court held that the lower court failed to consider aggravating factors, including the close relationship between the parties. Given the prevalence of sexual assault in Lesotho, the court determined that jail sentences needed to serve as a deterrent for both the perpetrator and the general public. According to the court, “a very loud and clear message must be sent to all those who consider themselves with power and right to abuse or rape girls and women, that they will be dealt with the seriousness their unlawful actions demand” (p. 5). The Court sentenced the defendant to two years imprisonment with one year suspended for five years, unless the defendant commits another violent offense.
The defendant was convicted of culpable homicide. The trial evidence showed that after spending an evening at a bar, the defendant beat his girlfriend to death. The defendant sought leniency at sentencing, arguing that he was drunk when he committed the offense. The High Court found that although intoxication somewhat lessens the blameworthiness of a person, the courts should not consider it a mitigating factor. According to the Court, defendants “should not be allowed to escape appropriate punishment for their actions for reasons of drunkenness, especially where such actions exhibit an attitude of violence against women” (p. 3). The Court sentenced the defendant to seven years imprisonment with half of the sentence suspended for five years if he was not found guilty of another violent offense during the suspension. This decision marked a shift in how intoxication was treated for purposes of sentencing in domestic violence cases in Lesotho.
Mrs. Petlane, the plaintiff, sued her husband, alleging that he abused her regularly and caused her to leave their marital home. The plaintiff sought relief from the physical abuse, custody of the parties’ minor child, spousal support, and child support. The defendant did not allege an inability to provide for his wife and child, but insisted that they live together if he was going to provide that support. First, the High Court found that it had jurisdiction because the parties had a civil marriage rather than a customary marriage, as the defendant claimed. Then the Court held that Mr. Petlane could not compel his wife to return home, which would risk more physical abuse, by refusing to support her financially. Because his abusive behavior drove her out of the marital home, the court ordered Mr. Petlane to make regular spousal and child support payments to Mrs. Petlane.
Witnesses testified that Madame H.T. insulted her husband’s co-wife and mother in law. The Appeal Court granted divorce to Monsieur Y.K. on the sole basis that by insulting his mother his first wife had harmed his husband honor and dignity and made marital life impossible. However, quarrels between co-wives do not characterize a serious insult in a polygamous marriage. Moreover, by asking for divorce from the first wife only, the husband committed a serious injustice and violated his duty of impartiality with his wives. Additionally, insults directed at the husband’s mother do not constitute a legal basis for divorce, according to the Code des Mariages et Tutelles (Code of Marriage and Tutelage). Indeed, the Code only considers insults directly addressed at the husband as a basis for divorce. The Court held that such insults were not proved in this case and could neither be inferred from the behavior of Madame H.T. with her husband’s co-wife and mother in law, nor from her confession of having insulted her husband’s co-wife.
Sir Domtinet Bolngar brought a divorce claim to the civil tribunal of N’jamena on the basis of the prolonged rupture of their joint life and adultery committed by his wife. The Court pronounced a shared fault divorce and ordered an equal split of the couple’s joint goods. The Court of Appeal of N’jamena partially reversed the court’s decision and held that the divorce was exclusively caused by Sir Domtinet Bolngar‘s fault since the adultery of Madam Nalem Louise was never proven. The Court also awarded 3 million in damages to Madam Nalem Louise. Sir Domtinet Bolngar appealed the decision claiming he caught his wife red-handed at 5 am and that judges fail to assess the prejudice that he suffered. However the judges of the Supreme Court held that a simple narration of the facts did not constitute sufficient proof to charge Madam Nalem Louise with adultery, and therefore charged Sir Domtinet Bolngar with the court fees.
Both parties were committed to each other in a monogamous marriage. This commitment entails for the wife and husband multiple obligations. Among them, the obligation of cohabitation; the wife must live with her husband and her husband must welcome her. In this case, the husband granted his wife authorization to visit her parents. While she was away, he introduced another woman into his home. Following his wife refusal to come back, he demanded a divorce. The Appeal Court of Kayes held that the husband had broken his monogamous commitment and that the wife’s decision not to go back to her husband’s home until the other woman had left did not qualify for desertion. Hence the divorce at the wife’s tort was not granted. Rejecting this analysis, Monsieur A.T argued in front of the Supreme Court that bigamy cannot be presumed and was never proven and that a presumed bigamy did not exempt the wife from her duty of cohabitation (derived from the Code of Marriage and Tutelage). The Supreme Court held that by marrying a second wife without the express agreement of his lawful wife, the plaintiff had broken the rules of monogamous marriage. As a result, the Court Appeal gave sufficient legal basis to its decision. Moreover, monogamous duties should not be imposed to the wife once the husband had broken his commitment. Conditioning her return to a departure of the other woman did not constitute a desertion. Consequently the Supreme Court ruled in favor of the wife and rejected the divorce request. This case protects women married under the monogamous regime and counterbalances the strong requirement of cohabitation by ensuring that no psychological violence will be endured by having to live under the same roof as another wife.
Monsieur G.A. requested a divorce for his wife’s “desertion of the marital home.” His wife pleaded that her husband and husband’s son mistreated her and her children because they believed she had committed adultery, making it impossible for her to stay in the home. She requested damages for raising their common children alone. The first court rejected her claim for not stating a claim, and awarded her husband a divorce for her desertion of the marital home. But, the court also granted her 141,000 Fr as alimony. She appealed the case. The Court of Appeal of Cotonou (Chamber of Local Law) held that the adultery was not proven (based on rumor) and acknowledged the violence she suffered at the hands of her husband’s son. She was hence awarded 90,000 Fr in damages. Monsieur G.A. took the case to the Supreme Court. He claimed that his wife disobeyed him in refusing to follow him to a new place after he was transferred for work. He also withdrew his request for divorce and asked for his wife to return home with him. The Court relied on evidence that the husband presented himself: a letter where his mother-in-law asked him to stop his son from beating up her daughter and grandchildren. The Court held that in such a case custom rules allow the wife to leave the marital home. Moreover, the husband did not prove that he changed the conditions that drove her from their house. Consequently, the Supreme Court rejected the plaintiff’s claim, ordered him to bear costs, and finalized the divorce.
Ms. Quartson filed for divorce, seeking that Mr. Quartson vacate the home they shared during the marriage. Mr. Quartson solely funded the construction of the house, but Ms. Quartson was the sole supervisor of the home’s construction, ensuring that it was built satisfactorily and taking care of their three children while he was away working as a seafarer. Based on these facts, the Superior Court overturned a trial court decision granting the home to Mr. Quartson, instead holding that because Ms. Quartson ran the household and supervised its construction while her husband was away, she should be entitled to a share of the home’s value. Although there may be circumstances that demonstrate clear evidence that a spouse is not entitled to the property, the Court also held that such circumstances did not exist in the present case. The Court found that Ms. Quartson had interest in the property, and granted her the home.
In 2008, Mr. Mensah married ABI Dosu Theresa when they were both members of the Ghana Armed Forces. Because Mr. Mensah was an officer and Theresa was a female of a different rank, the marriage violated the Armed Forces Act, which requires that for a male officer to marry a lower-ranked woman, the woman must first resign and obtain the “requisite prior approval for her release from the Ghana Armed Forces.” Mr. Mensah was thus dismissed from the Armed Forces. The Court upheld the dismissal, holding that the law was not discriminatory and was a justified means that the Armed Forces used to maintain discipline.
Mrs. Amponsah filed for divorce from her husband Mr. Nyamaah. She asked that a property the couple held be partitioned and that she receive her portion of its value. Mr. Nyamaah asserted that the house belonged to his father, who then granted the land to him. He argued that Mrs. Amponsah had no interest in the house, relying on a precedent which held that “a wife by going to live in a matrimonial home, the sole property of the husband, did not acquire any interest therein. She only had a right to live in the matrimonial home as long as the marriage subsisted.” The court held that Mr. Nyamaah’s father was the owner of the house because the papers were in his name, and rejected the evidence that both parties paid water and electric bills as a rebuttal to the presumption. As such, the house was not subject to a partition by the court, because it “did not belong to the couple so it could not be settled on either of the parties.”
Ms. Esseku and Mr. Inkoom had been married for 30 years. The husband claimed to have divorced his wife in 1995 under Muslim tradition and custom. They had one property together, which Mr. Inkoom sold without consulting Ms. Esseku or their five children, all of whom he evicted off the property. The trial court held that the property was a joint property of both parties, and nullified the sale. Examining the evidence, the Superior Court affirmed the holding because Ms. Esseku had made a “substantial contribution” to the property by building an additional two bedrooms to the house. Furthermore, the Court held that even if she had not made a substantial contribution to the acquisition of the property, she still would have been entitled to an equal share of the property because of her valuable considerations made during the marriage, like “the performance of household chores” and the “maintenance of a congenial domestic environment for the respondent to operate and acquire properties.” As such, both parties were entitled to equal shares of the property, and Mr. Inkoom could not sell the house without consulting her first.
In 2004 an amendment was introduced to the Local Government Elections Act 1998 (the “Amendment”) that reserved one third of all seats in every local council for women, the remainder was open to both men and women alike. The constitutionality of the electoral quota was challenged by a man whose candidacy for local government was rejected on the single ground that the electoral division at issue was reserved for women. The appellant argued that these measures are unconstitutional since women’s participation in local governments could have been achieved without debarring men from the same. The Court of Appeal upheld the judgment of the court a quo, dismissed the appeal and held that the Amendment was not unconstitutional, among others, since the impugned measures were carefully designed to achieve its objective, they were rationally connected to the objective and impaired the appellant’s rights in question as little as possible.
In July 2010, W.J. and L.N, 12- and 13-year-old female students at Jamhuri Primary School, were invited to the home of their teacher, Astarikoh Henry Amkoah. Amkoah forced the girls to perform household chores and later attempted to defile W.J. in the restroom and defiled L.N. in the hall. On several occasions later that month, Amkoah raped both girls. The girls’ education was severely interrupted by the trauma of Amkoah’s attacks and L.N. dropped out of school completely. Ultimately, Amkoah was acquitted in criminal court. In this suit filed by their guardians, W.J. and L.N. sued claiming that Amkoah’s actions unconstitutionally interfered with their rights to health, education, and dignity, and claimed that the school and state should be vicariously liable for the teacher’s actions. They invited the court to look at the claims from the perspective of a tort in negligence and as a human rights violation. However, the violations took place prior to the adoption of a revised 2010 Constitution, so the Court was required to rely partially on the 1963 Constitution which did not include those same guarantees. Still, the 1963 Constitution offered a right to freedom and security of the person. Additionally, the Convention on the Rights of the Child, adopted through Kenya’s Children Act, promises children the right to be free from sexual or physical violence, the right to receive an education, and the right to dignity. As a result, the Court was able to rely on the guarantees of the Children Act. Moreover, Justice Ngugi recognized the 2010 constitutional right to dignity as a continuing right, meaning that while the initial crime may have occurred prior to the 2010 Constitution’s adoption, the continuous nature of the effects of sexual violence on an individual’s dignity make the provision applicable in this case. Here, the Court determined that the criminal acquittal would not serve as a bar to the action because of the differing standards of proof in a criminal and a civil trial. Importantly, the Court decided that “any educational or other institution in which teachers or other care givers commit acts of sexual abuse against those who have been placed under their care is vicariously liable for the wrongful acts of its employees.” The court noted that because children are particularly vulnerable, it is appropriate to impose strict liability on “those in charge of educational and other institutions . . . for abuses committed by those whom they have placed in charge of vulnerable groups such as minors in educational institutions” and held the four named plaintiffs—the teacher, the school, the teachers service commission, and the state—jointly and severally liable for damages of KSH two million for W.J. and KSH three million for L.N.
A Burkinabe woman (T.M.) sought legal separation from her husband (S.Y.) on the grounds of adultery. Legal separation was granted on the grounds that S.Y. had committed adultery (it had been agreed that the marriage would be monogamous). The judge concluded that the sole responsibility for the separation lay with S.Y. Custody of the children was given to T.M. The principle of legal separation is rarely considered by the Burkinabe courts. The judgement provides that legal separation can be requested on the same grounds as divorce, namely mutual consent or the fault of either spouse. The effect of legal separation is to end ‘cohabitation duties.’ However, certain marital duties such as loyalty and support continue. Legal separation allows a woman to formally separate from her husband while leaving the possibility of reconciliation (information provided in academic commentary).
A Burkinabe woman (T.M.) sought divorce from her Chadian husband (T.T.) on the grounds of adultery, abuse and abandonment, she also sought custody of their child. The divorce was granted in favour of T.M. in the court of Ouagadougou. The judge stated that in a divorce case involving spouses of different nationalities the governing law should be that of the common domicile of the spouses. In this case, the last common residence of the spouses was Chad. The Burkinabe judge applied the basic principle of Chadian divorce law that permits divorce for fault attributable to either spouse. The judge stated that the sole responsibility for the divorce lay with T.T. The judge went on to impose Burkinabe law as to custody granting custody of their child to T.M. T.T. was given visitation rights and was required to contribute child support towards the maintenance and education of the children
The appellant was charged and convicted of rape. He was sentenced to 30 years imprisonment and ordered to pay compensation to the victim of shillings 300,000 upon completion of his sentence. His first appeal was unsuccessful, so he appealed a second time, claiming that he was not properly identified, breach of criminal procedure and the fact that the court did not allow him to call a defence witness. The Court found no merit in the appeal and upheld the conviction. It applied and followed the case of Selemani Makumba versus R Criminal Appeal, Court of Appeal of Tanzania at Mbeya 1999 (unreported). The Appellate Court considered whether or not the complainant had been raped by the appellant and concludes that “True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in the case of any other woman where consent is irrelevant, that there was penetration...”
The victim was raped by a doctor on 14 November 2006 at Magunga Hospital in Korogwe District. The appeal asserted that the witness in the trail was not credible. The appellate Court concluded that it was unable to “find a ground for denting the credibility of the complainant” and “not having found any contradictions in the evidence of PW1, the victim of the sexual assault by her doctor, the appellant” . The Court recognises sextortion and goes on to say: “We agree with the learned judge that ‘ it is treacherous for one to stray away from a professional calling and turn against one amongst the very lot who bestowed their trust unto the person.’ In this case, it was treacherous for the appellant doctor to rape his patient, PW1.”
Appellant appealed his conviction of rape of a 4 year-old girl on the ground that the victim was the sole witness and her young age made her unreliable. The Supreme Court dismissed the appeal, finding that the victim’s consistent testimony of the rape and corroborating evidence from a medical examination was sufficient to uphold the verdict.
Appellant was convicted of murdering his girlfriend and sentenced to 20 years imprisonment. Appellant appealed that the sentence was too harsh and severe and that it induced a sense of shock. Appellant presented mitigating factors that he was married with four minor children to support, the sole breadwinner, a first offender, and deserved to be given a second chance in life. The Supreme Court dismissed the appeal after considering the interest of society, the seriousness of the offense, the fact that the crime was premeditated, and the fact that the killing was gruesome and brutal. The Supreme Court further stated that sentence was fair “particularly in the upsurge in the killing of women as well as the need to impose deterrent sentences which would provide the safeguard against this onslaught.”
Appellant was sentenced to 20 years imprisonment for the murder of his elderly aunt and appealed for 10 years of his sentence to be suspended because the appellant believed the victim was a witch and could kill him with the power of witchcraft. The Supreme Court upheld the original sentence and held that a perpetrator’s belief in witchcraft is not a mitigating factor when computing an appropriate sentence for murder. While a genuine belief in witchcraft could be treated as an extenuating circumstance in certain instances, murder committed because of a belief in witchcraft would not be mitigated by the belief.
The Attorney General appealed the High Court’s ruling that section 2(3) of the Intestate Succession Act is unconstitutional. Under section 2 (3) of the Intestate Succession Act of 1953, a surviving wife is limited to a child’s share or E1200 (equivalent to U.S. $109.37), whichever is greater, of the estate. In contrast, section 34 (1) of the Constitution, entitles a surviving spouse to a “reasonable provision” of the estate, which could exceed Intestate Succession Act’s limitation. The Supreme Court upheld the High Court’s ruling, finding that the Act was overtaken by the Constitution in 2005. The Supreme Court noted that section 34 (1) of the Constitution was deliberately drafted to be gender neutral to ensure that husbands and wives were afforded the same rights and protections to remedy gender-specific limitations like those present in the Intestate Success Act.
Husband challenged his wife’s capacity to initiate legal proceedings without his consent. The common law permitted a married woman to sue without the consent of her husband only if the woman attained approval from the court first. The High Court held that this common law requirement was unfair discrimination because it applied only to women and not to men, a violation of Sections 20 and 28 of the Constitution, which respectively state that “all persons are equal before and under the law” and that “women have the right to equal treatment with men.”
Wife and husband married in community of property, where all property of either spouse is combined in a joint estate regardless of whether it was acquired before or during the marriage and regardless of how much each spouse contributed. Despite marrying in community of property, the couple was not permitted to register newly purchased land in both of their names because the wife had continued to use her maiden name. Section 16(3) of the Deeds Registry Act only permitted land to be registered by the husband and wife if the wife used her husband’s name; otherwise, the Act permits the land to be registered in the name of the husband only. Because the Section 16(3) of the Deeds Registry Act only affected the rights of wives and not husbands, the Supreme Court held that is invalid as it amounts to unfair discrimination and a violation of Section 20 and 28 of the Constitution.
Appellant convicted of murdering a woman and sentenced to 18 years imprisonment. Appellant appealed the verdict and sentence, claiming that he did not possess the requisite intent to kill and mitigating circumstances that he was 35-years old, a first offender, gainfully employed and a breadwinner supporting two children should reduce his sentence. The High Court dismissed his appeal finding that the stab wounds to the victim demonstrated intent to kill and that the mitigating circumstances were properly weighed when the sentence was determined. The Court further stated, “Violence against women is a matter of great concern to the community at large and sentences imposed on perpetrators should reflect its rightful indignation at such crimes.”
Appellant was convicted of rape with aggravating factors and sentenced to 12 years imprisonment. The appellant appealed the conviction and sentence arguing that a rape was impossible in part because the victim was his girlfriend. The Supreme Court dismissed the appeal and increased the sentence to 18 years imprisonment after considering the violent nature of the rape. The Supreme Court stated that a woman’s consent “must be real and given prior to the sexual intercourse” and the Court no longer recognized irrevocable consent, where consent is presumed merely because the victim is the girlfriend or wife of the perpetrator.
The appellant was convicted of one count of rape for allegedly raping the complainant, a 16 year old female. The State argued that the appellant coerced and subdued the complainant into having sex with him without her consent. The appellant claimed that the sexual intercourse was consensual. He was sentenced to a term of eight years imprisonment, with two years suspended on condition of good behavior. The appellant appealed against the conviction. The court indicated that the nature and circumstances of the sexual encounter were in dispute, finding that it was clear from the complainant’s testimony that she was and continued to be in love with the appellant. The court further found that the State’s evidence did not counter the possibility that consensual sexual intercourse took place between the parties. The court held that the State failed to establish the appellant’s guilt beyond a reasonable doubt at his trial. Accordingly, the appeal was allowed. The conviction was quashed and the sentence was set aside.
The appellant was convicted of two counts of rape for allegedly raping two girls, aged 4 and 8 years, respectively. He was sentenced to 10 years on each count, with five years suspended for five years on condition of good behavior. The appellant appealed against the convictions and the sentences. It was accepted that the two girls were sexually interfered with, which both confirmed through testimony. Both girls were (i) examined by a doctor, who observed attenuation of the hymen and a deep notch on both girls and (ii) able to identify the appellant as the perpetrator to the police. The court was satisfied with the identification, finding that the appellant was correctly convicted. The appellant argued that the sentence was too harsh. The court found that numerous factors were considered before sentencing. It held that the appellant did not use gratuitous violence, and was entitled to some leniency. The court ruled that the sentence imposed was unduly harsh and induced a sense of shock. The sentence was overturned and substituted for 10 years imprisonment, with two years suspended for five years on condition the appellant does not within this period commit any offence of a sexual nature for which he is sentenced to imprisonment without the option of a fine.
The appellant was convicted of two counts of rape for allegedly raping the complainant, a 12 year old female, on two separate occasions. He was sentenced to a total of 20 years imprisonment, with half suspended for five years on condition of good behavior. The trial judge and court both found the complainant credible. The court found that the conviction of rape on count two should stand due to circumstantial evidence, which indicated penetration; however, not on count one, which included all of the essential elements of attempted rape, but insufficient proof of penetration so as to constitute rape. The conviction on (i) count one was quashed and reduced to one of attempted rape and (ii) count two was confirmed. The sentences imposed by the trial court were set aside and substituted with seven years of imprisonment on count one and 10 years of imprisonment on count two. Of the total 17 years imprisonment, eight years was suspended for four years on condition that the appellant in that period does not commit any offence involving rape or an offence of a sexual nature and for which he is convicted and sentenced to imprisonment without the option of a fine.
The accused was convicted of two counts, rape and robbery, as he allegedly raped the complainant and threatened to kill her if she told anyone. The two counts were taken as one for the purpose of imposing a sentence of 20 years imprisonment. He received an effective prison term of 17 years. The court noted that the conviction of rape was not at issue; instead, it was the conviction of robbery and the trial judge’s sentencing approach at issue. The court was not convinced that the essential elements of robbery were established regarding the accused’s taking of a cellphone and his subsequent actions, as the circumstances under which the cellphone was surrendered were not clear. Therefore, the facts supported a conviction of theft, not robbery. The court found that the trial judge should not have treated both counts as one for the purpose of sentencing. The court confirmed the conviction of rape, with a sentence of 12 years imprisonment with labor. The robbery conviction was set aside, and substituted for theft of a cellphone, with a sentence of six months imprisonment with labor.
The appellant was convicted of one count of rape for allegedly raping a 3 year old child who had been left in his care, and infecting her with syphilis, a sexually transmitted infection. He was sentenced to 18 years imprisonment, with three years suspended for five years on condition of good behavior. The appellant appealed against the sentence. The court emphasized that courts are required to consider numerous factors, and have wide discretion, in sentencing. The trial court noted that the appellant’s case was aggravated because he was “in a protective relationship with complainant”, who was a very young child. The court agreed with the trial judge’s sentencing approach, noting that the appellant was extremely lucky that he did not get a harsher sentence. The court reasoned that an appeals court will only interfere with the trial court’s sentencing discretion where there is misdirection or a manifestly excessive sentence. As this had not been shown and as the relevant statute prescribes a higher sentence than the one imposed, the appeal was without merit and was dismissed.
The accused was convicted of three counts of contravening s 65 of the Criminal Law (Codification and Reform) Act Cap 9:23, for allegedly raping the complainant, aged 12 years, on three different occasions. He was sentenced to five years imprisonment, with three years suspended on condition of good behavior and the remaining two years suspended on condition he performed 840 hours of community service. The court found that case law clearly demonstrated that rape can only be committed when there is penetration. Evidence of the slightest penetration is sufficient. As the accused failed to penetrate the complainant on the first and third occasions, the court found that he should not have been convicted of rape on counts one and three, but only attempted rape. The court overturned the convictions for rape on counts one and three, which were substituted for attempted rape. The court upheld the imposed sentence, but it reduced the community service sentence to 630 hours.
The appellant was found guilty of allegedly raping the complainant, aged 5 years and 11 months. He was sentenced to 10 years imprisonment, with two years suspended on condition of good behaviour. He appealed against both the conviction and the sentence. The questions at issue were (a) whether the crime of rape was committed and (b) whether the complainant’s evidence was corroborated. The court highlighted that much of the complainant’s evidence was supported by the appellant’s wife. The trial court concluded that there was legal penetration. The court found, however, that mere contact without any slightest penetration does not amount to legal penetration. The court found that the appellant could not be guilty of rape, but only attempted rape. The conviction of rape was reduced to attempted rape. The court pointed out that the trial court erred on the side of leniency in sentencing. The court found that the sentence was still appropriate and did not interfere with it.
The appellant, a Catholic priest, was convicted of two counts of rape as defined in section 65(1) of the Criminal Law [Codification and Reform] Act (Chapter 9:23), for allegedly raping the complainant, aged 23 years. He was sentenced to ten years imprisonment, with two years suspended on condition of good behavior. The appellant appealed his conviction. The evidence showed speculation about a possible love relationship between the parties. The court noted that the complainant wrote a letter to the appellant, which was not properly addressed during the trial. The court found that the letter should have been carefully addressed at trial. The court held that the trial judge should not have convicted the appellant. The conviction was quashed and the sentence was set aside.
This case established that a wife’s dower is not an asset of her husband’s estate. After Mr. Dixon died intestate, his widow claimed that she held title to real property that had been conveyed to her as a deed of gift from her husband. The executor, appointed by the county, argued that the property was an asset of the estate because the right of dower accrues only after the death of the husband. The court disagreed, holding that “[the] inchoate right of dower is so vested in the wife as against the husband immediately on the marriage that no conveyance or act of the husband can deprive her of it,” including any creditors’ claims against the husband.
The Defendant, Hara, broke into the house of a twelve-year-old girl, forced her down and raped her. He pleaded guilty to defilement, a crime with the sentence of fifteen years to life imprisonment, and was sentenced to thirty years imprisonment with hard labor. Hara appealed the sentence on the grounds that (1) thirty years was too severe absent any aggravating circumstances (i.e. the victim did not sustain any physical injuries, become infected with a sexually transmitted disease or become pregnant) and (2) the lower court did not take into account mitigating circumstances (i.e. the defendant was a first time offender who readily plead guilty). Reasoning that “young girls are no longer safe even in their homes”, the Supreme Court rejected the Hara’s arguments that the absence of factors, such as physical injuries and pregnancy, should reduce his sentence. The Supreme Court further held that the lower court properly considered the Hara’s status as a first time offender, and therefore, the Supreme Court upheld his thirty-year sentence.
This case established a precedent for property rights of a widow when her husband dies intestate. On appeal, the Supreme Court excluded from probate ten acres of land to which Ms. Williams claimed title. Ms. Williams’ husband died intestate and the executor of his estate, appointed by the Probate Court, included all real and personal property from the marriage in determining the assets of the estate. Ms. Williams claimed that she held title to ten acres of property that her husband had purchased through a third party, with title vesting in the wife. The executor argued, and the trial court held, that all property acquired through the husband could be made liable for his debts. The trial court relied upon the Constitution of Liberia, which states “The property of which a woman may be possessed at the time of her marriage and also that of which she may afterwards become possessed, otherwise than by her husband shall not be held responsible for his debts.” The court reasoned that this clause implies that property acquired through her husband could be held liable for his debts. The Supreme Court disagreed, holding that if a husband acquires property in the name of a third party, who becomes the medium through which title vests in the wife, the wife has an absolute right in that property and is not liable for the claims of the husband’s creditors. The court failed to apply this holding to personal property of the marriage, however, stating that instead personal property procured and owned by the deceased for the common use of the household is an asset of the estate.
The Defendant, Mr. Nyambe, and the victim, Mrs. Nyambe, were married. Upon return from a fishing trip, Mr. Nyambe found Mrs. Nyambe in bed with another man and reacted by beating the other man. One month later, Mrs. Nyambe revealed that the reason she committed adultery was because Mr. Nyambe “was not a real man,” whereupon the two began to fight, and Mr. Nyambe struck Mrs. Nyambe with an axe and killed her. Despite the one month that had elapsed between the initial discovery of the adultery and the murder, the High Court found that the adultery still constituted provocation. However, under Zambian law, a murder defendant’s reaction must bear a reasonable relationship to the provocation to invoke that affirmative defense to reduce the conviction to manslaughter. The High Court found that the Defendant’s retaliation of striking his wife with an axe was not proportional to the provocation and convicted him of murder.
This early case established the precedent that a married woman may own and convey property independent of her husband. On appeal, the Supreme Court reversed the lower court’s decision denying ownership of a half-acre of land. Ms. Dlyon bought the property from a sheriff’s auction after it was repossessed for the payment of the owner’s debts. The Lamberts argued both that the previous possessor of the land never gained title of the property because he failed to obtain a fee simple deed so could not be used to pay his debts, and that even if he did have title, a married woman could not purchase land. On the first point, the court held that while the previous possessor did not have perfect title to the land, it could still be reached by creditors. On the second point, the court unambiguously declared that Ms. Dlyon had the right to purchase the property: “Under the Constitution, a femme couverte [married woman] may convey property she is possessed of otherwise than through her husband and this fact admits the inference that she may also bargain and buy property independent of her husband.”
After fifty-four years of marriage, Mr. Phiri divorced Ms. Zulu in 2006. She was the mother of his nine children, and they shared a matrimonial home on a farm. Throughout the course of the marriage, Mr. Phiri and Ms. Zulu acquired real property, comprising the farm, other residential houses, and a bar, as well as several vehicles. However, during the divorce proceedings Mr. Phiri sold many of the houses and gave two of the properties to his children as gifts. He kept the proceeds of the sales for himself. The local court of first instance ordered Mr. Phiri to surrender one of the houses, a shop, a tavern and a sewing machine to Ms. Zulu. Unhappy with the outcome, Mr. Phiri appealed to the Subordinate Court, which heard the matter de novo. The Subordinate Court came to the same conclusions as the local court, although it ordered Mr. Phiri to surrender an additional sewing machine and K 6,000,000, as compensation for the property sold during the divorce proceedings, although no valuation of the latter had taken place. Ms. Zulu appealed to the High Court, among other grounds, on the basis that Subordinate Court should have also taken into account her contribution to the marital home (the farm) and that an assessment of the sold properties (or monies from the sale thereof) should have occurred. The High Court held that because the farm was acquired and maintained through the joint efforts of the husband and wife, Ms. Zulu had acquired a beneficial interest in the farm. Accordingly, the High Court ordered a valuation of the farm and directed Mr. Phiri to pay with one-third of the value to Ms. Zulu as a lump sum. Moreover, reasoning that the K 6,000,000 payment, related to the marital property sold during the divorce proceedings, was awarded without any basis whatsoever, the High Court further ordered a valuation of such property, with Ms. Zulu to receive one half of the assessed value.
The appellant was convicted of raping the complainant ten years before she reported it to anyone and eleven years before she reported it to the police. He was sentenced to three and half years of imprisonment, with two years suspended on condition of good behavior. Although the trial judge found the complainant credible, the court found that she was not consistent in her evidence. It emphasized the trail court’s finding that she was suffering from post- traumatic stress disorder and her delay in reporting. As there was no independent evidence beyond the complainant’s testimony, the court could not hold that (i) the danger of false or erroneous implication was excluded beyond reasonable doubt or (ii) the state proved its case beyond reasonable doubt. Thus, the conviction was quashed and the sentence was set aside.
Ms. Mukinga and Mr. Fuller were married under Lozi customary law, although there was no formal marriage. A Lobola was paid, and the two began living together. She became pregnant, but miscarried. Mr. Fuller also took Ms. Mukinga to South Africa to meet his family. They opened a joint bank account and purchased a stand, held in Mr. Fuller’s name, to operate a company they formed together. They later rented the property to a thirdparty. Eventually the marriage broke down, and Ms. Mukinga, claiming that she had an interest in the property through marriage, brought an action to recover her share of the rental income and to force the sale of the stand. The lower court held that because the property documents were in Mr. Fuller’s name and there was no marriage certificate, and therefore no marriage, Ms. Mukinga had no interest in the property. She appealed to the High Court, which upheld the lower court’s decision and prompted her further appeal. Although the Supreme Court dismissed her claim on procedural grounds (for commencing the action with an improper summons), it overturned the High Court’s holding that no marriage existed. Given the customary Lobola payment and co-habitation, it found that a valid Lozi marriage was consummated. Additionally, the Supreme Court noted that couple opened up a joint bank account rather than a business account for their joint company. Therefore, despite the absence of an official marriage certificate, the Supreme Court held that the two were married under Zambian law and that Ms. Mukinga had established a legal interest in the property.
The appellant was convicted of indecent assault and rape for allegedly taking the complainant to his house, chasing her around during the night and raping her. He was sentenced to one year imprisonment with labor and eight years imprisonment with labor, respectively, to run concurrently, with two years suspended for five years on condition of good behavior. The appellant appealed against both the conviction and the sentence on both counts. The court found that the complainant had an opportunity to report the incident on many occasions but she deliberately chose not to use it, which casts doubt as to her credibility. The court found that the complainant was not a convincing witness and the trial court should not have accepted her evidence in order to convict the appellant. The court held that the state completely failed to prove rape beyond reasonable doubt. The conviction and sentence on both counts were set aside. The appeal against conviction and sentence were upheld.
Ms. Nawakwi was an unmarried mother of two who applied to have her children included in her passport. For her first child, the Passport Office required a birth certificate, which could only be obtained by Ms. Nawakwi swearing by affidavit that (1) she was the mother of the child and (2) the child was born out of wedlock. When the passport was then issued, she was required to swear a new affidavit to the same effect. However, the inclusion of her second child was approved immediately because his Tanzanian father had completed the relevant documents abroad. Ms. Nawakwi challenged this practice as discriminatory, because it recognized a foreign father, and not a Zambian mother, as the parent of a child. The High Court found that the mother of a child was not regarded by the government as equal to the father with respect to the passport application process. Accordingly, the High Court ruled that Ms. Nawakwi had been discriminated against on the grounds of sex. In addition to the foregoing, the High Court also held that (1) a single parent family headed by a male or female is a recognized family unit in the Zambian society and (2) a mother of a child does not need the consent of the father to have her children included in her passport or for them to be eligible to obtain passports or travel documents.
On appeal, the Supreme Court affirmed the lower court’s judgment that appellant, Power Massaquoi, was guilty of rape and reduced his sentence from life imprisonment to 50 years imprisonment. The victim, an 11-year-old girl, stated that the appellant, 38, forced her into his room and had nonconsensual sexual intercourse with her. The court affirmed the lower court’s admission in evidence of the testimony of the victim’s mother, who testified that she saw blood on the victim’s skirt and questioned the victim about the incident. The court held that the testimony qualified as an exception to the hearsay rule because statements are generally admissible “to determine the trustworthiness and reliability of statements made by child victims of abuse.” In addition, the court affirmed the lower court’s admission in evidence of the expert testimony of a physician’s assistant. The court held that even though the physician’s assistant did not have a medical degree, he qualified as an expert because of his experience with and knowledge of victims of sexual violence. The court noted that social workers trained in these areas would qualify as expert witnesses.
On appeal, the Supreme Court affirmed the lower court’s judgment that appellant, Musa Solomon Fallah, was guilty of rape and upheld his sentence of life imprisonment. The appellant had been convicted previously, but the Supreme Court vacated that conviction in 2007 and ordered a de novo trial on the grounds that the appellant lacked adequate representation. The complainant, a nine-year-old girl, alleged that the appellant gagged and raped her. On appeal, the appellant contended that the testimony of the victim should be excluded from evidence because the testimony was conducted in camera. The victim testified in a closed room that allowed cross-examination by the defendant and visual access for jurors. The court held that the victim’s testimony was admissible, stating that if “a potential child victim witness would suffer ‘serious emotional distress’ and might just not be able to communicate within a reasonable fear free environment if put on the stand in the presence of the accused abuser to introduce courtroom testimony” then an in camera witness presentation is appropriate. The appellant's constitutional right to confront his accuser was preserved because he was afforded opportunity to listen to testimony and cross-examine the witness. In addition, the court referenced U.S. law on in camera testimony, citing U.S. Supreme Court cases to support its decision. The court stated: “It is the rule of general application in our jurisdiction that unless expressly contrary by the laws in vogue, common law and usages of the courts of England and of the United States, other authoritative treaties, principles and rules set forth in case law and in Blackstone and Kent Commentaries, when applicable, are deemed as Liberian Laws.” Finally, the Court held that medical testimony establishing rape, the testimony of the complainant, the appellant's admission that the complainant spent the nights in question with him, and unchallenged testimony claiming that the appellant had offered the complainant's family money in exchange for keeping the rape a secret were more than a sufficient "mountain of evidence" to sustain the conviction. It is not necessary, the Court stated, for the prosecution to produce an eye witness, "direct proof", or evidence eliminating every single possible alternative in order to meet their burden of proof beyond a reasonable doubt.
On appeal, the Supreme Court reversed the lower court’s judgment that appellant was guilty of rape. The complainant alleged that the appellant had sex with her when she was 13 years old and he was 18 years old. She alleged that the appellant invited her to his room, gagged her, and had sexual intercourse with her. Her brother’s wife forced open the door after the complainant failed to answer her phone call. The complainant's brother then called the police. The appellant admitted to police that he and the complainant had sex. The court found the appellant guilty of rape because the elements of Liberian statutory rape law are (1) sexual intercourse, (2) the perpetrator is at least 18 years of age, and (3) the victim is less than 18 years of age. However, the court reversed his conviction because the trial court relied on inaccurate information in determining the appellant’s age. The appellant testified that he was 17 years old at the time of the rape. Documents such as a passport or birth certificate were unavailable. The court held that in the absence of any rebuttal evidence by the prosecution, the court must accept that the appellant was 17 years old and therefore a juvenile when he had sex with the complainant. Under Liberian law, a juvenile cannot commit a crime, but is instead considered a juvenile delinquent. If a case involves a juvenile delinquent who is over 16 years of age and is accused of conduct that would constitute a felony carrying a sentence of life imprisonment or death if committed by an adult of at least 18 years of age, then the circuit court must consider the best interests of the Republic and the juvenile to determine whether to exercise its jurisdiction over the matter and preside over the case or choose to refer it to the juvenile court. However, the circuit court did not make this determination. Rather, it proceeded with the trial as though the the appellant was an adult and sentenced him to life imprisonment as an adult. Therefore, the Supreme Court reversed his conviction and remanded him to the custody of his parents until the age of 21.
On appeal, the Supreme Court reversed the lower court’s judgment that appellant, Allen Rogers, was guilty of rape. The 11-year-old complainant alleged that the appellant kidnapped her and a boy for two months, raping her daily during this time period. She testified that the appellant threatened to kill her if she talked about the rape. In his defense, the appellant testified that the week before the alleged kidnapping occurred, he knelt down to pray and heard the voice of someone he called Evee. Evee told him “your two children have come.” He then met the complainant and the other child. He took them to the town advisor, who said that the appellant could keep them at his house. The appellant was found guilty of statutory rape and given the maximum sentence of life imprisonment. The court reversed the conviction because the appellant did not receive adequate representation. His representation was inadequate because the public defender assigned to his case failed to call corroborating witnesses and counsel “knew, or ought to have known that the lone testimony of the appellant was not sufficient to establish his innocence. Thus, his failure to have ensured that other witness[es] appear to testify for the appellant was a serious dereliction of duty.” In Liberia, “the uncorroborated testimony of the accused person is not sufficient to rebut proof of guilt.” Therefore the court reversed the appellant's conviction and remanded the case for a new trial.
Pretty, an eight-year-old girl, was on an errand with her friend Violet, a seven-year-old girl. Along the way the inebriated defendant, Manroe, grabbed both girls, stuffed their mouths with cotton, and had sexual intercourse with both of them against their will. After he completed these acts, he threatened to kill them if they told anyone what transpired. Four days after the crime, Pretty’s mother noticed that Pretty was walking rather awkwardly, and upon inspection, discovered cuts on Pretty’s private parts. Her mother then filed a report at the police station and took Pretty to a hospital, where a doctor issued a medical report. The trial court, concerned with the reliability of the testimony of Pretty, a child of tender years, conducted a voire dire and determined that she was not capable of understanding the purpose of taking the oath. Therefore, the court required corroborating evidence of the rape to be presented. The trial court found that Manroe had been properly identified and that the medical report corroborated the rape, and accordingly, convicted Manroe of defilement. On appeal, Manroe argued, inter alia, that the medical evidence was insufficient because the crime was reported late and there was no date stamp on the medical report. The High Court noted that corroborating evidence need not be corroboration in the strict sense of the law, but needed to be “something more” than the victim’s testimony. Despite Pretty’s examination occurring four days after the crime, the High Court found that the medical report, having been issued by a licensed medical professional, properly corroborated the crime and therefore, upheld Manroe’s conviction.
On appeal, the Supreme Court affirmed the lower court’s judgment that appellants, Living Counsellor, Wisdom Counsellor, and Righteous Counsellor, were guilty of rape. Their four female victims ranged from ages 7 to 12. The victims were introduced into the Kingdom Assembly Church of Africa, or the “Never Die Church,” so named because it promised followers eternal life on earth. It also promoted free sexual relations among its members. The victims testified that they were beaten and raped by members of the church. The court stated that “the evidence adduced during the trial show that rape is institutionalized in the Never Die Church. The testimonies given by the prosecution witnesses also points to a situation where the victims were living in a condition of servitude almost identical to slavery.” The appellants argued that “they did not rape the girls but that they only share love with their sisters because they have no earthly mother or father but only Wonderful Counsellor.” They argued that their conviction should be overturned because they were also charged with gang rape, but the trial judge failed to instruct the jury on that charge. Still, their conviction was upheld because they were convicted of rape nonetheless.
Kalenga, the Defendant, told his 70 year-old grandmother, the Victim, that he had collected some firewood in the bush and offered to give her some. When she followed him into the bush, she found that no firewood had been collected, and instead, Kalenga took off his clothes and had intercourse with her without her consent. The Victim returned home and reported the crime to the head of the village and then to the police. While in police custody, he denied the charge, but admitted to having gone into the bush to collect firewood. At trial the Defendant did not testify. The Trial Magistrate found the Victim’s story to be corroborated by the fact that no firewood had been collected and found no reason why the Victim would fabricate such a story involving her grandson. As this evidence went unchallenged by Kalenga, the Trial Magistrate convicted him. The Trial Magistrate committed Kalenga for sentencing to the High Court, which sentenced him to 16 years imprisonment with hard labor. Kalenga appealed to the Supreme Court on the grounds that there was no finding of corroborative evidence. The Supreme Court agreed with the trial court that his admission to escorting the Victim into the bush, the lack of motive of the Victim to lie, and the unlikelihood of mistaken identity constituted “something more” to corroborate the Victim’s testimony. The Supreme Court further found the age of the Victim to be an aggravating circumstance and increased his sentence from 16 years to 20 years.
The appellant claimed that the charge of sexual exploitation was defective and that the evidence of the complainant Rehema Athumani should not have been believed and acted upon (allegedly because of a “history of mental illness and confusion”). The Court determined that although normally the element of lack of consent ought to be reflected in a charge of rape, but with the inclusion of section 130 (2) (e) of the Penal Code, consent is no longer relevant where the victim is under eighteen years of age and in this case, there was no dispute that the victim was aged 17 at the time of the crime (and therefore covered by the law). The Court noted that “Paragraph (d) above would particularly be important in highlighting the fact that the appellant being a traditional healer took advantage of his position and committed rape on PW1 as we shall demonstrate hereunder.” Furthermore, the Court recognised that an aggrieved party may appeal on a matter of law (not including severity of sentence) but not on a matter of fact, and “strictly speaking, in our reading and appreciation of the evidence on record there is no serious point of law involved in this appeal”, only matters of fact.
A woman was being divorced by her husband on the grounds that her testing HIV-positive endangered his life. Although her salary contributed to the mortgage payments for the house, the High Court ordered that she be consigned to the servants’ quarters and denied custody of her children, pending the hearing for her husband’s petition for divorce. She sought a stay of execution of the High Court’s order in her application. The Court of Appeal noted that it is trite law that children be placed with their mother unless there were good reasons not to do so. It also ruled that it was inconceivable that a woman be turned out of a house for which she is a 50% holder. The Court decided in favor of the application and granted a stay of execution.
The appellant appealed the order of a lower court that he pay maintenance Tshs. 10 000 per month to his former wife. He based his appeal on the claims that his adultery was unfairly held responsible for the dissolution of the marriage and that his income could not sustain the maintenance payments dictated by the lower court. He also argued that his former wife had earned no income during the course of the marriage and thus should not be entitled to a share of the matrimonial assets. The Court dismissed the appeal. It pointed out that his wife had demonstrably objected to his adultery with her niece, noting that this was “sufficient cruelty to break the marriage”. It also noted that theirs had been a Christian marriage, which emphasized fidelity. In addition, the Court also cited the case of Bi Hawa Mohamed, which recognized “housekeeping as services requiring compensation” and the Constitution of the United Republic of Tanzania 1977, which barred discrimination, to justify the division of matrimonial assets.
The appellant had lived with the deceased as husband and wife for nine years and given birth to two of his children. At his death, she asked that the estate not be distributed in accordance with Islamic law, which would have prevented her from receiving a share of the estate. The brother of the deceased challenged this, contending that she was a concubine who had no right to a share of the estate she had contributed nothing to amassing. The trial court registered a decision in favor of the appellant. It found that her relationship was the deceased fell under the presumption of marriage, and accordingly awarded her the house until either her death or marriage to another man. The brother appealed this decision and the District Court reversed the ruling of the trial court. The High Court found that the appellant and the deceased had achieved the status of a customary marriage. It also ruled that the deceased’s actions showed that he did not profess the Islamic faith and that Islamic law should thus not apply. It registered a decision that the appellant, through her contribution to the welfare of the household and family, was entitled to a share of the estate. The appellant received a half share of the house, while the other half was awarded to her children.
The father of the deceased objected to the appointment of his son’s wife as an administratrix of the will. He claimed that there was no evidence that a customary marriage had taken place between his son and the respondent or that the couple had not been divorced in the interim. He also contended that Chagga customary law on succession and inheritance barred women from administering wills. The Court dismissed his appeal. It noted even if there had not been a customary marriage between the deceased and the respondent, the duration and nature of their relationship satisfied the requirements for a presumed marriage. Furthermore, the Court cited Article 12 and 13 of the Constitution and Article 1 of CEDAW to emphasize its commitment to ending gender-based discrimination. It decided that following Chagga customary law would be discriminatory and that the deceased wife would remain as an administratrix of the will.
The accused physically assaulted the woman with whom he was living. The two were lovers, and he drunkenly hit and kicked her to death. He pleaded guilty to manslaughter, was in remand for four years, served part of his sentence, and had dependents. He asked for leniency on these grounds. The Court emphasized that this offence was committed “in the course of domestic violence” and made note of the Republic’s commitment to CEDAW and the eradication of violence against women. The accused was sentenced to twenty years imprisonment.
The appellant appealed the ruling by the Primary and High Courts that she was not entitled to any share of the matrimonial assets amassed by her former husband during their marriage. She contended that her domestic services counted as a contribution to the acquisition of matrimonial assets. The Court noted the two schools of thought over whether household work could count as part of the joint effort in the acquisition of funds. It acknowledged the difficulties facing divorced women, but also emphasized that the role of the Court was not to forward public interests but to expound on law without judgment. The Court decided that under the Mischief Rule, the Law of Marriage Act, 1971 was intended to stop “the exploitation and oppression of married women by their husbands”. Thus, it ruled that domestic work could count as contributions to the acquisition of matrimonial assets. However, the Court noted that the appellant had squandered the money given to her by her husband to set up a family business. The Court registered a decision that this sum of money had been significant enough to constitute her share of the matrimonial assets. Because she had squandered that sum of money, she was no longer entitled to any share in the remaining matrimonial assets. The appeal was dismissed.
A secondary school teacher, convicted of raping a student and sentenced to thirty years imprisonment, appealed for the second time on the grounds that he had been framed. The Court found no justification for doubting the evidence of the witness, especially as the results from the medical examination corroborated her testimony. The Court also noted that his claim of being framed was insupportable, as there was no justification for the other witnesses to lie against him. Finally, the Court pointed out that the lack of an order for compensation offended the mandatory provisions of Section 13(1) of the Penal Code. The appeal was dismissed and the teacher ordered to pay shs. 500 000 in compensation to the student.
The appellant’s conviction of rape and subsequent sentence of thirty years imprisonment was upheld by the High Court. He had allegedly raped an underage girl on several occasions, manipulating her with monetary bribes and threats. The appellant appealed this decision, claiming that the voire dire examination of the underage victim had been insufficient to ensure that she understood the meaning and duty to tell the truth, and that her evidence was thus not credible. He also argued that because there was no proof to corroborate the age of the victim, the charge of rape was not established. The Court dismissed the appeal, finding that the victim had demonstrated sufficient intelligence and understanding to justify the reception of her evidence. The Court also dismissed the appellant’s citation of the lack of proof of the victim’s age, pointing out that the victim’s age had been accepted as a matter of course during the trial. Finally, the Court decided that there was sufficient evidence of penetration, pointing out that “True evidence of rape has to come from the victim, if an adult, that there was no penetration and no consent, and in case of any other woman where consent is irrelevant that there was penetration."
The sons of Lerionka Ole Ntutu filed to prevent Ntutu’s married daughters from receiving their inheritance of his estate Section 82(4) (b) of the Kenyan Constitution. Under Kikuyu customary law, only unmarried daughters were allowed an inheritance. The presiding judge held that this claim was illegitimate, stating that the law cannot deprive a person of their rights only on the basis of sex and marital status. The judge followed the precedent set by the ruling in Rono v. Rono, Kenya Court of Appeal, 2005, in circumscribing customary law to prevent violations of justice, morality, and other written law. This case marked another important step in upholding women’s rights and human rights law over harmful customary practices towards women.
Mr. Kolea was convicted of repeatedly raping a woman with another man and sentenced to 15 years in prison under s 51(2) of the Criminal Law Amendment Act 105 of 1997 (the Act). When Mr. Kolea appealed the ruling and the sentence it was found that his conviction should in fact be read under s 51(1) of the Act which imposes a minimum sentence of life in prison when the victim was raped more than once by more than one person. Mr. Kolea was duly sentenced to life in prison and his appeal was dismissed. This case broke a previous trend of judges neglecting to impose life sentences under s 51(1), instead giving lighter sentences under s 51(2) even in the case of multiple rapes. The real threat of life imprisonment is a crucial precedent to set in South Africa, where rape is common and often overlooked or punished with leniency.
Mr. Katise was arrested when police were called to his home and found that he had attacked his wife. Charges for domestic violence under South Africa’s Domestic Violence Act 116 of 1998 were eventually repealed and after suing for unlawful arrest and detention on the grounds that there was no warrant for his arrest, Mr. Katise was awarded damages. In an appeal, the judge overturned this ruling, citing s 40(1)(q) of the Criminal Procedure Act which allows peace officers to arrest anyone reasonably suspected of violating the Domestic Violence Act of 1998. The judge in this case took an important stand against leniency on domestic violence cases, giving peace officers far more latitude to protect the rights of women and furthering the protection of women’s rights in South Africa, a country marred by sexual violence.
The petitioners are eleven minors and the non-governmental organization that shelters, educates, and cares for the eleven minors. Each child claims to have been subjected to child abuse and defilement in Meru County, where police "neglected...or otherwise failed" to investigate or protect the children in any way. The High Court of Kenya held that the police have a duty to investigate allegations of sexual abuse made by female complainants, stating that “by failing to enforce existing defilement laws, the police have contributed to the development of a culture of tolerance for pervasive sexual violence against girl children and impunity.”
Abraham Alfeus was convicted of murder with direct intent after admitting to shooting his intimate partner twice with a shotgun. The presiding judge, Naomi Shivute, read the ruling citing provisions of the Domestic Violence Act, Act 4 of 2003 and sentenced Alfeus to 30 years in prison. In the ruling Shivute stressed a need for stiffer sentences in response to extremely high levels of domestic violence against women and children in Namibia; including that it was a matter of protecting the constitutional right for human dignity, the rights of the victim, and in the interest of society generally. The judge’s ruling was meant to deter future domestic violence offenders and is an important precedent in Namibia where domestic violence runs rampant but is rarely prosecuted.
A firm of attorneys was willing to enroll Madeline Wookey as an articled clerk, but Wookey met with opposition from the Cape Law Society, which refused to register her articles. Wookey submitted an application to the Cape Supreme Court, which ordered the Society to register her. The Law Society appealed this decision to the Appellate Division, arguing that Wookey could not be admitted as an attorney because she was a woman. The Appellate Division was called upon to decide whether the term “persons” used in the statute governing admission of attorneys to the bar included only “male persons” or also included women. They determined that “persons” included only male persons, thus excluding women from the legal profession.
In 1909, Judge Bristowe of the Transvaal Supreme Court presided over Schlesin v. Incorporated Law Society, the first case in South Africa to consider whether women had a right to enter the legal profession. The Transvaal Supreme Court held that women were barred from admission to legal practice based on historical practice in South Africa, Holland, and England. Judge Bristowe explained that the Interpretation of Laws Proclamation 15 of 1902 provided that “words of the masculine gender shall include females…unless contrary intention appears” and found that given long historical practice, it was evident that contrary intention did indeed appear in the legislation governing admission to the bar.
This appeal was limited to sentencing only. Appellant was convicted of defilement of a six-year-old girl and was sentenced to 14 years imprisonment. Appellant was a teacher at the victim’s school. The school held a special program for students during school holidays. During this program, appellant took the victim into his office at school and had sexual intercourse with her. Despite his warning not to tell anyone, the victim told her brother, who told her parents. A medical examiner confirmed that she had been defiled. On appeal, appellant argued that the sentence of 14 years was too harsh. In support, he argued that he was the sole breadwinner for 11 dependents, including two lame dependents and four orphans. Appellant also argued that since the victim was a very young child, she had already gotten over the trauma of the defilement. The court upheld the sentence and ruled against appellant. The court found that, as a teacher, he had a duty to protect the victim, but instead chose to ravish her, disgracing himself, his profession, and society.
A husband appealed from a divorce proceeding ordering that the divorcing parties share various properties accumulated during the marriage (Ground No. 4). He contended that his wife (the respondent) had no right to such property because she did not produce evidence to prove her contribution to the acquisition of such property. The issues are whether there is an established legal formula for division of property after divorce, and whether spousal contribution plays a role in such division. After reviewing the traditional approach accounting for spousal contribution, the court found that the enactment of the 1995 Constitution drastically changed the wife’s legal position and rights after divorce. Specifically, Article 31(1) provides equal rights to husband and wife during marriage and dissolution. Thus, the court found that marital property jointly belonged to the husband and wife, and thus contribution to the property is irrelevant. Notwithstanding the parties’ right to freely contract prior to a marriage agreement, the court found that, upon dissolution, matrimonial property ought to be divided equally and shared “to the extent possible and practicable”.
Appellant was convicted of defilement of a four-year-old girl. The victim was sent to a well to fetch water for her family. On the victim’s way to the well, appellant grabbed the victim, threw her to the ground, and forcibly had sexual intercourse with her. He then fled but was later arrested. At trial, appellant denied the charges and claimed that the victim’s father had framed him. The trial court rejected his claim and sentenced him to 14 years imprisonment. On appeal, appellant requested a sentence reduction from 14 years to eight years. The court of appeals dismissed the appeal, holding that the 14-year sentence was not inappropriate or excessive, and that, in light of the circumstances, there was no reason to reduce the sentence.
Appellant was convicted of defilement of a girl less than 18 years old and was sentenced to 12 years imprisonment. Trial testimony established that while the 13-year-old girl and her younger sister were fetching water at a well, appellant, disguised as a ghost, ordered the two to remove their dresses, blindfolded them, and led them through a swamp to some bush where he had sexual intercourse with the older sister. He then left the sisters in the bush overnight, and the sisters’ father was unable to find them. Appellant then went to the father’s house and told him that he could use his witchcraft powers to find the sisters if the father paid him two goats and two chickens. Upon payment, appellant went back to the brush and brought the sisters to his home, claiming that they needed treatment. While at Appellant’s home, the older sister told her father that appellant had raped her. At trial, the court rejected appellant’s defense that a ghost had abducted the sisters and he was merely using his witchcraft powers to help find the girls. Instead, the court relied on the sisters’ testimony, who claimed that they recognized appellant’s voice. The Supreme Court upheld the conviction and sentence. First, the court found that appellant lived only a quarter mile away from the sisters and used to come to their home and speak to their father, thus supporting the assertion that the sisters were able to identify appellant through voice recognition. Second, the court found that appellant’s witchcraft defense could not be reasonably believed and that the fact that he immediately located the sisters upon payment supported the inference that he was the one who brought them there.
Appellant was convicted of murder and sentenced to death. The deceased, a 16-year-old girl, lived with her mother and brother. For approximately a year, the deceased would sneak out and have sexual intercourse with appellant, a married man who lived approximately 200 meters away from the deceased. A week before the incident, the deceased told her mother that appellant had impregnated her. This greatly displeased her mother, and she reported this to LCs officials. On the night of the incident, the deceased’s mother noticed appellant at her residence before appellant and the deceased left for the night. The next morning, the deceased was found lying by the side of the road about one mile from her home. She was in critical condition and had severe acid burns. Unable to speak, she wrote her information on a piece of paper, including her name and the name of the person who brought her to her location (appellant). She died later that day, and a medical examiner found the cause of death to be severe burns and pulmonary edema. Appellant was later arrested and convicted. He appealed the conviction, arguing that the conviction rested on weak circumstantial evidence and that his alibi deserved re-evaluation. On appeal, the Supreme Court ruled against appellant. They found that the case against appellant relied on the credibility of the deceased’s mother and brother, who, due to proximity and prior acquaintance, knew appellant very well. The court also found that the fact that the deceased’s mother was pursuing actions against appellant gave him a motive for the murder, so as to avoid a possible defilement charge. In sum, the court held that there was ample evidence to convict appellant over his alibi and hence dismissed the appeal.
This is an appeal challenging a rape conviction and sentencing of 15 years imprisonment. Appellant, an army sergeant, went to a village and used a gun to murder his maternal uncle. On the same day, he led his victim, a widow of appellant’s late brother, to an abandoned house and raped her at gunpoint. Three days later, the victim reported the incident and was medically examined. Because she recently had a baby, the medical examiner was unable to find any physical damage to her body. Appellant appeals on two main grounds: (1) without medical proof of penetration, the victim’s accusation requires corroboration to stand; (2) the sentence of 15 years was excessive. On appeal, the court accepted the prosecution’s argument that, because the victim was a new mother and was being held at gunpoint, it was very unlikely that she would have been physically damaged from the penetration or struggle. The court also followed prior precedent that held that, in certain criminal cases, corroboration was not necessary for a conviction. Concerning sentencing, the court also agreed with the prosecution. The court found that appellant had been given a gun by the military to protect the people of Uganda, but instead appellant used that gun to terrorize and rape the victim. Because of those circumstances, the court refused to be lenient, but rather increased appellant’s sentence to 25 years.
This appeal was limited to sentencing only. Appellant was convicted of defilement of a baby girl and was sentenced to 17 years imprisonment. Appellant was a relative of the child and was known as a teacher of Christianity. Appellant requested a more lenient sentence of 10 years. The Court of Appeals ruled against Appellant and increased his sentence to 25 years, citing the policy consideration that, despite the fact that defilement can be punishable by death, individuals still continue to defile babies. Thus, the court used this case as an opportunity to send a message to society that “violating the rights of child females must stop.”
The petitioner filed for divorce and sought an equal share of assets acquired during the marriage. At the time of marriage, neither party owned any property. During their marriage, the plaintiff assisted in building their business and managed their shop while her husband continued to work for the Controller and Accountant General's Department. The plaintiff also advised the respondent on property investments. The respondent denied that the petitioner contributed to the business and claimed that she embezzled money from him, and therefore should not be considered an equal holder of marital assets. The trial court and the Court of Appeals ruled in favor of the petitioner, finding that she was a joint owner of the property and was therefore entitled to an equal share of the marital assets. The Supreme Court affirmed. Previous case law denied a wife a share in property acquired during the marriage unless the wife could show that she had made a "substantial contribution" to the acquirement of these assets. Yet, because more recent cases supported the "equality is equity" principle in the division of marital assets, the Supreme Court concluded that "the death knell has been sung to the substantial contribution principle, making way for the equitable distribution as provided for under Article 22 (3) of the Constitution 1992." Thus, the court held that even if it determined that the petitioner did not make a substantial contribution to the acquisition of marital property, she would still be entitled to a share of the property. To further support its decision, the Supreme Court referenced Article 1 and Article 5 of CEDAW, in addition to the Universal Declaration of Human Rights, which emphasize equality between the sexes.
Rosaria, a thirteen-year-old schoolgirl, was raped by defendant teacher, and consequently contracted a venereal disease. The rape occurred in the defendant's home, which Rosaria entered with the intent of picking up some past school papers that the defendant had failed to bring to school on multiple occasions. After bringing this incident to the Head Teacher's attention, it was uncovered that the defendant had done this before, that measures had been taken to warn or protect students from the defendant, that the defendant had only received a verbal warning, and that the previous student victim had transferred to another school. In his defense, the defendant claimed that he was in a relationship with Rosaria, to which she consented, as evidenced by a Valentine's Day card that Rosaria had given him. The High Court held that the defendant breached the duty of care that he owed to his pupils and was therefore negligent, noting that it is the duty of a school teacher to care for his pupils, as would a father for his family. The Court reasoned that school teachers are in a position of moral superiority, and a young schoolgirl's "consent" is fictitious in light of the ethics compelling a teacher to not engage in sexual relations with schoolgirls, a young girl's cognitive inability to truly consent, as well as Section 138 of the penal code, which states that defilement of a girl under the age of 16 is an offense. Notably, the Court held that society's indignation of this type of behavior ought to be reflected in the amount of damages awarded. The Court entered a judgment in favor of Rosaria for K 45,000,000 for her pain and suffering, medical expenses, aggravated damages, and mental torture. Furthermore, the Court held that the School, Ministry of Education, and the Attorney General are vicariously liable for this judgment, noting that the government is responsible for all school going children in the care of its agents, including teachers like the defendant.
Petitioners challenged the tribal practice of female genital mutilation and argued that it is inconsistent with the Ugandan Constitution. They argued that the practice is cruel, inhuman, and degrading, and endangers the right to life and privacy under the Constitution. The two issues before the court were whether the petition raised any matter for constitutional interpretation and whether the practice of female genital mutilation should be declared as null and void under the constitution. At trial, petitioners produced unchallenged affidavits supporting the fact that female genital mutilation was practiced crudely, wantonly, and without anesthesia, causing permanent damage and trauma to the victim, including incontinence, paralysis, and even death. The court first held that the petition did raise serious questions for constitutional interpretation. Second, the court held that, while the Constitution protects free exercise of cultural or religious custom, such exercise must not infringe on human dignity or the right to be free from cruel, inhuman, or degrading treatment. Thus, the court held that female genital mutilation was inconsistent with the provisions of the Constitution, and thus declared the custom void.
The accused, a teacher, was accused of sexually assaulting a nine-year-old girl while administering an examination to her. The girl testified that she had reported to the school where she was to be enrolled for aptitude tests. She was taken to a classroom where she found herself alone with the teacher. She said that while she was writing the exam, the teacher hugged her from behind and began fondling her breasts. She moved to another seat and finished the exam. He then lifted her up and told her that she was going to help him, but she pushed him away and ran to the principal's office. The teacher denied the charges, arguing that the girl was a slow learner and was mentally disturbed. When he took the stand at the trial, however, he frequently contradicted himself. On the one hand, he stated that people outside would have seen what happened through the windows and that there were other pupils in the class at the time. On the other hand, he said that the alleged assault could have happened so quickly that nobody would see and noted that the schools closed in December, which meant that no other pupils were in class in January when the girl took the exam. Weighing the evidence and taking into account the contradictory testimony of the accused, the Resident Magistrate found that the prosecution had proved its case beyond a reasonable doubt. She therefore convicted the teacher of indecently assaulting the young girl.
Mr. Masiya was charged with the rape of a nine-year-old girl; at the trial, evidence came out that he had penetrated the girl anally which required a conviction for indecent assault rather than rape. The High Court, however, amended the common law definition of rape to include anal penetration as well and made the definition gender-neutral. Mr. Masiya appealed. The Constitutional Court affirmed the High Court and held that the definition of rape must be extended to include nonconsensual anal penetration of females; the Court did say that for the court to extend the definition to include male rape would encroach onto the legislature's prerogative.
The appellant was assaulted, raped and robbed by Andre Gregory Mohamed, who had escaped from prison where he was facing 22 charges for indecent assault, rape and armed robbery. The appellant sued the State for damages, arguing that the police owed her a legal duty to take reasonable steps to prevent Mohamed from escaping and causing her harm and that they had negligently failed to comply with such duty. The Constitutional Court applied its recent holding in Carmichele v. Minister of Safety and Security and held that the state is obliged both by the Constitution and by international law to protect women from violence and the police should be held liable for its negligence in not taking reasonable action to prevent Mohamed's escape, especially in light of the fact that they knew that Mohamed was a dangerous serial rapist who was likely to commit further offenses against women should he escape. The court affirmed the state's liability for any damages suffered by the applicant.
The respondent won a judgment against the appellant for 13 by a manager trainee employed by the appellant. On appeal the appellant claimed (1) it could not be held liable for its employee's actions that occurred off work premises, (2) it had no knowledge of the harassment incidences, and (3) the employee was not acting within the scope of employment. The court held that employers have a legal duty to protect their employees from physical and psychological harm caused by co-employees.
The appellant suffered years of sexual abuse by her uncle, the respondent, during her childhood. She sued him for damages at the age of 48 and the respondent claimed that her suit should have been brought within one year of her attaining her majority. The Court held that the victim of sexual abuse as a child who only in adulthood acquired an appreciation of the responsibility of the abuser for the abuse may sue the abuser within three years of acquiring that appreciation.
The appellant, a minor, was sentenced to 10 years for the rape of a fellow classmate and appeals his sentence on the grounds that it was too excessive. The lower court sentenced the appellant-defendant to direct imprisonment rather than probation after hearing testimony about the appellant's unrepentant nature and lack of parental supervision. The Supreme Court of Appeal upheld the decision, finding that correctional supervision would have lacked the appropriate punitive impact demanded by the offense and deterrent effect.
The appellant was convicted of raping his 12 year old daughter and sentenced to 22 years imprisonment. The Court upheld the sentence in light of the heinous nature of rape as a crime and the importance of society sending a message of severe condemnation of the crime.
The Durban Magistrate's Court issued a protection order under the Domestic Violence Act 116 of 1998 prohibiting Mr. Omar from abusing his wife, Ms. Joolab, and their children. When Mr. Omar allegedly breached the terms of that order, the warrant was executed but was subsequently suspended. He applied to the High Court alleging that section 8 of the Act was unconstitutional and the application was dismissed. On appeal, the Court held that section 8 does not violate the rights of access to the courts and serves to provide a mechanism to ensure compliance with protection orders and protect complainants against further domestic violence.
The accused was charged on two counts of rape of a 14 year old girl and of an 11 year old girl. The Court noted that in cases where the complainants are young and may be prone to flights of imagination leading to false accusations, the accusations should only be doubted in so far as the child's capacity for recollection and observation seem questionable. In this case, the children were found to be trustworthy and the accused convicted of both counts.
An army officer was convicted for breaching an interdict issued by a magistrate ordering him not to assault his wife or prevent her or their child from leaving their home. He appealed to the Transvaal High Court which declared that Section 3(5) of the Prevention of Family Violence Act was unconstitutional to the extent that it placed the burden on him to disprove his guilt. The Constitutional Court overturned the High Court's judgment, finding that the purpose of an interdict was to protect the victim of domestic violence and indicate that society would not stand by in the face of spousal abuse. As such, fairness to the complainant required that the enquiry proceedings be speedy and dispense with the normal process of charge and plea, but in fairness to the accused, the presumption of innocence would still apply to the summary enquiry.
The respondent, Ms. Pastory, inherited clan land from her father by a valid will and sold the land to a man who was not a member of her clan. The next day, the appellant, Mr. Ephrahim, filed suit seeking a declaration that the sale of land by Ms. Pastory was void under the customary law that a woman has no power to sell clan land. The Court held that the customary law regarding women's property rights discriminated on the ground of sex in violation of CEDAW, the African Charter on Human and Peoples' Rights and the ICCPR as well as the Tanzania Constitution.
In determining sentencing for a woman convicted of murdering her spouse, expert testimony regarding battered woman syndrome is more relevant to the sentencing decision than to the assessment of the legality of the defendant's actions. The court reviewed a line of cases involving women convicted of murdering their abusive partners. Although the court cited a variety of mitigating factors that should be considered (e.g., the sustained nature of the abusive conduct, the presence of children in the home,etc.), it held that foremost is the actual effect sustained domestic violence has on women. As a result, the court found expert testimony confirming that the defendant suffered form the syndrome to be a "substantial and compelling" reason to suspend the defendant's sentence.
The petitioners sued to have several provisions of the Divorce Act declared void on the grounds that they discriminated on the basis of sex. The Court held that sections 4, 5, 21, 22, 23, 24 and 26 of the Divorce Act are void in so far as they discriminate on the basis of gender, so the grounds for divorce as listed are available to both sexes and the compensation for adultery, costs against a co-respondent, alimony, and settlement are applicable to both sexes.
The appellant, convicted of hiring two workers to kill her abusive husband, argued for a reduced sentence. The court held that a lesser sentence is permitted only when there are "truly convincing" circumstances or where a life sentence is disproportionate or unjust. Expert testimony regarding battering and its effects showed how her behavior fit a well-known pattern for abused women. The court found this testimony convincing and held that the appellant's use of third parties to kill her husband did not invalidate her claim to be a victim of battering. Additionally, the court held that appellant's failure to testify should have no effect on her credibility. The court reduced her sentence but declined to acquit the appellant because of the premeditated nature of the act.
The applicant was sexually assaulted by a man who was awaiting trial for the attempted rape of another woman. Despite the seriousness of the alleged crime and the fact that the man had a prior rape conviction, the police and prosecutor had recommended that the man be released pending trial. The applicant sued the Minister for damages, arguing that the police and prosecutors had negligently failed to comply with a legal duty they owed to her to take steps to prevent the man from causing her harm. The High Court dismissed the applicant's claim and the Supreme Court of Appeal affirmed, holding that the police and prosecution did not owe her a duty of protection. On appeal, the Constitutional Court set aside the orders of the lower courts and remanded the case to the High Court for trial. It held that the State is obligated by the Constitution and international law to protect the dignity and security of women and in the circumstances, the police recommendation for the assailant's release could amount to wrongful conduct giving rise to liability. The Court also held that prosecutors, who are under a duty to place before the court any information relevant to the refusal or grant of bail, may be held liable for negligently failing to fulfill that duty.
Jackson was charged with the attempted rape of S., a 17-year-old girl when he tied her wrists and attempted to have intercourse with her. She fought him off and managed to escape the car and subsequently was examined by a doctor who found some evidence of unlubricated sexual contact, but no conclusive evidence of penetration. Jackson appealed on the grounds of the cautionary rule, encouraging that accusations of rape be handled cautiously to prevent false convictions. The Court held that the cautionary rule was based on outdated stereotypes against women and that in criminal cases, the burden is on the State to prove the guilt of the accused beyond a reasonable doubt, without an application of a general cautionary rule. The Court adopted the formula used in England whereby a judge could choose, on a case by case basis, to use caution only in cases where it was proven that the complainant was untrustworthy for some reason, e.g. had made previous false complaints or bore the defendant a grudge.
Two men convicted of child rape challenged the constitutionality of the Sexual Offenses Act's amendments to the existing Criminal Procedure Act (CPA). The amendments permit child victims and witnesses of sexual offenses to participate in modified court proceedings to facilitate testimony. The lower court declared the amendments to the CPA constitutionally invalid. The Constitutional Court reversed the ruling, holding that (1) courts must inquire into the need to appoint an intermediary in sexual offense trials whenever children are expected to testify, regardless of whether the state raises the issue; (2) courts may exercise discretion whether to hold proceedings in camera; and (3) courts must give reasons for refusing to allow the use of intermediaries or other safeguards.
The appellant, M., was tried before a regional magistrate for the rape of his six-year-old daughter during 1989. He was convicted and sentenced to ten years imprisonment, which he appealed. The Court held that, especially given the age of the complainant at the time, the question of a consensual sexual relationship is moot and further stipulated that the sexual history of the complainant is not relevant in a charge of rape, unless the Court specifically judges it to be so.
A high school teenage girl from an impoverished neighborhood consented to undergo job training as a receptionist at the appellant's escort agency. She alleged that during her training, the appellant held her against her will, and raped and sexually assaulted her. The appellant argued that his conviction should be overturned because the victim had consented. The court dismissed the kidnapping charges, but upheld the rape and sexual assault charges. The court acknowledged that although the victim consented to parts of the training (i.e. wearing lingerie and taking up residence at the employer's compound), she did not consent to sexual intercourse with the appellant. The court also noted that because of the appellant's age (twice that of the victim) and his promise of employment, he exercised a dominant position over the victim that made it difficult for her to refuse his advances.
The accused was charged and convicted on two separate counts of rape for raping two 15-year-old girls more than once and sentenced to six years imprisonment on the first and ten years imprisonment on the second count. On appeal, the defense was put forward that the sentence was too severe because of mitigating circumstances in that the victims did not suffer serious physical or psychological injuries and that both victims had previously been sexually active. The Court dismissed the appeal and held that the sentences were, in fact, too lenient, especially as the victims' previous sexual history was irrelevant and also that the extent of harm to the victims matters less because rape is a basic violation of dignity. The sentence was increased to 8 years for the first count and 12 years for the second.
K. sued to recover damages from the Minister of Safety and Security from being raped and assaulted by three uniformed and on-duty police sergeants. The High Court held that the actions of the police officers fell out of the scope of their employment and that the Minister could not be held vicariously liable for their conduct. The Court held that although the police officers' actions were obviously a clear deviation from their duty, there was a sufficiently close relationship between their employment and the wrongful conduct to hold the Minister liable.
The respondent made comments at a political rally regarding the consent of the complainant in Jacob Zuma's rape trial. Specifically, he opined that a rape victim would leave early in the morning, but the complainant in this case had stayed for breakfast and requested money for a taxi. The plaintiff, a gender justice organization, sued him for hate speech, unfair discrimination, and harassment of women. The court found that the respondent's comments were based on prohibited grounds as outlined in South Africa's Equality Act, specifically sex and gender. The court also found the comments expressed by the respondent constituted "generalizations about women, rape, and consent which reinforce[d] rape myths." Moreover, the respondent's words suggested "that men need not obtain explicit [sexual] consent from women." The court found the respondent liable for hate speech and harassment. For these reasons, the court concluded the respondent infringed the rights of women and ordered him to pay a fine and make a public apology.
The appellant was convicted of defilement for having sexual intercourse with the complainant, who was 12 years old at the time. The trial court sentenced him to life imprisonment. He appealed, arguing that the prosecution did not satisfy its burden of proofs, that there was no evidence of violent force, that the complainant was his girlfriend, and that she consented. The prosecution presented evidence of the complainant's physical injuries and the appellant's HIV-positive status. The Court dismissed the appeal because sex with any girl younger than 16 years old is unlawful regardless of consent, and the appellant had not raised the defense that he had a reasonable belief that the girl was above the age of consent. The Court rejected appellant's plea for special consideration because of his alleged HIV status. Instead, the Court cited the appellant's decision to expose a 12-year-old child to HIV/AIDS in its decision to uphold the life sentence.
The accused was convicted of rape and sentenced to four years' imprisonment. The sentence was appealed by the judge who reviewed the lower court's decision because the reviewing judge found the sentence inadequate. The Court upheld the sentence, stating that it was not so excessively inadequate as to merit interference and taking note of the factors used in determining sentences for rape offenders: violence used to commit the rape, a repeated rape, a carefully planned rape, whether the defendant has previous convictions for rape or other serious offenses, whether the victim was subjected to any further sexual indignities, whether the victim was very young or very old, and the physical and mental effects upon the victim. The factors to warrant a harsher sentence were not judged to be present in this case, and the sentencing judge's decision was within his discretion.
The appellant was charged and convicted of defilement and indecent assault of a six-year-old girl. He was sentenced to 10 years imprisonment on the first count and five years imprisonment for the second. He appealed on the grounds of insufficient evidence to sustain a conviction and an excessive sentence. The Court affirmed the convictions because the six-year-old complainant described the incident in detail, the medical evidence was corroborative, and the appellant's abrupt and unexplained disappearance after the incident was also properly considered corroborative evidence. The Court also held that the sentences were not excessive.
The appellant was charged with defilement for having unlawful carnal knowledge of a girl under 13 years of age. The trial court convicted him of indecent assault because there was no penetration. He appealed his conviction for indecent assault because it was not included in the original charge. He also argued that his sentence was excessive. The Court dismissed the appeal of the conviction on the grounds that where the evidence is sufficient to sustain the lesser charge of indecent assault but may not be sufficient for defilement, the accused may be convicted of the lesser crime even when it was not included in the original charge. However, the Court upheld the appeal of the sentence and lowered it, despite of the fact that women and girls need to be protected, taking into account the mitigating factor of the appellant's youth.
The appellant was charged and convicted of raping the complainant, a girl of 15 years, with his friend. The appellant appealed on four grounds: (1) that the complainant was so young that the court needed to have first satisfied itself that the complainant possessed sufficient intelligence to justify the reception of her evidence, (2) that the court convicted him solely based on the testimony of one witness, (3) that the sentence was manifestly harsh and unfair, and (4) that the prosecution in this case failed to adhere to the requirement that a charge of rape must contain the words "unlawful" and "without consent". The Court dismissed the first three grounds, stating that 15 years did not make the complainant too young to give uncorroborated evidence, as would otherwise be required in sexual offenses. However, the Court quashed the conviction because the rape charge did not contain the words "unlawful" and "without consent," which are necessary to any charge of rape.
The appellant was found guilty of defiling a girl under 13 years of age and appealed on the grounds that the sentence is excessive and that his taking care of his grandparents should be considered as a mitigating factor. The complainant had since been diagnosed with a sexually transmitted infection and medical examinations revealed multiple instances of sexual abuse. The appellant testified that neither he nor his wife had a sexually transmitted infection, but the Court did not find this claim persuasive because neither of them had been tested (neither took the initiative to be tested and the government could not force them to be tested). The Court dismissed the appeal and upheld the sentence, considering the harm done to the complainant in infecting her with a sexually transmitted infection.
The appellant was charged with three criminal violations in connection with his and his coconspirators' robbery of the complainant and corresponding violence: (1) aggravated robbery with violence, (2) rape of the complainant's niece during the robbery, and (3) possession of suspected stolen property. The trial court found the appellant guilty on all counts, but the first count was reduced to simple robbery. The trial court sentenced him to ten years imprisonment for robbery, ten years imprisonment for rape, and 12 months for handling suspected stole goods, to be served concurrently. Without citing a specific reason for reducing the aggravated robbery with violence charge, the trial magistrate noted that the complainant testified that she was not injured in the robbery. The appellant first appealed to the High Court, which found the appeal had no merit and that the appellant was guilty of aggravated robbery with violence. The High Court vacated the conviction and 10-year sentence for simple robbery and imposed the death sentence for robbery with violence. In this appeal to the Court of Appeal (Kisumu), the appellant raised four concerns: (1) whether he was improperly identified as the robber and rapist because the attack took place at night when it was dark, (2) whether the first appellate court properly re-evaluated the evidence, (3) whether the High Court's substitution of simple robbery with aggravated robbery with violence was proper, and (4) whether the State was required to file a cross-appeal to entitle the High Court to substitute the simple robbery conviction with aggravated robbery with violence. The High Court documents show that the appellant was warned more than once and that at the earliest opportunity the State Counsel would seek to increase the sentence to capital robbery, but the appellant decided to proceed with the appeal. Quoting its precedent, the lower courts' records, and the Criminal Procedure Code Sec. 354, the Court of Appeal rejected all aspects of the appeal and upheld the death sentence for robbery with violence.
The accused was charged with defilement of a girl under the age of 14 years, and was convicted and sentenced to 14 years imprisonment. He appealed for leniency on the grounds that he was remorseful, suffering from acute pneumonia and only 17 years of age at the time of the incident. The Court upheld the sentence finding that the sentence of 10 years for defilement of a girl and 5 years for indecent assault is not excessive and no circumstances existed to justify mitigating the sentence.
The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.
The applicants are the sons and wife of the deceased and are seeking to apply the Kamba customary law that would not permit a daughter to inherit her father's estate if she is married. The Court held that the Kamba customary law is discriminatory insofar as it seeks to prevent a married daughter from inheriting her father's estate under the Succession Act. It specifically noted that although the Kenyan constitution specifically provides for customary law to take precedence over the Constitution in matters dealing with property inheritance after death and other personal issues, Kenya is also obligated to end discriminatory practices under CEDAW and the UDHR.
The plaintiff wife sought a decree of divorce on the grounds of the defendant's desertion on the grounds that the defendant abused her and drove her out of the matrimonial home to live with another woman. The Court found that the defendant was previously married through Lesotho customary law to the other woman at the time of the marriage to the plaintiff; thus, the defendant's marriage to the plaintiff was null and void. However, the Court declared that the relationship was a "putative marriage" for the purposes of dividing the plaintiff and defendant's joint property.
The State appeals the decision in the High Court to acquit the accused of all charges of rape and abduction of an 11 year old by taking her away from her guardian with the intent to have sexual intercourse with her. The Court reversed the acquittal and found the accused guilty on the charges of rape and abduction and affirmed an earlier judgment that the cautionary rule discriminates against women in violation of the Constitution and should only be used at a judge's discretion in extreme cases where there is some valid reason to question a complainant's veracity
The petitioner-wife sought the dissolution of her marriage on the grounds of cruelty and adultery because the respondent assaulted her, locked her out of their matrimonial home, and forced her to have sex with him while he was drunk. The Court found that the petitioner's testimony was believable and established cruelty that endangered her life and health. The Court therefore dissolved the marriage. (Kenya domestic law does not explicitly recognize marital rape.)
The accused was convicted of raping an 11 year-old girl. In considering sentencing, the High Court upheld the conviction and, citing South African and English law, noted the presumption that girls under the age of 12 are considered too young to give their consent to intercourse, but in cases involving girls between the ages of 12 and 16 the prosecution must demonstrate that there was non-consent for the accused to be convicted of rape. If a girl of 12 to 16 years old does consent to sexual intercourse with a man, then the man should be found guilty of defilement or statutory rape under the Women and Girls Protection Proclamation No. 14 of 1949. [Note: The Convention on the Rights of the Child defines a child/minor as any person under 18 years of age in the absence of domestic laws. Generally, minors do not have the capacity to give consent.]
The Court of Appeal held that the Nnewi Customary Law that precluded a woman from giving evidence in land matters was unconstitutional because it discriminated against women.
The appellant was charged with rape and defilement and alternatively with indecent assault for having carnal knowledge of the complainants under the guise of treatment as an herbalist/witch doctor. He was convicted of indecent assault and sentenced to four years imprisonment and hard labor. He appealed the conviction on grounds of insufficient evidence and undue harshness of the sentence. The Court held that a rape conviction requires penetration and lack of consent on the part of the victim; defilement only requires penetration but not lack of consent. Evidence of penetration can be inferred from sexually transmitted infections; medical examinations are not required to sustain a conviction. Appellant's defense that he was framed was dismissed as it was improbable that the complainants would subject themselves to rape to avoid paying him.
Both of the accused were convicted of raping a 25-year-old woman when each took turns helping the other to rape the complainant. Two women who were with her tried to drive off the accused, but they threw rocks at the women and chased them off. The Court noted that the punishment for rape carries a maximum sentence of life imprisonment and a minimum sentence of five years imprisonment when there are no mitigating or aggravating factors. Aggravating factors include (1) violence in addition to the violence of the rape, (2) use of a weapon to intimidate or physically harm, and (3) repeated rape. The Court upheld the conviction and overturned the previous sentence of five years each to eight years, finding that gang rape calls for a higher sentence. In its discussion of the elements of rape, the Court noted that if one perpetrator held a woman down while another raped her, then the first would also be guilty of rape. In addition, in contradiction of international standards, the Court stated that women lack the necessary anatomy to commit rape and therefore can only be guilty of rape by assisting a male perpetrator.
The appellant was charged with rape and alternatively with indecent assault. He was acquitted of rape but convicted of indecent assault and sentenced to 10 years imprisonment with hard labor. The complainant is a local brewer of an illicit beverage called "changaa," which she was arrested for on November 12, 2002. She offered a bribe to the arresting officers, but could not pay the price they demanded (5,000 KSH). At the police station, the officers accepted the 1,000 KSH bribe she had offered earlier and released her to get another 4,000 KSH to exchange for the five liters of changaa she was arrested for possessing. The police officers sent her home with the appellant, who threatened her with a knife and raped her. The trial court found the complainant credible and very honest, but acquitted the accused on the rape charge because sexual offenses require corroboration. In this case, the magistrate judge stated that the complainant's testimony needed to be corroborated with medical evidence or by the police officers who released the complainant with the appellant. However, this was an error of law, as the superior court and Court of Appeal both stated in their decisions on the accused's appeals. The Court upheld the conviction on the ground that while sexual offenses usually require corroboration of the complainant's testimony, in cases where the judge is satisfied of the complainant's veracity or where the complainant's testimony can be corroborated with circumstantial evidence, a conviction can be made. The Court of Appeal added that, in its view, the appellant's acquittal on the charge of rape was incorrect.
The plaintiff-wife sought the dissolution of her marriage to the defendant on the grounds of his previous marriage under the Sotho custom. The Court declared the marriage to be null and void on the grounds that the plaintiff agreed to the marriage through fraud, believing that the defendant was unmarried at the time and would not have agreed to the marriage if she had known the truth.
The appellant was convicted of defilement of a girl under the age of 14 years and sentenced to 14 years imprisonment with ten strokes of the cane. The appellant appealed his conviction and the sentence as being excessive for a first offense. The Court dismissed the appeal of the conviction as the complainant identified the appellant and medical evidence is no longer necessary to convict an accused if the evidence was sufficiently cogent. The "defilement" conviction was substituted with rape and the appellant was sentenced to ten years imprisonment.
The accused was convicted of rape and sentenced to a custodial term of imprisonment of 18 months. He appeals on the grounds that the lower court erred in convicting him in contradiction of the Medical Report that found it was a fabricated rape. The Court dismissed the appeal finding that the complainant's story was corroborated by the evidence and did not therefore require the Medical Report's corroboration as well and also that the Medical Report is not to be taken as conclusive evidence of penetration. The evidence also showed that the intercourse the appellant had with the complainant was non-consensual because the consent was fraudulently obtained.
The appellant was charged and convicted of three counts of robbery with violence and one count of rape, with the charge of rape stating that the appellant "jointly with another not before the court" had carnal knowledge of the complainant. The trial court sentenced him to death for robbery with violence, which is a capital offense. He appealed on the grounds that the rape charge was defective and that the police violated his constitutional rights because they held him for 24 days without bringing him to court. The High Court dismissed his first appeal. However, hearing his second appeal, the Court of Appeal held that multiple men cannot jointly commit the offense of rape against one woman, so the offenders cannot be charged jointly. The Court quashed the appellant's conviction for rape because each offender should have been charged on a separate individual count of rape. The Court also quashed the robbery with violence conviction and sentence because the Constitution (sec. 72(3)) requires police to bring detainees accused of a capital offense to court within 14 days, but in this case police improperly held the appellant for 24 days without cause before bringing him to court. The Court dismissed the state counsel's arguments that the length of the appellant's detention was a moot issue because he failed to raise it in earlier proceedings. The Court stated that it is the responsibility of the prosecuting authorities to justify any delay and a judge's duty to raise issues of unlawful detention if the defendant does not.
The accused was convicted of attempted rape and sentenced to five years imprisonment with hard labor for accosting the complainant and assaulting her with the intent to have intercourse with her before he was prevented from doing so by the arrival of the witness. The appeal was dismissed because the accused's actions in fondling the complainant and tearing her underwear provided clear evidence of his intent. The sentence was upheld because of the aggravating factors that the accused was told that the complainant was a married woman and the traumatic effect of the tearing of the woman's underwear. [Note: International legal standards do not discriminate on the basis of marital status in determining the gravity of a rape.]
The appellant was convicted of rape and sentenced to 12 years imprisonment with hard labor and six strokes of a cane. The complainant testified that on the day of the incident, she met the appellant at a bar and agreed to spend the night with him for a sum of money. The appellant took her to a house where he and two colleagues raped the complainant all night in turns. The appellant testified at trial that they had an "arrangement" with the complainant and did not rape her. The complainant testified that she had withdrawn her consent before intercourse with the appellant and his co-perpetrators. The morning after, the complainant escaped the house to report the rapes to the police and received treatment for her injuries at a hospital. Ruling on the appeal, the High Court found that that the complainant withdrew her initial consent before the sexual act and that the appellant is guilty of rape. The Court also reduced the sentence to six years imprisonment and set aside the corporal punishment, which was outlawed by the Criminal Law (Amendment) Act of 2003.
The appellant was convicted of defiling a 12-year-old girl and appealed the conviction on the grounds that the intercourse was consensual and that he believed the complainant was older than 12 years at the time. The Court dismissed the appeal and noted that the evidence was sufficient to prove a lack of consent but also that, at 12 years old, the complainant was too young to give consent. The Court also noted aggravating factors, including that the appellant had intercourse with the complainant on multiple occasions and the appellant had threatened the complainant against telling her parents.
The Court found that the employer had acted inconsistently in offering Mrs. B.S. one-month extensions on her fixed term contract and then ending her contract at a time when she would otherwise have begun maternity leave on the grounds that there were no more project-related funds to cover her employment. This inconsistent behavior supported the finding that Mrs. B.S. had been unfairly dismissed because of pregnancy. Under Article 33 of the Labor Code, the Court awarded damages to Mrs. B.S. for unfair dismissal. Furthermore, the Court faulted the employer for having violated Article 84 of the Labor Code which states that pregnant employees must enjoy maternity benefits under the Caisse Nationale de Sécurité Sociale, including 14 weeks of paid leave, and awarded Mrs. B.S. the maternity benefits that she would have received had she not been unfairly dismissed.
Mrs. Z.A. contended that she had been unfairly dismissed for having refused sexual advances by the personnel manager. The Court found that Mrs. Z.A. did not have the obligation to prove that she had been the subject of sexual harassment. Her employer had the burden of proof to show that she had been dismissed fairly. The Court found that Mrs. Z.A. had been dismissed because she did not submit to her personnel manager's sexual advances, and therefore awarded her punitive damages in addition to six months pay.
The appellant appeals his conviction for the murder of his live-in girlfriend and his sentence of 12 years imprisonment. The Court upheld the sentence, noting the increasing incidence in Botswana of former lovers killing their partners and opining that the courts should impose appropriately stiff sentences as a deterrent.
The respondent, Ms. Unity Dow, brought a case to the High Court of Botswana asserting that sections 4 and 5 of the Citizenship Act violated her right to equal protection of the law and protection from discrimination on the basis of sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers. The respondent had one child with an American man prior to their marriage and two children after. Botswana's citizenship requirements allowed only children born outside of marriage to inherit their mother's citizenship, so the respondent's first child was a citizen of Botswana while the two born during her marriage were not. Though not the central issue of the case, the Court noted that an immediate effect of the law could be the expulsion of the husband and non-citizen children from Botswana. The Court of Appeal upheld the High Court's decision in finding that the Citizenship Act discriminated on the basis of gender under both the Botswana Constitution and the Declaration on the Elimination of Discrimination Against Women because it punishes a female citizen for marrying a non-citizen male. In addition, the Court considered similar cases in different countries in reaching its opinion. (High Court decision available at: https://www.law.cornell.edu/sites/www.law.cornell.edu/files/women-and-ju...)
The appellant appealed his conviction for rape, arguing that the Penal Code sections dealing with rape are discriminatory because they provide increased penalties for a person convicted of rape if they are found to be HIV-positive. The Court held that the relevant provisions of the Penal Code apply when the convicted person was HIV-positive at the time he committed the rape and that it is therefore a reasonable provision in order to combat the spread of HIV/AIDS.
The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children. The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the grounds that under customary law, a wife who divorces her husband is at fault because a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.
The appellant appealed his conviction for rape in the subordinate court of the first class for the North West Magisterial District on the grounds that the evidence did not show lack of consent, and that the sexual intercourse between the appellant and the complainant was consensual. The Court upheld the conviction on the grounds that the evidence showed that the appellant used threats and coercion to force the complainant to have intercourse with two other persons, which rape. Therefore, the Court upheld the conviction. The Court also discussed proper procedures for handling criminal trials for defendants who are minors at the time of the alleged crime but over the age of majority at the time of trial, as the appellant's two co-accused were in this case.
The appellant challenged the sentence for rape under the sections of the Penal Code that set forth mandatory minimum sentences for rape charges depending on circumstances such as the perpetrator's use of violence or the perpetrator's status as being HIV positive. Section 142(5) of the Penal Code prohibits a sentence for rape from running concurrently with any other offense; the sentences must be served consecutively. The appellant was convicted on two counts of rape and sentenced to the mandatory minimum sentence of 10 years for each count, resulting in a total of 20 years imprisonment, which he claimed was a violation of the constitutional prohibition on "torture or inhuman or degrading punishment." The Court upheld the conviction, noting that although it was undeniably severe, it was not disproportionate to the offense, especially in light of the increase in the incidence of rape in Botswana and the heinous nature of rape itself.
The appellant was found guilty in magistrates court of raping a 10-year-old girl and sentenced to 10 years in prison. He appeals on the question of whether sexual intercourse with a girl of that age should be considered as rape or "defilement" because rape requires a lack of consent while the Penal Code defines defilement as carnal knowledge of anyone under the age of 16. The High Court held that, in accordance with the principle followed by the common law in South Africa incorporated by Botswana, a girl under the age of 12 is deemed incapable of consenting to intercourse and therefore intercourse with any person under the age of 12 is deemed rape.
G.N., a mother, brought the action on behalf of her nine-year-old daughter, C.N. A friend of the family, Captain D.K., was conducting night patrols and he stopped by the family home. G.N.’s husband was not at home, so the Captain said he was going to leave and wanted to take C.N. with him home. G.N. declined saying it was late, but when she returned to the kitchen to finish cooking the meal and then called for her daughter, she was no longer there. Neighbors informed G.N. that she had left with D.K. She looked for C.N., but did not see her. The serviceman was a friend of the family. She thought C.N. would soon return. When G.N.’s husband returned home, she informed him that C.N. had not returned and he reassured her so they decided to wait. C.N. returned home the next day. G.N. eventually learned from C.N. that D.K. had taken her to his house, raped her, and, when she cried, threatened her with his firearm if she made any more noise. He sent her to sleep with his own children and the next day gave her 500 Burundian francs (USD 0.30). He told her never to speak about the rape and threatened her and her mother if she revealed their secret. However, a week after the incident, her mother persisted in asking C.N. because she could not stand up and said she had a stomach ache. The victim’s father raised the issue with Captain D.K., who proposed an out of court settlement, which was rejected by G.N. G.N. took C.N. for a medical examination, which confirmed the rape and she reported the rape to the military prosecutor’s department. G.N. appealed to the domestic courts, which dismissed the case because of the ten-day period between the incident and reporting of it and the calmness and availability of the Captain. After seeking domestic remedies with no action taken, G.N. appealed to the Committee submitting that her daughter was the victim of a violation of articles 2(1), 12, 13 and 14, read in conjunction with article 1 and, alternatively, with article 16 of the Convention. The Committee found that the sexual abuse to which C.N. was subjected by an official of the State acting in his official capacity and the associated acts of intimidation fall within the scope of article 1 of the Convention. The Committee also determined the investigation was not impartial, effective and prompt, contrary to articles 12 and 13 of the Convention. It relied on the fact it was closed quickly and prosecutors did not seek additional evidence to pursue the case or arrest any other suspects, meaning the perpetrator of the rape has gone unpunished even though Burundi law provides that rape is punishable by life imprisonment when committed against a child under the age of 12. As the child received no redress, the Committee also found that Burundi violated its obligations under article 14 of the Convention. Finally, the Committee urged Burundi to: (1) promptly reopen an investigation; (2) provide reparation including compensation for the material and moral harm caused, restitution, rehabilitation, measures of satisfaction and a guarantee of non-repetition; (3) prevent threats/acts of violence against G.N. and C.N. for lodging the complaint; and (4) advise the Committee within 90 days of the steps taken.
Mr. Jean Paul Akayesu served as the mayor of the Taba commune and was responsible for maintaining law and public order in Taba during the tragic events which took place in Rwanda in 1994. The court held that Mr. Akayesu had knowledge of the killing of thousands of Tutsis in Taba, but did not attempt to prevent such acts even though he had the duty to do so. Moreover, Mr. Akayesu was involved and even took an active role in some instances. In addition, the court held that Mr. Akayesu had knowledge of sexual assaults of civilians who sought refuge at the bureau communal by armed local militia but did not attempt to prevent such acts even though he had the duty to do so. The court found that Mr. Akayesu was guilty of genocide and crimes against humanity. On appeal, the Appeal Chambers dismissed Mr. Akayesu claims and upheld the judgment of the court a quo. This case is important because it established for the first time that sexual violence constitutes a crime against humanity and a tool of genocide by a government official. It is also worth noting that the court’s broad definitions of rape and sexual violence were the first of their kind in international law.
Mr. Sylvestre Gacumbitsi served as the mayor of the Rusumo Commune during the tragic events that took place in Rwanda in 1994. The Trial Chamber found Mr. Gacumbitsi guilty of genocide and the crimes against humanity of extermination and rape. The Trial Chamber held that Mr. Gacumbitsi planned, instigated, ordered, committed, and aided and abetted the killing and raping of Tutsi civilians. Moreover, Mr. Gacumbitsi was directly involved in certain instances in such acts. This case is important, among others, since the Trial Chamber has used a broad definition of rape - recognizing various forms of sexual violence as constituting rape.
In 2003 an armed group known as the Sudan Liberation Movement/Army issued a political declaration and clashed with respondent State’s armed forces. The Respondent State engaged in a succession of human rights violations against suspected insurgents, including the rape of women and girls. The respondent state denied several of the allegations, argued that local remedies were not exhausted, and submitted that the claims had already been settled by other international mechanisms. The Commission noted that “cases of sexual and gender based violence against women and girls in and outside IDP camps have been a common feature of the Darfur conflict. The right to liberty and security of the person, for women and girls, and other victims of the Darfur conflict has remained an illusion.” The Commission held that the respondent State violated Articles 1, 4, 5, 6, 7(1), 12(1) and (2), 14, 16, 18(1) and 22 of the African Charter. The Commission recommended that the State take all necessary and urgent measures to ensure protection of victims of human rights violations in the Darfur region, including: conducting effective official investigations into abuses committed by members of military forces, undertake major reforms of its legislative and judicial framework, take steps to prosecute those responsible for human rights violations, and take measures to ensure that victims of human rights abuses are given effective remedies.
The African Commission on Human and Peoples’ Rights found that three men convicted in the 2004 and 2005 bombings on Egyptian resort towns were tortured and denied a fair trial before being sentenced to death by Egypt’s Supreme Emergency State Security Courts, violating the African Charter on Human and Peoples’ Rights. The Commission ruled that Egypt should repeal the death sentences, immediately release the men, and provide them compensation. Additionally, the Commission found that Egypt’s state security courts were not independent and were unable to meet international fair trial standards. This ruling establishes a requirement for African states to prevent torture. It also makes clear that judicial proceedings must take place in a fair, independent court in order to uphold human rights, and that the African Commission on Human and Peoples’ right will actively enforce these standards.
A man in South Africa was convicted of raping his adopted daughter over the course of a sexually abusive relationship that lasted several years and was sentenced to 15 years in prison. The judge overruled claims that the victim had given consent, holding that the victim’s lack of resistance did not qualify as active consent. Furthermore, the judge held that that the perpetrator had knowingly employed sexual grooming techniques to leverage the victim into sexual acts. In refuting the perpetrator’s claims that he believed the victim to be consenting, the judge in this case took an important step in defending victim’s rights and acknowledging the complicated power dynamics that often underlie sexual crimes. This case opens the path for victims of similarly complex patterns of sexual abuse to come forward and claim their rights, providing vital recourse for the many victims of sexual crimes in South Africa.
Hadijatou Mani, who was born to a mother in slavery, was sold to a local chief at age 12. For the next nine years she was subjected to rape, violence, and forced labor without remuneration. When Niger’s Supreme Court failed to convict her master under Article 270.1-5 of the Nigerien Criminal Code, which made slavery illegal in 2003, Hadijatou brought her case before the ECOWAS Community Court of Justice under Article 9(4) of the Supplementary Protocol A/SP.1/01/05. The court ruled that Hadijatou had been a slave under the definition in Article 1 (I) of the Slavery Convention of 1926 and that in failing to convict Hadijatou’s former master, Niger had not upheld its legal responsibility to protect her from slavery under international law. This case was the first ECOWAS ruling on slavery and only the second conviction made under Niger’s 2003 anti-slavery law. The case gained a high level of publicity, setting the precedent for women to fight back against the traditional slavery practices common to Niger and other ECOWAS nations. As of 2009, there had been approximately 30 more cases upholding the prohibition of slavery in Niger.
Saadia Ali, a dual French/Tunisian citizen, was attempting to obtain an official document from the court of first instance in Tunis when she was taken into custody, stripped of her clothing, and beaten by a prison guard in front of fifty male prisoners for verbally criticizing a Tunisian public official. Upon regaining consciousness, Ali was given a summary trial without due process and a suspended sentence of three months imprisonment for attacking a public official. Ali’s lawyer initiated a complaint with the office of the State prosecutor, which rejected the complaint without further explanation. In her complaint to the Committee Against Torture, Ali alleged violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT), and cited violations of internationally recognized standards on the administration of justice and articles 25 and 26 of Tunisia’s Code of Criminal Procedure. The Committee held that Tunisia’s actions towards Ali were tantamount to torture and violated articles 1, 12, 13, 14, and 16 of the Convention. The deliberate infliction of severe pain and suffering upon Ali by Tunisian public officials constituted torture under article 1 and cruel, unusual, or degrading treatment within the meaning of article 16. The Committee also held that the State’s dismissal of the complaint and delay in investigating Ali’s case established a violation of articles 12 and 13, under which a State has the obligation to promptly investigate allegations of torture. The State’s failure to act on the complaint and immediately launch an investigation equated to a breach of the State’s obligations under article 14 to provide redress to victims of torture in the form of restitution, compensation, and rehabilitation.
Interights, an international human rights organization, filed a complaint before the Commission on behalf of Ms. Safiya Hussaini and others, arguing that Nigeria's Islamic Sharia courts had violated their rights to a fair trial and due process. Safiya Hussaini, a nursing mother, was sentenced to death by stoning for adultery. Ms. Hussaini was tried under Sharia law, according to which adultery is punishable by death. The petitioners also included Amina Lawal, a woman sentenced to similar punishment for adultery, and Bariya Magazu, an unmarried woman who received 100 lashes as punishment for zina (voluntary premarital sexual intercourse). In response to the complaint, the Chairman of the African Commission sent an urgent appeal to Nigerian President Olusegun Obasanjo, urging him to suspend further implementation of the Sharia penal statutes and convictions under those laws pending the outcome of the complaints before the Commission. In response to the Chairman's urgent appeal, the Secretary General of the African Union formally brought the matter to President Obasanjo. The President's Chief of Staff wrote to the Chairman of the African Commission that while the federal government could not suspend the operation of Sharia law, the administration would ensure that the "right to life and human dignity" of Ms. Hussaini and the others would be adequately protected. Before the court ruled on admissibility of the complaint, the complainant moved for withdrawal of the complaint, and it was withdrawn from the Commission.
Eight female students of the Nubia Association of Ahilia University were arrested for engaging in immoral activities that violated the public order, in contravention of Sudan's Criminal Code, which incorporates Islamic Sharia law. The immoral activities the women committed consisted of "girls kissing, wearing trousers, dancing with men, crossing legs with men, sitting with boys, and sitting and talking with boys." The women were punished with fines and between 25 and 40 lashes. The lashing took place in public by use of a wire and plastic whip. The wire and plastic whip were unclean, the lashing was not under the supervision of a doctor, and the women were bareback in public while they were lashed. The complaint asserted that the punishment violated Article 5 of the African Charter on Human and Peoples' Rights, which guarantees the right of individuals to human dignity and prohibits cruel, inhuman or degrading punishment and treatment. The Commission found that the lashing violated article 5 of the African Charter. It requested that Sudan abolish the punishment of lashing and compensate the women for their injuries.
Violence erupted in Zimbabwe between the constitutional referendum of 2000 and the parliamentary elections. Supporters of ZANU (PF) engaged in various human rights violations including the rape of women and girls. The respondent state claimed that it could not be held accountable because those committing the crimes were non-state actors and the actions were not encouraged by any government policy. The Commission determined that "[a] state can be held complicit where it fails systematically to provide protection of violations from private actors who deprive any person of his/her human rights." However, the Commission found that the complainant had the burden of "establishing that the state condones a pattern of abuse through pervasive non-action." Here, the Commission found that Zimbabwe violated the victims' rights to judicial protection and to have their case heard under articles 1 and 7(1), respectively, of the African Charter. It explained that the the state had adopted Clemency Order 1 of 2000 (which permits those who have committed politically motivated crimes to be exonerated, with the exception of murder, rape, and other similar crimes) and that Zimbabwe did not "demonstrate due diligence" in providing justice for the victims of the violent crimes. The Commission requested that Zimbabwe investigate the reported crimes, bring those who committed the crimes to justice, and provide victims with adequate compensation. This case is important because it establishes that a state can be held accountable for the human rights violations of private actors. Under this case, if the state does not address mass rape with "due diligence," then the state itself can be held accountable.
In a radio speech, President Lasana Conté of Guinea called on the citizens and armed forces of Guinea to engage in mass discrimination against Sierra Leonean refugees in Guinea. This allegedly resulted in numerous human rights violations against the refugees, including the widespread rape of Sierra Leonean women in Guinea. According to the complaint, Sierra Leonean women were raped as a way to "punish them for being so-called rebels." The soldiers and civilians used weapons to intimidate and threaten the women. The women were of various ages and were raped in such places such as homes, prisons, and refugee camps. The Commission expressed understanding for countries such as Guinea that take on refugees from war-torn nations, and noted that such countries may be justified in taking some measures to ensure the security of their citizens. However, based on eyewitness testimony and other evidence, the Commission determined that the situation in Guinea at the time of President Lasana Conté's speech led to violations of the refugees' human rights under the African Charter. It requested that a Joint Commission of the Sierra Leonean and Guinean governments be formed to determine the extent of the losses and how to compensate the victims.
Between 1986 and 1992 violence escalated between the northern Mauritanian population and the southern black ethnic groups. The Northern Mauritanian population's military raided the south, detained hundreds of individuals, imposed curfews, and inflicted various forms of violence and intimidation. The complaint notes that men from the southern black ethnic groups were subjected to forms of torture and humiliation (such as the "jaguar" where a "victim's wrists are tied to his feet . . . [,] then [he] is suspended from a bar and kept upside down, sometimes over a fire, and is beaten on the soles of his feet") while the women were "simply raped." The Commission determined that the mass rape and other forms of violence violated the African Charter, in particular Article 6. Article 6 states that "every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law." The Commission requested that the respondent state compensate the victims of the violations and carry out an assessment of the "deep-rooted causes" of the "degrading practices" (it did not specify whether it considered these practices to include rape).
Twenty Mauritian women submitted a communication to the Committee stating that the Immigration (Amendment) Act of 1977 and the Deportation (Amendment Act) of 1977 constitute discrimination based on sex against Mauritian women, violation of the right to found a family and a home, and removal of the protection of the courts of law. Prior to the enactment of these laws, alien men and women married to Mauritian nationals could equally enjoy residence status by virtue of their marriage. Under the new laws, however, alien husbands of Mauritian women must apply for a “resident permit” subject to rejection by the Minister of the Interior at any time. The new laws do not similarly affect alien wives of Mauritian men. The complaint specifically alleged several violations of the Covenant on Civil and Political Rights including: article 2 obligations to recognize rights under the Covenant without distinction based on sex; article 3 obligations to ensure the equal enjoyment of civil and political rights regardless of sex; article 26’s guarantee that all persons are equal before the law and are entitled without discrimination to equal protection of the law; article 17’s protection against arbitrary or unlawful interference with privacy, family, and the home; and article 23’s obligations to protect an individual’s right to marry. Although the Committee found that seventeen of the complainants were unmarried and therefore unaffected by the legislation in question, the Committee concluded that the future possibility of deportation and the existing precarious resident situation of foreign husbands in Mauritius represented an interference by the State with the family life of the remaining victims. The Committee held that any discrimination on the ground of sex within Mauritian legislation without sufficient justification was tantamount to a violation of articles 2 and 3 in conjunction with article 17, as well as direct violations of article 26 and 23. The Committee recommended that Mauritius adjust the provisions of the Immigration (Amendment) Act and the Deportation (Amendment) Act in order to implement the State’s obligations under the Covenant to prevent sex discrimination in its laws and regulations.
The Handbook aims to function as a practice guide for judicial officials and legal practitioners who work in the area of juvenile law. It addresses a range of issues from the constitutional, statutory, and human rights framework of juvenile law, special issues that arise in cases of child sexual abuse, and procedural protections for juvenile witnesses.
The Centre for Applied Legal Studies at the University of Witwatersrand and Avon Global Center for Women and Justice at Cornell Law School released a joint report on sexual violence committed by educators against students in South African schools.
In 2010, the Avon Global Center for Women and Justice held a conference in Washington, DC to discuss advances and obstacles to securing justice for women and girls in conflict and post-conflict areas.
A report by the Avon Global Center for Women and Justice at Cornell Law School, Women and Law in Southern Africa-Zambia, and the Cornell Law School International Human Rights Clinic examining the problem of sexual violence against girls in school in Zambia.
Human Rights Watch report describing the situation of women with fistula in Kenya, including the increased risk of stigma and violence and the impact of a health system that fails to properly address the problem of fistula. July 15, 2010. Copyright 2010 Human Rights Watch.
UNFPA Report presenting the findings, analysis and recommendations from the Evaluation of the SGBV Crimes Unit, which has as its purpose to prosecute perpetrators of gender and sexual based violence, particularly rape, in Liberia (November 2010).
By Physicians for Human Rights with Harvard Humanitarian Initiative.
Report by Timor-Leste Armed Violence Assessment, examining the scale and magnitude of sexual and gender-based violence (SGBV) directed against women and girls in Timor-Leste (November, 2009).
Human Rights Watch Report on the Zambian government's failure to meet its international obligations to combat violence and discrimination against women. The report documents abuses that obstruct women's ability to start and adhere to HIV treatment regimens, including violence against women and insecure property rights (2007).
AIDS-Free World, December 2009.
Human Rights Watch Report documenting the often brutal physical and sexual violence in the western administrative regions of Moyen Cavally and Dix-Huit Montagnes in the Cote d'Ivoire (2010).
A Report by the Harvard Humanitarian Initiative With Support from Oxfam America, April 2010
Human Rights Watch Report documenting persistent sexual violence by the army in the Democratic Republic of Congo, and the limited impact of government and donor efforts to address the problem (2009).
Human Rights Watch Report documenting how girls as young as 8 years old work up to 18 hours a day as domestic workers in Guinea, frequently without pay, and are often insulted, beaten and raped by their employers (2007).
By Valerie Oosterveld. 44 CORNELL INT'L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.
In 2008, Tanzania adopted the Anti-Trafficking in Persons Act (ATPA) to combat human trafficking, mandate stricter investigation and prosecution, and afford protection to victims of trafficking. This report: explains and evaluates the ATPA, including the effectiveness of its implementation since its enactment in 2008; describes similar acts around the world, including an evaluation of those laws’ implementation and effectiveness; offers specific recommendations for Tanzania to enhance the effectiveness of its anti-trafficking law.
With the goal of assessing the impact of mandatory minimum sentences for sexual offences in Tanzania, this memorandum provides a comparative study with a small sample of jurisdictions – including Canada, Kenya, Lesotho, Zambia, South Africa and Tanzania - to showcase how different countries have utilized mandatory minimum sentences to address sexual offences. It also explores whether imposing mandatory minimums has resulted in a reduction of the commission of the sexual offences they target.
This memorandum describes several success stories from countries that have domesticated the Convention on the Rights of the Child into their national laws and also examines the role of the courts. In particular, this memorandum focuses on how Lithuania, Bangladesh and South Africa have implemented their laws and/or the role that the courts have played in preventing child abuse and exploitation.
This memorandum provides a brief overview of the issue of gender based violence in Sub-Saharan Africa with relevant statistics.
This memorandum provides a brief overview of the key statutes, cases, and legal arguments that sanctioned the exclusion of women from the bar and, by extension, the bench, in the United States of America, the United Kingdom, and South Africa.
This memorandum provides a brief overview of corruption in Tanzania and efforts taken by the government to address the problem. The memorandum also examines the problems that emerge in prosecuting or adjudicating corruption cases in Tanzania and the reasons corruption cases fail.
This memorandum examines the rules governing forfeiture of proceeds of crime in Tanzania.
This memorandum examines the particular problems that women and children confront as vulnerable victims and witnesses in sexual offenses cases in Tanzania.