Africa

The petitioner sought a divorce from her husband under common law rather than Islamic rite. After several years of marriage, (i) the petitioner discovered that the respondent had lied about being divorced prior to their marriage, (ii) the respondent stopped supporting her financially, and (iii) the respondent neglected their relationship. After she started a business to provide for herself, the respondent employed his former wife’s relatives to “spy and scorn her to leave the house.” The matter was brought to their religious leader, who ordered the couple to three months’ separation to see whether reconciliation was possible. During that period, the respondent lived with his former wife, admitted to other extra-marital relationships, continued to harass the petitioner for conjugal relations, and declared that he did not want her as his wife, which he believed should have legally relieved him of their marriage. The petitioner subsequently applied for divorce in the High Court. The respondent contested adjudicating the matter before the High Court, arguing (i) that the divorce should have been adjudicated by religious leaders rather than a secular court and (ii) that he believed that the marriage was already dissolved given his declaration to his religious leader that he no longer wanted to be married (although no witnesses testified to hearing the respondent pronounce the “talaq” against his wife). The High Court emphasized that courts do not have a monopoly on divorce; for example, couples can divorce by mutual agreement at custom before village civic authorities or other tribunals. However, even in such situations, if one party is wronged or does not consent to the divorce, that party can seek resolution in a secular court. The High Court concluded that the respondent’s alleged “divorce” was not valid, as the respondent had violated the tenets of his faith with his extramarital affairs, harassment of his estranged wife, and lies to lure her into the marriage. Emphasizing the equal status of husband and wife under the Constitution, the Court held that the respondent’s summary declaration of a dissolved marriage in this case, especially as it was unjustified, did not conform to the principles of justice, equality, and morality, and granted the petitioner the divorce under law.

The defendant was convicted rape, with the trial court finding that he followed the complainant to her house, suggested sexual intercourse, attacked her when she declined, and raped her. The defendant, a first-time offender, received a sentence of four years’ imprisonment. A judge reviewed the sentence and sent it to the High Court for consideration on the grounds that the sentence necessitated judicial remand due to manifest inadequacy. In concluding the lack of necessity of remand, the High Court reviewed the approach to sentencing for criminal offenses, which must regard the specific circumstances of the offense, the offender and the victim, and the public interest. The High Court discussed a few factors that must be taken into consideration in sentencing in rape cases, namely the victim’s age, the effect of the rape on the victim, and whether the perpetrator i) used violence above the minimum force to commit the rape, ii) used a weapon to intimidate or wound the victim, iii) repeatedly raped the victim, iv) premeditated and planned the rape, v) had previous convictions for sexual or other violent offences, and vi) subjected the victim to additional sexual indignities or perversions. The High Court affirmed precedent suggesting that three years is the minimum sentence for an adult convicted of rape without aggravating or mitigating factors. Specifically, the Court cited English precedent, which suggested five years as the threshold sentence, before citing the Malawi High Court suggesting that the threshold should be three years because of prison conditions in Malawi. In applying precedential sentencing standards to the specific circumstances of the case, the High Court determined that the lower court’s sentence did not qualify as manifestly inadequate, and therefore did not warrant intervention.

Three minor girls, victims of human trafficking who the defendant lured in with promises of working in a restaurant, but instead sent to work at a bar, appealed their case. When the work conditions turned out to be exploitative, the appellants reported the defendant to the police. The case was appealed to the High Court on the basis that: (i) the case file did not go through the standard process whereby a case is registered in the Criminal Registry then distributed to a Magistrate by a Chief Resident Magistrate, and (ii) the magistrate did not follow proper procedure for the child witnesses’ testimony. In concluding that a proper lower court be assigned to re-hear the matter, the High Court underscored the importance of following legal procedure designed to protect the rights of vulnerable child witnesses. The High Court pointed out a number of procedural protocols, such as ensuring that the child witnesses did not come into direct contact with the accused, making provision for the witness to be accompanied by a supportive figure in court, and considering the possibility of a pre-recorded interview of a child witness as evidence. The court noted that a court competent in handling child witnesses must re-hear the matter, as causing witnesses to endure repeat trials as a result of the failure to follow proper judicial procedure is akin to repeat victimization of such witnesses.

A Fourth Grade Magistrate convicted the appellant and 18 other women for knowingly living on prostitution earnings, a misdemeanor that carries a maximum sentence of 24 months in prison. In Malawi, Fourth Grade Magistrates’ jurisdiction is limited to cases in which the maximum sentence is 12 months. This jurisdictional limit was the appellants’ first ground of appeal. Despite finding that the appellants succeeded in proving their convictions null and void due to the magistrate’s jurisdictional overreach, the appellate court found it “imperative” to address the appellants’ other arguments because of “the prevalent misuse of section 146 by law enforcement.” The appellants’ second ground of appeal was that Penal Code Section 146, the offence of a woman living on the earnings of prostitution, does not target the sex worker herself, but rather restricts women from exercising influence over the movements of sex workers for monetary gain. Section 145 of the Penal Code addresses men’s criminal behavior toward sex workers. The High Court again agreed with the appellants, concluding that Section 146 of the Penal Code was clearly aimed at targeting those who exploit sex workers, rather than a punitive measure applicable to sex workers themselves. The High Court pointed out that the lower court’s conclusion that the appellants’ convictions rested on the fact that they had booked rooms in a rest house, “conduct which was not criminal at all.” The High Court also expressed concern about how the government obtained the women’s confessions to prostitution, “especially after reading the caution statements.” As a result, the High Court held the trial and convictions of the appellants unconstitutional and predicated on discrimination against women in the sex trade. In conclusion, the judge called for Malawi to have “a frank discussion” about the fact that prostitution-related offences in Malawi “remain an area of blatant discrimination, unfairness, inequality, abuse as well as bias from law enforcement as well as the courts as evidenced in this case.”

The applicant alleged that the respondent terminated her employment in violation of Section 57 (1) and (2) of the Employment Act, which respectively require that termination must be for a valid cause and only after the employee has had an opportunity to defend herself. In the course of her testimony, she described systemic racial discrimination, harassment, and sexual assault by her superiors in the workplace. The applicant alleged that women were frequently raped or indecently assaulted, but the employer never punished the perpetrators and there was no mechanism for complaint. The court, recognizing its lack of jurisdiction over the allegations of grave human rights abuses, used its discretionary authority to forward the decision to appropriate institutions, including the Office of the Ombudsman and the Human Rights Commission for public enquiries. This case demonstrates a non-judicial pathway for investigation into gender-based issues and the ability of the judiciary to put such efforts into motion.

This judgment was issued as part of the assessment proceedings subsequent to a judicial review by the state. This review investigated systemic and individual failures resulting in police officers committing widespread violent and traumatic sexual assaults and rapes of women and girls during the civil unrest in October 2019. The court was tasked with assessing the amount of compensation to be awarded to the 18 applicants on whose behalf the review was conducted. The basis for this award was the previous judgment of the court that: (i) failures by the Inspector General of Police resulted in violence, torture, and inhuman and degrading treatment and punishment against the applicants in violation of section 19(3) of the Constitution; (ii) failures by the Inspector General of Police further resulted in violations of the right of applicants to dignity and equality under sections 19(1) and 20 of the Constitution; and (iii) failures by the Clerk of the National Assembly and the Malawi Police Service to investigate and prosecute the allegations of violence and rape resulted in violations of the right of access to justice under section 41 of the Constitution. The court also found numerous violations of domestic laws, including the Police Act, as well as Malawi’s obligations under human rights treaties, including CEDAW. Under section 46(4) of the Constitution, the courts have the power to award compensation to any person whose rights or freedoms have been unlawfully denied or violated. The court applied the principle of restitution intergrum, or making the victim whole as they would have been prior to the violation, and turned to international precedents when evaluating appropriate amounts. The court noted that any amount should be elevated when caused by a “constitutional duty bearer,” such as the police, and that lack of investigation was an aggravating factor. The court awarded different amounts to each applicant depending on the circumstances of their particular harm, ranging from K4,500,000-10,000,000, in addition to costs.

The appellant pleaded guilty to raping and impregnating a 12-year-old girl for which he was originally sentenced to 12 years imprisonment with hard labor. On appeal, the appellant argued that his sentence was excessive in light of mitigating factors. While recognizing the victim’s age and pregnancy as aggravating factors, the appeals court reduced his sentence to nine years imprisonment. The court articulated several rules regarding mitigation in favor of this outcome based on the citation of cases from the appellant. First, the court stated that guilty pleas should reduce a sentence by one-third, even in the case of serious crimes. Second, citing in Rep v. Bamusi Mkwapatira, the court stated that all first-time offenders, regardless of the severity of the offense, should benefit from mitigation. Finally, the court identified the appellant, who was 33 years old at the time of the offense, as “youthful,” asserting that “men especially grow slowly mentally and at 35 they are at their prime experimenting with life.” Cautioning against mitigating too significantly, however, the court explicitly recognized the victim’s pregnancy, which “disturbed [her] life […] physically and psychologically,” and her very young age as aggravating factors. Thus, the court reduced the sentence by one-quarter, resulting in a nine-year sentence, rather than one-third or more.

The appellant was convicted and sentenced to eight years imprisonment including hard labor for defilement of an11-month-old girl. On appeal, the appellant’s primary argument was that the testimony of the child’s mother was not sufficiently corroborated and therefore the conviction was not supported by the evidence. He also argued that the sentence was excessive. Regarding the corroboration rule in sexual violence cases, the court announced that it was a longstanding practice based on blatant discrimination against women, who are the predominant victims of such offenses and assumed to be unreliable witnesses. The court found the corroboration rule unlawful under existing constitutional (article 20), evidence, and criminal laws. Instead, the court held that courts should take caution basing convictions on uncorroborated evidence to ensure satisfaction of the burden of proof. Regarding the appellant’s arguments, the court found that there was not sufficient evidence of penetration to sustain the defilement conviction, thus acquitting the appellant of defilement. Instead, the court found that the evidence supported a conviction for the lesser offense of indecent assault, for which the court imposed a sentence of three years of imprisonment out of a maximum of 14 years. The court chose a substantially lower sentence than the maximum due to what it described as mitigating factors, including that: (i) the appellant was a first-time offender; (ii) the child was largely unharmed physically according to the medical report; (iii) there was no evidence that the child would subsequently suffer an STI or psychological impacts; and (iv) the crime was not premeditated in the court’s view, but a crime of opportunity.

The appellant was convicted of statutory rape of his partner’s 8-year-old daughter and sentenced to 10 years in prison as well as of payment of a compensation to the victim. Before the trial, the appellant confessed having sexual relations with the minor, arguing that it only happened because he was under the influence of alcohol and had mistaken her for his partner. In his appeal, he, however, 1) denied all accusations against him, 2) argued that no evidence was produced against him, and 3) alleged that his partner had convinced the victim to accuse him of the crime. The Supreme Court affirmed the lower courts’ decisions, ruling that there was enough physical evidence through gynecological examination that the appellant sexually assaulted the minor more than one time. In deciding to increase the appellant’s sentence and compensation order, the court noted that he waited for his partner to go to sleep before entering another room with the intent and will to perpetrate the morally reprehensible crime against his stepdaughter.

O apelante foi condenado por estupro da filha de 8 anos da sua parceira e sentenciado a 10 anos de prisão, assim como ao pagamento de indenização para a vítima. Antes do julgamento, o apelante confessou ter tido relações sexuais com a menor, argumentando que isso só aconteceu porque ele estava sob a influência do álcool e tinha confundido ela pela sua parceira. Na sua apelação, no entanto, ele 1) negou todas as acusações contra ele, 2) arguiu que não havia evidência produzida contra ele, e 3) alegou que sua parceira havia convencido a vítima a acusá-lo do crime. O Tribunal Supremo reafirmou a decisão da corte inferior, decretando que o exame ginecológico mostrava evidência física suficiente de que o apelante abusou sexualmente da menor mais de uma vez. Ao decidir que a sentença e a ordem de indenização fossem aumentadas, a corte notou que ele esperava a sua parceira dormir para entrar em outro quarto com intenção e vontade de cometer o crime moralmente repreensível contra a sua enteada.

The trial court convicted the accused of one count of murder and sentenced him to 17 years in prison, in addition to financial compensation the victim’s family. The circumstances of the case showed that the accused and the victim were consuming drugs by a local river when, for unrevealed reasons, he pushed her over the stairs which led to the river, at a height of approximately five meters. The victim ended up by the water with bruises on her face and a broken neck, which was stated as the cause of death. Afterwards, the accused took off the victim’s wig and clothes, subsequently burning them. The prosecution argued that his intent was to make it appear as though the victim had suffered sexual assault. There was no autopsy and the evidence was based on 1) the death certificate, 2) photographs, and 3) eye-witnesses who saw both individuals together on that day. The accused confessed during interrogation, but denied the charges during trial. On appeal, the accused argued for a lower sentence. However, the Supreme Court upheld the lower court’s decision. The penalty for murder was increased due to the following circumstances: (i) surprise, (ii) deserted place, and (iii) superiority by reason of gender, under Article 34 of the 1982 Penal Code.

O tribunal de julgamento condenou o acusado por homicídio e sentenciou ele a 17 anos de prisão, em adição a indenização à família da vítima. As circunstâncias do caso mostraram que o acusado e a vítima estavam consumindo drogas perto do rio local quando, por razões não reveladas, ele a empurrou das escadas que levava ao rio, de uma altura de aproximadamente cinco metros. A vítima acabou dentro da água com machucados no rosto e pescoço quebrado, que foi a causa declarada da morte. Após, o acusado retirou a peruca e as roupas da vítima, subsequentemente queimando-as. A acusação argumentou que sua intenção era de fazer parecer com que a vítima tivesse sofrido agressão sexual. Não houve autópsia e a evidência foi baseada em 1) certidão de óbito, 2) fotografias, e 3) testemunhas que viram ambos os indivíduos juntos naquele dia. O réu confessou durante a interrogação, mas negou as acusações durante o julgamento. Na apelação, o acusado pleiteou uma sentença menor. Entretanto, o Tribunal Supremo manteve a decisão da corte inferior. A penalidade por homicídio foi aumentada pelas seguintes circunstâncias: (i) surpresa, (ii) lugar deserto, e (iii) superioridade por razão de gênero, sob o Artigo 34 do Código Penal de 1982.

The appellant was convicted of two accounts of domestic violence in the form of sexual assault of two minors (11 and 9-years-old) and sentenced to 8 years in prison, in addition to payment of a compensation to the victims. On appeal to the Supreme Court, the appellant 1) claimed that the accusation was based merely on the victims’ testimony, which he alleged untrue and made with the sole purpose of monetary gain by their mother (his partner at the time of the crimes), 2) denied having any kind of sexual intercourse with the victims, and 3) claimed the conviction violated his constitutional rights because the evidence was insufficient to prove his guilt. The Supreme Court argued that there was enough physical evidence that the defendant violated both victims, including evidence that proved anal rape. However, as the evidence and testimony of the victims showed, the assault had not occurred through vaginal penetration, but solely anal. Therefore, the type of crime perpetrated had not been correctly invoked by the lower court, as the configuration of sexual assault requires vaginal penetration under Angolan law. Under that paradigm, the Supreme Court ruled that the crime committed was indecent exposure and, consequently, domestic violence and that such criminal offense is punishable with a sentence lower than 12 years in prison. The Supreme Court then found the defendant amnestied and, consequently, extinguished the criminal proceedings against him, without prejudice of the monetary compensation for damages. In 2016, Angola published an amnesty law (Lei nº 11/16) in which it pardoned common crimes punishable by a prison sentence of up to 12 years. Although the amnesty law excludes sexual crimes, the crime committed in this case does not fit the exception, precisely because of the absence of vaginal penetration. At the end of 2020, a new Angolan Penal Code was enacted, which has been in effect since February 2021. The new Penal Code considers both vaginal and anal penetration to be sexual penetration.

O apelante foi condenado por duas ocorrências de violência doméstica na forma de abuso sexual de dois menores (11 e 9 anos de idade) e sentenciado a 8 anos na prisão, com adição de pagamento de indenização às vítimas. Na apelação para o Tribunal Supremo, o apelante 1) afirmou que as acusações foram feitas somente com base nos depoimentos das vítimas, os quais ele alegou serem falsos e feitos com o único propósito de ganho financeiro pela mãe (a sua parceira no momento dos crimes), 2) negou ter qualquer tipo de relação sexual com as vítimas, e 3) afirmou que a condenação violou os seus direitos constitucionais porque a evidência não foi suficiente para provar a sua culpa. O Tribunal Supremo argumentou que havia evidência física suficiente para provar que o réu violou ambas as vítimas, incluindo evidência que provou estupro anal. Entretanto, como a evidência e o depoimento mostraram, o abuso não foi feito por penetração vaginal, mas somente anal. Assim, o tipo do crime perpetrado não tinha sido corretamente aplicado pela corte inferior, já que a configuração de abuso sexual na legislação de Angola requer penetração vaginal. Sob este paradigma, o Tribunal Supremo deliberou que o crime foi de atentado ao pudor e, consequentemente, violência doméstica e esse tipo penal é punido com sentença menor que 12 anos de prisão. O Tribunal Supremo então declarou o réu anistiado e, portanto, extinguiu os procedimentos criminais contra ele, sem prejuízo da indenização por danos. Em 2016, Angola publicou uma lei de anistia (Lei nº 11/16) em que perdoou crimes comuns que são puníveis com penas de até 12 anos. Ainda que a lei de anistia excluda crimes sexuais, o crime neste caso não se encaixa nessa exceção, precisamente por causa da abstinência da penetração vaginal. No fim de 2020, um novo Código Penal Angolano foi promulgado, o qual está em vigor desde Fevereiro de 2021. O novo Código Penal considera ambas penetrações vaginal e anal como penetração sexual.

In this case, the Constitutional Court held that §7(1) of the Recognition of Customary Marriages Act 120 of 1998 (RMCA) was inconsistent with 172(2) of the Constitution, and therefore invalid, because it unfairly discriminated against women in polygamous customary marriages entered into before the enactment of the RMCA on the bases of gender and race, ethnic, or social origin. This case followed Gumede v. President of the Republic of South Africa, in which it was held that §7(1) was invalid as to monogamous customary marriages, but left the question of polygamous customary marriages for Parliament. The effect of this ruling was that pre-RCMA marriages continued to be governed by customary law, while post-RCMA marriages were automatically out of community of property. The Court declared that, in the interim until Parliament changes the RCMA, a husband and his wives in pre-RCMA polygamous customary marriages must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property.

In this case, the Constitutional Court declared §2(1) of the Upgrading of Land Tenure Rights Act (Upgrading Act) unconstitutional. §2(1) of the Upgrading Act automatically turned land tenure rights into rights of property ownership, without providing other occupants or affected parties an opportunity to make submissions. The Court held §2(1) unconstitutional because it had a discriminatory effect on women’s property rights. During apartheid, only men could be the head of the family and hold Certificates of Deed and Grant. This had the effect of excluding women from holding land tenure rights. The Court determined that because §2(1) of the Upgrading Act was based on this apartheid position, it indirectly differentiated between men and women in a way that amounted to gender discrimination.

The issue on appeal in this case was whether the doctrine of common purpose can be applied to the common law crime of rape. Under the common law, rape is an instrumentality offense, which means that the perpetrator must have committed the act himself or facilitated the offense by his conduct. The doctrine of common purpose, however, is applied when a crime is committed by a group of people “with a mutual objective intended to produce a specific result against a targeted victim.” In this case, a group of young men terrorized a township, breaking into homes, attacking occupants, and several of the attackers repeatedly raped eight women. The men were charged and convicted of eight counts of rape, respectively, seven of which were imposed based on the doctrine of common purpose. The Constitutional Court reasoned that it is unsustainable to simply characterize rape as an act of a man inserting his genitalia into an unconsenting woman’s genitalia, especially in a group rape context where the mere presence of the group results in power and dominance over the victim. Thus, it held, the law must dispose of the misguided idea that rape is only a sex crime. The Court, therefore, declared that the instrumentality approach perpetuates gender inequality and promotes discrimination because it seeks to absolve those who may not have committed the crime itself but who contributed toward the commission of the crime from liability. The Court further reasoned that the doctrine of common purpose should apply to rape because the object and purpose of the doctrine is to “overcome an otherwise unjust result… by removing the element of causation from criminal liability and replacing it with the imputing deed which cased the [crime] to all the co-perpetrators.” It observed that it is “irrational and arbitrary” to not apply the doctrine to common law rape, as opposed to murder and assault, based on the distinction that a genital organ must be used to perpetrate rape. It argued that courts should be aiming to afford the constitutional principles of equality, dignity, and the protection of bodily and psychological integrity to victims of sexual assault. Therefore, in this case, the Court observed that the applicants knowingly and with the requisite intention participated in the activities of the group and fully associated themselves with its criminal designs. Thus, the Court held them guilty of rape based on the doctrine of common purpose.

This Supreme Court case is notable for solidifying the “Jurisprudence of Equality” doctrine as predominant in determining the sharing of marital property upon divorce. Following the termination of the marriage, the wife was granted by the High Court of Accra in May 2010 (i) custody of the children; (ii) ownership of a house and a “half share of the ‘storey building’; and (iii) a half share of ‘the shops at Weija, Accra. The husband appealed the decision to the Court of Appeal. The Court of Appeal set aside and replaced the orders of the High Court. The wife appealed that decision to the Supreme Court. The Supreme Court restored the decision of the trial judge in its entirety and noted that its decision was based on the marriage equality principle delineated in Article 16 (1) of the Universal Declaration of Human Rights 1948. The Court affirmed the principle that property acquired during marriage is a joint property and that the sharing of spousal property should no longer be dependent on the substantial contribution principle.

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.

The appellants were charged with the murder of a 13-year-old girl. The Supreme Court was asked to consider whether the prosecutor proved the case beyond reasonable doubt. The victim was found hanging by rope in the appellants’ bathroom and died the same day in the hospital. The appellants brought the victim to the hospital prior to her death. Evidence showed that she had bruises on the left and right side of her neck, and she had sexual intercourse prior to her death. The grand jury indicted the appellants in the circuit Court. The Judge granted the appellants’ motion for bail. In the trial, the appellants produced multiple witnesses to testify that they were in the same house when the incident occurred. The prosecutors had two autopsy reports proving that the victim’s death was caused by sexual abuse or homicide. The Circuit Judge convicted the appellants for murder and sentenced them to death by hanging. The appellants filed a petition for the writ of certiorari for a crime not proved beyond reasonable doubt. The Supreme Court held that in the case of murder, the prosecutors are required to overcome the presumption of innocence. Here, the government failed to establish each element of the crime of murder, specifically, the government failed to prove that each of the appellants choked the victim to death, failed to prove that each of the appellants hanged her body in the bathroom in their house, and failed to prove the missing belt, which was used to tie the victim belonged to the appellants. The Supreme Court also explained that the government failed to produce the DNA specimens from the victim to test after taking the appellants’ DNA for testing, and could not produce any evidence that linked the hanging to the appellants. The Supreme Court vacated the judgment for the lower court to reconsider.

The defendant was charged with murder by stabbing the deceased woman. The prosecution presented evidence that the accused had stalked the deceased for days, at school and at home, and he had threatened to kill the deceased. Four days before the murder, the deceased, her father, and her brother visited the home of the defendant and his brother, with whom the defendant lived, about the defendant’s harassment and stalking of the deceased. Witnesses testified that the defendant became angry at the accusations and falsely accused the deceased of following him. After, the defendant’s brother agreed, as the defendant’s guardian, to stop the defendant’s harassment and stalking of the deceased. At the murder scene, a road near the entrance to the deceased’s school, the police recovered the murder weapon, a bloody knife. After the murder, the defendant attempted suicide and was taken to a hospital where doctors found photographs of the deceased and a note indicating that the accused had pledged himself to commit suicide and to cause the death of the deceased at the same time. Based on the evidence, the court found the defendant guilty of murder and sentenced him to death.

Baby “A” was born with both male and female genitalia. Kenyatta National Hospital issued the baby’s mother with various documents used in the process of carrying out genitogram tests, x-rays, and scans on the baby, and a question mark was entered in the column indicating the child’s sex. To date, the child has never been issued a birth certificate. The petitioners requested a declaration of the court that the Constitution protects and recognizes intersex children. The petitioners claimed that the entry of a question mark on the child’s medical treatment notes offended the child’s rights to legal recognition, eroded their dignity, and violated the right of the child not to be subjected to inhuman and degrading treatment. The petitioners argued that corrective surgery for intersex children was not necessary unless there was a therapeutic need to conduct the surgery. Finally, they argued that forced genital normalization, involuntary sterilization, unethical experimentation, medical display, reparative therapies, and conversion therapies often lead to irreversible changes to the body and interferes with a child’s right to family and reproductive health rights generally. The court, noting the “silent issues faced by intersex” people stated that an intersex children are “no different than any other” children with a constitutional right to legal recognition and the benefits of nationality, including the right not to face intersex discrimination. However, the court found that the respondent did not violate the petitioners’ fundamental rights and freedom because there was no evidence that the child’s mother had tried to obtain, and therefore had never been unlawfully denied, the child’s legal documents. The court first ordered the First Respondent to report to the court within 90 days about (i) the agency responsible for collecting data on intersex people, (ii) a legislative proposal for registering intersex people as a sexual category, and (iii) a legislative proposal for intersex “corrective surgery” regulations. Second, the court ordered the child’s mother to register the with the Third Respondent and file a copy of the approved registration with the court within 90 days.

The accused appeared at his former girlfriend’s kitchen window from outside and poured an acid-like substance on her. The substance was later determined to be sulfuric acid. The victim suffered first and second degree burns over 60% of her body, which resulted in a complication in the form of pneumonia in both lungs and caused her death. The court found that the prosecution proved its case beyond reasonable doubt and convicted the accused of murder. The court decided not to impose the death penalty and instead sentenced the accused to 15 years imprisonment because he was a first-time offender, it was an “offence of passion”, he was 22 years old, and he had a one-month-old child.

The applicant was dismissed by her employer, the respondent, because of operational requirements. The applicant was employed by the respondent from 1 November 2007 until her dismissal on 24 October 2012. The applicant claimed that she was dismissed unfairly because she was pregnant. Prior to her dismissal, the applicant delivered a letter from the Qacha’s Nek Hospital stating that she was pregnant and would be required to attend monthly clinics until she delivered her baby. The respondent then dismissed the applicant, claiming that her employment could not continue because of her pregnancy. The Labour Court referred to subsection 3(d) of the Labour Code Order 24 of 1992, which provides that pregnancy, among others, does not constitute a valid reason for terminating employment. The court stated that this type of dismissal carried an element of discrimination, the freedom against which is protected by the Constitution of the Kingdom of Lesotho, the highest law of the land. The court held that the dismissal of the applicant was unfair, that the respondent must reinstate her to her former position, and that the respondent pay for her lost earnings following dismissal.

Here, the Court held that “having a child or children by the deceased is not enough to confer on the woman widowhood.” Consequently, the claimant was unable to inherit property from her deceased partner.

Here, the Court held that the termination of a marriage should lead to the division of matrimonial property between the two spouses. This rule applies when both spouses have contributed, financially or otherwise, toward the acquisition of the property. In this case, even though the marriage between the two partners was declared void, the Court held that the two matrimonial properties should be divided between the partners. The Court also held that custody arrangements should not excessively restrict the access of one parent to the child.

Here, the Court rejected defendant’s argument that his mistaken belief that the complainant was his wife was a sufficient defense against a conviction of rape. The Court, relying on Article 31 of the Constitution, stated that both husband and wife enjoy equal rights in marriage and stated that the complainant’s dignity was trampled upon. The Court thus extends access to justice by construing the existing law on rape through the reasoning that the constitutional provisions on equality in marriage and the recognition of the equal dignity of women and men had effectively amended Sections 9 and 123 of the Penal Code. These sections at face exclude husbands from being held criminally liable for marital rape.

The Court of Appeal held here that the Department of Civil and National Registration’s refusal to register Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) was an unjustifiable limitation of its members’ rights. The Court of Appeal held that the right to form associations to advocate for legal change is a fundamental component of the right to freedom of assembly and association, and it dismissed the Department of Civil and National Registration’s argument that LEGABIBO’s objectives were contrary to public morality and would encourage the commission of criminal offenses. In its holding, the Court of Appeal protected the right of LEGABIBO and other LGBT advocacy groups to promote the rights of LGBT individuals and to lobby for legal reform.

Here, the High Court of Botswana held in a unanimous opinion that Section 164(a)/(c), 165, and 167 of the Botswanan Penal Code were unconstitutional. These sections criminalized same-sex relations. The Court held that 164(a)/(c), 165, and 167 violated Sections 3 (liberty, privacy, and dignity), 9 (privacy), and 15 (prohibiting discrimination) of the Botswanan Constitution. The Court modified Section 167, which criminalized the offence of gross indecency, to remove reference to private acts. The case overturned Kanane v State.

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.

Die aansoeker was 'n vrou wat volgens Hindoe tradisie getroud is. Haar man het intestaat gesterf en gevolglik het sy ouers die reg gestaan om sy boedel te erf. Die applikant het 'n verklarende uitspraak aangevra dat die woord "gade" ingesluit word soos in die Intestaat se Erfreg Wet 81 van 1987, as 'n oorlewende vennoot vir 'n monogame Hindoe-huwelik. Die hof het die verklarende uitspraak toegestaan dat die aansoeker geregtig was om van haar oorlede man te erf.

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.

Die applikant was in ‘n poligame Moslem-huwelik. Nadat haar man intestaat gesterf het, het die respondent, die eksekuteur van die oorledene se boedel, die applikant se eise geweier op grond daarvan dat poligame Moslem huwelike nie wettiglik erken word onder die Intestate Erfreg Wetgewing nie. Die hof het bevind dat daar onbillik gediskrimineer was teen die applikant op grond van godsdiens, huwelikstatus en geslag, was dus strydig met Artikel 9 van die Grondwet. Die hof het bevind dat Artikel 1 van die Intestate Wet strydig was met die konstitusie (Grondwet) en ongeldig is tot die mate dat dit nie meer as een gade in ‘n poligame Moslem-huwelik insluit tot die beskerming wat aan ‘n eggenoot gegee word nie. Gevolglik kon die applikant uit die boedel van haar oorlede man erf.

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.

Hierdie uitspraak het bestaan uit drie verwante sake (BHE, Shibi en SARK) wat saam beslis is en het betrekking op die Afrika gebruiks regsreël van eersgeboortereg. In BHE het 'n moeder 'n saak gemaak om die eiendom van haar oorlede man vir haar dogters te verseker. In Shibi is die applikant volgens die Afrika gewoontereg, die reg ontsê om van die intestate boedel van haar broer te erf. In SAHRC het die Suid-Afrikaanse Menseregte Kommissie en die "Women’s Legal Centre Trust" 'n saak in die openbare belang gebring om die reël van manlike eersgeboortereg wat in artikel 23 van die Swart Administrasie Wet 38 van 1927 ongeldig te verklaar. Die Konstitusionele Hof het artikel 23 ongeldig verklaar wat beteken dat alle boedels van oorledenes onderworpe sal wees aan die Intestaat Opvolgwet 81 van 1987 waaronder weduwees en kinders voordeel kan trek ongeag hul geslag of wettigheid. Die Hof het ook gelas dat boedels onderverdeel word in omstandighede waar die oorledene in ’n poligame huwelik was en deur meer as een eggenoot oorleef word. In welke geval ’n oorlewende eggenoot ’n kind se deel van die intestate boedel erf of ’n waarde van die intestate boedel wat nie die bedrag wat deur die Minister vir Justisie en Grondwetlike Ontwikkeling vasgesteld is, oorskry word soos die kennisgewing in die Staatskoerant nie.

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.

Die eiseres het probeer om 'n klag van aanranding teen haar voormalige man onder die Wet op Huishoudelike Geweld van 1998 ("Die DVA") te bring. 'n Polisiebeampte het haar verkeerdelik aanbeveel dat sy 'n beskermingsbevel van die Landdroshof moes kry voordat sy polisiehulp kon ontvang. 'n Tweede polisiebeampte het vir haar gesê dat haar voormalige man 'n soortgelyke klag van aanranding teen haar sou bring as sy aanhou met haar klagte. Die eiseres, asook haar voormalige man, was gearresteer. Sy het 'n eis vir skadevergoeding teen, onder andere, die Minister van Polisie ingedien en het aangvoer dat (i) die betrokke beamptes volgens en binne die bestek van hul werk opgetree het en (ii) die Minister van Polisie onmiddellik aanspreeklik was vir die versuiming om die DVA te volg. Die hof het saamgestem dat die DVA vereis dat die polisie hulp en die maksimum moontlike beskerming vir slagoffers van huishoudelike mishandeling moet gee.

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.

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.

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 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 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 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 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 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 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 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 appellant filed a complaint to divorce her husband and an action of summary proceedings to recover her property from the appellee. The appellee-husband claimed he was entitled to a property acquired during the marriage because a married woman cannot acquire property in her own name solely for herself. The Court held that, under the 1986 Constitution, (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 Court ruled that the appellant proved her title to the property by a preponderance of evidence. Therefore, the Supreme Court reversed the verdict and directed the lower court to enter judgment to evict the appellee.

The three 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 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 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 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 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.

Die appêlant is skuldig bevind in 'n streek magistraat hof op een geval van mensehandel, drie gevalle van verkragting, een geval van aanranding met die opset om ernstige liggaamlike skade te berokken en een geval van algemene aanranding teen ’n 14 jarige skoolmeisie met wie hy getroud is volgens die gebruiklike huwelikswette. Nadat sy weggehardloop het van die appèllant, het die appèllant die klaer per taxi na Kaapstad geneem waar hulle by die broer van die appellant en sy vrou gewoon het. Daar het die voorval van verkragting en aanranding gebeur. Die appèllant het as verdediging en op gronde van ’n appel beweer dat die sogenaamde verkragting plaas gevind het binne konteks van ’n gebruiklike gerëelde huwelik of ‘ ukuthwala’. Volgens kundige getuienis was ukuthwala ’n onreëlmatige vorm om ’n gebruilike huwelik te begin. Kenners meen dat ukuthwala in sy traditionele vorm, konsensueel en onskuldig was maar dat daar ’n afwykende vorm bestaan waarin jong meisies ontvoer en dikwels verkrag en geslaan is om hulle tot die huwelik te dwing. Die landdros het gesê dat die aangeleedheid nie oor ukuthwala en die plek daarvan in ons grondwettige demokratse gaan nie maar wel of die staat bewys het dat die beskuldigde die misdrywe gepleeg het waarvoor hy aangekla is en indien wel, of hy opgetree het met die wete van onregmatigheid en die vereiste opset(intent). Die hof het beslis dat mensenhandel of uitbuiting van minderjariges vir seksuele doeleindes nie geduld word in Suid-Afrika se gondwetlike bedeling nie. Verder het dit beslis dat die appèllant nie op die tradisionele ukuthwala kon staatmaak as regsverdediging vir sy optrede nie omdat prakyke wat verband hou met ’n afwykende vorm van ukuthwala nie beskerming onder die wet verkry nie. Die Hof kon dus nie bevind dat hy die klaer nie vir mensenhandel met seksuele doeleindes gebruik het nie en dat hy die verkragtings sonder die verwagte intensie gepleeg het nie - selfs op die taamlike onveilige gronde van die bewering van die appellant dat sy geloof in die afwykende vorm van ukuthwala, ’n tradisionele gewoonte in sy gemeenskap is.

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.

Nadat ’n predikant van die Metodiste Kerk (applikant) aan haar gemeente aangekondig het dat sy van voorneme is om met haar maat van dieselfde geslag te trou, het die Metodiste Kerk (respondent) vroeg in 2010 haar rol as ’n geordende predikant opgeskort en daarna gestaak. In Maart 2010 het die applikant die saak na arbitrasie verwys volgens die Wette en Dissipline van die Kerk. Die partye kon nie saamstem oor die prosedurele regte van die applikant nie en die arbitrasie- sameroeper het voortgegaan met die proses soos bepaal deur die Wette en Dissipline van die Kerk. Die sameroeper het namens haar in Mei 2011 ’n finale ooreenkoms aangegaan met die Kerk. In 2012 het die applikant die Wes-Kaapse hooggeregshof, Kaapstad, genader om ’n bevel aan te vra om die arbitrasie ooreenkoms ingevolge die Wet op Arbitrasie tersyde te stel. Sy het aangevoer dat daar onbillik teen haar gediskrimineer word op grond van haar seksuele oriëntasie. Die Hooggeregshof het beslis dat die applikant nie goeie rede vir die arbitrasie-ooreenkoms getoon het nie. Sy het toe appél aangeteken by die Hoogste Hof van Appèl. Die meerderheidsuitspraak van daardie Hof het saam gestem met die bevinding van die Hooggeregshof. Die applikant het verlof gevra om tot die Konstitusionele Hof te appelleer. In ’n eenparige uitspraak het die Konstitusionele Hof vier bevindings gemaak. Eerstens het die applikant nie goeie gronde getoon om die arbitrasie-ooreenkoms ter syde te stel nie. Omdat dit die kwessie rakende die interpretasie van godsdienstige leerstellings is, sou arbitrasie die gepaste forum wees. Tweedens, aangesien die applikant haar onbillike diskriminasie-eis voor die hooggeregshof onomwonde verwerp het, was sy nie vry om die eis vir die eerste keer op appèl aanhandig te maak nie. Derdens moes die applikant volgens die beginsel van grondwettige subsidiariteit haar eis op onbillike diskriminasie eers by die gelykheidshof ingedien het. Uiteidelik het die applikant versuim om ’n kennisgewing in te dien ingevolge die eenvormige Reëls van die Hooggeregshof, ’n versuim wat ander belanghebbende partye, waaronder godsdienstige gemeensappe, die geleentheid ontneem het om as partye tot die geskil in te gryp of om toelating as amicus curiae in die Hooggeregshof te verkry. Die hof het die appèl gevolglik van die hand gewys.

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 [2014] 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.

Die applikant, 'n man, het aansoek gedoen vir 'n senior bestuurs-posisie wat voorheen deur 'n vrou beset was. Nadat hy 'n psigometriese assessering ondergaan het, is hy vir aanstelling aanbeveel. Die aanbeveling is afgekeur "as gevolg van die geslagswanbalans op SMS-vlak". Die applikant het daarop aanspraak gemaak dat hy op grond van sy geslag onregverdig gediskrimineer is omdat die teiken, wat deur die Gautengse Provinsiale Wetgewer gestel is, nie voldoen het aan die bepalings van die Wet op Gelyke Indiensneming (EEA), 55 van 1998 nie. Die respondent het beweer dat, hoewel dit nie 'n ekwiteitsplan aangeneem het nie, het dit 'n teiken van 50% vroue in senior bestuursposte gestel. Die Hof het opgemerk dat toe die tweede respondent die besluit geneem het om nie die applikant aan te stel nie, was daar groot verwarring oor die werklike geslagsbalans op die Senior bestuursvlak. Die hof was egter bereid om te aanvaar dat vrouens slegs 29% senior bestuursposte gevul het. Die EEA vereis dat ekwiteitsplanne doelwitte moet gee vir elke jaar, hulle duur en prosedures om die implementering daarvan te evalueer. Die Hof het opgemerk dat, in SA Polisiediens v Solidariteit nms Barnard (Polisie en Gevangenisse Burgerregte-Unie as amucus curiae [2014] 11 BLLR 1025 (CC)), het die Konstitusionele Hof bevestig dat bevoegde howe moet verseker dat aanvaarde ekwiteitsplanne wettig toegepas is. Afgesien van die feit dat die respondent geen plan gehad het nie, het dit geen meganisme gehad om die vlakke van geslagsverteenwoordiging op te spoor nie. Die tweede respondent het die teiken toegepas sonder om die paneel se redes vir die aanbeveling te oorweeg. Regstellende aksie is in 'n lukrake, arbitrêre, en willekeurige wyse toegepas. Die verantwoordelike amptenaar het 'n kwota-stelsel toegepas en 'n absolute versperring geopper wat albei ontoelaatbaar was. Die regstellende aksie maatreël wat deur die respondente toegepas is bots met beide die Grondwet en die EEA. Gevolglik het die maatreël teen die aansoeker onregverdig gediskrimineer. Die respondente is gerig om die aansoeker aan die betrokke pos toe te stel en vergoeding gelyk te skenk aan die verskil tussen die salaris wat hy verdien het en die salaris wat hy moes verdien het, met 'n terugwerkende effek.

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.

Die Suid-Afrikaanse Polisiediens ("SAPD") het die Indiensnemingsplan ("EHOU") aangeneem, wat numeriese doelwitte stel om geslags-en rassediversiteit te produseer. Die appêlant, Me. Barnard, het twee keer aansoek gedoen vir 'n pos in die Nasionale Evalueringsdiens van die SAPD in 2005. Ten spyte van op die kortlys wees, ondervra, en aanbeveel as die beste geskik kandidaat, het sy nie die posisie op beide geleenthede gekry nie. Hierdie saak gaan oor haar tweede poging, waar die Nasionale Kommissaris nie Me. Barnard aangestel het nie op die grond dat dit nie rasseverteenwoordiging op daardie salarisvlak sou verbeter nie en dat dit nie nodig was om die vakature onmiddellik te vul nie omdat die pos nie krities was nie. Terwyl die Arbeidshof bevind het dat SAPD teen die appêlant onbillik gediskrimineer het, het die Arbeidsappèlhof ten gunste van die SAPD bevind. Op verdere appèl het die Hoogste Hof van Appèl ("SCA") die Arbeidsappèlhof se besluit omgekeer en gehou dat Me. Barnard die slagoffer van onbillike diskriminasie op grond van ras was, in die skending van artikel 9(3) van die Grondwet en artikel 6(1) van die Wet op Billike Werksgeleenthede (die Wet). Die Konstitusionele Hof het die SAPD laat appelleer en die SCA se beslissing ten gunste van Me. Barnard omgekeer. Soos die Hof opgemerk het, het die SCA bevind dat die SAPD versuim het om die vermoede dat die diskriminasie teen Me. Barnard onregverdig was te weerlê. Maar aangesien die EHOU 'n geldige regstellende aksieplan was, was die kwessie nie of die plan so 'n vermoede kon oorkom nie, maar of die Nasionale Kommissaris se besluit daaronder oop was om te daag. Die hof het bevind dat die Kommissaris sy diskresie behoorlik uitgeoefen het. Die aanstelling van Me. Barnard sou die oorverteenwoordiging van wit vroue op daardie salarisvlak vererger het. Die besluit het nie Me. Barnard van toekomstige promosies belet nie.

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 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 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 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.

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.”

Mev. en Mnr. Gumede, beide in KwaZulu-Natal gedomisilieer, het 'n monogame huwelik in 1968 aangegaan en vier kinders is tydens hulle huwelik gebore. Omdat sy deur haar man verbied is om te werk, het Mev. Gumede nog nooit gewerk nie en kon nie bydra tot die bydrae van die familie se boedel nie, wat twee familie-huise ingesluit het. Sy was altyd die primêre versorger van die kinders. Na veertig jaar het die huwelik onherstelbaar verbrokkel. Mev. Gumede het geen familie gehad nie en was afhanklik van finansiële steun van haar kinders en haar pensioen. In 2003 het Mnr. Gumede egskeiding verrigtinge voor die Egskeidingshof ingestel. Mev. Gumede het ook die Hooggeregshof genader en 'n bevel verkry wat die diskriminerende wetgewende bepalings waarop die Egskeidingshof op kon staatmaak, ongeldig maak. Die Konstitusionele Hof is vervolgens deur die Minister van Binnelandse Sake en die KwaZulu-Natal lid van die Uitvoerende Raad vir Tradisionele Leiers en Plaaslikeregeringsake wat die bevel teengestaan het, vir die herevaluering van die bevel van die Hooggeregs Hof wat sekere afdelings van die Wet op die Erkenning van Gebruiklike Huwelike, van die KwaZulu- Wet op die wet op Zoeloe Wetgewing 16 van 1985 en sekere afdelings van die Natalse wet op Zulu regte (B.proc R155 of 1987), wat die gevolge van gebruiklike huwelike reguleer, ongrondwetlik verklaar het. In 'n lang uitspraak het die Konstitusionele Hof baie moeite gedoen om te verduidelik dat enige onderskeid tussen die gevolge van gebruiklike huwelike wat voor en na die inwerkingtreding van die Wet op Erkenning van Gebruiklike huwelike aangegaaan is, diskriminerend, strydig is met die Grondwet en ongeldig is. Die Konstitusionele Hof het kennis geneem van die internasionale instrumente wat Suid-Afrika bekragtig het wat vorme van diskriminasie teen vroue verbied, insluitend CEDAW. Dit het beslis dat die twee bepalings oorwegend patriminerend, onbillik en nie regverdigbaar is nie. Ingevolge die uitspraak is alle monoggame gebruiklike huwelike aangegaan voor die Erkenning van Gebruiklike Huwelike Wet in werking gekom het, tree nou ipso facto binne gemeenskap vangoedere op, uitsluitend gebruiklike huwelike wat beëindig is deur die dood of deur egskeiding voor die datum van die vonnis. Die Konstitusionele Hof het verder bevind dat die grondwetlike ongeldigheid van artikel 7(1) beperk was tot monogame huwelike en behoort nie poligame huwelike of hul eie gevolge te bemoei nie, met die bepaling dat poligame huwelike steeds gereguleer word deur gewoontereg totdat die Parlement ingryp.

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.

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/)

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.)

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 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 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.

The applicant, 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 the applicant's colleagues attacked her and attempted to rape her, only stopping after being apprehended when she shouted for help. The applicant reported the incident to her employer’s management, which convened a hearing. During the hearing, the company’s human resources representative accused the applicant of misconduct and embarrassing the company by discussing the attempted rape, which the company considered to be an "inside thing." On December 31, 2005, the company fired the applicant, citing the expiring fixed term contract for support. The applicant brought her case to the Industrial Relations Court of Malawi (the “Court”). Calling it "a case of the worst forms of unfair labour practices," the Court found that (i) the applicant had reason to believe that the company would renew her contract and (ii) that their refusal to do so was based on the attempted rape incident. According to the Court, the company’s actions breached an implied term of the plaintiff’s employment contract relating to mutual trust and confidence as well as the company’s obligation under the contract to protect female employees from sexual harassment and abuse. Until recent amendments to the Employment Act, the labor laws of Malawi did not address sexual harassment, other than reading § 5 of the Employment and Labor Relations Act with § 20 of Malawi’s Constitution, which prohibit unfair discrimination in all forms. Despite the lack of a legal provision specifically addressing sexual harassment, the Court found that sexual harassment creates a hostile work environment, leads to unfair labor practices, and thus constitutes discrimination based on sex. Therefore, the Court found the plaintiff's dismissal invalid and held that the company violated her “right to fair labor practices, the right to work, her right to safe working environment and personal dignity.” The Court considered remedies, finding that compensation in the form of 57 months' salary was appropriate, noting that the first-choice remedy in unfair dismissal cases, reinstatement, was not acceptable in this case because of the egregious conduct of the company's human resources representative.

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.

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.

The accused was tried for beating and raping his girlfriend A.S. (the third complainant), sexually abusing and beating their five-month-old male and female twin children, and murdering his son by throwing him on the floor. Medical experts testified that the injuries on the twins suggested sexual and other physical violence. Denying the charges, the accused testified that A.S., the children’s mother, beat the twins and assaulted the accused. The accused also argued that there was no credible evidence of the crime and that the prosecution failed to meet its burden of proof because A.S. was the only eye-witness to the accused’s alleged crimes. The High Court of Namibia disagreed, finding the accused not credible and finding the A.S. credible, not least because the circumstantial and medical evidence supported her testimony. Citing precedent regarding single witnesses, the Court determined that a single eye-witness is sufficient to sustain a conviction if the witness (a) is credible, (b) gives her statement in a straight-forward manner, and (c) has no reason to falsely incriminate the accused. In addition, an inference may be properly drawn from the fact that the accused and the complainant were the only two adults in the room between the time the complainant went to bed at night without injuries and when she awoke in the morning with injuries. This finding is significant for domestic violence cases, which often do not involve unbiased third-party testimony.

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.

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 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 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.

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.

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.

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.

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.

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 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

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 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.

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 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.

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.”

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 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, 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.

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.

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, 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.

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.

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.

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.

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.”

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.

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.

The accused physically assaulted his romantic partner, with whom he lived, and drunkenly hit and kicked her to death. He pleaded guilty to manslaughter, but asked for sentencing leniency on the grounds that he was in remand for four years, served part of his sentence, and had dependents. 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 20 years imprisonment.

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 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.

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 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.

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.

The appellant 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 the appellant 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. He 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.

Mnr. Kolea is skuldig bevind dat hy herhaaldelik 'n vrou met 'n ander man verkrag het en vir 15 jaar in die tronk onder s 51(2) van die Wet op Strafreg 105 van 1997 (die Wet) gevonnis is. Toe Mnr. Kolea die beslissing en die vonnis appelleer is daar bevind dat sy skuldigbevinding in werklikheid gelees moet word onder s 51(1) van die Wet wat 'n minimum vonnis van die lewenslange tronkstraf opgelê het toe die slagoffer meer as een keer verkrag is deur meer as een persoon. Kolea is behoorlik gevonnis tot lewenslange tronkstraf en sy appèl is geweier. Hierdie saak het 'n vorige tendens van regters gebreek om lewenslange vonnisse te verwaarloos onder s 51 (1), en in plaas daarvan ligter vonisse onder s 51 (2) te gee, selfs in die geval van meervoudige verkragtings. Die werklike bedreiging van die lewenslange gevangenisstraf is 'n deurslaggewende presedent wat in Suid-Afrika voorgetstel word, waar verkragting algemeen voorkom en dikwels misken word.

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.

Mnr. Katise is gearresteer toe die polisie na sy huis geroep is en gevind het dat hy sy vrou aangeval het. Klagtes vir huishoudelike geweld onder Suid-Afrika se Wet op Huishoudelike Geweld 116 van 1998 is uiteindelik herroep nadat hy gedagvaar het vir onregmatige arrestasie en aanhouding op grond daarvan dat daar geen lasbrief vir sy inhegtenisneming was nie, is Mnr. Katiseer skadevergoeding toegeken. In 'n appèl het die regter hierdie beslissing omgekeer, met verwysing na 40(1)(q) van die Strafproseswet wat toelaat dat vredebeamptes enige iemand wat redelikerwys verdink word van die oortreding van die Wet op Huishoudelike Geweld van 1998 gearresteer mag word. Die regter het in hierdie geval 'n belangrike standpunt ingeneem teen die toegeeflikheid van sake rakende gesinsgeweld, wat vredebeamptes baie meer ruimte gee om die regte van vroue te beskerm en die beskerming van vroue se regte in Suid-Afrika te bevorder, in 'n land wat deur seksuele geweld gekenmerk word.

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.

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.

In 1909 het Regter Bristowe van die Transvaal se Hooggeregs Hof oor Schlesin v. Geinkorporeerde Regsvereniging voorgesit. Die hof het beslis dat vroue toegang tot die regspraktyk verbied word op grond van die historiese praktyk in Suid-Afrika, Holland en Engeland. Regter Bristowe het verduidelik dat die interpretasie van Wette- Proklamasie 15 van 1902 met dien verstande dat "woorde van die manlike geslag, vroulikes sal insluit ... tensy daar ‘n teenstrydige bedoeling is" en het gevind dat die gegewe lang historiese praktyke, was dit duidelik dat ‘n teenstrydige voorneme inderdaad verskyn in die wetgewing wat toelating tot die balie toelaat.

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.

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.

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.

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.

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.

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 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.

Die applikant is seksueel aangerand deur 'n man wat verhoorafwagtend was weens die poging tot verkragting van 'n ander vrou. Ondanks die erns van die beweerde misdaad en die feit dat die man 'n vorige skuldigbevinding aan verkragting gehad het, het die polisie en aanklaer aanbeveel dat die man vrygelaat word afhangende verhoor. Die applikant het die Minister vir skadevergoeding gedagvaar, met die argument dat die polisie en aanklaers hul plig versuim het en nalatig was om stappe te doen om te voorkom dat die man haar skade berokken. Dit was hul wettige plig wat hul aan haar verskuldig was om stappe te doen om te voorkom dat die man haar skade berokken. Die Hooggeregshof het die aansoeker se eis van die hand gewys en die Hoogste Appèlhof het bevestig dat die polisie en aanklaers nie 'n beskermings plig aan haar verskuldig is nie. Op appèl het die Konstitusionele Hof die bevele van die laer howe tersyde gestel en die saak weer aan die hooggeregshof voorgelê. Daar is van mening dat die staat deur die Grondwet en die internasionale reg verplig is om die waardigheid en sekuriteit van vroue te beskerm, en in die omstandighede kan die polisie se aanbeveling vir die vrylating van die aanvaller neerkom op onregmatige optrede wat hul aanspreeklikheid tot gevolg het. Die Hof het ook bevind dat aanklaers wat onder die plig is om inligting rakende die weiering of toestaan ​​van borgtog voor die hof te plaas, aanspreeklik gehou kan word vir nalatige versuim om daardie plig na te kom.

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.

Twee mans wat skuldig bevind is aan verkragting van kinders het die grondwetlikheid van die wysigings van die Wet op Seksuele Misdrywe betwis teen die bestaande Strafproseswet (CPA). Met die wysigings kan kinderslagoffers en getuies van seksuele misdrywe deelneem aan gewysigde hofverrigtinge om getuienis te vergemaklik. Die laer hof het die wysigings aan die CPA konstitusioneel ongeldig verklaar. Die konstitusionele hof het die beslissing omgekeer en gesê dat (1) howe moet ondersoek instel na die behoefte om 'n tussenganger in seksuele misdrywe aan te stel wanneer daar van kinders verwag word om te getuig, ongeag of die staat die saak aan die order stel; (2) howe mag diskresie uitoefen of hulle verrigtinge in camera moet hou; en (3) howe moet redes gee vir die weiering om die gebruik van tussengangers of ander voorsorgmaatreëls, toe te laat.

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.

'n Tienermeisie op hoërskool uit 'n verarmde woonbuurt het toegestem dat sy as ontvangsdame by die escort-agentskap van die appellant werksopleiding sal kry.. Sy beweer dat appellant haar tydens haar opleiding teen haar wil vasgehou het, en haar verkrag en seksueel aangerand het. Die appellant het aangevoer dat sy skuldigbevinding omgekeer moet word omdat die slagoffer toestemming gegee het. Die hof het die aanklagte van ontvoering van die hand gewys, maar die aanklagte van verkragting en seksuele aanranding bevestig. Die hof het erken dat hoewel die slagoffer toestemming gegee het vir dele van die opleiding (d.w.s. om onderklere aan te trek en in die werkgewer se verblyf in te woon), sy nie tot seksuele omgang met die appellant toestem het nie. Die hof het ook opgemerk dat weens die ouderdom van die appellant (twee keer die van die slagoffer) en sy belofte vir indiensneming ,'n dominante posisie oor die slagoffer uitgeoefen het, wat dit vir haar moeilik gemaak het om sy aanvoeringe te weier.

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.

K. het gedagvaar om skadevergoeding van die Minister van Veiligheid en Sekuriteit te verhaal as gevolg van haar verkragting en aanranding deur drie aan-diens en polisie-sersante met hul univorms aan. Die hooggeregshof het beslis dat die optrede van die polisiebeamptes buite die bestek van hul indiensneming val en dat die Minister nie middellik aanspreeklik gehou kan word vir hul optrede nie. Die Hof het beslis dat, hoewel die optrede van die polisiebeamptes uiteraard 'n duidelike afwyking van hul plig was, daar 'n voldoende noue verband bestaan ​​tussen hul indiensneming en die onregmatige optrede om die Minister aanspreeklik te hou.

The appellant was charged with the rape of a nine-year-old girl. At trial, evidence demonstrated 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. The appellant 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.

Die appellant is aangekla van die verkragting van 'n negejarige meisie; tydens die verhoor het getuienis uitgekom dat hy die meisie anaal binnegedring het, wat 'n skuldigbevinding vir onsedelike aanranding eerder as verkragting vereis het. Die Hooggeregshof het egter die gemeenregtelike definisie van verkragting gewysig om ook anale penetrasie in te sluit en die definisie geslagsneutraal gemaak. Die appellant het appèl aangeteken. Die Konstitusionele Hof het met die Hooggeregshof bevestig en beslis dat die definisie van verkragting uitgebrei moet word om anale indringing sonder toestemming van vroue in te sluit; die hof het wel gesê dat vir die hof om die definisie uit te brei om ook manlike verkragting in te sluit sou die regspraak van die wetgewer oorskry.

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.

Die respondent het 'n vonnis teen die appellant vir 13 gewen deur 'n bestuurder-leerling in diens van die appellant. Op appèl het die appellant beweer dat (1) dit nie aanspreeklik gehou kan word vir die optrede van sy werknemer wat nie op die perseel plaasgevind het nie, (2) hy het geen kennis van die voorvalle van teistering gehad nie, en (3) die werknemer het nie binne die omvang van indiensneming opgetree nie . Die hof het beslis dat werkgewers 'n wetlike plig het om hul werknemers te beskerm teen fisiese en sielkundige skade wat medewerkers veroorsaak.

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.

Die appêlant, 'n minderjarige, is tot 10 jaar gevonnis vir die verkragting van 'n mede-klasmaat enappelleer sy vonnis op grond daarvan dat dit te buitensporig was.. Die laer hof het die appêllant-verweerder tot direkte gevangenisstraf eerder as proeftydperk gevonnis nadat hy getuienis aangehoor het oor die onbekwame aard van die appellant en die gebrek aan ouerlike toesig. Die hoogste hof van appèl het die beslissing bekragtig en gevind dat korrektiewe toesig die toepaslike strafversagtende impak sou hê as afskrikmiddel-effek vereis word.

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.

Die Durban Landdroshof het 'n beskermingsbevel uitgereik kragtens die Wet op huishoudelike geweld 116 van 1998 wat Mnr. Omar verbied om sy vrou, Me. Joolab, en hulle kinders, te mishandel. Toe Mnr. Omar na bewering die bepalings van daardie bevel oortree het, is die lasbrief uitgevoer, maar is daarna opgeskort. Hy het aansoek gedoen by die Hooggeregshof om te beweer dat artikel 8 van die Wet ongrondwetlik is en die aansoek van die hand gewys is. Die appèl het op appeèl beslis dat artikel 8 nie die regte van toegang tot die howe skend nie en dat dit dien om ‘n meganisme te bied om die nakoming van beskermingsvebele te verseker en om klaers teen verdere huishoudelike geweld te beskerm

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 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 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 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.

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 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 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 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 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 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 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 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 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.

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 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 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 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.

Article 260 of the Penal Code provides that whoever willfully causes an abortion by beating or other violent injuries shall be punished with rigorous imprisonment (meaning imprisonment with hard labor per Article 13) (“Rigorous Imprisonment”). Those who provide medicine or other means of inducing abortion, with or without the consent of the pregnant woman, are subject to imprisonment (Article 261). It is also a crime for women to have an abortion using medicines or other means (Article 262). Any doctor, surgeon, pharmacist, or midwife who provides an abortion is subject to rigorous imprisonment with hard labor. However, attempted abortion is not a punishable offense (Article 264). English translation available here.

Law No. 10 of the Year 2021 amends the Penal Code to provide increased punishments for anyone who engages in female genital mutilation ("FGM"), which punishments range from a minimum of five years to a maximum of 20 years and depend on two factors: (a) whether the perpetrator is a licensed medical practitioner and (b) the extent of the harm inflicted on the woman or girl. Individuals who request or encourage FGM are also subject to imprisonment under this law.

In recognition of the inherent dignity and worth of each human, Article 12 requires that the State and all persons recognize and protect human rights and afford the fullest protection to the rights and views of all individuals, groups, and minorities. All persons have equal status before the law. Limitations of rights are only justifiable insofar as they ensure peaceful human interaction in the context of an open and democratic society. Article 13 requires the State to actively promote the welfare and development of the people by affirmatively adopting legislation and policies to achieve gender equality. This requires: (i) women’s full participation in all spheres of society with opportunities equal to men; (ii) the implementation of nondiscrimination principles and other measures; and (iii) the implementation of policies addressing domestic violence, personal security, maternity benefits, economic exploitation, and rights to property, among other relevant social issues. Article 22 mandates that all members of a family shall enjoy equal respect and shall be protected under law against all forms of neglect, cruelty or exploitation. No person shall be forced to enter into any marriage, and no person over the age of 18 can be prevented from entering into marriage. All provisions of this section apply to civil, customary, and other forms of marriage. Article 24 specifically guarantees that women are entitled to full and equal protection of law, and have the right not to be discriminated against on the basis of gender or marital status. This includes the following rights: (i) equal rights under civil law, including equal capacity in the realms of contracts, property, custody, decision-making regarding children, and acquisition and retaining of citizenship and nationality; and (ii) upon the dissolution of marriage, entitlement to fair disposition of jointly held property and to fair maintenance. Further, any laws that discriminate against women are invalid and legislation must affirmatively be passed to eliminate customs and practices that discriminate against women. This affirmative requirement particularly applies to practices of: sexual abuse, harassment, or violence; discrimination in work, business, or public affairs; and deprivation of property (inherited or otherwise). Article 30 provides that, while all persons have a right to the enjoyment of economic, social, cultural and political development, women in particular shall be given special consideration in regards to this right. The State must take all necessary measures for the realization of this right, including reforms aimed to eradicate social injustice and inequality. Other gender-related provisions include: the prohibition of torture, inhumane, and degrading treatment or punishment (Article 19); Article 20’s ban on all forms of discrimination; the right to education for all people (Article 25); Article 27’s prohibition of slavery, servitude, and forced labor; and Article 31’s requirement that all persons are entitled to fair wages and equal remuneration for equal value work without discrimination of any kind, especially on the basis of gender.

The Penal Code establishes penalties of six months to six years for those who in a meeting, public place, or through any means of dissemination or communication with the public, incite hatred against a person or group of persons because of their race, color, ethnicity, place of birth, sex, belief or religion, political or ideological convictions, social condition or origin or other cause, with the purpose of discriminating against them.

O Código Penal estabelece penalidades de seis meses a seis anos para aqueles que em reunião, espaço público, ou qualquer outro meio de disseminação ou comunicação com o público, incitar ódio contra pessoa ou grupo de pessoas por causa de sua raça, cor, etnia, lugar de nascença, sexo, crença ou religião, convicção política ou ideológica, condição social ou origem ou outra causa, com o propósito de discriminação contra eles.

Articles 213-220 prohibit certain actions intended to violate someone’s honor, which include insult, defamation, and slander, and mandate penalties ranging from 6-12 months imprisonment and fines. The articles provide for increased penalties if the insults/offensive judgments offend someone’s race, color, ethnicity, place of birth, sex, sexual orientation, disease, disability, or religion.

Os artigos 213-220 proíbem certas ações que são destinadas a violar a honra de alguém, que inclui insult, difamação, e calúnia, e atribui penalidades que variam de 6-12 meses de prisão e multas. Os artigos impõem penalidades maiores se os insultos/julgamentos ofensivos ofenderem a raça, cor, etnia, lugar de nascença, sexo, orientação sexual, doença, deficiência, ou religião de alguém.

The promotion or facilitation of prostitution involve taking advantage of the victim’s economic necessity or vulnerability or coerce the victim by means of violence, threat or fraud pursuant to article 189, and it is punished with a sentence of 1-8 years of imprisonment. If the facilitation or coercion to prostitution is made in a foreign country, the crime committed falls within article 190, i.e. human sexual trafficking, which command a higher sentencing of up to 10 years in prison. The promotion or facilitation of the prostitution of minors under 18 years old is prohibited by article 195. Under the same article and incurring in the same penalties is the individual who repeatedly practices sexual acts with a minor. Here, if the agent coerces, threatens, acts with violence, has the intent of monetary gains, if the minor has diminished psychological capacity, or if the minor is under the age of 14, the maximum penalty increases to 15 years. The act of soliciting by means of paying the minor is punished under article 197 with up to three years of imprisonment, whilst if penetration was involved the penalty increases to five years (in case another more severe penalty pursuant to another article is not applicable).

A promoção ou facilitação da prostituição envolve tirar vantage da necessidade econômica ou vulnerabilidade da vítima ou coerção da vítima por meio de violência, ameaça ou fraude nos termos do artigo 189, e é punido com 1-8 anos de encarceramento. Se a facilitação ou coerção à prostituição é feita em outro país, o crime cometido recai no previsto pelo artigo 190, i.e. tráfico sexual humano, que tem uma sentença maior de até 10 anos de prisão. A promoção ou facilitação de prostituição de menores de 18 anos é proibida pelo artigo 195. Sob o mesmo artigo e incorrendo na mesma pena está o indivíduo que repetidamente realiza atos sexuais com menor. Aqui, se o agente coage, ameaça, age com violência, tem a intenção de ganho financeiro, se o menor tem capacidade psicológica diminuída, ou se é menor de 14 anos de idade, a penalidade máxima aumenta para 15 anos. O ato de solicitar por meio do pagamento ao menor é punido sob o artigo 197 com até três anos de encarceramento, enquanto se houver penetração envolvida a penalidade aumenta cinco anos (no caso de outra penalidade mais severa relacionada a outro artigo não for aplicável).

Article 160(b) establishes that perpetrators of female genital mutilation are subject to sentences of 2-10 years in prison.

Artigo 160(b) estabelece que os autores de mutilação genital feminine estão sujeitos a sentenças de 2-10 anos de prisão.

The National Plan of Action for the Implementation of the Resolution Nº 1325/2000 of the UN Security Council on Women, Peace and Security was approved by the Angolan President in June 2017, revoking all legislation that contravenes it. The UN Resolution Nº 1325/2000 emphasizes the uneven impact of armed conflicts on men and women, and appeals for a higher degree of participation of women, and the integration of gender equality in the prevention, management, and resolution of armed conflicts. As such, it highlights the importance of gender equality in all phases of construction of peace and gives women the role not as victims, but as important actors in the peacemaking process. The National Plan follows those principles by planning to: 1) increase women’s participation in the construction of peace and related decision-making, 2) guarantee the formation and habilitation of women and girls, 3) promote and protect women’s and girls’ human rights in zones of conflict and post-conflict through empowerment and elimination of gender and sexual violence, among other objectives. In this respect, the plan also includes a series of activities, goals and execution times, and the expected result as an effective policy to implement the plan's objectives.

O Plano Nacional de Ação para a Implementação da Resolução Nº 1325/2000 do Conselho de Segurança das Nações Unidas sobre Mulheres, Paz e Segurança foi aprovado pelo Presidente da Angola em Junho de 2017, revogando toda a legislação que viola o plano. A Resolução Nº 1325/2000 da ONU enfatiza o impacto desigual dos conflitos armados para homens e mulheres, e apela para um maior grau de participação das mulheres, e para a integração da igualdade de gênero na prevenção, administração e resolução dos conflitos armados. Como tal, ele realça a importância da igualdade de gênero em todas as fases de construção da paz e dá às mulheres papeis não de vítimas, mas de importantes atrizes no processo de pacificação. O Plano Nacional segue esses princípios ao planejar: 1) o aumento da participação feminina na construção da paz e relacionada a tomadas de decisão, 2) a garantia da formação e habilitação de mulheres e garotas, 3) a promoção e proteção dos direitos humanos de mulheres e garotas em zonas de conflito e pós-conflito por meio do empoderamento e eliminação de violência sexual e de gênero, junto de outros objetivos. Nesse sentido, o plano também inclui uma série de atividades, metas e tempos de execução, e o resultado esperado como uma política efetiva para implementar os objetivos do plano.

This section states crimes against sexual freedom, including the conditions under which sexual encounters violate a woman’s safety and the punishments thereafter. Anyone who engages in sexual activity without the woman’s consent by means of violence or physical intimidation, even if an act of artificial procreation, is subject to two to eight years in prison. Those who have sexual encounters with minors face imprisonment of 16-20 years. Anyone who takes advantage of a hierarchical position in a workplace to constrain someone to obtain sexual advantage is punished with imprisonment up to two years and a fine.

Essa seção estabelece os crimes contra a Liberdade sexual, incluindo as condições nas quais os encontros sexuais violam a segurança da mulher e as punições referentes. Aquele que inicia atividade sexual sem o consentimento da mulher por meio de violência ou intimidação física, ainda que seja um ato de procriação artificial, está sujeito a pena de dois a oito anos de prisão. Aquele que mantém encontros sexuais com menores encaram uma prisão de 16-20 anos. Aquele que tira proveito da sua posição hierárquica em um ambiente professional para constranger alguém para obter vantagem sexual é punido com prisão de até dois anos e multa.

This section describes the circumstances and consequences for interrupting a woman’s pregnancy, and formalities for non-punishable abortion. Anyone who aborts a child without the woman’s consent can be imprisoned from three months to two years, and up to one year with her consent. A woman who performs an abortion on herself or a health professional who abuses their position to provide an abortion is punishable with imprisonment up to two years. If there are serious physical consequences, such as death, that resulted from the abortion, the person who performed the operation is subject to 8-12 years in prison. Abortion is not punishable, however, when the fetus is inviable or will be born with a serious incurable illness such as HIV or AIDS, the pregnancy is a result of a sexual assault, or the woman opts to do so within the first 12 weeks of pregnancy.

Essa seção descreve as circunstâncias e consequências de interromper uma gravidez, e as formalidades para abortos sem punição. Quem aborta uma criança sem o consentimento da mulher pode ter uma pena de três meses a dois anos, e até um ano se tiver o seu consentimento. Uma mulher que realiza um aborto em si mesma ou um professional da saúde que abusa da sua posição para realizar um aborto é punido com prisão de até dois anos. Se alguma consequência física séria acontecer, como a morte resultante do aborto, a pessoa que performou a operação está sujeita a 8-12 anos de prisão. O aborto não é punível, entretanto, quando o feto não é viável ou nascerá com uma doença incurável, como HIV ou AIDS, se a gravidez for resultado de abuso sexual, ou se a mulher optou por realizar o procedimento dentro das 12 primeiras semanas de gravidez.

The plan outlines the materialization of the National Plan for the Advancement of Women (Plano Nacional para o Avanço da Mulher) by mapping out its objectives, finances, and progress evaluations given specific deadlines. It focuses on expanding services available to victims of domestic, sexual, physical, and psychological violence; improving institutions to educate the public on gender-based violence; implementing advocacy strategies to prevent and combat violence against women; and establishing multi-sector mechanisms to intervene in violent situations in which women may find themselves. For example, as women are 57% of all HIV-positive people in Mozambique, the plan provides for an STI, including HIV, prophylaxis service for victims of sexual violence. Each sector is in charge of managing its own budget in accordance with its objectives, but the Mozambican government and the Economic and Social Plan (Plano Económico e Social) are expected to be driving forces in attracting more partners and resources for the plan. The timeline is set for five years, with the Monitoring and Evaluation (Monitoria e Avaliação) creating conditions, such as annual check-ins, and using the Report on the Economic and Social Plan (Balanço do Plano Económico e Social) to ensure that each division maintains consistency in their actions.

O plano esboça a materialização do Plano Nacional para o Avanço da Mulher ao mapear os seus objetivos, finanças, e avaliações de progresso em prazos específicos. Ele foca em expandir os serviços disponíveis para as vítimas de violência doméstica, sexual, física, e psicológica; melhorando as instituições para educar o público sobre violência de gênero; implementando estratégias legais para prevenir e combater violência contra mulheres; e estabelecendo mecanismos multissetoriais para intervir em situações de violência em que as mulheres se encontrem. Por exemplo, como as mulheres são 57% das pessoas HIV-positivas em Moçambique, o plano fornece serviço de profilaxia para ISTs, incluindo HIV, para vítimas de violência sexual. Cada setor está responsável por administrar o seu próprio orçamento de acordo com os seus objetivos, mas é esperado que o governo Moçambicano e o Plano Econômico e Social sejam forças motrizes na atração de mais parceiros e recursos para o plano. O cronograma é de cinco anos, com a Monitoria e Avaliação criando condições, como check-ins anuais, e usando o Balanço do Plano Ecônomico e Social para garantir que cada divisão mantenha consistência em suas ações.

The decree approved the Legal Regime of Domestic Work and Social Protection in August 2017. This instrument is aimed at protecting and formalizing domestic work in Angola, the majority of which is performed by women. It defines domestic work and sets out, among other legal protections, 1) the rights and obligations for both employers and employees, 2) the form of work contract, including for termination and suspension, and 3) dispositions on remuneration. The rights guaranteed to the domestic worker include: (i) right to weekly rest (article 21), (ii) imposition of a minimum age of 18 (article 10), (iii) formalization of a labor contract (article 7), (iv) right to vacation (article 23), and (v) right to compensation for the worker in case of unilateral termination by the employer (article 27).

O decreto aprovou o Regime Jurídico do Trabalho Doméstico e de Proteção Social do Trabalhador de Serviço Doméstico em Agosto de 2017. O instrumento é destinado a proteger e formalizar o trabalho doméstico em Angola, que é majoritariamente realizado por mulheres. Ele define o trabalho doméstico e estabelece, entre outras previsões legais, 1) os direitos e obrigações de ambos os empregadores e empregados, 2) a forma de contrato de trabalho, incluindo a rescisão e a suspensão, e 3) disposições sobre remuneração. Os direitos garantidos ao trabalhador doméstico inclui: (i) direito de descanso semanal (artigo 21). (ii) imposição de idade minima de 18 (artigo 10), (iii) formalização do contrato de trabalho (artigo 7), (iv) direito à férias (artigo 23), e (v) direito à indenização ao trabalhador no caso de terminação feita pelo empregador (artigo 27).

The President approved the National Policy for Gender Equality and Equity in December 2013. The policy and strategic plan on gender equality between men and women promotes equal opportunities, rights, and responsibilities in all domains of their economic, political, and social lives. It further establishes state liability in the adoption and execution of policies and promotes sustainable development, along with other basic human rights principles, such as non-discrimination, gender equality, and respect of individuals. The National Policy also brings data regarding the population of women in the country, analyzing the social, political, and economic situation. Finally, the Policy maps out the main problems faced by women (related to basic services, such as education and health, as well as domestic violence, participation in politics, and access to resources) and defines strategies and targets to achieve the specific goals in order to reduce gender inequalities present in the country.

O Presidente aprovou a Política Nacional para Igualdade e Equidade de Gênero em Dezembro de 2013. A política e o plano estratégico para equidade de gênero entre homens e mulheres promove oportunidades, direitos, e responsabilidades iguais em todos os âmbitos das suas vidas econômicas, políticas, e sociais. Ela também estabelece a responsabilidade do estado na adoção e execução de políticas e promove desenvolvimento sustentável, junto de outros princípios de direitos humanos básicos, como a não discriminação, equidade de gênero, e respeito aos indivíduos. A Política Nacional também traz dados relativos à população feminina do país, analizando as situações sociais, políticas, e econômicas. Finalmente, a Política mapeia os principais problemas enfrentados por mulheres (relativos a serviços básicos, como educação e saúde, assim como violência doméstica, participação na política, e acesso a recursos) e define estratégias e objetivos a serem alcançados para atingir metas específicas a fim de reduzir desigualdades de gênero presentes no país.

The Law on Domestic Violence defines and prohibits domestic violence, classifying such practice as a crime for the first time. The definition of domestic violence includes not only physical acts, but also sexual, psychological, verbal abuse, among other forms of abuse, as a form of domestic violence, not being restricted to the family environment. Moreover, the law sets out this type of violence as a “public crime,” which means that any person may report its occurrence to the authorities or police. The Law further grants victims of domestic violence the right to financial, juridical, medical, and other forms of state support, including access to public shelters. It also establishes measures of prevention, support, and protection for the victim, and the procedures relating to complaint, denunciation, and withdrawal, besides recognizing the right to compensation guaranteed to the victim. It is important to mention that this law grants the rights not only to women, but to any person who is submitted to domestic violence.

A lei contra a Violência Doméstica define e proíbe a violência doméstica, classificando essa prática como crime pela primeira vez. A definição de violência doméstica inclui não apenas atos físicos, mas sexuais, psicológicos, abuso verbal, entre outras formas de abuso, como uma forma de violência doméstica, não se restringindo ao ambiente familiar. Além disso, a lei estabelece esse crime como “crime público”, o que significa que qualquer pessoa pode reportar a sua ocorrência para as autoridades ou polícia. A Lei ainda concede às vítimas de violência doméstica o direito a suporte financeiro, jurídico, médico, e outras formas de suporte estatal, incluindo acesso a abrigos públicos. Também estabelece medidas de prevenção, suporte, e proteção para a vítima, e os procedimentos relativos à reclamação, denúncia, e desistência, além de reconhecer o direito à indenização garantido para a vítima. É importante mencionar que essa lei concede direitos não apenas à mulher, mas a qualquer pessoa que é submetida à violência doméstica.

This Act amends the Commission on Gender Equality Act of 1996 to align with the Constitution. The Preamble in the Act substitutes the Preamble of the 1996 Act, and holds that §181 and item 20(2) of Schedule 6 to the Constitution provides for the continued existence of the Commission for Gender Equality ("the Commission"). Furthermore, it outlines the purpose of the Commission, which is to promote respect for gender equality and the protection, development, and attainment of gender equality. Among the Commission’s powers outlined in the Act is its power to monitor, investigate, research, educate, lobby, advise, and report on issues concerning gender equality. All its powers and functions are to be prescribed by national legislation.

The Human Trafficking Act ("the Act") criminalizes the trafficking of persons within and across borders by the use of threat, fraud, and exploitation of vulnerability or by paying to gain consent. Under the Act, induced prostitution, all other forms of sexual exploitation, and slavery all constitute trafficking. The Act mandates that persons with information on trafficking have a duty to inform authorities. Authorities in this case include the police or the Commission of Human Rights and Administrative Justice, the Department of Social Welfare, the Legal Aid Board, or a reputable Civil Society Organization. The Act covers the rescue, rehabilitation, and reintegration of trafficked persons, as along with creating a fund for victims. Punishment for trafficking is imprisonment for not less than five years.

The Domestic Violence Act (the “DVA”) defines and prohibits domestic violence. Here, domestic violence means any act under the Criminal Code 1960 (Act 29) that constitutes a threat or harm to a person within the context of a domestic relationship. This includes specific acts, threats to commit, or acts likely to result in physical, sexual, or economic abuse. Emotional, verbal, or psychological abuse, including harassment, also fall within the definition of domestic violence. After a complaint has been brought, the police have a duty to provide assistance and protection to the victim of domestic violence even though the victim did not file the complaint. Thus, the police will interview the parties and witnesses, record the complaint, help the victim to obtain medical treatment and inform the victim of his or her rights. The victim can then seek a protection order in the court with original jurisdiction.

This Act relates to divorce, nullity of marriages, and child custody. According to Section 1, a petition for divorce will only be granted if the “marriage has broken down beyond reconciliation,” which includes adultery, unreasonable behavior, desertion, and unreconcilable differences. The petition may be filed by either party. Part 2 discusses other matrimonial issues, such as nullity of marriage, presumption of death, and neglect. Finally, Part 3 outlines the Court’s power to split property between the parties and decide child custody. To that end, the Court can issue restraining orders to prevent one party from leaving the jurisdiction or removing a child of the household from the jurisdiction.

Article 15 of the Constitution of the Republic of Ghana relates to respect for human dignity and prohibits torture or cruel and inhuman punishment. Article 16 prohibits involuntary servitude or slavery. Article 17 relates to equality and non-discrimination and establishes that every person in Ghana is equal before the law. To this end, Article 17 specifically prohibits discrimination on the grounds of gender, race, color, ethnic origin, religion, creed, or social or economic status. Article 18 pertains to property rights and states that every person has the right to own property either alone or in association with others. Article 22 builds upon Article 18 and establishes that a spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died with a will. Article 22 states that Parliament shall enact legislation regulating the property rights of spouses as soon as possible after the Constitution came in to force. Article 22 clarifies that spouses shall have equal access to property jointly acquired during marriage and that assets that are jointly acquired during marriage shall be distributed equitably between the spouses upon dissolution of the marriage. Article 24 of the Ghanaian Constitution concerns economic rights and establishes pay parity as a constitutionally enshrined principle. It states that every person has the right to work under satisfactory, safe, and healthy conditions and shall receive equal pay for equal work without distinction of any kind. Article 26 concerns cultural rights and practices and states that (a) every person is entitled to enjoy, practise, profess, maintain, and promote any culture, language, tradition, or religion subject to the provisions of the Constitution; but also that (b) all customary practices that dehumanise or injure the physical and mental well-being of a person are prohibited. Article 27 refers specifically to women’s rights. It states that special care shall be accorded to mothers during a reasonable period before and after childbirth; and during these periods, working mothers shall be entitled to paid leave; that facilities shall be provided for the care of children below school-going age to enable women, who traditionally care for children, to realise their full potential; and that women shall be guaranteed equal rights to training and promotion without impediments. Article 36(6) refers specifically to the economic obligations of the state, which include ensuring that the State afford equality of economic opportunity to all citizens. Article 36(6) emphasizes that the State must take all necessary steps to ensure the full integration of women as equal partners in Ghana’s economic development.

Within Chapter 6, certain prohibitions related to marriage and clarifications related to the rights of children are outlined in the Criminal Code. If a woman is forced to marry under duress the marriage is voidable under Section 100. Likewise, compulsion of marriage is criminalized in Section 109. It states that a person who causes another to marry against his or her will shall be guilty of a misdemeanor. Section 110 pertains to the custody of children. It states that if a parent or guardian is guilty under Section 108, which outlines causing or encouraging child seduction or prostitution, the Court may divest that person of authority over the child and appoint someone willing to take care of the child until he or she is twenty-one years of age or an age directed by the Court. The Court may also rescind or vary the appointment or order. Section 111 outlines the power of the Court to issue a warrant to search for a child detained for an "Immoral Purpose."

Section 14 of Chapter 2 of the Ghanaian Criminal Code provides the definition of consent. It states that consent is void if the person giving it is under years.12 of age, or in sexual offences under 16 years of age Consent is void if the person is insane, immature, intoxicated, or is as a result of any other cause unable to understand the nature or consequences of the act to which he consents. Consent is void if obtained (i) under duress or by means of deceit; (ii) by undue influence; or (iii) given on behalf of a parent or guardian in bad faith or (iv) by reason of a fundamental mistake of fact or (v) if actual authority to consent is not present. Consent is considered to have been obtained by the preceding causes if consent would not have otherwise been given but for those causes. A person should not be prejudiced by the invalidity of any consent if he did not know and could not have known of the invalidity by exercise of reasonable diligence.

§38 of the Act establishes a Ministry of Gender and Development in the executive branch of the government and sets forth the goal of the Ministry to improve gender equality and increase women’s equal participation in economy, society, politics, and culture. (§ 38.3). The Act provides the structure and organization of the Ministry, the procedure to appoint the Ministers and other staff members, and requires the government to provide an adequate budget for the Ministry. (§§ 38.4-38.10).

Article 11 guarantees fundamental rights and freedoms to all persons regardless of sex, ethnicity, race, political opinion, or national origin. Article 18 prohibits employment discrimination based on sex. Article 23 provides that the property obtained by a person during marriage because of his or her own labor shall not be used to satisfy the obligations of his or her spouse, nor shall the property be controlled by a spouse. It states further that the legislature is compelled enact laws to provide equal protection to the surviving spouses and children in both statutory and customary marriages.

The Domestic Relations Law of 1973 governs various aspects of marriage, divorce, and custody of children—while also providing protections for women’s property rights in marriage. The statute sets forth the requirements for a valid marriage, procedures to obtain a marriage license, duties and liabilities in marriage, guardianship and adoption of children, and the procedures to obtain a divorce. Chapter 2 outlines the requirements for a valid marriage. §2.2 provides that when men reach 21 years old and women reach 18 years old, they are per se capable of entering into marriage. §2.2 prohibits marriage of those under 16 years old. §3.4 provides that a woman retains the property she owns at the time of her marriage or receives during the marriage. §3.5 provides that a woman has the right to sue her husband for the injury caused by him during the marriage. Contrary to the law in most countries, §4.1 mandates that both parents have equal custody rights when they live in the same household, but that the husband becomes the sole custodian of the children upon their separation. §5.3 provides, however, that the wife is responsible to support the children when the husband is dead or cannot be found. §6.1 provides that bigamous and incestuous relationships are void marriages. §8.1 outlines the grounds for divorce, including inhuman treatment that causes danger to the plaintiff-spouse’s physical and mental well-being, the defendant-spouse’s desertion of the plaintiff-spouse for a period of one or more years, the defendant-spouse’s adultery, or incompatibility of temper that results in danger to a spouse. With respect to divorce, the Supreme Court of Liberia has affirmed that a court has discretion to deny a divorce if the plaintiff is responsible for the incompatibility (see, e.g., Korkoya). §13.2 provides that injury caused to the wife in the domestic relationship may subject the husband to civil compensatory damages and punitive damages.

Under Section 55(1), women are prevented from working at night in any industrial or agricultural position. However, under 55(2) female nurses in either sector are allowed to work at night, as are women working in management positions not “ordinarily engaged in manual labour.” Women who work at night because of unforeseeable and nonrecurring work interruptions or who work with materials that require night work because of rapid deterioration are provided with a possible defense to the law. Under Section 56, no woman may be employed in any work that requires time in any underground mine unless they hold positions of management and do not perform manual labor, are employed in health and welfare services, or are working as part of their courses of study. Under Section 57, the Minister, at any time, may prohibit or restrict women from employment in any particular industry or in any process or work carried out. Violations under any of sections 55-56 of the Act carry with them a fine, imprisonment for a term not to exceed one month, or both.

The Matrimonial Causes Act governs marriages, dissolution of marriage, and custody of children. According to Section 5(d) a marriage is voidable if at the time of marriage “the wife is pregnant by a person other than the husband.” However, by Section 35(c), only the husband can nullify the marriage because of pregnancy; the wife has no right to petition to do so. Under Section 47, both husband and wife have grounds for a decree of restitution of conjugal rights, if either refuse to cohabitate with and render conjugal rights to the other. With respect to the wife, if the husband has paid any money to her with respect to a decree under Section 47 and she refuses to comply with the decree within a reasonable time, the money paid becomes a debt due and payable by the wife to the husband and recoverable by action in court.

The Trafficking in Persons (Prohibition) Enforcement and Administration Act, originally passed in 2003 and amended in 2005 and 2015, criminalizes human trafficking and related abuses. The Act provides trafficked persons with access to adequate health services and protection against discriminatory treatment. The Act establishes a National Agency for the Prohibition of Trafficking in Persons (Part II), establishes Agency Transit Shelters for rescued trafficked persons, and establishes a Victims of Trafficking Trust Fund to provide compensation for victims (Part X). The Act provides protections against discriminatory treatment, barring discrimination on account of gender or sex or on the basis of the victim "having worked in the sex industry." Part IX, Section 61(a). The Act serves as implementing legislation for Nigeria’s international obligation under the Trafficking in Persons Protocol Supplementing the Transnational Organized Crime Convention (TOC), to which Nigeria became a signatory on December 13, 2000. Part Two available here.

Under Section 211 of the Evidence Act, a man charged with rape, attempt to commit rape, or indecent assault may, as a defense, show that the alleged victim against whom the offence is alleged to have been committed was of a “generally immoral character.” The victim is not to be cross-examined on the subject but may be asked whether she has had “connection” with other men, a term not defined but presumably referring to previous sexual relations. The victim’s answer to this question cannot be contradicted. However, the accused may also ask whether the victim has had connection on other occasions with the accused and is permitted to attempt to contradict the victim’s denial should she deny connection.

Sections 15(2) and 42(1) prohibit sex-based discrimination. Section 17 of the Constitution outlines the elimination of demographically derived disparities as a fundamental objective of state policy. Section 17(3)(e), focuses on gender-based disparity and states that the state shall direct its policy towards ensuring that “there is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever.” Section 26 of the Constitution, which relates to citizenship, specifically provides for extension of a Nigerian man’s citizenship to his foreign-born wife while making no reference to a similar path to citizenship for the foreign-born husband of a woman who is a Nigerian citizen. Section 26(2) provides that the president may confer Nigerian citizenship on “any woman who is or who has been married to a citizen of Nigeria.” By implication, this section limits the right of a Nigerian woman to transmit her nationality to a foreign husband.

The Children’s Protection and Welfare Act of 2011 aims to address issues of child custody. Stated goals of the act are to give women the right to raise their children and to protect the right of children to be supported by both of their parents.

The Companies Act of 2011 enshrines in law the right of women to serve as directors of companies. According to the law, women are allowed to establish companies on their own, and the law removes the onus on women of securing spousal consent through Section 5(2), which establishes that “anything contained in the customary or common law” that pre­vents a married person from acting as promoter of a company “without his or her spouse’s con­sent” be disregarded and overridden.

The Penal Code prohibits abortion, rape, sexual contact with minors, indecent assault, incest, and bigamy outside of customary law. Abortion is an offence pursuant to the Penal Code Act. Only a registered medical practitioner may terminate a pregnancy if it is necessary to prevent significant harm to the woman’s health, the fetus will be severely disabled, or the woman became pregnant through incest or rape. An adult who has sexual intercourse with a child, defined as under 18 years old, commits an offence and the consent of the child is irrelevant. It shall be defence for this crime if the adult can prove that he or she had reasonable grounds to believe, and did so believe, that the child had attained the age of 18 years.

The Local Government (Amendment) Act of 2004 amends the Local Government Act of 1997. It maintains Lesotho’s quota system and mandates that 30% of the total number of seats in municipal, urban, and community councils be reserved for women. It deletes instances of the words “he,” “his,” and “him” throughout the prior act and replaces them with "he or she," "his or her," and "him or her"; reiterates in Section 3 that “not less than one third of the seats in a council shall be reserved for women”; and section 4(3) calls for the creation of a Tender Board, which must have a third of its members be women.

Section 18(1) of the Constitution makes any law with discriminatory provisions or effect presumptively invalid. Discriminatory is defined as “affording different treatment to different persons attributable wholly or mainly” to their respective descriptions by race, colour, sex, language, and so on. However, Section 18(1) is limited in its scope by the exceptions enumerated in Section 18(4). Section 18(4)(a) exempts any analysis of discrimination for laws pertaining solely to non-citizens of Lesothol; Section 18(4)(b) allows for discriminatory laws related to “adoption, marriage, divorce, burial, devolution of property on death or other like matters which is the personal law of persons of that description”; and Section 18(4)(c) identifies customary law as exempt from evaluation according to Section 18(1). Section 26(1) calls for Lesotho to adopt “policies aimed at promoting a society based on equality and justice for all its citizens regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Section 30 of the Constitution provides for just and favorable conditions of work for women and calls for the creation of particular policies toward the completion of this end, including fair and equal pay, safe working conditions, equal promotion opportunities, and pregnancy and childbirth protections.

This Act prohibits human trafficking and establishes protective measures for the victims of human trafficking. It establishes a Human Trafficking Prohibition Committee to oversee the implementation of the Act and calls for the establishment of centers for victims and the creation of a victims’ fund.

The Customary Law Act aims to reconcile potential conflicts arising between customary Botswana law and Botswana’s common law. The Act pursues this aim by specifying that customary law is to be applied in customary courts only when it “is not incompatible with the provisions of any written law or contrary to morality, humanity or natural justice.” The Act thus makes presumptively invalid customary law that does not comply with common law legislation, leaves such law inapplicable in customary courts, and upholds the supremacy of the common law in Botswana.

The Married Persons Property Act of 2014 permits couples to change their marital property regime (i.e., in or out of community property). The Act applies ex post facto, and any couple married under the old act need only approach the High Court to change their property regime in or out of community of property. Change of property regime can be done only once during a marriage.

The Marriage Act was amended in 2001 to make it illegal for any person under the age of 18 to marry. In accordance with the Convention on the Rights of the Child (CRC), the amendment stipulates that no minor below the age of 21 years may marry without the consent of parents or a legal guardian. The amendment provided for the registration of Customary, Muslim, Hindu, and other religious marriages.