Africa

Domestic Case Law

R. v. Biliati High Court of Malawi Criminal Division (2021)


Statutory rape or defilement

The 33-year-old defendant pled guilty and was sentenced to 10 years’ imprisonment by a First Grade Magistrate for defilement after luring a nine-year old girl to his house and raping her. Subsequent medical examinations revealed that the defendant was HIV-positive, as well as injuries and other evidence of the crime on the victim, who did not contract HIV. The State appealed the sentence, arguing that it was insufficient due to the nature of the crime. The High Court agreed, citing 2013 precedent recommending that 14 years’ imprisonment should be the starting point for defilement sentences. However, the High Court noted the increase of defilement cases in Malawi – 2,155 convictions for defilement by July 2020 – indicated that 14 years was an insufficient deterrent. Instead, the High Court recommended that 20 years be the minimum sentence for defilement, noting the recent trend of High Court judges increasing such sentences similarly. In reviewing the defendant’s sentence, the Court considered numerous factors, including that: i) defilement cases against young girls had been on the rise in recent years in Malawi, which justified harsher sentences to protect young girls; ii) statutory rape of a girl under 16 is a serious offence; and iii) the defendant was HIV-positive and could have infected the victim. Ultimately, the High Court ordered that the defendant’s 10-year sentence be increased to 40 years’ imprisonment.



Sande v. Sande High Court of Malawi (2009)


Divorce and dissolution of marriage, Property and inheritance rights, Sexual harassment, Stalking

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.



Mwanamanga v. Malamulo Mission Hospital Industrial Relations Court of Malawi (2005)


Employment discrimination, Gender discrimination

The defendant employed the plaintiff as a librarian in 1995, but dismissed her from her position in 2000 because she married a polygamist. The plaintiff challenged the dismissal as unfair and asked for an order that her former employer, the defendant, pay compensation and long service pay. In siding with the plaintiff, the Court considered the anti-discrimination provisions of the Constitution, given that the facts underlying the offence took place prior to the Employment Act coming into effect. The Court concluded that the termination of the plaintiff qualified as discrimination. The reasoning underlying the termination effectively prevented the plaintiff from marrying a man of her choice, and from engaging in economic activity through employment, both fundamental constitutionally-protected rights. The Court emphasized that it did not matter that the defendant’s conditions of service prohibited polygamous marriages among its workforce, as such a prohibition contravened the Constitution. In closing, the Court ordered the parties to produce documents and other material relevant to the assessment of compensation for the plaintiff.



R. v. Makuluni High Court of Malawi (2002)


Sexual violence and rape

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.



R. v. State President & Another High Court of Malawi (2015)


Gender discrimination

The plaintiffs, four members parliament, sought judicial review before the High Court of a decision of the State President to appoint a woman, Mrs. Fiona Kalemba, as the Clerk of Parliament. This occurred against the recommendation of the Parliamentary Service Commission, which had submitted a male candidate who they believed to be the best candidate for the position. The State President wanted three short-listed names for the position, and specified that a woman should be included. The Court affirmed the State President’s decision primarily on the grounds that a recommendation is an advisory action that does not have any binding effect. The Court further considered the possibility that if the President wanted a woman for the position, “reverse” or “positive” discrimination is allowed in Malawi and internationally, and hence would not be a violation of law. There is no requirement of merit as the deciding factor in presidential appointments. The Court denied the plaintiffs’ claim, holding that gender and empowerment of minority groups are relevant considerations that may be taken into account in making presidential appointments.



R. v. Mponda (Child Criminal Review Case No. 8 of 2017) High Court of Malawi (2017)


Statutory rape or defilement, Trafficking in persons

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.



R. v. Yusuf Willy (Criminal Review No. 6 of 2021/Criminal Case No. 183 of 2021) High Court of Malawi (2022)


Custodial violence, Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The defendant was charged the defilement of the complainant, a 17-year-old girl. In his defence, the accused claimed that he could not get an erection (albeit, apparently, only after the magistrate raised the question himself). During the proceedings, a woman stood up in court and volunteered to ascertain whether the accused could obtain an erection. One week later, the magistrate, prosecutor, court interpreter, accused, complainant, and the woman who had volunteered met in the magistrate’s chambers to witness whether the woman could touch the defendant sexually until he obtained an erection. The magistrate observed, after approximately 30 minutes of sexual contact, that the accused’s “penis got a bit hard but not very hard.” Following a complaint from the complainant’s parent, the High Court was requested to review the conduct of the magistrate to determine the veracity of the complaint. At this point, the magistrate had not reached a verdict. By way of a preliminary conclusion, the High Court noted that “this illegal show seemed to come out of the blue” and found that the manner of investigation into the accused’s ability to obtain an erection was “raised by the magistrate, thereby making the [High] Court conclude that there were extra judicial discussions” between the accused and the magistrate. The Court also expressed serious concern about secondary victimisation, given that the sexual act occurred in the presence of the complainant. The Court then outlined its reasons for arriving at its ultimate decision, focusing on two matters: the existence of bias and judicial stereotyping. Regarding the first issue, the Court cited caselaw from across common law jurisdictions and the European Court of Human Rights relating to actual or perceived bias. Regarding the second issue, the Court highlighted the significant dangers associated with gender stereotyping on the part of the judiciary. The Court emphasised that judges should be alive to the concerns of victims of sexual offences, specifically that gender stereotypes harm such victims and contribute to further violations of their rights. Presiding officers are obliged to ensure that the courts offer equal access to men and women. In this context, it was emphasised that it matters not only how judges conduct themselves, but also how their conduct could be perceived during a trial. A judicial officer has to be aware of the negative results of displaying condescension toward women in court. In this case, the complainant was concerned about judicial bias, corruption, and/or collusion with the accused. The decision implied that the magistrate’s conduct could have arisen from his bias against, and stereotyping of, the complainant as a complainant in a sexual offence case. The Court highlighted that the judiciary could not condone the perpetuation of “structural gender-based violence, where courts instill fear in women and girls who are victims of sexual offences, using the criminal justice system.” Therefore, in order to create a discrimination-free judicial system that victims can rely on, it is incumbent on the judiciary to remain cognisant of its own biases and stereotypes, especially in the context of victims of sexual offences, and conduct cases in a manner which counteracts such biases and stereotypes. In conclusion, the High Court ordered a retrial under a different magistrate, and that the complainant and her family be provided with the resources needed to ensure her attendance at court. The Court referred (i) the magistrate’s conduct in the trial and (ii) the wider question of gender bias among judicial officers to the Judicial Service Commission. Finally, the Court recommended that the Chief Justice, through the judiciary’s training committee, should develop training programmes to avoid a matter like this re-occurring in the future.



R. v. Banda & Others High Court of Malawi (2016)


Gender discrimination

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.”



Mwafenga v. R High Court of Malawi Criminal Division (2017)


Trafficking in persons

The appellant challenged his concurrent sentences for six violations of the Trafficking in Persons Act as manifestly excessive. The sentences ranged from 10-14 years of imprisonment including hard labor. The maximum penalty for a standard count of trafficking under article 14 of the Act is 14 years, the maximum penalty for trafficking children under 18 years is 21 years (article 15), and article 16 lists aggravating circumstances that increase the penalty for human trafficking to life imprisonment. The appellate court found that the lower court had inaccurately noted which charges corresponded with each victim, which resulted in confusing and improper sentencing decisions. First, the trial court erroneously sentenced the appellant for article 14 trafficking for Counts 1, 2, 5, and 6, but the victims were children and thus these charges should have been sentenced with reference to article 15’s 21 year maximum. In another error regarding Counts 3 and 4, the trial court found the appellant guilty of trafficking an adult of unsound mind in violation of article 16(1)(c), but the conviction should have been for article 14 trafficking of an adult because the adult victim was of sound mind. Ultimately the appellate court affirmed four of the six sentences related to trafficking children because the aggravating factors meant that those maximum penalties for were substantially longer than 14 years, rendering these sentences judicious. For the erroneous article 16 convictions, the appellate court substituted two article 14 convictions and imposed a substitute sentence of 10 years for each count to run concurrently. The court rejected the appellant’s argument that the sentences were manifestly excessive because they were well below the maximum available sentences.



Imelda Khan v. Farmers World Industrial Relations Court of Malawi (2002)


Employment discrimination, Sexual harassment, Sexual violence and rape

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.



R v. Soko and Another Chief Resident Magistrate's Court (2010)


LGBTIQ

The two accused persons were charged and convicted of having carnal knowledge against the order of nature –contrary to Section 153(a) of the Penal Code, which is understood to prohibit same-sex sexual relations. In the alternative, the two accused persons were charged with indecent practices between men contrary to Section 156 of the Penal Code. Both of the accused persons pleaded not guilty but were convicted of both charges and sentenced to the maximum penalty of 14 years of imprisonment including hard labor. The two accused persons had conducted a traditional engagement ceremony, or chinkhoswe. They held themselves out to be husband and wife, and the second accused person identified as a woman but the court consistently referred to her as a man. The court found that both accused committed the crimes charged. In sentencing the two accused persons to the maximum punishment available, the court cited their perceived lack of remorse and their attempt to “seek heroism […] in public, and […] corrupting the mind of a whole nation with a chinkhoswe ceremony.” The court explicitly described the sentences of 14 years imprisonment with hard labor as deterrents so that the public could be “protected from others who may be tempted to emulate their [horrendous] example.” In closing, the court stated, “let posterity judge this judgment.” According to multiple news sources (e.g., the BBC), the President of Malawi pardoned both accused persons and they were subsequently released from prison with a warning not to resume their relationship.



State v. Inspector General of Police, Clerk of National Assembly & Minister of Finance (and others ex parte) High Court of Malawi Civil Division (2020)


Custodial violence, Gender violence in conflict, International law, Sexual violence and rape

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.



Juma v. Republic High Court of Malawi Criminal Division (2018)


Statutory rape or defilement

The 21-year-old appellant pleaded guilty to the defilement of a 15-year-old girl with whom he had an ongoing sexual relationship and who was, by the time of the trial, pregnant as a result. The trial court sentenced the appellant to six years imprisonment with hard labor. He unsuccessfully appealed to reduce the sentence, claiming the following mitigating factors: (i) his willingness to financially support the girl and her baby; (ii) his age; and (iii) his status as a first-time offender. The court rejected this appeal on the grounds that appellate courts may only interfere with sentences that are either “manifestly excessive (or inadequate) or otherwise erroneous in principle,” citing cases in which the state had successfully enhanced initial sentences from six to eight years as evidence that this sentence was not unusually excessive or otherwise erroneous.



Kambalame v. Republic High Court of Malawi Criminal Division (2017)


Gender discrimination, Statutory rape or defilement

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.



Archibald v. Archibald Malawi Supreme Court of Appeal (1998)


Divorce and dissolution of marriage

The appellant, a mother who shared two young children with the respondent, appealed a judgment awarding custody of the couple’s children to the respondent after their divorce. At the time of the original custody order, the children were residing with the appellant in Malawi, but the court granted custody to the respondent to raise them in England. The original order was predicated on the respondent’s assertion that while he was not presently best suited to support his children, his parents, the children’s grandparents, were available to raise the children until such time in the short-term future that respondent could acquire his own home. The lower court that issued the order appeared to favor this arrangement over the children remaining with their mother, at least in part due to her living with a new man who was unrelated to the children and with whom she had no immediate prospect for marriage. Ultimately, in the time between argument at the Supreme Court of Appeal and the Court’s decision, the parties came to a custody agreement and filed a Consent Order with the court, which obviated the issue. The Supreme Court of Appeal, however, still filed this opinion, stating that the lower court had erred and should have awarded custody to the appellant based on consistency in the lives of the children. The Supreme Court of Appeal emphasized that the lower court’s reliance on the appellant’s relationship with another man was inappropriate without evidence of harm to the children.



Kaliyati v Republic High Court of Malawi (2020)


Statutory rape or defilement

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.



Quartson v Quartson Supreme Court (2012)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

This divorce case involved a couple that was married for 25 years. The petitioner-wife filed for divorce due to unreasonable behavior and adultery. She requested custody of their minor child, property rights as the court deemed fit, and that the respondent-husband vacate the marital home, pay a dissolution settlement, and cover court costs. The respondent, who was the family’s primary source of financial support, funded the construction of the parties’ marital home. Despite her inability to contribute financially, the wife oversaw construction of the home and took care of the couple’s children while the husband was away for years, both for work and in prison. The Supreme Court determined that, despite her failure to contribute financially to the parties’ acquisition of the marital home, the wife’s in-kind contributions to the family entitled her to a share of the marital home. Specifically, the court held that “principles of general fundamental human rights require that a person who is married to another and generally supervises the home, such that the other partner has a free hand to engage in economic activities, must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.”



Ministério Público v. Muchami Ngula Câmara Criminal do Tribunal Supremo de Angola (Criminal Chamber of the Supreme Court of Angola) (2019)


Domestic and intimate partner violence, Statutory rape or defilement

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.



Ministério Público v. Jonasse Cangahi Mupi Câmara Criminal do Tribunal Supremo de Angola (Criminal Chamber of the Supreme Court of Angola) (2019)


Domestic and intimate partner violence, Femicide

The defendant was accused of murdering his wife and sentenced to 18 years of imprisonment, in addition to paying of kz. 1.500.000,00 (1.5 million kwanzas, i.e. approximately US$ 2,300) to the victim’s family, plus court expenses. The prosecution (Ministério Público) then appealed to the Supreme Court arguing that, in accordance with the court’s own jurisprudence, the compensation amount should be risen to kz. 2.000.00,00, i.e. the equivalent of US$ 3,100. It argued that, as shown by the evidence, the accused had tried to have sexual relations with his wife and, when she declined, beat her in front of their two underage children. When she tried to escape, the defendant stabbed her in the back with a “homemade knife” multiple times, which killed her. The accused fled to the woods, while their nine-year-old daughter went to get help. The Supreme Court reasoned that, although the object used to stab the victim had not been examined, there was no doubt as to the fact that it was used to injure the victim and caused her death. Furthermore, in agreement with the lower court’s decision, the Supreme Court held that the defendant had undoubtedly committed the crime of which he was accused, noting that he confessed to it during police interrogations. The defendant’s motive was also considered as particularly vile (i.e., as his attempt of sexual intercourse was simply frustrated) and his intent was proven by the predictability of death as a direct consequence of his actions. The appeal was, therefore, granted by the Supreme Court, increasing the compensation amount to the family’s victim to the requested amount.

O réu foi acusado de matar sua esposa e sentenciado a 18 anos de prisão, em adição ao pagamento de kz. 1.500.000,00 (1.5 milhões de kwanzas, i.e. aproximadamente US$2,300) para a família da vítima, além dos gastos com o tribunal. A acusação (Ministério Público) então apelou para o Tribunal Supremo alegando que, de acordo com a jurisprudência da própria corte, o valor da compensação deve aumentar para kz. 2.000.000,000, i.e. o equivalente a US$3,100. Ele afirmou que, como mostrado pela evidência, o acusado tentou ter relações sexuais com a sua esposa e, quando ela negou, ele bateu nela na frente das suas duas crianças menores de idade. Quando ela tentou escapar, o réu esfaqueou ela nas costas com uma “faca caseira” por múltiplas vezes, o que a matou. O acusado fugiu para a floresta, enquanto a sua filha de nove anos de idade foi buscar ajuda. O Tribunal Supremo raciocinou que, ainda que o objeto usado para esfaquear a vítima não tenha sido examinado, não restou dúvida sobre o fato dele ter sido usado para machucar a vítima e causar a sua morte. Além disso, de acordo com a decisão da corte inferior, o Tribunal Supremo sustentou que o réu sem dúvidas cometeu o crime pelo qual ele foi acusado, já que ele confessou o crime durante interrogações policiais. O motivo do réu também foi considerado particularmente vil (i.e. já que a sua tentativa de relação sexual simplesmente foi frustrada) e a sua intenção foi provada pela previsibilidade da morte como consequência direta das suas ações. A apelação foi, assim, acolhida pelo Tribunal Supremo, aumentando a indenização para a família da vítima para o valor requerido.



Ministério Público v. Joao Bernardo Nelson Câmara Criminal do Tribunal Supremo de Angola (Criminal Chamber of the Supreme Court of Angola) (2018)


Femicide

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.



Ministério Público v. Felizardo Alfredo Cabuco Bengue Câmara Criminal do Tribunal Supremo de Angola (Criminal Chamber of the Supreme Court of Angola) (2018)


Abortion and reproductive health rights, Domestic and intimate partner violence, Statutory rape or defilement

The defendant, a nurse, was charged with the crimes of indecent assault and abortion, for which he was sentenced in 2016 to cumulatively serve five years and two months in prison and ordered to pay monetary compensation to the victim, who was his niece. It was established that the defendant and the victim began a relationship when she was 15 years old and, in course of the relationship and while she was still underage, the defendant performed three abortions with the victim’s consent. On one occasion, a member of the family accidentally witnessed the abortion. It was said that the defendant would insert a chirurgical instrument into the victim’s womb and cut out the fetus at the house where they both lived. The defendant denied all accusations against him, including the relationship itself. The Supreme Court ruled that the defendant committed the crimes of abortion and indecent assault (i.e., the “harassment of another person by engaging in exhibitionist acts, making sexual advances or coercing that person into contact of a sexual nature that is not consummated”). However, due to the fact that such criminal offenses are, together, punishable with a sentence lower than 12 years in prison, the Supreme Court declared him 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.

O réu, um enfermeiro, foi acusado de crimes de atentado ao pudor e aborto, pelos quais ele foi sentenciado em 2016 a cumulativamente cumprir cinco anos e dois meses de prisão e ordenado a pagar indenização à vítima, que era sua sobrinha. Foi estabelecido que o réu e a vítima começaram uma relação quando ela tinha 15 anos e, no curso da relação e enquanto ela ainda era menor de idade, o réu realizou três abortos com o consentimento da vítima. Em uma ocasião, um membro da família presenciou acidentalmente o aborto. Foi dito que o réu, dentro da casa em que eles viviam, inseria um instrumento cirúrgico dentro do útero da vítima e retirava o feto. O réu negou todas as acusações contra ele, incluindo a própria relação. O Tribunal Supremo decidiu que o réu cometeu os crimes de aborto e de atentado ao pudor (i.e., o “assédio de outra pessoa ao se envolver em atos exibicionistas, realizando avanços sexuais ou coagindo a pessoa a fazer contato de natureza sexual que não foi consumado”). Porém, dado o fato de que as ofensas criminais são, juntas, puníveis com uma sentença menor que 12 anos de prisão, o Tribunal Supremo declarou ele anistiado e, consequentemente, extinguiu os processos 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.



Ministério Público v. Mendes Miongo Nzambi Câmara Criminal do Tribunal Supremo de Angola (Criminal Chamber of the Supreme Court of Angola) (2018)


Domestic and intimate partner violence, Statutory rape or defilement

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.



Mayelane v. Ngwenyama Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2013)


Gender discrimination

The issue in this case was to what extent, in Xitsonga customary law, the absence of a first wife’s consent to her husband’s subsequent polygamous marriages affects the validity of those marriages. In this case, the applicant entered into a customary marriage with the deceased in 1984. The applicant objected to the respondent’s claim that she entered a valid customary polygamous marriage to the deceased in 2008, 13 months before the deceased’s death. The Court held that, in accordance with its obligation to develop living customary law in a manner consistent with the Constitution’s protection of human dignity and equality, Xitsonga customary law had to be developed to include a requirement that the first wife’s consent is necessary to validate any of her husband’s subsequent customary marriages. Guided by this principle, the Court held invalid the marriage of the decedent to the respondent.



Ramuhovhi and Others v. President of the Republic of South Africa and Others Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2018)


Gender discrimination, Property and inheritance rights

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.



Lesbian and Gay Equality Project and Eighteen Others v. Minister of Home Affairs Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2006)


Gender discrimination, LGBTIQ

The issue in this case was whether the fact that no provision was made for same-sex couples to marry denied those parties equal protection of the law and was thus unfairly discriminating against them because of their sexual orientation, contrary to the Constitution’s protection of sexual orientation. The common law and the Marriage Act 25 of 1961 defined marriage as between man and woman. The Court stated that the exclusion of same sex couples from the benefits and responsibilities of marriage was not a “tangential inconvenience” but a “harsh … statement by the law that same-sex couples are outsiders.” The Court held that the common law and §30(1) of the Marriage Act were inconsistent with §§ 9(1) & (3) of the Constitution to the extent that they did not allow same sex couples to enjoy the status, entitlements, and responsibilities that heterosexual couples enjoyed. The Court held that Parliament should remedy this exclusion and, if it does not, courts should read §30(1) of the Marriage Act to include the words “or spouse” after the words “or husband” as they appear marriage vows.



Rahube v. Rahube Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2019)


Gender discrimination, Property and inheritance rights

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.



Shilubana and Others v. Nwamitwa Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2009)


Gender discrimination

The issue in this appeal was whether traditional leaders of a community can develop their customs and traditions to promote gender equality in the succession of traditional leadership in accordance with the Constitution. The dispute was about the right to succeed as Chief to the Valoyi community in Limpopo, where the Chief’s daughter, Ms. Shilubana, could not succeed to the Chief position after her father’s death because the principle of male primogeniture governed succession. Her uncle succeeded the deceased Chief instead, but, during his reign, he and the Royal Family unanimously resolved to confer the chieftainship to Ms. Shilubana when the current Chief died because it aligned with the new Constitution. This was also communicated to and accepted by the Commission for Traditional Leaders of the Northern Province. When Ms. Shilubana’s uncle, the Chief, died, a dispute arose between Ms. Shilubana and the Chief’s son as to who should succeed to Chieftainship. The Court held that where there is a dispute over the legal position under customary law, a court must consider both the traditions and the present practice of the community. If there is a new development within the community, the court must strive to recognize and give effect to that development, to the extent it is consistent with protecting rights. The Court found that the customary law of the Valoyi community did not permit a woman succeeding without amendment, but that the Royal Family had power to amend the customs and that their actions represented a development of law consistent with the spirit of the Constitution. Thus, it was a valid legal change, vesting Ms. Shilubana with the right to succeed to Chieftainship.



Tshabalala v. The State; Ntuli v. The State Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2019)


Gender-based violence in general, Sexual violence and rape

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.



Odamtten and Others v. Wuta-Ofei Supreme Court (2018)


Gender discrimination, Property and inheritance rights

This case concerns the ability of women to pass on their life interest in an estate to their children under customary law. In this case, the deceased, the grandfather of the appellants, died intestate. According to the customary law of the Ga people of Osu, the deceased’s female descendants only have a life interest in the estate rather than ownership rights. The first respondent, having outlived his siblings, claimed the right as the head of the family to sell one piece of the estate’s property. The appellant, the daughter of the deceased’s daughter, sought to set aside the sale of said property by the first respondent on the grounds that she was not consulted before the sale, and additionally sought an order of perpetual injunction restraining the respondents from dealing with the property. The appellant contended that the Court of Appeal erred in holding that the customary law of Gas prevent a female child who inherits property from a deceased parent to pass on her interest to her children. However, the Supreme Court upheld the Court of Appeal’s decision, holding that the Court of Appeal stated the true position of customary law and practice of the devolution of property in Osu and other parts of Ghana, and that this customary property system is backed by judicial precedents on patrilineal forms of inheritance. The appellants’ argument that the Intestate Succession Law banned this patrilineal inheritance practice failed to take into account that it is not retroactive and thus does not apply to estates that have already been distributed. Thus, the sale of the property was deemed valid.



Arthur v. Arthur Supreme Court (2014)


Divorce and dissolution of marriage, Property and inheritance rights

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.



Mensah v. Mensah Supreme Court (1998)


Divorce and dissolution of marriage, Property and inheritance rights

This case concerns the sharing of spousal property upon divorce. On 22 December 1986, the High Court dissolved the marriage between the husband (“H”) and his wife (“W”) on a petition and cross-petition for divorce filed by H and W, respectively. Subsequently, the Court heard the parties’ claims for ancillary relief in which both H and W claimed ownership of the same house. The High Court found that W was the sole owner of the house. H appealed to the Court of Appeal, which concluded that the main house belonged to both H and W but since the extensions to the house were solely funded by W, W was the sole owner of the extensions. H appealed this decision to the Supreme Court. The Supreme Court found that H made some contribution to the extensions as well as to the household expenses and the clear intention of the parties in acquiring the extensions was to provide more space in the house for their joint benefit and that of their children. It was therefore held, dismissing the appeal, that the principle that property jointly acquired during marriage became joint property applied; and such property was to be shared equally on divorce.



Mensah v. Mensah Supreme Court (2012)


Divorce and dissolution of marriage, International law, Property and inheritance rights

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.



Re Caveat by Clara Sackitey: Re Marriage Ordinance High Court at Accra (1962)


Divorce and dissolution of marriage

This case concerns the criteria for what constitutes a valid customary marriage. In question was whether or not the respondent was precluded from marrying another as a result of the prior customary marriage alleged. The case arose after the complainant filed a caveat against the issue of a registrar’s certificate in respect to an alleged ordinance marriage between the respondent and another woman. The complainant claimed that she was married to the respondent under customary law at a ceremony held in March 1958 at which both her family and the respondent’s family were present and that was presided over by the head of the larger family to which both of the families belong; that the ceremony called “fiapun” in Adangbe was performed; and that the respondent’s family provided drinks and a customary fee for the marriage. Therefore, the complainant claimed that the respondent was precluded under Ordinance from marrying another. The respondent denied that the ceremony held in March 1958 constituted a lawful marriage under customary law and further maintained that whatever relationship subsisted between him and the complainant was determined by their subsequent separation. The Court confirmed that the essential pre-requisites laid out in Yaotey v Quaye. It also held that consent by the two parties’ families may be actual or constructive. The Court held that the unrefuted evidence presented by the complainant of the ceremony and cohabitation contained all the essential elements of a valid customary marriage. The Court also held that since the marriage is as much the families’ concern as it is the concern of the two individuals, the agreement of the parties to live apart does not affect their legal status, and the marriage will subsist until the marriage is dissolved by the family. The Court confirmed that a marriage under the Ordinance and a customary marriage was mutually exclusive, and the existence of one precluded the other. The complainant’s application for prohibition of the Registrar of Marriages from issuing the certificate was sustained, as she and the respondent were still married under customary law.



Williams v. Republic of Liberia Supreme Court of Liberia (2014)


Femicide, Statutory rape or defilement

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.



Korkoya v. Korkoya Supreme Court of Liberia (1994)


Divorce and dissolution of marriage

The Domestic Relations Law provides that the grounds for divorce are (1) inhuman treatment by the defendant-spouse that causes danger to the plaintiff-spouse’s physical and mental well-being, (2) desertion of the plaintiff-spouse by the defendant-spouse for a period of one or more years, (3) the defendant-spouse commits adultery, or (4) incompatibility of temper that results in danger to the plaintiff-spouse. The appellant husband filed for divorce for incompatibility of temperament. In the complaint, the husband alleged that his wife was quarrelsome and pugnacious, which the wife denied. The jury returned a verdict in favor of the defendant, and the plaintiff moved for a new trial. A final judgment was rendered confirming the original verdict. The appellant appealed to the Supreme Court and contended that a new trial should be awarded. The Supreme Court recited some of the testimony from the trial. In the trial, the defendant testified that the appellant had an intimate relationship with a third person and did not leave any food for the family. The Supreme Court stated that if the complaining spouse who filed for divorce was not responsible for the “incompatibility,” the trial court should grant the divorce. However, if the incompatibility arose from the misconduct of the complaining spouse, the trial court had the discretion to deny the divorce. The Supreme Court found the complaint by the appellant defective and affirmed the lower court’s decision.



Republic v. Orero High Court of Kenya at Nairobi (Nairobi Law Courts) (2008)


Femicide, Sexual harassment, Stalking

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.



P.J.K. v. O.K.K. High Court of Kenya at Kabarnet (2019)


Divorce and dissolution of marriage

The petitioner asked for dissolution of marriage with the respondent. In June 2011, the petitioner went on a foreign peacekeeping mission as a member of the Kenya Air Force. When she returned at the end of the month, she found that the respondent had cohabited with, married, and impregnated another woman. The respondent gave the petitioner an ultimatum between a polygamous marriage or divorce despite the their monogamous civil marriage. The petitioner stated that she had lived separately from the respondent for six years because he tried to force her to enter into a polygamous marriage when she intended to engage into only a single marriage. The court held the respondent guilty of cruelty against the petitioner and found that the marriage had, on account of the respondent’s behavior and the long separation of over six years, irretrievably broken down. The court granted the dissolution of marriage.



Baby A and The Cradle-The Children Foundation v. Attorney General, Kenyatta National Hospital, and the Registrar of Births and Deaths High Court of Kenya at Nairobi (Constitutional and Human Rights Division) (2014)


Forced sterilization, LGBTIQ

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.



M.N. v. Republic High Court of Kenya (2015)


Abortion and reproductive health rights

The appellant, M.N., was charged with attempt to procure abortion, contrary to Section 158 of the penal code, which provides the “any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever is guilty of a felony and is liable to imprisonment for fourteen years.” Four witnesses testified for the prosecution, including complainant, who was 15 years old, told the court that the appellant, who was her teacher, invited her to his home on several occasions and made advances at her. She also testified that they eventually had sexual intercourse, which led to her pregnancy, and that the appellant provided a “doctor”, who was never arrested or charged, to procure an abortion. The complainant’s grandmother, one of the witnesses, testified that she also observed the “doctor”, but gave a different account of his actions than the complainant’s. The complainant later gave birth to a healthy baby. The appellant denied having a sexual relationship with the complainant and attempting to procure an abortion. The court held that the trial court convicted appellant based on its suspicion that he was responsible for the complainant’s pregnancy and that he provided the “doctor” who attempted to procure an abortion, but that suspicion was insufficient to sustain the conviction. The High Court thus set aside the conviction and sentence.



Republic v. Ratemo High Court of Kenya (2018)


Acid violence, Domestic and intimate partner violence, Femicide

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.



Mokhele and Others v. Commander High Court of Lesotho (2018)


Gender discrimination

The applicants were female soldiers who were discharged from the army by the Commander of the Lesotho Defence Force on the grounds of pregnancy. The reason listed for the discharge of the applicants was pregnancy and a contravention of the army’s Standing Order No. 2 of 2014, which states that a soldier may not become pregnant during the first five years of service. The High Court stated that case before it was a “challenge to the culture of patriarchy in the military and an assertion of sexual and reproductive rights in military service. What is being contested is the idea that female soldiers are incapable to bear arms and babies at the same time and, on that account, are not fit for military purpose.” The court stated that to allow the dismissal from work on the grounds of pregnancy would amount to discrimination on the basis of sex because pregnancy affects only women. The Standing Order had profound effects on the reproductive rights, freedoms, and careers of female soldiers, and the five-year prohibition period was arbitrary in nature. The court held that the applicants must be reinstated back to their positions and ranks in the Lesotho Defence Force without any loss of benefits.



Makafane v. Zhongxian Investment Pty Ltd. Labour Court of Lesotho (2014)


Employment discrimination, Gender discrimination

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.



Phaila v. Director General National Security Services High Court of Lesotho (2008)


Employment discrimination, Sexual harassment

The applicant, a married woman, was a member of the National Security Services stationed at Maseru. On 4 May 2007 she received a letter from the respondent notifying her of her transfer from Maseru to Mafeteng, though the transfer was not implemented. The transfer letter followed a complaint of sexual harassment lodged by the applicant against one of her superiors. The applicant had lodged the complaint in April 2007, and it was duly attended to. A Commission of Enquiry was set up to investigate the matter, but no report was published nor furnished to the applicant despite her numerous requests. The applicant argued that, among other reasons, the transfer was unlawful because it was not bona fide and was intended to serve as a punishment for lodging the complaint of sexual harassment. The applicant stated that she had no problem leaving Maseru but that she had only received two weeks’ notice in which to do so. The respondent did not deny that the complaint of sexual harassment or its failure to furnish the applicant with a report. The High Court found that the transfer was mala fide as the applicant was not afforded a hearing prior to such transfer, the report was unreasonably withheld, and she was not afforded enough time to prepare herself and her family to move to that new station. The court declared the decision to transfer the applicant to Mafeteng null and void.



Babumba v. Kizito High Court of Uganda (1992)


Property and inheritance rights

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.



Negulu v. Serugga High Court of Uganda (2013)


Divorce and dissolution of marriage

Here, the Court held that failure to register a customary marriage did not necessarily invalidate it and that one can be considered customarily married as soon as the customary ceremonies of a tribe have been performed.



Kagwa v. Muteteri High Court of Uganda (Family Division) (2005)


Divorce and dissolution of marriage, Property and inheritance rights

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.



The Center for Health, Human Rights and Development (CEHURD) v. Mulago National Referral Hospital High Court of Uganda (2013)


Abortion and reproductive health rights, International law

Here, Justice Lydia Mugambe held that Mulago National Referral Hospital’s negligence and the resulting disappearance of the couple’s baby amounted to psychological torture for the parents and violated their rights to health and access to information. Specifically, Justice Mugambe held that a woman’s inability to access sufficient antenatal care demonstrates a failure on the part of the State to fulfill its obligations under the right to health. The decision outlines Uganda’s obligations under international law to devote special attention and resources to women whose circumstances make them vulnerable.



Uganda v. Hamidu and Others High Court of Uganda (2004)


Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Sexual violence and rape

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.



Mukasa and Oyo v. Attorney General High Court of Uganda (2008)


LGBTIQ

Here, the Court held that government officials violated the constitutional rights of the plaintiff by illegally raiding plaintiff’s home without a search warrant, seizing plaintiff’s documents related to her work as an advocate for the human rights of LGBTQ persons, and illegally arresting a guest present at plaintiff’s home during the raid. Later, at the police station, plaintiff’s guest was forcibly undressed and fondled to “determine” her sex. The Court held that plaintiff and plaintiff’s guest were treated in an inhuman and degrading manner amounting to sexual harassment and indecent assault.



Attorney General of Botswana v. Rammoge Court of Appeal (2016)


LGBTIQ

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.



G.M.J. v Attorney General Court of Appeal of Botswana (2018)


Abortion and reproductive health rights

Here, in a unanimous judgment, the Court of Appeal reversed a decision by the High Court to dismiss a medical negligence claim raised by a woman who underwent a surgical procedure for the removal of her womb and experienced the leaking of urine after the procedure. Appellant had sought damages from medical negligence and lack of proper post-operative care. The Court’s holding clarifies the law on prescription and medical negligence, which are a prominent method through which women try to access the courts when their reproductive health rights are violated.



Motshidiemang v. Attorney General Botswana High Court of Botswana (2019)


Gender discrimination, LGBTIQ

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.



Processo nº 35/2011 Supreme Court (2011)


Divorce and dissolution of marriage, Property and inheritance rights

In a proceeding following a divorce, the appellant wife argued that she had married her husband under a regime of separate property. The court determined that a couple married under such a regime can only switch to a community property regime upon agreement between the parties, which had not occurred in this case.



Govender v. Ragavayah High Court of South Africa: Durban and Coast Local Division (Hooggeregs Hof van Suid Afrika: Durban en Kusafdeling) (2008)


Harmful traditional practices, Property and inheritance rights

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.



Moosa N.O. and Others v. Harnaker and Others High Court of South Africa: Western Cape Division ( Hooggeregs Hof van Suid Afrika: Weskaap Afdeling) (2017)


Gender discrimination, Property and inheritance rights

The deceased was married to the second and third applicant under Islamic law. The marriage of the deceased and the third applicant was entered into before the marriage between the deceased and the second applicant. However, the deceased and the second applicant entered into a civil marriage to qualify for a home loan. Following the death of the deceased, The Registrar of Deeds, Cape Town, refused to register the title deed to the family home in the name of the third applicant. The Registrar’s refusal was premised on the meaning of the term “surviving spouse” as contemplated in terms of section 2C(1) of the Wills Act 7 of 1953 (the “Wills Act”). According to the Registrar, the only recognised surviving spouse of the deceased is the second applicant as they entered into a civil marriage. The Court declared section 2C(1) of the Wills Act unconstitutional as it does not recognise the rights of spouses married under Islamic law nor multiple female spouses married to a deceased testator in polygynous Muslim marriages.

Die oorledene is volgens die Islamitiese Wet met ‘n tweede en derde applikant getroud. Die huwelik van die oorledene en die derde applikant is aangegaan voor die huwelik tussen die oorledene en die tweede applikant. Die oorledene en die tweede applikant het egter ‘n siviele huwelik aangegaan om te kwalifiseer vir ‘n huislening. Na die afsterwe van die oorledene het die Registrateur van Aktes, Kaapstad, geweier om die titel-akte van die gesinshuis in die naam van die derde aansoeker te registreer. Die weiering van die registrateur is gegrond op die betekenis van die term “oorlewende gade” soos beoog in terme van artikel 2C(1) van die Wet op Testamente 7 van 1953 ( die “Testamente Wet”). Volgens die registsrateur is die enigste erkende oorlewende gade van die oorledene, die tweede aansoeker aangesien hulle ‘n siviele huwelik aangegaan het. DIe hof het artikel 2C(1) van die Wet op testamente ongrondwetlik verklaar aangesien dit nie die regte van gades wat kragtens die Islamitiese wet getroud is, erken nie asook nie veelvuldige vroulike eggenote wat met ‘n oorlede testateur in ‘n poligamiese moslemhuwelik verbind is nie.



Hassam v. Jacobs NO Constitutional Court (Konstitusionele Hof) (2009)


Gender discrimination

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.



Daniels v. Campbell and Others Constitutional Court (Konstitusionele Hof) (2004)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

The applicant was a woman married according to Muslim rites and whose husband had died intestate. The marriage was not solemnized by a marriage officer under the Marriage Act 25 of 1961. The house in which the applicant and her husband had lived was transferred to the deceased’s estate. The applicant was told that she could not inherit from the estate of the deceased because she had been married according to Muslim rites, and therefore was not a “surviving spouse.” A claim for maintenance against the estate was rejected on the same basis. The Court held that the word “spouse” as used in the Intestate Succession Act includes the surviving partner to a monogamous Muslim marriage and that the word “survivor” as used in the Maintenance of Surviving Spouses Act 27 of 1990, includes the surviving partner to a monogamous Muslim marriage.

Die applikant was ‘n vrou wat volgens Moslem tradisie getroud is en wie se eggenoot intestaat gesterf het. Die huwelik is nie volgens die huwelikswet 25 van 1961 deur ’n huweliks beampte bekragtig nie. Die huis waarin die applikant en haar man gewoon het is na die oorledene se boedel oorgeplaas. Die applikant is meegedeel dat sy nie uit die boedel van die oorledene kon erf nie omdat sy getroud was volgens die Moslem tradisie en is dus nie 'n "oorlewende gade" nie. ’n Eis vir onderhoud teen die boedel is op dieselfde basis verwerp. Die hof het beslis dat die woord "gade" soos gebruik word in die Wet op Intestate Erfopvolging, die oorlewende maat van ’n monogame moslem-huwelik insluit. Die woord "oorlewende” wat gebruik word vir die Wet 27 van 1990 vir die onderhoud van oorlewende eggenote, sluit die oorlewende eggenoot in van 'n monogame Moslem huwelik



Bhe and Others v. Khayelitsha Magistrate Constitutional Court (Konstitusionele Hof) (2004)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

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.



Dlanjwa v. Minister of Safety and Security Supreme Court of Appeal (Hoogste hof van Appèl) (2015)


Domestic and intimate partner violence, Property and inheritance rights

The appellant was shot by her husband, who subsequently committed suicide. Her husband was employed by the South African Police Service, so she sued the Minister of Safety and Security for general damages, medical expenses, loss of earnings, and loss of support arising from her injuries and the deceased’s suicide. She also sued for loss of support on behalf of her infant triplets with the deceased. The appellant alleged that the shooting and suicide were caused by, inter alia, the negligence of the station commander and/or certain police officials. The appellant claimed that these police officers failed to (a) dispossess the deceased of the firearm, (b) initiate disciplinary steps against him, and (c) have him criminally charged despite her previous requests and their knowledge that the deceased abused alcohol, had a violent temper and suicidal tendencies, had assaulted her, pointed a firearm at her and threatened to shoot her and thereafter kill himself, which led her to obtain a protection order against him under the Domestic Violence Act 1998. The Supreme Court of Appeal found that: (a) the police had a legal duty to investigate the appellant’s complaints once she reported that she feared for her safety; (b) the police negligently breached that duty by failing to take measures to protect the appellant from being injured by the deceased (and prevent the deceased from killing himself); and (c) the appellant had established wrongfulness on the part of the police due to the causal connection established between the police’s negligent breach of duty and the harm suffered by the appellant. The court therefore upheld the appeal.

Die appèllant is deur haar man geskiet waarna hy selfmoord gepleeg het. Haar man het vir die Suid-Afrikaanse Polisiediens gewerk daarvolgens het sy die Minister van Veiligheid en Sekuriteit gedagvaar vir algemene skadevergoeding, mediese uitgawes, verlies van verdienste, en die verlies van ondersteuning wat voortspruit uit haar beserings en die oorledene se selfmoord. Die appèllant beweer dat die skietery en selfmoord veroorsaak is deur, onder andere, die nalatigheid van die stasiebevelvoerder en/of sekere polisiebeamptes. Die appèllant beweer dat diè polisiebeamptes versuim het om (a) die oorledene se vuurwapen te verwyder, (b) dissiplinêre stappe teen hom te inisieer, en (c) om hom strafregtelik aan te kla ten spyte van haar vorige versoeke en hul kennis dat die oorledene alkohol misbruik het, 'n gewelddadige humeur het en selfmoordneigings gehad het, haar aangerand het, 'n vuurwapen op haar gerig het, en haar gedreig het dat hy haar gaan skiet en daarna selfmoord pleeg, wat daartoe gelei het om 'n beskermingsbevel teen hom onder die Wet op Huishoudelike Geweld van 1998 te verkry. Die Appèlhof het bevind dat: (a) die polisie 'n wettige plig gehad het om die appèllant se klagtes te ondersoek nadat sy berig het dat sy vir haar veiligheid gevrees het; (b) die polisie was nalatig was deur hul plig ter versuiming om maatreëls te tref om die appèllant te beskerm teen die oorledene (en om te verhoed dat die oorledene selfmoord pleeg); en (c) die appèllant het die onregmatigheid aan die kant van die polisie bewys as gevolg van die verband tussen die polisie se nalatige pligssversuim en die skade wat die appèllant gely het. Die hof het die appèl dus goedgekeur.



Naidoo v. Minister of Police Supreme Court of Appeal (Hoogste hof van Appèl) (2015)


Domestic and intimate partner violence

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.



Women's Legal Centre Trust v. President of the Republic of South Africa and Others High Court of South Africa: Western Cape Division (Hooggeregshof van Suid Afrika: Wes Kaap Afdeling) (2018)


Gender discrimination, Property and inheritance rights

The plaintiff petitioned to bring three consolidated actions directly to the Constitutional Court. They sought a declaratory order that the President recognize Muslim marriages as valid for all purposes in South Africa. The Constitutional Court dismissed the plaintiffs’ plea for direct access and instead directed them to the High Court. The High Court held that the State’s failure to enact legislation recognising religious Muslim marriages violated the rights of Muslim women based on religion, marital status, gender, and sex. The court directed the President, Cabinet, and Parliament to prepare and bring into operation legislation to recognise marriages performed in accordance with Sharia law.

Die eiser het 'n versoek om drie gekonsolideerde aksies direk na die Konstitusionele Hof te bring. Hulle het 'n verklarende-bevel aangevra dat die President, Moslem-huwelike as geldig vir alle doeleindes in Suid-Afrika erken. Die Konstitusionele Hof het die eisers se pleit vir direkte toegang van die hand gewys en het hulle eerder aan die Hooggeregshof verwys. Die Hooggeregshof het bevind dat die staat se versuim om wetgeving te aanvaar wat erkenning gee aan huwelike wat godsdienstig Moslem is, die regte van Moslemvroue gekend het op grond van godsdiens, huwelikstatus, geslag en seks. Die hof het die President, die Kabinet, en die Parlement oprag gegee om wetgeving voor te berei en in werking te stel om huwelike wat volgens die sharia-wetgewing uitgevoer is, te erken.



State v. Banda High Court of Zimbabwe (2001)


Abortion and reproductive health rights

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.



Musumhiri v. State High Court of Zimbabwe (2014)


Sexual violence and rape, Statutory rape or defilement

The 47-year-old male applicant requested bail pending the appeal of his conviction and 15-year sentence for raping the 16-year-old complainant. The applicant appealed, arguing that the intercourse was consensual because the victim did not scream or immediately report the rape after a witness stumbled upon the incident. The applicant had to show, among other things, the likelihood of success of his appeal to obtain bail. The court dismissed the bail application after rejecting the state's concession that the applicant had a meritorious appeal because complainant's failure to scream or to immediately report the rape cast doubts upon her lack of consent. Citing research about cultural inhibitions on gender violence victims, the court concluded that silence could not be equated to acquiescence. With women often held culturally as custodians of appropriate sexual conduct, and with the responsibility for sexual restraint being placed on a woman, regardless of her age or power imbalances, the court found it understandable that the complainant failed to make an immediate report. The court noted that a young girl may not make a voluntary report because her cultural context makes it difficult for her to do so without being re-victimized. Consequently, the proposition that the victim's initial silence implied consent was untenable and could not be ground for bail.



Hosho v. Hasisi High Court of Zimbabwe (2015)


Harmful traditional practices, Property and inheritance rights

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.



Mapingure v. Minister of Home Affairs Supreme Court of Zimbabwe (2014)


Abortion and reproductive health rights, Sexual violence and rape

A month after the rape, the appellant’s pregnancy was formally confirmed, she then informed the investigating police officer of her pregnancy who referred her to a public prosecutor. She was told by the prosecutor that she had to wait until the rape trial had been completed to have her pregnancy terminated. At the direction of the police, she returned to the prosecutor’s office four months later and was advised that she required a pregnancy termination order. The prosecutor requested that a magistrate certify the termination. The magistrate said he could not assist because the rape trial had not been completed. She eventually obtained the necessary magisterial certificate nearly six months after the rape, the hospital felt that it was no longer safe to carry out the termination procedure. The appellant carried to full term and gave birth to a child. The applicant brought an action against the Ministers of Home Affairs, Health and Justice for damages for the physical and mental pain, anguish and stress she suffered and care for the child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned were negligent in their failure to prevent the pregnancy or to expedite its termination. The particulars of negligence were itemized. Her claim was dismissed. The questions for determination on appeal were (i) whether or not the respondents’ employees were negligent in responding to the appellant, (ii) if they were, whether the appellant suffered any actionable harm as a result of such negligence and, (iii) if so, whether the respondents were liable for damages for pain, suffering, and the care of her child. The Supreme Court held, on appeal, that the State was liable for failing to provide the appellant with emergency contraception to prevent the pregnancy and ordered it to pay damages. However, the court dismissed the claim that the State was liable for failing to ensure a timely termination of the pregnancy and in turn that they were liable to pay for the care of the child. The case was referred back to the High Court for a determination of the amount of damages.



State v. Gudyanga (2015)


Domestic and intimate partner violence

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.



Chairperson of the Immigration Selection Board v. E.F. and Another Supreme Court of Namibia (2001)


Gender discrimination, LGBTIQ

The respondent, a German national, was denied permanent residence in Namibia despite being in a committed relationship with a Namibian woman, residing in Namibia for many years, and having a highly skilled job in Namibia. The respondent claims that the only reason her application was denied is because she was a lesbian woman in a homosexual relationship. She therefore filed suit against the Immigration Selection Board (“ISB”), arguing that it had discriminated against her in denying her application. The lower court found in favor of the respondent and ordered the ISB to grant the respondent’s application. On appeal, the Supreme Court reversed the decision, finding that the respondent had not proven discrimination and that the ISB had wide discretion to deny applications. However, the Supreme Court judge explicitly stated: “I must emphasize in conclusion: Nothing in this judgment justifies discrimination against homosexuals as individuals, or deprive [sic] them of the protection of other provisions of the Namibian Constitution.”



Life Office of Namibia Ltd. (NamLife) v. Amakali Labour Court of Namibia (2014)


Employment discrimination, Gender discrimination, Sexual harassment

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 State v. L.S. High Court of Namibia (2006)


Domestic and intimate partner violence

The accused murdered her newborn child and pleaded guilty to the crime. In determining her prison sentence, the judge took into account mitigating circumstances such as her young age (21 years old), the fact that the child’s father denied responsibility for the child, and the fact that her family nearly kicked her out of their home when she had her previous child. The judge also acknowledged that she was a first-time offender and showed remorse for the crime. However, he reiterated the seriousness of the crime and stated that he did not want his leniency in this case to serve as a message to other young women that infanticide was acceptable. He further stated that newborn infants have just as much a right to life as anyone else. For the murder, he sentenced the accused to three years imprisonment with 30 months suspended for five years on the condition that the accused not be convicted of murder during the suspension. For the concealment of the birth of her newborn child, the judge sentenced the accused to six months imprisonment to run concurrently with the murder sentence.



The State v. V.U. High Court of Namibia (2007)


Domestic and intimate partner violence, Sexual violence and rape

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 State v. Vries Supreme Court of Namibia (2001)


Sexual violence and rape, Statutory rape or defilement

The accused was charged with raping a 10-year-old girl (the “complainant”). The trial judge convicted the accused of attempted rape, finding that the prosecution did not prove penetration beyond a reasonable doubt. The prosecutor was not satisfied with the sentence and appealed to the Supreme Court, seeking a conviction for rape. The Supreme Court agreed with the trial court that penetration had not been proven beyond a reasonable doubt. However, the Supreme Court stressed that the slightest unwanted penetration of a woman’s genitalia by a man’s genitalia is sufficient to constitute the crime of rape.



Monomono v. The State High Court of Namibia (2017)


Sexual violence and rape, Statutory rape or defilement

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 State v. G.I. High Court of Namibia (2007)


Abortion and reproductive health rights

The accused was an 18-year-old woman charged with the crime of abortion under the Abortion and Sterilization Act, 2 of 1975 (the “Act”). The Act outlaws abortion and prescribes no minimum sentence for the crime. The accused pleaded guilty and testified that she performed the abortion on herself, which terminated a two-month-long pregnancy. The Court sentenced her to pay N$3,000 or serve two years in prison. On review, the High Court found the sentence to be “completely” disproportionate to the crime. The Judge referred to the Old Authorities and stated that sentences for abortion should be less harsh in cases where a very young fetus is involved. The Judge also found that the accused personal circumstances and the particular circumstances of her trial, including the fact that she was a minor at the time, did not have counsel to represent her, and was not given the opportunity to explain her actions, warranted mitigation of the penalty. Finding that the lower court did not factor in any of these mitigating circumstances, the High Court reduced the sentence to N$300 or three months in prison, which he suspended on the condition that during that period the accused was not convicted of any abortion-related crime.



The State v. Dausab High Court of Namibia (2018)


Domestic and intimate partner violence, Femicide

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.”



Gawaxab v. The State High Court of Namibia (2018)


Femicide, Gender-based violence in general, Sexual harassment

The accused was charged with assaulting and murdering a woman. At trial, the accused filed an application for his discharge at the close of the prosecution’s case, arguing that the prosecution failed to make a case requiring the accused to answer. According to prosecution evidence, after buying alcohol and drinking it with a group of women he did not know, including the deceased, an argument began because the accused stated that he could have sex with all the women. The driver stopped the car when the accused hit the deceased with a bottle. The accused continued to beat the woman outside of the car and the others drove away in fear for their lives to report the attack the police. Upon their return to the scene, they found and picked up the deceased, who was running down the road after escaping the accused. She later passed away from her injuries. At trial, prosecutors presented several eye-witnesses to testify against the accused, as well as direct and circumstantial evidence to support their case. The accused argued that the eye-witnesses had been intoxicated at the time of the assault and therefore their testimony was unreliable. He also argued that the prosecutors failed to meet their burden to convict him. However, the court agreed with the prosecution and refused to discharge the accused, finding that the prosecution’s evidence presented a prima facie case that the accused was legally obliged to answer.



The State v. Swartz High Court of Namibia (2018)


Domestic and intimate partner violence, Female infanticide and feticide, Femicide

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.



H.D. v. The State Supreme Court of Namibia (2018)


Statutory rape or defilement

The appellant was charged with the rape and indecent assault of a three-year-old girl (“the complainant”). He pled “not guilty” to both counts but was convicted on the first count and sentenced to 14 years’ imprisonment. The trial court acquitted the appellant on the second count. On appeal, the appellant argued that (a) the charge did not contain adequate particulars of the date and time of the alleged crimes; (b) the degree of the injuries to the complainant made it doubtful that he could have raped her; and (c) the cautionary rule was not correctly applied when the trial court reviewed the complainant’s evidence. The Supreme Court confirmed that the trial court was not only aware of the risks associated with the evidence presented by a sole young witness, but also exercised appropriate caution in considering the complainant’s evidence. It further found that the evidence presented at trial, including testimony by the complainant’s mother and older sister provided sufficient details to uphold the conviction. The appeal was accordingly denied.



The State v. Iipinge High Court of Namibia (2018)


Domestic and intimate partner violence

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 State v. Nkasi High Court of Namibia (2010)


Domestic and intimate partner violence, Female infanticide and feticide

The accused negligently killed his daughter by beating her to death with a stick, which he meant as punishment. He also intentionally shot and killed his son with a shotgun and attempted to shoot his wife. He was convicted of culpable homicide, murder, attempted murder, obstructing the course of justice, possession of a firearm without a license, and the unlawful possession of ammunition. The court sentenced him to 44 years imprisonment. With respect to the conviction for negligent homicide, the court found that parents do not have carte blanche to punish their children. The court also found that the accused’s previous acts of violence against his wife and children constituted aggravating circumstances. The court further emphasized the seriousness of domestic violence and noted that sentencing in such cases should serve as retribution for those harmed, including the community at large and as deterrence to others.



F.N. v. S.M. High Court of Namibia (2012)


Divorce and dissolution of marriage, Domestic and intimate partner violence

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.”



Paschke v. Frans Supreme Court of Namibia (2015)


Gender discrimination, Property and inheritance rights

The respondent in this appeal is the biological daughter of the deceased. The respondent’s mother was not married to the deceased, and thus, the respondent was considered an “illegitimate child” under Namibian law. The appellant is the sister of the deceased and the respondent’s aunt. The deceased died intestate on May 30, 1991, and his estate was administered per Namibian law on intestate succession. Because the respondent was classified as an illegitimate child, she was not entitled to inherit from her father’s estate. The respondent challenged the constitutionality of this common-law rule, which the High Court had declared unconstitutional in July 2007. The Supreme Court confirmed the High Court’s finding.



Barclay v. Digen Supreme Court of Liberia (2011)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

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.



Toopah v. Republic of Liberia Supreme Court of Liberia (1974)


Domestic and intimate partner violence, Femicide

The defendant appealed a homicide conviction for the shooting of his wife, arguing that the killing resulted from his discovery of her adultery and could, therefore, only amount to manslaughter. In a charge of homicide, the law requires a showing of malice (i.e., a murder committed with premeditation). Implied malice (i.e., murder committed in the “heat of passion;” without premeditation) is nullified by sufficient provocation. The court found that his contention of provocation was unsupported and that his testimony was contradicted by witnesses’ testimony, which indicated that he routinely beat his wife and threatened her life. On the day of the shooting, he took the rifle home without permission and he called his wife to return home prior to shooting her. No evidence showed that his wife was committing adultery. Thus, the Court upheld the conviction, refusing to consider provocation as a mitigating circumstance and finding that the murder was premeditated because the evidence proved express malice.



Tequah v. Paye Supreme Court of Liberia (2014)


Sexual violence and rape

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.



Gardea v. R. Supreme Court of Liberia (2014)


Sexual violence and rape

The Appellant was convicted of raping his step-daughter on three occasions and sentenced to life imprisonment. He appealed the decision on the basis of lack of evidence. The prosecution’s case relied on evidence provided by the victim (deceased at the time of the trial), her nine-year-old sister, and a medical professional who examined the victim at the hospital immediately after she was raped. The defence argued that evidence provided by the victim immediately before her death was hearsay. The court held that, while under Liberian law hearsay cannot form the basis of a criminal conviction, “a dying declaration” (i.e., when a victim provides evidence concerning her or his attacker whilst at impending death in extremis) can be admitted as evidence and is not hearsay. The court also pointed out that, despite her young age, the victim’s sister’s evidence, which was admitted, was not hearsay because she was a direct witness to the attack and was subject to comprehensive cross examination. Finally, the court rejected the defence’s claims that the medical professional who inspected the victim in the hospital was not an expert witness because of her credentials that included a medical degree and over ten years of experience treating children victims of sexual violence. The conviction was upheld.



Clark v. Clinton-Johnson Supreme Court of Liberia (2015)


Sexual violence and rape

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.



Magerer v. Republic High Court of Kenya at Bomet (2016)


Female genital mutilation or female genital cutting, Harmful traditional practices

The appellant was convicted of (i) aiding the commission of female genital mutilation (“FGM)” on several girls, (ii) failing to report the commission of FGM, and (iii) allowing her premises to be used to perform FGM. She pled guilty to the crimes and was sentenced to pay a fine of Kshs. 200,000 (or 3 years of imprisonment if she defaulted on the payment). On appeal, she argued that the sentence was overly harsh and oppressive because she was a single mother of three children. Justice M. Muya upheld her sentence, as it was the minimum allowed under the Female Genital Mutilation Act. The Justice in this case noted that within this case “lies the clash between traditional values and the law of the land.” Even though the appellant was abiding by a customary practice, it was in violation of Kenyan criminal law, and thus the appellate court upheld her sentence.



Nduta v. Republic High Court of Kenya at Siaya (2015)


Domestic and intimate partner violence, Gender-based violence in general, Harmful traditional practices

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.



P.O. v. Board of Trustees, A.F., et al. Industrial Court at Nairobi (2014)


Employment discrimination, Gender discrimination, Gender-based violence in general, International law, Sexual harassment

The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip. Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her. He booked a single hotel room, while the claimant believed she would have her own room. As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference. Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference. Her salary for May was unpaid. Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her. The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.” The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000. This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law. In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace. The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.



A.M.L. v. Republic High Court of Kenya at Mombasa (2012)


Statutory rape or defilement

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.



Republic v. C.W. High Court of Kenya at Siaya (2016)


Domestic and intimate partner violence

The defendant was accused of the killing of her husband. She entered into a plea agreement to reduce the charge of murder to manslaughter. The deceased returned home on May 7, 2016, intoxicated and accused the defendant of infidelity. A violent domestic fight ensued and the defendant used a kitchen knife to fatally stab the deceased. The defendant was also injured by the deceased during the altercation. The defendant asked the court for a non-custodial sentence based on a number of mitigating circumstances including the fact that the defendant is the primary caregiver of her three children with the deceased, aged five, three, and one. Relatives and friends of the deceased confirmed that he was verbally and physically abusive to the defendant and the killing occurred in “the heat of the moment.” Furthermore, the defendant had no prior record, demonstrated remorse, and the deceased’s family and the community had forgiven her and were willing to help her raise her children. The High Court agreed that these factors merited a non-custodial status, adding that the defendant is both the accused and the victim, and was acting in self-defense even though she used excessive force. The High Court handed down a three-year non-custodial sentence. This case marks an important example of Kenyan courts treating victims of domestic violence with leniency where excessive force is used while defending themselves from their abuser.



Jezile v. State High Court of South Africa: Western Cape Division (Hooggeregshof van Suid Afrika: Wes Kaap Afdeling) (2015)


Domestic and intimate partner violence, Forced and early marriage, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

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.



Levenstein v. Frankel Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2018)


Sexual violence and rape, Statutory rape or defilement

The case was initially brought to the High Court by individuals who had suffered childhood sexual molestation by the deceased, a prominent financier and philanthropist, in the 1970s and ‘80s. The applicants were unable to pursue criminal charges due of the effect of s18(f) of the Criminal Procedure Act 1997, which imposed a 20-year statute of limitations for most sexual offences (excluding rape, sexual trafficking, and using a child or a mentally disabled person for pornographic purposes). However, the High Court found s18(f) to be unconstitutional. The Constitutional Court affirmed, removing the statute of limitations for prosecuting all sexual offences.

Die saak is aanvanklik in die 1970’s en 80’s deur die oorledene, ’n prominente finansierder en filantroop, na die hooggeregshof gebring deur individue wat seksueel gemolesteer is in hul kinderjare. Die applikante kon nie strafregtelike klagtes nastreef nie weens die effek van artikel 18 (f) van die Strafproseswet 1997, wat ’n 20 jarige beperkingsbepaling opgelê het vir die meeste seksuele misdrywe (uitgesuit verkragting, seksuele handel en die gebruik van ’n kind of n verstandelik gestremde persoon vir pornografiese doeleindes). Die hooggeregshof het egter bevind dat s18 (f) ongrondwetlik is. Die konstitusionele hof het bevestig en die statuut van beperkings op die vervolging van alle seksuele misdrywe verwyder.



De Lange v. Presiding Bishop of the Methodist Church of South Africa for the Time Being (Voortsittende Biskop van die Metodiste kerk van Suid Afrika vir tyd en wyl) Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2015)


Gender discrimination, LGBTIQ

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.



National Coalition for Gay and Lesbian Equality v. Minister of Justice (Nasionale Koalisie vir Gay en Lesbiese Gelykheid v Minister van Justisie) Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (1998)


Gender discrimination, LGBTIQ

The case concerned a referral for confirmation to the Constitutional Court of an order made by the Witwatersrand High Court. The referral sought to affirm that the following laws are unconstitutional and invalid (a) the common law offence of sodomy, and (b) the inclusion of sodomy in schedules to, inter alia, the Criminal Procedure Act 51 of 1977, which prohibits sexual conduct between men in certain circumstances. Although technically the Constitutional Court only had to decide on the constitutionality of the inclusion of sodomy in the schedules and of the section of the Sexual Offences Act, it could not do so without also considering the constitutionality of sodomy as a common law offence. The Constitutional Court found that the offences, all aimed at prohibiting sexual intimacy between gay men, violated the right to equality by unfairly discriminating against gay men on the basis of sexual orientation. Such discrimination is presumed to be unfair since the Constitution expressly includes sexual orientation as a prohibited ground of discrimination.

Die saak het betrekking op ’n verwysing ter bevestiging van die Konstitusionele Hof van ’n bevel wat deur die Witwatersrandse hooggeregshof gemaak. is. Met die verwysing word bevestig dat die volgende wette ongrondwetlik en ongeldig is (a) die gemeenregtelike misdryf van sodomie en (b) die insluiting van sodomie in skedules vir, inter alia, onder meer die Stafproseswet 51 van 1977, wat seksuele gedrag tussen mans in sekere omstandighede verbied. Alhoewel die Konstitusionele Hof slegs tegnies moes besluit oor die grondwetlikheid van die insluiting van sodomie in die skedules en die afdeling van die Wet op seksuele misdrywe, dit sou dit nie kon doen sonder om die grondwetlikheid van sodomie as ’n gemeenregtelike oortreding te beskou nie. Die konstitusionele hof het bevind dat die misdrywe wat daarop gemik is om seksuele intimiteit tussen homoseksuele mans te verbied, die reg op gelykheid geskend het deur op ’n onbillike wyse te diskrimineer teen homoseksuele mans op grond van seksuele oriëntatse. Daar word bevind dat die tipe diskriminasie onbillik is aangesien die Grondwet uitdruklik bepaal dat diskriminasie teen seksuele oriëntasie, verbode grond is.



Mgolozeli v. Gauteng Department of Finance Labour Court of South Africa (Arbeidshof van Suid Afrika) (2014)


Employment discrimination, Gender discrimination

The applicant, a male, applied for a senior managerial position previously occupied by a woman. After undergoing a psychometric assessment, he was recommended for appointment. The recommendation was turned down “due to the gender imbalance at SMS level”. The applicant claimed that he had been unfairly discriminated against on the basis of his sex because the target, set by the Gauteng Provincial Legislature, did not comply with the provisions of the Employment Equity Act (EEA), 55 of 1998. The respondent contended that, although it had not adopted an equity plan, it had set itself a target of 50% females in senior management positions. The Court noted that when the second respondent took the decision not to appoint the applicant, there was great confusion regarding the actual gender balance at the senior management level. However, the Court was prepared to accept that, at the time, females filled only 29% senior management posts. The EEA requires that equity plans must provide objectives for each year, their duration, and procedures for evaluating their implementation. The Court noted that, in SA Police Service v Solidarity obo Barnard (Police and Prisons Civil Rights Union as amicus curiae [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.



Ekhamanzi Springs Ltd. v. Mnomiya Labor Appeal Court of South Africa (Arbeidsappèlhof van Suid Afrika) (2014)


Employment discrimination, Gender discrimination

The respondent was employed by the appellant to bottle Aquelle spring water. The appellant’s plant was located on property belonging to a religious mission, and to gain access to the workplace, the appellant’s employees had to cross the mission’s property. The mission’s security guards were instructed to bar entry to any persons who did not comply with its code of conduct; one provision, for example, prohibited “amorous relationships between any two persons outside of marriage”. The respondent and a colleague were denied access because they became pregnant outside of marriage. Consequently, the respondent and her colleague were not able to access the workplace, as they were refused access to the mission’s property. They were subsequently fired. The court ruled that the dismissal of the respondent employee was automatically unfair because she had been dismissed for her pregnancy. The court noted that all persons have a constitutional right to equality. Discriminatory dismissals, such as this one, are accordingly automatically unfair and higher compensation is allowed in such cases. Employers are obliged to avoid discriminating against employees directly or indirectly ̶ protection against being discriminated against on the ground of pregnancy is not a preserve of married women. An agreement that denies pregnant employees access to the workplace is accordingly prima facie unenforceable unless it can be justified on grounds consistent with constitutional norms. The mission’s code of conduct interfered with the employment relationship between the appellant and its employees and created a situation in which breaches could lead to dismissal. Such provisions blurred the line between the appellant’s terms and conditions of employment and the mission’s code. That the employee was not a party to the mission’s code proved decisive. As lessee, the appellant had legal remedies to compel the mission to allow full use and enjoyment of the leased property. The appellant’s faint plea of operational necessity could not serve as a defense because it had failed to exercise its rights as lessee to protect its pregnant employees. The employee had tendered her services, and the appellant’s refusal to accept the tender constituted a breach of contract. The court further held that the appellant’s acquiescence in the mission’s discriminatory practice of barring unwed pregnant women from the leased premises violated the appellant’s constitutional duty to treat its employees fairly and was a breach of its common law duty to accept the employees into service. The court, therefore, confirmed that the employee had been dismissed and that her dismissal was automatically unfair. The court also confirmed the remedy of 12 months’ compensation.

Die respondent is in die diens van die appêlant om Aquelle water te bottel. Die appêlant se aanleg was op eiendom wat aan 'n godsdienstige sending behoort, en om toegang tot die werksplek te verkry, moes die appêlant se werknemers die sending se eiendom oorsteek. Die sending se sekuriteitswagte is opdrag gegee om toegang te verbied aan enige persone wat nie aan hul gedragskode voldoen het nie; een bepaling, byvoorbeeld, het "verliefde verhoudings tussen enige twee persone buite die huwelik" verbied. Die respondent en 'n kollega is toegang geweier omdat hulle buite die huwelik swanger geraak het. Gevolglik was die respondent en haar kollega nie in staat om toegang tot die werksplek te verkry nie. Aangesien hulle toegang tot die missie se eiendom geweier is is hulle is daarna afgedank. Die hof het beslis dat die ontslag van die respondent werknemer outomaties onregverdig was omdat sy vir haar swangerskap ontslaan is. Die hof het kennis geneem dat alle persone 'n grondwetlike reg tot gelykheid het. Diskriminerende afdankings, soos hierdie een, is dienooreenkomstig outomaties onregverdig en hoër vergoeding word toegelaat in sulke gevalle. Werkgewers is verplig om te verhoed dat daar diskriminasie is teen werknemers, direk of indirek - beskerming teen diskriminasie op die grond van swangerskap is nie 'n bewaar van getroude vrouens nie. 'n ooreenkoms wat verwagtende werknemers se toegang tot die werksplek ontken is gevolglik prima facie-onafdwingbaar tensy dit geregverdig kan word op grond wat met grondwetlike norme bestaanbaar is. Die sending se gedragskode het met die werksverhouding tussen die appêlant en sy werknemers ingemeng en 'n situasie geskep waarin oortredings tot ontslag kan lei. Sodanige bepalings vervaag die lyn tussen die appêlant se bepalings en voorwaardes van indiensneming en die sending se kode. Dat die werknemer nie 'n party tot die sending se kode was nie, was beslissend. As huurder het die appêlant regsmiddels gehad om die sending te dwing om volle gebruik en genot van die gehuurde eiendom toe te laat. Die appêlant se dowwe pleidooi van operasionele noodsaaklikheid kon nie dien as 'n verdediging nie omdat dit versuim het om sy regte as huurder om sy swanger werknemers te beskerm uit te oefen. Die werknemer het haar dienste aangebied, en die appêlant se weiering om die aanbod te aanvaar het 'n skending van die kontrak saamgestel. Die hof het verder bevind dat die appêlant se vrywaring in die diskriminerende praktyk van die missie om ongewenste swanger vroue van die gehuurde perseel te belet. Die appellant se grondwetlike plig om sy werknemers billik te behandel is geskend en dat dit ‘n oortreding van sy gemeenregtelike plig was om die werknemers in diens te neem. Die hof het dus bevestig dat die werknemer ontslaan is en dat haar ontslag outomaties onregverdig was. Die hof het ook die regsmiddel van 12 maande se vergoeding bevestig.



South African Police Service v. Barnard Constitutional Court of South Africa (Konstitutionele Hof van Suid Afrika) (2014)


Employment discrimination, Gender discrimination

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.



Mwape v. The People Supreme Court of Zambia (2012)


Statutory rape or defilement

The appellant was charged with defilement contrary to Section 138 of the Penal Code, Chapter 87 of the Laws of Zambia (unlawful carnal knowledge of a girl under 16 years) and was sentenced to the minimum mandatory sentence of 15 years’ imprisonment. On behalf of the appellant, the appeal was filed on two grounds. On ground one, it was contended that the Court had erred in law by deciding not to conduct a voir dire and proceeding to receive the sworn evidence of a child. On ground two, it was contended the court below erred by finding corroboration and concluding the appellant was guiltywwww. Relative to the first grounds, the Court held that, while there had been no voir dire and while the Magistrate had failed to inquire as to whether the child understood the nature of the oath, this did not necessitate a re-trial, given that such orders are typically discretionary and this was not the only evidence tendered at trial. Relative to the second grounds, the Court observed that the question of identity was not in dispute and that there was substantial corroborative evidence that the crime had been committed. Accordingly, the Court concluded that the grounds lacked merit, as the Court was competent to convict the appellant even without the victim’s evidence. The Court further noted that the crime was compounded by the breach of trust that the appellant (who was the prosecutrix’s step-grandfather and exercising parental responsibility over her at the time) had committed against the victim and, therefore, set aside the 15-year minimum sentence in favor of a 20-year hard labour sentence.



Mutombo v. Mutombo High Court for Zambia (2012)


Divorce and dissolution of marriage

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.



Ponde v. Bwalya Supreme Court for Zambia (2016)


Divorce and dissolution of marriage, Property and inheritance rights

The petitioner and the respondent were divorced in the local court where the petitioner was granted custody of the couple’s three children, with the respondent retaining rights of access. The couple were also ordered to share their household goods equally. The petitioner appealed to the High Court in relation to the property adjustment in respect of the matrimonial property and the two houses built on it, acquired during the subsistence of the marriage and in particular, against the award of the smaller house to the respondent on the basis that this was not a just and proper order of property adjustment. In support of his argument, the respondent argued that: (i) the plot was too small to share; (ii) the petitioner should not be compelled to live with his former wife using a single gate and in limited space; and, (iii) the smaller house allocated to the respondent by the court was already occupied by the three children of the family. The High Court held that there is no family property too small to for a former husband and wife to share after divorce. Moreover, the husband’s inconvenience in this context was deemed immaterial; if the physical structures could not be shared, for whatever reason, then, the couple should share the market value of the properties once sold. The High Court noted, on the facts, that the lower court’s decision to grant the petitioner the option to buy the smaller from the respondent after valuation or in the alternative, sell the entire property, and share its market value was perfectly just and correct under the circumstances. Accordingly, it dismissed the appeal with costs.



Joan v. Hodgson High Court for Zambia (2011)


Divorce and dissolution of marriage, Property and inheritance rights

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).



Miloslav v. The People Supreme Court for Zambia (2014)


Sexual violence and rape

The appellant was charged with the offence of indecent assault on a female contrary to Section 137(1) of the Penal Code, Chapter 87 of the Laws of Zambia. The victim worked for the appellant as a maid when she was indecently assaulted. The appellant advanced four grounds of appeal: (i) the trial court erred when (i) it found the appellant had a case to answer at the close of the prosecution’s case; (ii) it convicted the appellant of the offence in the absence of corroborative evidence; (iii) the trial court erred when it convicted the appellant on the evidence of the victim who suffered from unsoundness of mind without satisfying itself that the victim understood the nature of an oath and was capable of giving rational testimony; and, (iv) it held that the findings in the medical report supported the prosecution’s evidence and when it held that the appellant had corroborated the evidence of the victim when he admitted touching the victim. The Court dismissed all grounds for appeal on the following bases: (i) the Court was satisfied that the victim’s testimony was presented in a very coherent manner and that the three ingredients of the offence had been established and that the victim’s testimony was not discredited at all; (ii) there was medical evidence which corroborated the crime as well as evidence that the victim did not consent to the indecent assault; (iii) the victim’s testimony was very consistent and was given with ‘lucid clarity’, therefore there was nothing in the victim’s testimony that could have compelled the trial court to conduct a voir dire; and, (iv) there was medical evidence which corroborated the victim’s testimony and there was no evidence of a romantic relationship between the parties which would indicate consent. Further, the Court held that, because of the ‘master and servant’ nature of the relationship, the minimum sentence of 15 years imprisonment was inappropriate and should be set aside and replaced by a sentence of 20 years imprisonment with hard labor effective from the date of conviction.



The People v. Mugala High Court for Zambia (2012)


Gender-based violence in general, Sexual violence and rape

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.



Sikazwe v. The People Supreme Court for Zambia (2012)


Sexual violence and rape, Statutory rape or defilement

The appellant was charged with incest contrary to Section 159(1) of the Penal Code but was convicted of the lesser charge of indecent assault contrary to Section 137(1) as amended by Act No. 15 of 2005, Cap 871, as the medical evidence ‘left a lot to be desired’ (as described by the Magistrate). However, when the matter was sent to the High Court for sentencing, the sentencing judge substituted the charge of indecent assault with incest and sentenced the appellant to 20 years imprisonment with hard labor. The appellant appealed this conviction and sentence on the basis that the Magistrate “erred in law and fact when he tried and convicted the appellant without the Director of Public Prosecutions’ consent.” In support of this argument, the appellant noted that the instructions of the Director of Public Prosecutions were to try the appellant for rape not incest. Therefore, in the absence of express consent by the Director of Public Prosecutions as required by Section 164 of the Penal Code, Cap 871, the trial court had jurisdiction neither to hear the matter nor to proceed to convict the appellant on indecent assault and sentence him to 20-year term for incest. The Supreme Court reviewed the letter from the Director of Public Prosecutions and noted that, while the first paragraph gave the impression that he had sanctioned the prosecution to go ahead with the charge of incest, the remainder of the letter made it clear that he had also sanctioned the appellant’s prosecution on a charge of either rape or defilement. The Supreme Court also noted that the latter could potentially enable a conviction of indecent assault under the relevant provisions of the Penal Code. Thus, the Supreme Court confirmed that the Director of Public Prosecutions rightly guided the prosecution and the court below to invoke whichever of these provisions as necessary. Moreover, the Supreme Court stated that the Magistrate rightly concluded that ‘the medical evidence left a lot to be desired.’ Ultimately, it concluded that the appellant was not guilty of the offence of rape, but that he was guilty of the offence of indecent assault contrary to Section 137 of the Penal Code and that the sentencing judge was mistaken to sentence the appellant for incest. The Supreme Court quashed the incest conviction, but still upheld the conviction for indecent assault and imposed a 20-year prison sentence.



Habeenzu v. The People Supreme Court for Zambia (2012)


Sexual violence and rape

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.



M.M. v. Minister of Home Affairs & 2 Others Supreme Court of Zimbabwe (2014)


Abortion and reproductive health rights, International law, Sexual violence and rape

This case was brought by the complainant, who was attacked and raped by robbers at her home. She immediately reported the matter to police and requested a medical practitioner to prescribe emergency contraception. The medical practitioner said he required the presence of a police officer to do so. Because she was advised at the police station that the officer who had dealt with her case was not available, the victim returned to the hospital, where she was refused treatment without a police report. The next day she went to the hospital with another police officer and was informed that the prescribed 72 hours had already elapsed. When the complainant was confirmed pregnant, she indicated to the prosecutor that she wanted her pregnancy terminated, but was told that she had to wait until the rape trial had been completed. She finally obtained the necessary magisterial certificate, but when she sought the termination, the hospital matron felt that it was no longer safe to carry out the procedure. After the full term of her pregnancy, the complainant brought an action against the Ministers of Health, Justice and Home Affairs for pain and suffering endured as well as maintenance of the child. The High Court dismissed her claim that the employees of the respondents had been negligent in their failure to prevent the pregnancy, and subsequently to facilitate its termination. She appealed the decision to the Supreme Court, which determined the claim by applying the test for negligence, finding the doctor negligent for having failed to take reasonable steps to prevent the pregnancy and the police negligent for failing to timely take the victim to the doctor for her pregnancy to be prevented. The Supreme Court recognized the relevance of regional and international human rights norms and standards, making reference to various provisions relating to the reproductive rights of women in CEDAW and the Maputo Protocol, but held that, pursuant to Constitutional terms, these cannot operate to override or modify domestic laws until they are internalized and transformed into rules of domestic law. Furthermore, the Supreme Court determined that it was the responsibility of the victim of the alleged rape to institute proceedings for the issuance of a magisterial certificate allowing the termination of her pregnancy. Ultimately, the Supreme Court partially allowed the appeal and granted the complainant general damages for pain and suffering arising from failure to prevent her pregnancy. Although conceding that Zimbabwe’s Termination of Pregnancy Act is “ineptly framed and lacks sufficient clarity as to what exactly a victim of rape is required to do when confronted with an unwanted pregnancy,” the Supreme Court dismissed the complainant's claim for damages for pain and suffering beyond the time her pregnancy was confirmed and for the maintenance of her minor child, as the authorities could not be liable for not assisting her to terminate the pregnancy because they do not have any legal duty to initiate and institute court proceedings on her behalf.



Gumede v. President of the Republic of South Africa & Others Constitutional Court of South Africa (Konstitutionele Hof van Suid Afrika) (2008)


Divorce and dissolution of marriage, Gender discrimination, International law, Property and inheritance rights

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.



Masupha v. Senior Resident Magistrate for the Subordinate Court of Berea High Court of Lesotho (Constitutional Division) (2013)


Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief. Because there were no firstborn males in his immediate family, upon his death, the late Chief’s wife and the petitioner’s mother was appointed as a caretaker Chief in accordance with the Chieftainship Act. Following the death of the late Chief’s wife in 2008, the late Chief’s younger brother instituted a claim for inheritance of the chieftainship before a magistrate’s court, which was challenged by the late Chief’s son from a second wife, as well as that son’s mother. The petitioner, who had not been included in the proceedings before the lower court, subsequently intervened to request a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was precluded from seeking to succeed to the chieftainship, as she was the first-born child. Masupha argued that the Chieftainship Act does not necessarily preclude her from inheriting the chieftainship and that, even if the Chieftainship Act in fact precludes her from doing so, it should be struck down, because it violates multiple provisions of the Constitution. The High Court highlighted the fact that, in acceding to CEDAW, Lesotho specifically excluded itself from the provisions of that Convention in so far as it concerns the customary practices relating to succession to the throne and to chieftainship. It therefore dismissed Masupha’s petition seeking to declare the Chieftainship Act provision preventing female offspring from inhering chieftainships discriminatory and therefore unconstitutional, finding that the Chieftainship Act was not discriminatory, because it allows the senior wife to inherit the title as a caretaker, if there are no living first-born males from any of the deceased’s marriages. The High Court concluded that, when a wife succeeds her husband as a caretaker, the right to inherit reverts back to the male line of the family upon the death of the female chief. The judgment was appealed to the highest court in the country, the Court of Appeal, which affirmed the High Court’s decision and upheld the customary law effectively denying women the ability to succeed to chieftainship.



Estate of Lerionka Ole Ntutu High Court of Kenya at Nairobi (Family Division) (2008)


Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

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.



Mmusi v. Ramantele Court of Appeal of Botswana (2013)


Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them. The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs. The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child. The rest of the property was to be divided among the children, regardless of gender. The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew. The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under section 3(a) of the Constitution. In 2012, the High Court awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property. In 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.” This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana. The High Court decision is available here.



Affaire Songo Mboyo Tribunal Militaire de Garnison Mbandaka (2006)


Gender-based violence in general, International law, Sexual violence and rape

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/)



Public Ministry and Civil Party v. Mulume, Mitima, Chebey & Mushagalusa Court of Greater Instance of Bukavu (1995)


Statutory rape or defilement

The Civil Party brought suit on behalf of his 13-year-old daughter and sought criminal sanctions against four men whom he accused of violently raping his daughter. The four men jumped on her, held her down and one by one proceeded to engage in sexual relations with her when she was returning home from laundering clothes with her little sister. The case proceeded in expedited fashion as a flagrant intentional crime. The Tribunal found the four men guilty of violent rape, noting that even if the girl consented, her mere thirteen years of age prevented any clear and free consent to sexual relations which would mitigate the charges. The Tribunal imposed criminal sanctions of five years imprisonment for each of the four men, imposed equitable damages equivalent to $100 each payable to the girl’s father, and charged the men with paying court fees.



Public Ministry v. Busudu Tina Court of Greater Instance of Bukavu (1995)


Abortion and reproductive health rights, Gender discrimination

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.)



Public Ministry and Civil Party Kakonya Minamu v. Bahige Kanywabahize & Kahamire Nzigire Court of Greater Instance of Bukavu (1989)


Divorce and dissolution of marriage

Tthe “Civil Party” brought a case against his “ex-wife” and Bahige Kanywabahize “Bahige”, or together with the ex-wife, the “Accused”, for abandoning the conjugal home and adultery. The Civil Party and his ex-wife cohabitated as a married couple until she decided to leave their home, obtained a divorce from the Tribunal for the City of Bukavu, and decided to get married to Bahige. The Civil Party claims his ex-wife abandoned him with the intent to marry Bahige. The Civil Party seeks customary reimbursement of the dowry he paid to his ex-wife (6,000 zaires, a goat, two cases of beer, a case of Fanta, a can of a local drink called Kasiksi and a hoe) and damages of 150,000 zaires from the Accused under the Congolese Family Code. The Tribunal determined the Civil Party was not entitled to the customary reimbursement of dowry since his spousal rights ceased upon divorce; adultery and abandonment of the conjugal home occurring subsequent to a duly obtained divorce are not subject to sanction. (Available on pages 144-46 on linked site.)



Public Ministry and Civil Party Mawazo Safi v. Mewnyibamba Kabale & Passy Nyakura Court of Greater Instance of Bukavu (2001)


Divorce and dissolution of marriage

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.)



Request to access conformity with the Constitution of procedural rules of the Provincial Assembly of Tanganyika (Requête en appréciation de la conformité à la constitution du Règlement intérieur de l’Assemblée provinciale du Haut-Uélé R.Const. 172) Constitutional Court (2015)


Gender discrimination

The Constitutional Court considered a challenge to the internal provincial government’s procedural rules which included, among other claims, that one Article of the procedural rules violated the gender equality requirement of Article 14 of the Constitution. The Court found the procedural rules to conform to Article 14, provided that they must be understood and interpreted in light of line four of Article 14, which requires equitable representation of women in provincial institutions (available at pages 46-50 on linked site).



Jumbo v. Banja La Mtsogolo Industrial Relations Court of Malawi (2002)


Employment discrimination, Gender discrimination, Sexual harassment

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.



Mwanza v. World Vision Malawi Industrial Relations Court of Malawi (2007)


Employment discrimination, Gender discrimination

The respondent employed the applicant on a fixed term contract as a data entry clerk. The applicant’s contract term was four years expiring on January 10, 2005. However, the respondent terminated her on December 22, 2003. The reason given for her termination was that she had become pregnant out of wedlock. The applicant challenged the dismissal and took legal action against the respondent. The respondent conceded that the reason for termination was invalid and asked the court to decide on a remedy. The applicant asked for reinstatement as the remedy. The Industrial Relations Court of Malawi (the “Court”) found that reinstatement was an inappropriate remedy because the applicant’s fixed contract had already lapsed in time. Instead, the Court awarded the applicant compensation for the employment benefits lost between the effective date of her termination (March 22, 2004) and the expiration of her contract (January 10, 2005). The Court cited § 63 (4) of Malawi’s Employment Act, which “provides that compensation shall be just and equitable” (p. 2). The Court awarded additional compensation to the applicant pursuant to §§ 63(5)(d), 57(3) and 49 of the Employment Act. Section 57(3) “prohibits discrimination on the basis of one’s sex, marital status or other status;” whereas, § 49 prohibits “dismissal on grounds of pregnancy (p. 3).”



Kaunda v. Tukombo Girls Secondary School Industrial Relations Court of Malawi (2007)


Employment discrimination, Gender discrimination

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.



Kayira v. State High Court of Malawi (2015)


Statutory rape or defilement

In 2013, the appellant was found having sexual intercourse with the victim, who was 15 years old. The next day the victim told the court that she and the appellant had been in love since June 2011 and that they had a sexual relationship. She testified that they were married and she was his second wife, but Malawi required parental permission for children aged 15-17 to marry (as of 2015, section 14 of the Marriage, Divorce and Family Relations Act requires that parties be 18 years old to marry). Malawi charged the defendant with defilement contrary to Penal Code § 138(1) and indecent assault contrary to § 137(1). Section 138(1) provides, “Any person who unlawfully and carnally knows any girl under the age of sixteen years shall be guilty of a felony and shall be liable to imprisonment to life” (¶ 7.1). In the lower court, the appellant pleaded not guilty arguing that the victim consented to the sexual acts and that she showed him an identification card that she had doctored to state that she was 17 years old at the time. Acknowledging that the victim had changed her year of birth on her identification, the lower court found the appellant guilty on both counts. The appellant filed two grounds of appeal asking: (i) “whether the conviction of the appellant was proper with regard . . . to the circumstances of the case;” and; (ii) “whether the sentences were manifestly excessive considering the” fact the victim had mislead the appellant with respect to her age (¶ 3.1). The High Court upheld the conviction citing the strict liability nature of the crime. The Court noted that the victim was clearly underage at the time of the sexual intercourse and rejected the defendant’s consent defense noting that “girls under the age of . . . [16] are incapable of giving consent due to immaturity (¶ 7.4).” Notwithstanding, the Court reduced the appellant’s sentence to four years for defilement and one year for indecent assault to run concurrently, noting that the appellant did not know that the victim was under age.



Phiri v. Smallholder Coffee Farmers Trust Industrial Relations Court of Malawi (2007)


Employment discrimination, Sexual harassment, Sexual violence and rape

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 Republic v. Banda, et al. High Court of Malawi (2016)


Gender discrimination, Trafficking in persons

On February 23, 2016, 19 women were arrested by police and jointly charged “for the offence of living on the earnings of prostitution” in violation of § 146 of the Penal Code of Malawi (the “Penal Code”) ( ¶ 1.1). A Fourth Grade Magistrate in Dedza convicted them “on their own plea of guilt” and fined them MK 7,000.00 each (¶ 1.2). The police lacked evidence to prove the charge against them. In addition, the women did not have legal representation during the proceedings, including when their guilty plea was recorded. The women challenged the conviction on July 28, 2016 on numerous grounds including (i) that the Fourth Grade Magistrate did not have jurisdiction, (ii) that the women were charged together when they should have been charged separately, (iii) that the High Court should not have accepted a unanimous plea, (iv) that “the charge was wrong in law as living on the earnings of prostitution does not target the sex worker herself” but those who live parasitically and exploitatively off her earnings, and (v) that the plea of guilty should not be accepted because the court did not comply with mandatory procedures regarding the defendants’ knowledge. The High Court found that the Fourth Grade Magistrate did not have jurisdiction to hear the case. In addition, the Court held that the arrest of the women was unconstitutional and not based on evidence. Citing the legislative history of the offense, the Court clarified that § 146 of the Penal Code did not criminalize sex work but was mainly intended to protect sex workers from those who would exploit them. The High Court held that even though sex workers may be arrested in circumstances under this section, the arrest must be properly supported by evidence. Consequently, the High Court vacated the convictions and ordered that fines be repaid to the women.



E.S. v. A.C. Supreme Court of Namibia (2015)


Gender discrimination

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.



S. v. S. High Court of Namibia (2015)


Divorce and dissolution of marriage, Domestic and intimate partner violence

Plaintiff filed for divorce from her abusive husband after he threatened to kill her. Under Namibian law, before a judge can issue a final divorce decree, the plaintiff must ask the defendant to restore his or her conjugal rights. This process effectively requires the filing spouse to give the other party, in this case an abusive husband, a chance to re-enter the marital home to restore his/her conjugal rights. The High Court of Namibia (“High Court”) recognized the danger of applying this requirement in domestic violence cases, where the respondent may use the judicially-mandated restitution of conjugal rights as an opportunity to access and further abuse the filing spouse. In light of this risk, the High Court held that a spouse who files for divorce based on acts of domestic violence is exempt from the restitution of conjugal rights requirement.



State v. Nghidini High Court of Namibia (2015)


Domestic and intimate partner violence, Statutory rape or defilement

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.



Government of the Republic of Namibia v. LM and Others Supreme Court of Namibia (2014)


Forced sterilization

In 2014, the Supreme Court of Namibia (“Supreme Court”) affirmed the High Court of Namibia’s (“High Court”) decision in LM and Others v. Government of the Republic of Namibia that sterilization procedures require informed consent. The three respondents sued the Namibian government, alleging that doctors at state hospitals forcibly sterilized them without their consent in violation of their constitutional rights. They claimed that the forced sterilizations left them unable to bear children, ruined their marriage prospects, constituted discrimination against them based on their HIV status, and caused ongoing pain and suffering. The defendants argued that the plaintiffs’ claims lacked merit because they consented to the procedures. The court found that the alleged “consent” was deficient because the defendants failed to prove that they adequately informed the plaintiffs of the consequences of sterilization, or that the plaintiffs clearly and knowingly consented to the procedures before they went into labor. However, the Court found no evidence that the complainants were sterilized because of their HIV status and dismissed that claim. Emphasizing the serious personal nature of the decision, the Supreme Court stated that the decision to be sterilized “must be made with informed consent, as opposed to merely written consent” (¶ 3). The Supreme Court stated that the choice to undergo a sterilization procedure must lie solely with the patient noting that “there can be no place in this day and age for medical paternalism when it comes to the important moment of deciding whether or not to undergo a sterilisation procedure.” (¶ 106). The Supreme Court also denounced the practice of obtaining “consent” for sterilization during labor noting that patients may not fully appreciate the consequences of giving their consent when experiencing the immense pain involved in labour. The Supreme Court also agreed with the lower court that plaintiff-respondents did not provide any evidence that they were sterilized because of their HIV status.



State v. Naruseb High Court of Namibia (2012)


Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement

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.



Lesia v. Lesia High Court of Lesotho (2013)


Domestic and intimate partner violence, Property and inheritance rights

Mrs. Lesia filed an application for relief against her husband, alleging that he abandoned his family, abused her, and was attempting to sell their home without her consent. She alleged that she built and paid for the home, and so sought to have her husband enjoined from selling it. The court issued an interim order granting the requested relief. The defendant disregarded the court order, continued his efforts to sell the home, and threatened to kill Mrs. Lesia if she kept interfering. To justify his rejection of the court order, the defendant claimed that he was not married to Mrs. Lesia, and that she had no right to file any applications against him. The court upheld Mrs. Lesia’s right to seek judicial intervention and sentenced the defendant to 30 days in jail for willfully disobeying the court’s order.



Rex v. Makebe High Court of Lesotho (2011)


Sexual violence and rape

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.



Rex v. Latsi High Court of Lesotho (2007)


Sexual violence and rape

While considering the appeal of a rape conviction, the High Court condemned the trial court’s failure to punish the defendant in accordance with the severity of his crime. The Court found that where a trial court finds sufficient evidence of rape, the sentence should be more than a mere “slap on the wrist.” The court stated that “rape is always serious even without aggravating circumstances” because the victim’s “virginity has been assaulted and undoubtedly her dignity and reputation have been compromised blighting her prospects for marriage” (p. 1). The Court found that those factors should always be considered before a sentence is imposed. The Court affirmed the conviction and increased the defendant’s prison sentence from five to ten years.



Rex v. Tekane High Court of Lesotho (2007)


Statutory rape or defilement

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.



Ts'epe v. Independent Electoral Commission Court of Appeal of Lesotho (2005)


Gender discrimination

The plaintiff was a male citizen who planned to run for office. The electoral commission advised him that the seat he desired was reserved only for female candidates pursuant to the electoral quota instituted by the Local Government Election Act of 1998. The plaintiff challenged the constitutionality of the electoral commission’s refusal to register his candidacy based on his sex. The High Court acknowledged that the Election Act disadvantaged men by reason of their sex alone. It also noted that, although 51% of the population of Lesotho was female, only 12% of the seats in the National Assembly were held by women. The Court ultimately upheld the constitutionality of the Election Act as a carefully designed measure intended to achieve the important national goal of increasing the number of women in the National Assembly.



Raposholi v. Commissioner of Police High Court of Lesotho (2007)


Custodial violence, Sexual violence and rape

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.



Rex v. Motsoene High Court of Lesotho (2005)


Sexual violence and rape

The defendant was charged with violating the Sexual Offence Act of 2003 for the attempted rape of a 71-year-old woman. The trial evidence showed that the victim’s daughter intervened and was able to stop the rape after the defendant threw the victim to the ground but before he could commit the actual rape. As such, the defendant maintained at trial that he was innocent because the Sexual Offences Act of 2003 did not criminalize attempted rape. The High Court disagreed with the defendant’s interpretation of the Sexual Offenses Act. The Court held that, in order to sustain a conviction for attempted rape, the prosecutor simply had to provide evidence of the defendant’s intent to commit rape and any actions taken to commence the actual crime. Here, the defendant struggled with the victim, threw her to the ground, and stated his intention to have sex with her against her will. Consequently, the Court found the defendant guilty of attempted rape.



Rex v. Lenyolosa High Court of Lesotho (2003)


Sexual violence and rape, Statutory rape or defilement

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.



Rex v. Ntai High Court of Lesotho (2004)


Domestic and intimate partner violence, Gender-based violence in general

The defendant was convicted of culpable homicide. The trial evidence showed that after spending an evening at a bar, the defendant beat his girlfriend to death. The defendant sought leniency at sentencing, arguing that he was drunk when he committed the offense. The High Court found that although intoxication somewhat lessens the blameworthiness of a person, the courts should not consider it a mitigating factor. According to the Court, defendants “should not be allowed to escape appropriate punishment for their actions for reasons of drunkenness, especially where such actions exhibit an attitude of violence against women” (p. 3). The Court sentenced the defendant to seven years imprisonment with half of the sentence suspended for five years if he was not found guilty of another violent offense during the suspension. This decision marked a shift in how intoxication was treated for purposes of sentencing in domestic violence cases in Lesotho.



Petlane v. Petlane High Court of Lesotho (1999)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Property and inheritance rights

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.



Amponsah v. Nyamaah Superior Court of Judicature (2009)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Mrs. Amponsah filed for divorce from her husband Mr. Nyamaah. She asked that a property the couple held be partitioned and that she receive her portion of its value. Mr. Nyamaah asserted that the house belonged to his father, who then granted the land to him. He argued that Mrs. Amponsah had no interest in the house, relying on a precedent which held that “a wife by going to live in a matrimonial home, the sole property of the husband, did not acquire any interest therein. She only had a right to live in the matrimonial home as long as the marriage subsisted.” The court held that Mr. Nyamaah’s father was the owner of the house because the papers were in his name, and rejected the evidence that both parties paid water and electric bills as a rebuttal to the presumption. As such, the house was not subject to a partition by the court, because it “did not belong to the couple so it could not be settled on either of the parties.”



Esseku v. Inkoom Superior Court of Judicature (2012)


Divorce and dissolution of marriage, Property and inheritance rights

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.



Madame H.T. v. Monsieur Y.K. Supreme Court of Mali (2007)


Divorce and dissolution of marriage

Witnesses testified that Madame H.T. insulted her husband’s co-wife and mother in law. The Appeal Court granted divorce to Monsieur Y.K. on the sole basis that by insulting his mother his first wife had harmed his husband honor and dignity and made marital life impossible. However, quarrels between co-wives do not characterize a serious insult in a polygamous marriage. Moreover, by asking for divorce from the first wife only, the husband committed a serious injustice and violated his duty of impartiality with his wives. Additionally, insults directed at the husband’s mother do not constitute a legal basis for divorce, according to the Code des Mariages et Tutelles (Code of Marriage and Tutelage). Indeed, the Code only considers insults directly addressed at the husband as a basis for divorce. The Court held that such insults were not proved in this case and could neither be inferred from the behavior of Madame H.T. with her husband’s co-wife and mother in law, nor from her confession of having insulted her husband’s co-wife.



Sir Domtinet Bolngar v. Madam Nalem Louise Supreme Court of Chad (2005)


Divorce and dissolution of marriage, Property and inheritance rights

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 A.T. v. Madame A.D. Supreme Court of Mali (2004)


Divorce and dissolution of marriage

Both parties were committed to each other in a monogamous marriage. This commitment entails for the wife and husband multiple obligations. Among them, the obligation of cohabitation; the wife must live with her husband and her husband must welcome her. In this case, the husband granted his wife authorization to visit her parents. While she was away, he introduced another woman into his home. Following his wife refusal to come back, he demanded a divorce. The Appeal Court of Kayes held that the husband had broken his monogamous commitment and that the wife’s decision not to go back to her husband’s home until the other woman had left did not qualify for desertion. Hence the divorce at the wife’s tort was not granted. Rejecting this analysis, Monsieur A.T argued in front of the Supreme Court that bigamy cannot be presumed and was never proven and that a presumed bigamy did not exempt the wife from her duty of cohabitation (derived from the Code of Marriage and Tutelage). The Supreme Court held that by marrying a second wife without the express agreement of his lawful wife, the plaintiff had broken the rules of monogamous marriage. As a result, the Court Appeal gave sufficient legal basis to its decision. Moreover, monogamous duties should not be imposed to the wife once the husband had broken his commitment. Conditioning her return to a departure of the other woman did not constitute a desertion. Consequently the Supreme Court ruled in favor of the wife and rejected the divorce request. This case protects women married under the monogamous regime and counterbalances the strong requirement of cohabitation by ensuring that no psychological violence will be endured by having to live under the same roof as another wife.



Monsieur G.A. v. Dame Z. Supreme Court of Benin (1973)


Divorce and dissolution of marriage, Gender-based violence in general

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.



Mensah v. The Republic Court Martial Appeal Court (2009)


Employment discrimination, Gender discrimination

In 2008, Mr. Mensah married ABI Dosu Theresa when they were both members of the Ghana Armed Forces. Because Mr. Mensah was an officer and Theresa was a female of a different rank, the marriage violated the Armed Forces Act, which requires that for a male officer to marry a lower-ranked woman, the woman must first resign and obtain the “requisite prior approval for her release from the Ghana Armed Forces.” Mr. Mensah was thus dismissed from the Armed Forces. The Court upheld the dismissal, holding that the law was not discriminatory and was a justified means that the Armed Forces used to maintain discipline.



W.J. and L.N. v. Amkoah, Jamhuri Primary School, The Teachers Service Commission and the Attorney General (Petition No. 331 of 2011) High Court of Kenya at Nairobi (Constitutional and Human Rights Division) (2011)


International law, Sexual violence and rape, Statutory rape or defilement

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.



S.Y. contre T.M. Tribunal de grande instance Ouagadougou (1999)


Divorce and dissolution of marriage

A Burkinabe woman (T.M.) sought legal separation from her husband (S.Y.) on the grounds of adultery. Legal separation was granted on the grounds that S.Y. had committed adultery (it had been agreed that the marriage would be monogamous). The judge concluded that the sole responsibility for the separation lay with S.Y. Custody of the children was given to T.M. The principle of legal separation is rarely considered by the Burkinabe courts. The judgement provides that legal separation can be requested on the same grounds as divorce, namely mutual consent or the fault of either spouse. The effect of legal separation is to end ‘cohabitation duties.’ However, certain marital duties such as loyalty and support continue. Legal separation allows a woman to formally separate from her husband while leaving the possibility of reconciliation (information provided in academic commentary).



T.T. M. contre T.M. Tribunal de grande instance Ouagadougou (1999)


Divorce and dissolution of marriage

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



Ts’epe v. Independent Electoral Commission and Others Court of Appeal of Lesotho (2005)


Employment discrimination, Gender discrimination

In 2004 an amendment was introduced to the Local Government Elections Act 1998 (the “Amendment”) that reserved one third of all seats in every local council for women, the remainder was open to both men and women alike. The constitutionality of the electoral quota was challenged by a man whose candidacy for local government was rejected on the single ground that the electoral division at issue was reserved for women. The appellant argued that these measures are unconstitutional since women’s participation in local governments could have been achieved without debarring men from the same. The Court of Appeal upheld the judgment of the court a quo, dismissed the appeal and held that the Amendment was not unconstitutional, among others, since the impugned measures were carefully designed to achieve its objective, they were rationally connected to the objective and impaired the appellant’s rights in question as little as possible.



Zimele Samson Magagula v. Rex Supreme Court of Swaziland (2012)


Sexual violence and rape, Statutory rape or defilement

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.



Mandla Mlondlozi Mendlula v. Rex Supreme Court of Swaziland (2013)


Femicide, Gender-based violence in general

Appellant was convicted of murdering his girlfriend and sentenced to 20 years imprisonment. Appellant appealed that the sentence was too harsh and severe and that it induced a sense of shock. Appellant presented mitigating factors that he was married with four minor children to support, the sole breadwinner, a first offender, and deserved to be given a second chance in life. The Supreme Court dismissed the appeal after considering the interest of society, the seriousness of the offense, the fact that the crime was premeditated, and the fact that the killing was gruesome and brutal. The Supreme Court further stated that sentence was fair “particularly in the upsurge in the killing of women as well as the need to impose deterrent sentences which would provide the safeguard against this onslaught.”



Somiso Mbhamali v. Rex Supreme Court of Swaziland (2013)


Femicide, Gender-based violence in general

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.



Furaha Michael v. The Republic Court of Appeal of Tanzania at Mwanza (2010)


Gender-based violence in general, Sexual violence and rape

The appellant was charged and convicted of rape. He was sentenced to 30 years imprisonment and ordered to pay compensation to the victim of shillings 300,000 upon completion of his sentence. His first appeal was unsuccessful, so he appealed a second time, claiming that he was not properly identified, breach of criminal procedure and the fact that the court did not allow him to call a defence witness. The Court found no merit in the appeal and upheld the conviction. It applied and followed the case of Selemani Makumba versus R Criminal Appeal, Court of Appeal of Tanzania at Mbeya 1999 (unreported). The Appellate Court considered whether or not the complainant had been raped by the appellant and concludes that “True evidence of rape has to come from the victim, if an adult, that there was penetration and no consent, and in the case of any other woman where consent is irrelevant, that there was penetration...”



Onesphory Materu v. The Republic Court of Appeal of Tanzania at Tanga (2009)


Sexual violence and rape

Salma Yusuf, a fourteen year old girl, alleged that the appellant police officer, Onesphory Materu, had raped her inside a police cell with a promise to release her (made in writing) after the fact. The trial court found the police officer guilty of rape and convicted him to a sentence of thirty years imprisonment, twenty four strokes of the cane and an order that he pays Shs.700,000 compensation to the complainant. The police officer had appealed for the second time and the court had to consider two grounds: (1) whether the victim was in fact telling the truth; and (2) that the court erred in relying on the “release note” as evidence of the crime. On the first matter, the court noted that inclusion of Section 127 (7) of the Evidence Act as amended by the Sexual Offences Special provisions Act, Number 4 of 1998 means that the only burden imposed on the court is “to give reasons that it is satisfied that a child of tender years or the victim of the offence is telling nothing but the truth”. There is no longer a requirement for the court to warn itself of the dangers of basing a conviction on the uncorroborated evidence of a child where a sexual offence is involved. On the second matter, the court noted that the appellant did not object to the entry into evidence of the note, so there can be no merit in objecting to it now. The conviction and sentencing was upheld.


Seif Mohamed El-Abadan V. The Republic Court of Appeal of Tanzania at Tanga (2009)


Gender violence in conflict, Gender-based violence in general

The victim was raped by a doctor on 14 November 2006 at Magunga Hospital in Korogwe District. The appeal asserted that the witness in the trail was not credible. The appellate Court concluded that it was unable to “find a ground for denting the credibility of the complainant” and “not having found any contradictions in the evidence of PW1, the victim of the sexual assault by her doctor, the appellant” . The Court recognises sextortion and goes on to say: “We agree with the learned judge that ‘ it is treacherous for one to stray away from a professional calling and turn against one amongst the very lot who bestowed their trust unto the person.’ In this case, it was treacherous for the appellant doctor to rape his patient, PW1.”



Attorney General v. Aphane Supreme Court of Swaziland (2010)


Gender discrimination, Property and inheritance rights

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.



Bheki Amos Mkhaliphi v. Rex High Court of Swaziland (2013)


Gender-based violence in general

Appellant convicted of murdering a woman and sentenced to 18 years imprisonment. Appellant appealed the verdict and sentence, claiming that he did not possess the requisite intent to kill and mitigating circumstances that he was 35-years old, a first offender, gainfully employed and a breadwinner supporting two children should reduce his sentence. The High Court dismissed his appeal finding that the stab wounds to the victim demonstrated intent to kill and that the mitigating circumstances were properly weighed when the sentence was determined. The Court further stated, “Violence against women is a matter of great concern to the community at large and sentences imposed on perpetrators should reflect its rightful indignation at such crimes.”



Mbuso Blue Khumalo v. Rex Supreme Court of Swaziland (2012)


Domestic and intimate partner violence, Sexual violence and rape

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.



Attorney General v. Titselo Dzadze Ndzimandze (Nee Hlophe) and Others Supreme Court of Swaziland (2014)


Property and inheritance rights

The Attorney General appealed the High Court’s ruling that section 2(3) of the Intestate Succession Act is unconstitutional. Under section 2 (3) of the Intestate Succession Act of 1953, a surviving wife is limited to a child’s share or E1200 (equivalent to U.S. $109.37), whichever is greater, of the estate. In contrast, section 34 (1) of the Constitution, entitles a surviving spouse to a “reasonable provision” of the estate, which could exceed Intestate Succession Act’s limitation. The Supreme Court upheld the High Court’s ruling, finding that the Act was overtaken by the Constitution in 2005. The Supreme Court noted that section 34 (1) of the Constitution was deliberately drafted to be gender neutral to ensure that husbands and wives were afforded the same rights and protections to remedy gender-specific limitations like those present in the Intestate Success Act.



Nombuyiselo Siholongonyane v. Mholi Joseph Sihlongonyane High Court of Swaziland (2013)


Gender discrimination

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.”



Mkandla v. The State High Court of Zimbabwe (2002)


Sexual harassment, Sexual violence and rape

The appellant was convicted of two counts of rape for allegedly raping the complainant, a 12 year old female, on two separate occasions. He was sentenced to a total of 20 years imprisonment, with half suspended for five years on condition of good behavior. The trial judge and court both found the complainant credible. The court found that the conviction of rape on count two should stand due to circumstantial evidence, which indicated penetration; however, not on count one, which included all of the essential elements of attempted rape, but insufficient proof of penetration so as to constitute rape. The conviction on (i) count one was quashed and reduced to one of attempted rape and (ii) count two was confirmed. The sentences imposed by the trial court were set aside and substituted with seven years of imprisonment on count one and 10 years of imprisonment on count two. Of the total 17 years imprisonment, eight years was suspended for four years on condition that the appellant in that period does not commit any offence involving rape or an offence of a sexual nature and for which he is convicted and sentenced to imprisonment without the option of a fine.



The State v. Imbayarwo High Court of Zimbabwe (2013)


Sexual harassment, Sexual violence and rape

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.



Mpande v. The State High Court of Zimbabwe (2011)


Sexual harassment, Sexual violence and rape

The appellant was convicted of one count of rape for allegedly raping a 3 year old child who had been left in his care, and infecting her with syphilis, a sexually transmitted infection. He was sentenced to 18 years imprisonment, with three years suspended for five years on condition of good behavior. The appellant appealed against the sentence. The court emphasized that courts are required to consider numerous factors, and have wide discretion, in sentencing. The trial court noted that the appellant’s case was aggravated because he was “in a protective relationship with complainant”, who was a very young child. The court agreed with the trial judge’s sentencing approach, noting that the appellant was extremely lucky that he did not get a harsher sentence. The court reasoned that an appeals court will only interfere with the trial court’s sentencing discretion where there is misdirection or a manifestly excessive sentence. As this had not been shown and as the relevant statute prescribes a higher sentence than the one imposed, the appeal was without merit and was dismissed.



The State v. Tirivanhu High Court of Zimbabwe (2010)


Sexual harassment, Sexual violence and rape

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.



Banda v. The State High Court of Zimbabwe (2002)


Sexual harassment, Sexual violence and rape, Statutory rape or defilement

The appellant was found guilty of allegedly raping the complainant, aged 5 years and 11 months. He was sentenced to 10 years imprisonment, with two years suspended on condition of good behaviour. He appealed against both the conviction and the sentence. The questions at issue were (a) whether the crime of rape was committed and (b) whether the complainant’s evidence was corroborated. The court highlighted that much of the complainant’s evidence was supported by the appellant’s wife. The trial court concluded that there was legal penetration. The court found, however, that mere contact without any slightest penetration does not amount to legal penetration. The court found that the appellant could not be guilty of rape, but only attempted rape. The conviction of rape was reduced to attempted rape. The court pointed out that the trial court erred on the side of leniency in sentencing. The court found that the sentence was still appropriate and did not interfere with it.



Pasvani v. The State High Court of Zimbabwe (2011)


Sexual harassment, Sexual violence and rape

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.



Chimanikire v. The State High Court of Zimbabwe (2006)


Sexual harassment, Sexual violence and rape

The appellant was convicted of one count of rape for allegedly raping the complainant, a 16 year old female. The State argued that the appellant coerced and subdued the complainant into having sex with him without her consent. The appellant claimed that the sexual intercourse was consensual. He was sentenced to a term of eight years imprisonment, with two years suspended on condition of good behavior. The appellant appealed against the conviction. The court indicated that the nature and circumstances of the sexual encounter were in dispute, finding that it was clear from the complainant’s testimony that she was and continued to be in love with the appellant. The court further found that the State’s evidence did not counter the possibility that consensual sexual intercourse took place between the parties. The court held that the State failed to establish the appellant’s guilt beyond a reasonable doubt at his trial. Accordingly, the appeal was allowed. The conviction was quashed and the sentence was set aside.



Tirivanhu Ndoziva v. The State High Court of Zimbabwe (2011)


Sexual harassment, Sexual violence and rape

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.



Massaquoi v. Republic of Liberia Supreme Court of Liberia (2014)


Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court affirmed the lower court’s judgment that appellant was guilty of rape and reduced his sentence from life imprisonment to 50 years imprisonment. The victim, an 11-year-old girl, stated that the appellant, 38, forced her into his room and had nonconsensual sexual intercourse with her. The court affirmed the lower court’s admission in evidence of the testimony of the victim’s mother, who testified that she saw blood on the victim’s skirt and questioned the victim about the incident. The court held that the testimony qualified as an exception to the hearsay rule because statements are generally admissible “to determine the trustworthiness and reliability of statements made by child victims of abuse.” In addition, the court affirmed the lower court’s admission in evidence of the expert testimony of a physician’s assistant. The court held that even though the physician’s assistant did not have a medical degree, he qualified as an expert because of his experience with and knowledge of victims of sexual violence. The court noted that social workers trained in these areas would qualify as expert witnesses.



Fallah v. Republic of Liberia Supreme Court of Liberia (2011)


International law, Sexual violence and rape, Statutory rape or defilement

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.



Nimely v. Paye, et al. Supreme Court of Liberia (2011)


Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court reversed the lower court’s judgment that appellant was guilty of rape. The complainant alleged that the appellant had sex with her when she was 13 years old and he was 18 years old. She alleged that the appellant invited her to his room, gagged her, and had sexual intercourse with her. Her brother’s wife forced open the door after the complainant failed to answer her phone call. The complainant's brother then called the police. The appellant admitted to police that he and the complainant had sex. The court found the appellant guilty of rape because the elements of Liberian statutory rape law are (1) sexual intercourse, (2) the perpetrator is at least 18 years of age, and (3) the victim is less than 18 years of age. However, the court reversed his conviction because the trial court relied on inaccurate information in determining the appellant’s age. The appellant testified that he was 17 years old at the time of the rape. Documents such as a passport or birth certificate were unavailable. The court held that in the absence of any rebuttal evidence by the prosecution, the court must accept that the appellant was 17 years old and therefore a juvenile when he had sex with the complainant. Under Liberian law, a juvenile cannot commit a crime, but is instead considered a juvenile delinquent. If a case involves a juvenile delinquent who is over 16 years of age and is accused of conduct that would constitute a felony carrying a sentence of life imprisonment or death if committed by an adult of at least 18 years of age, then the circuit court must consider the best interests of the Republic and the juvenile to determine whether to exercise its jurisdiction over the matter and preside over the case or choose to refer it to the juvenile court. However, the circuit court did not make this determination. Rather, it proceeded with the trial as though the the appellant was an adult and sentenced him to life imprisonment as an adult. Therefore, the Supreme Court reversed his conviction and remanded him to the custody of his parents until the age of 21.



Rogers v. Republic of Liberia Supreme Court of Liberia (2009)


Sexual violence and rape, Statutory rape or defilement

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.



The People v. Manroe High Court of Zambia (2010)


Sexual violence and rape

Pretty, an eight-year-old girl, was on an errand with her friend Violet, a seven-year-old girl. Along the way the inebriated defendant, Manroe, grabbed both girls, stuffed their mouths with cotton, and had sexual intercourse with both of them against their will. After he completed these acts, he threatened to kill them if they told anyone what transpired. Four days after the crime, Pretty’s mother noticed that Pretty was walking rather awkwardly, and upon inspection, discovered cuts on Pretty’s private parts. Her mother then filed a report at the police station and took Pretty to a hospital, where a doctor issued a medical report. The trial court, concerned with the reliability of the testimony of Pretty, a child of tender years, conducted a voire dire and determined that she was not capable of understanding the purpose of taking the oath. Therefore, the court required corroborating evidence of the rape to be presented. The trial court found that Manroe had been properly identified and that the medical report corroborated the rape, and accordingly, convicted Manroe of defilement. On appeal, Manroe argued, inter alia, that the medical evidence was insufficient because the crime was reported late and there was no date stamp on the medical report. The High Court noted that corroborating evidence need not be corroboration in the strict sense of the law, but needed to be “something more” than the victim’s testimony. Despite Pretty’s examination occurring four days after the crime, the High Court found that the medical report, having been issued by a licensed medical professional, properly corroborated the crime and therefore, upheld Manroe’s conviction.



Counsellor, et al. v. Republic of Liberia Supreme Court of Liberia (2008)


Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court affirmed the lower court’s judgment that appellants, Living Counsellor, Wisdom Counsellor, and Righteous Counsellor, were guilty of rape. Their four female victims ranged from ages 7 to 12. The victims were introduced into the Kingdom Assembly Church of Africa, or the “Never Die Church,” so named because it promised followers eternal life on earth. It also promoted free sexual relations among its members. The victims testified that they were beaten and raped by members of the church. The court stated that “the evidence adduced during the trial show that rape is institutionalized in the Never Die Church. The testimonies given by the prosecution witnesses also points to a situation where the victims were living in a condition of servitude almost identical to slavery.” The appellants argued that “they did not rape the girls but that they only share love with their sisters because they have no earthly mother or father but only Wonderful Counsellor.” They argued that their conviction should be overturned because they were also charged with gang rape, but the trial judge failed to instruct the jury on that charge. Still, their conviction was upheld because they were convicted of rape nonetheless.



Kalenga v. The People Supreme Court for Zambia (2012)


Sexual violence and rape

Kalenga, the Defendant, told his 70 year-old grandmother, the Victim, that he had collected some firewood in the bush and offered to give her some. When she followed him into the bush, she found that no firewood had been collected, and instead, Kalenga took off his clothes and had intercourse with her without her consent. The Victim returned home and reported the crime to the head of the village and then to the police. While in police custody, he denied the charge, but admitted to having gone into the bush to collect firewood. At trial the Defendant did not testify. The Trial Magistrate found the Victim’s story to be corroborated by the fact that no firewood had been collected and found no reason why the Victim would fabricate such a story involving her grandson. As this evidence went unchallenged by Kalenga, the Trial Magistrate convicted him. The Trial Magistrate committed Kalenga for sentencing to the High Court, which sentenced him to 16 years imprisonment with hard labor. Kalenga appealed to the Supreme Court on the grounds that there was no finding of corroborative evidence. The Supreme Court agreed with the trial court that his admission to escorting the Victim into the bush, the lack of motive of the Victim to lie, and the unlikelihood of mistaken identity constituted “something more” to corroborate the Victim’s testimony. The Supreme Court further found the age of the Victim to be an aggravating circumstance and increased his sentence from 16 years to 20 years.



Cole, et al. v. Dixon Supreme Court of Liberia (1938)


Gender discrimination, Property and inheritance rights

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.



Hara v. The People Supreme Court for Zambia (2014)


Sexual violence and rape, Statutory rape or defilement

The Defendant, Hara, broke into the house of a twelve-year-old girl, forced her down and raped her. He pleaded guilty to defilement, a crime with the sentence of fifteen years to life imprisonment, and was sentenced to thirty years imprisonment with hard labor. Hara appealed the sentence on the grounds that (1) thirty years was too severe absent any aggravating circumstances (i.e. the victim did not sustain any physical injuries, become infected with a sexually transmitted disease or become pregnant) and (2) the lower court did not take into account mitigating circumstances (i.e. the defendant was a first time offender who readily plead guilty). Reasoning that “young girls are no longer safe even in their homes”, the Supreme Court rejected the Hara’s arguments that the absence of factors, such as physical injuries and pregnancy, should reduce his sentence. The Supreme Court further held that the lower court properly considered the Hara’s status as a first time offender, and therefore, the Supreme Court upheld his thirty-year sentence.



Williams v. Wynn Supreme Court of Liberia (1914)


Gender discrimination, Property and inheritance rights

This case established a precedent for property rights of a widow when her husband dies intestate. On appeal, the Supreme Court excluded from probate ten acres of land to which Ms. Williams claimed title. Ms. Williams’ husband died intestate and the executor of his estate, appointed by the Probate Court, included all real and personal property from the marriage in determining the assets of the estate. Ms. Williams claimed that she held title to ten acres of property that her husband had purchased through a third party, with title vesting in the wife. The executor argued, and the trial court held, that all property acquired through the husband could be made liable for his debts. The trial court relied upon the Constitution of Liberia, which states “The property of which a woman may be possessed at the time of her marriage and also that of which she may afterwards become possessed, otherwise than by her husband shall not be held responsible for his debts.” The court reasoned that this clause implies that property acquired through her husband could be held liable for his debts. The Supreme Court disagreed, holding that if a husband acquires property in the name of a third party, who becomes the medium through which title vests in the wife, the wife has an absolute right in that property and is not liable for the claims of the husband’s creditors. The court failed to apply this holding to personal property of the marriage, however, stating that instead personal property procured and owned by the deceased for the common use of the household is an asset of the estate.



The People v. Nyambe High Court of Zambia (2010)


Domestic and intimate partner violence

The Defendant, Mr. Nyambe, and the victim, Mrs. Nyambe, were married. Upon return from a fishing trip, Mr. Nyambe found Mrs. Nyambe in bed with another man and reacted by beating the other man. One month later, Mrs. Nyambe revealed that the reason she committed adultery was because Mr. Nyambe “was not a real man,” whereupon the two began to fight, and Mr. Nyambe struck Mrs. Nyambe with an axe and killed her. Despite the one month that had elapsed between the initial discovery of the adultery and the murder, the High Court found that the adultery still constituted provocation. However, under Zambian law, a murder defendant’s reaction must bear a reasonable relationship to the provocation to invoke that affirmative defense to reduce the conviction to manslaughter. The High Court found that the Defendant’s retaliation of striking his wife with an axe was not proportional to the provocation and convicted him of murder.



Dlyon v. Lambert, et al. Supreme Court of Liberia (1884)


Gender discrimination, Property and inheritance rights

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.”



Phiri v. Zulu High Court of Zambia (2012)


Divorce and dissolution of marriage, Property and inheritance rights

After fifty-four years of marriage, Mr. Phiri divorced Ms. Zulu in 2006. She was the mother of his nine children, and they shared a matrimonial home on a farm. Throughout the course of the marriage, Mr. Phiri and Ms. Zulu acquired real property, comprising the farm, other residential houses, and a bar, as well as several vehicles. However, during the divorce proceedings Mr. Phiri sold many of the houses and gave two of the properties to his children as gifts. He kept the proceeds of the sales for himself. The local court of first instance ordered Mr. Phiri to surrender one of the houses, a shop, a tavern and a sewing machine to Ms. Zulu. Unhappy with the outcome, Mr. Phiri appealed to the Subordinate Court, which heard the matter de novo. The Subordinate Court came to the same conclusions as the local court, although it ordered Mr. Phiri to surrender an additional sewing machine and K 6,000,000, as compensation for the property sold during the divorce proceedings, although no valuation of the latter had taken place. Ms. Zulu appealed to the High Court, among other grounds, on the basis that Subordinate Court should have also taken into account her contribution to the marital home (the farm) and that an assessment of the sold properties (or monies from the sale thereof) should have occurred. The High Court held that because the farm was acquired and maintained through the joint efforts of the husband and wife, Ms. Zulu had acquired a beneficial interest in the farm. Accordingly, the High Court ordered a valuation of the farm and directed Mr. Phiri to pay with one-third of the value to Ms. Zulu as a lump sum. Moreover, reasoning that the K 6,000,000 payment, related to the marital property sold during the divorce proceedings, was awarded without any basis whatsoever, the High Court further ordered a valuation of such property, with Ms. Zulu to receive one half of the assessed value.



Gudu Masuku v. The State High Court of Zimbabwe (2004)


Sexual harassment, Sexual violence and rape

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.



Mukinga v. Fuller and Others Supreme Court for Zambia (2008)


Divorce and dissolution of marriage, Property and inheritance rights

Ms. Mukinga and Mr. Fuller were married under Lozi customary law, although there was no formal marriage. A Lobola was paid, and the two began living together. She became pregnant, but miscarried. Mr. Fuller also took Ms. Mukinga to South Africa to meet his family. They opened a joint bank account and purchased a stand, held in Mr. Fuller’s name, to operate a company they formed together. They later rented the property to a thirdparty. Eventually the marriage broke down, and Ms. Mukinga, claiming that she had an interest in the property through marriage, brought an action to recover her share of the rental income and to force the sale of the stand. The lower court held that because the property documents were in Mr. Fuller’s name and there was no marriage certificate, and therefore no marriage, Ms. Mukinga had no interest in the property. She appealed to the High Court, which upheld the lower court’s decision and prompted her further appeal. Although the Supreme Court dismissed her claim on procedural grounds (for commencing the action with an improper summons), it overturned the High Court’s holding that no marriage existed. Given the customary Lobola payment and co-habitation, it found that a valid Lozi marriage was consummated. Additionally, the Supreme Court noted that couple opened up a joint bank account rather than a business account for their joint company. Therefore, despite the absence of an official marriage certificate, the Supreme Court held that the two were married under Zambian law and that Ms. Mukinga had established a legal interest in the property.



Ndondo v. The State High Court of Zimbabwe (2002)


Sexual harassment

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.



Nawakwi v. Attorney General High Court of Zambia (1991)


Gender discrimination

Ms. Nawakwi was an unmarried mother of two who applied to have her children included in her passport. For her first child, the Passport Office required a birth certificate, which could only be obtained by Ms. Nawakwi swearing by affidavit that (1) she was the mother of the child and (2) the child was born out of wedlock. When the passport was then issued, she was required to swear a new affidavit to the same effect. However, the inclusion of her second child was approved immediately because his Tanzanian father had completed the relevant documents abroad. Ms. Nawakwi challenged this practice as discriminatory, because it recognized a foreign father, and not a Zambian mother, as the parent of a child. The High Court found that the mother of a child was not regarded by the government as equal to the father with respect to the passport application process. Accordingly, the High Court ruled that Ms. Nawakwi had been discriminated against on the grounds of sex. In addition to the foregoing, the High Court also held that (1) a single parent family headed by a male or female is a recognized family unit in the Zambian society and (2) a mother of a child does not need the consent of the father to have her children included in her passport or for them to be eligible to obtain passports or travel documents.



Republic v. Elvan S/O Cyprian Luvindu High Court of Tanzania (2005)


Domestic and intimate partner violence, Femicide, International law

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.



Mohamed v. Seifu Court of Appeal of Tanzania (1983)


Divorce and dissolution of marriage, Property and inheritance rights

The appellant appealed the ruling by the Primary and High Courts that she was not entitled to any share of the matrimonial assets amassed by her former husband during their marriage. She contended that her domestic services counted as a contribution to the acquisition of matrimonial assets. The Court noted the two schools of thought over whether household work could count as part of the joint effort in the acquisition of funds. It acknowledged the difficulties facing divorced women, but also emphasized that the role of the Court was not to forward public interests but to expound on law without judgment. The Court decided that under the Mischief Rule, the Law of Marriage Act, 1971 was intended to stop “the exploitation and oppression of married women by their husbands”. Thus, it ruled that domestic work could count as contributions to the acquisition of matrimonial assets. However, the Court noted that the appellant had squandered the money given to her by her husband to set up a family business. The Court registered a decision that this sum of money had been significant enough to constitute her share of the matrimonial assets. Because she had squandered that sum of money, she was no longer entitled to any share in the remaining matrimonial assets. The appeal was dismissed.



Marwa v. Republic Court of Appeal of Tanzania (2008)


Sexual violence and rape, Statutory rape or defilement

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.



Achiula v. Republic Court of Appeal of Tanzania (2012)


Sexual violence and rape, Statutory rape or defilement

The appellant’s conviction of rape and subsequent sentence of thirty years imprisonment was upheld by the High Court. He had allegedly raped an underage girl on several occasions, manipulating her with monetary bribes and threats. The appellant appealed this decision, claiming that the voire dire examination of the underage victim had been insufficient to ensure that she understood the meaning and duty to tell the truth, and that her evidence was thus not credible. He also argued that because there was no proof to corroborate the age of the victim, the charge of rape was not established. The Court dismissed the appeal, finding that the victim had demonstrated sufficient intelligence and understanding to justify the reception of her evidence. The Court also dismissed the appellant’s citation of the lack of proof of the victim’s age, pointing out that the victim’s age had been accepted as a matter of course during the trial. Finally, the Court decided that there was sufficient evidence of penetration, pointing out that “True evidence of rape has to come from the victim, if an adult, that there was no penetration and no consent, and in case of any other woman where consent is irrelevant that there was penetration."



Ally Hussein Katua v. The Republic Court of Appeal of Tanzania at Tanga (2010)


Sexual violence and rape

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.



Midwa v. Midwa Court of Appeal of Kenya at Nairobi (2000)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

A woman was being divorced by her husband on the grounds that her testing HIV-positive endangered his life. Although her salary contributed to the mortgage payments for the house, the High Court ordered that she be consigned to the servants’ quarters and denied custody of her children, pending the hearing for her husband’s petition for divorce. She sought a stay of execution of the High Court’s order in her application. The Court of Appeal noted that it is trite law that children be placed with their mother unless there were good reasons not to do so. It also ruled that it was inconceivable that a woman be turned out of a house for which she is a 50% holder. The Court decided in favor of the application and granted a stay of execution.



Mtefu v. Mtefu High Court of Tanzania (1995)


Divorce and dissolution of marriage, Property and inheritance rights

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.



Mtawa v. Risasi High Court of Tanzania (2001)


Property and inheritance rights

The appellant had lived with the deceased as husband and wife for nine years and given birth to two of his children. At his death, she asked that the estate not be distributed in accordance with Islamic law, which would have prevented her from receiving a share of the estate. The brother of the deceased challenged this, contending that she was a concubine who had no right to a share of the estate she had contributed nothing to amassing. The trial court registered a decision in favor of the appellant. It found that her relationship was the deceased fell under the presumption of marriage, and accordingly awarded her the house until either her death or marriage to another man. The brother appealed this decision and the District Court reversed the ruling of the trial court. The High Court found that the appellant and the deceased had achieved the status of a customary marriage. It also ruled that the deceased’s actions showed that he did not profess the Islamic faith and that Islamic law should thus not apply. It registered a decision that the appellant, through her contribution to the welfare of the household and family, was entitled to a share of the estate. The appellant received a half share of the house, while the other half was awarded to her children.



Kalulu v. Mahirima High Court of Tanzania (2011)


Gender discrimination, Property and inheritance rights

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.



C.K. & 11 Others v. Commissioner of Police High Court of Kenya at Meru (2013)


Gender discrimination, International law, Statutory rape or defilement

The petitioners are eleven minors and the non-governmental organization that shelters, educates, and cares for the eleven minors. Each child claims to have been subjected to child abuse and defilement in Meru County, where police "neglected...or otherwise failed" to investigate or protect the children in any way. The High Court of Kenya held that the police have a duty to investigate allegations of sexual abuse made by female complainants, stating that “by failing to enforce existing defilement laws, the police have contributed to the development of a culture of tolerance for pervasive sexual violence against girl children and impunity.”



S. v. Abraham Alfeus High Court of Namibia. Main Division, Windhoek (2013)


Domestic and intimate partner violence, Femicide, Gender-based violence in general

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.



In Re Estate of Lerionka Ole Ntutu (Deceased) High Court of Kenya at Nairobi (Family Division) (2008)


Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The sons of Lerionka Ole Ntutu filed to prevent Ntutu’s married daughters from receiving their inheritance of his estate Section 82(4) (b) of the Kenyan Constitution. Under Kikuyu customary law, only unmarried daughters were allowed an inheritance. The presiding judge held that this claim was illegitimate, stating that the law cannot deprive a person of their rights only on the basis of sex and marital status. The judge followed the precedent set by the ruling in Rono v. Rono, Kenya Court of Appeal, 2005, in circumscribing customary law to prevent violations of justice, morality, and other written law. This case marked another important step in upholding women’s rights and human rights law over harmful customary practices towards women.



Jan Oompie Kolea v. The State Supreme Court of Appeal of South Africa (Hoogste Hof van Appèl van Suid Afrika) (2012)


Gender-based violence in general, Sexual violence and rape

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.



M. v. The State Supreme Court of Appeal of South Africa (Hoogste Hof van Appèl van Suid Afrika) (2013)


Sexual violence and rape, Statutory rape or defilement

A man in South Africa was convicted of raping his adopted daughter over the course of a sexually abusive relationship that lasted several years and was sentenced to 15 years in prison. The judge overruled claims that the victim had given consent, holding that the victim’s lack of resistance did not qualify as active consent. Furthermore, the judge held that that the perpetrator had knowingly employed sexual grooming techniques to leverage the victim into sexual acts. In refuting the perpetrator’s claims that he believed the victim to be consenting, the judge in this case took an important step in defending victim’s rights and acknowledging the complicated power dynamics that often underlie sexual crimes. This case opens the path for victims of similarly complex patterns of sexual abuse to come forward and claim their rights, providing vital recourse for the many victims of sexual crimes in South Africa.

'n man in Suid-Afrika is skuldig bevind aan die verkragting van sy aangenome dogter oor die verloop van 'n seksueel beledigende verhouding wat 'n paar jaar geduur het en was tot 15 jaar in die tronk gevonnis. Die regter het die beweerings dat die slagoffer toestemming gegee het, van die hand gewys en gesê dat die slagoffer se gebrek aan weerstand nie as aktiewe toestemming kwalifiseer nie. Verder het die regter ook bevind dat die oortreder willens en wetens seksuele versorging tegnieke gebruik om die slagoffer in seksuele dade te hefboom. In die weerlê van die oortreder se eise dat hy geglo het dat die slagoffer toestemming gegee het, het die regter in hierdie geval 'n belangrike stap ter verdediging van slagoffers se regte geneem en het erkenning gegee aan die ingewikkelde krag dinamika wat dikwels agter seksuele misdade lê. Hierdie saak maak die pad oop vir slagoffers van soortgelyke komplekse patrone van seksuele mishandeling om vorentoe te kom en aanspraak te maak op hul regte, wat belangrike beroep bied vir die talle slagoffers van seksuele misdade in Suid-Afrika.



Minister of Safety and Security v. Katise Supreme Court of Appeal of South Africa (Hoogste Hof van Appèl van Suid Afrika) (2013)


Domestic and intimate partner violence, Gender violence in conflict, Gender-based violence in general

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.



Julius Rwabinumi v. Hope Bahimbisomwe Court of Appeals of Uganda (2008)


Divorce and dissolution of marriage

A husband appealed from a divorce proceeding ordering that the divorcing parties share various properties accumulated during the marriage (Ground No. 4). He contended that his wife (the respondent) had no right to such property because she did not produce evidence to prove her contribution to the acquisition of such property. The issues are whether there is an established legal formula for division of property after divorce, and whether spousal contribution plays a role in such division. After reviewing the traditional approach accounting for spousal contribution, the court found that the enactment of the 1995 Constitution drastically changed the wife’s legal position and rights after divorce. Specifically, Article 31(1) provides equal rights to husband and wife during marriage and dissolution. Thus, the court found that marital property jointly belonged to the husband and wife, and thus contribution to the property is irrelevant. Notwithstanding the parties’ right to freely contract prior to a marriage agreement, the court found that, upon dissolution, matrimonial property ought to be divided equally and shared “to the extent possible and practicable”.



Mushabe Abdul v. Uganda Court of Appeals of Uganda (2007)


Sexual violence and rape, Statutory rape or defilement

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.



Incorporated Law Society v. Wookey, 1912 AD 623 Appellant Division (Appêlant Afdeling) (1912)


Employment discrimination, Gender discrimination

A firm of attorneys was willing to enroll Madeline Wookey as an articled clerk, but Wookey met with opposition from the Cape Law Society, which refused to register her articles. Wookey submitted an application to the Cape Supreme Court, which ordered the Society to register her. The Law Society appealed this decision to the Appellate Division, arguing that Wookey could not be admitted as an attorney because she was a woman. The Appellate Division was called upon to decide whether the term “persons” used in the statute governing admission of attorneys to the bar included only “male persons” or also included women. They determined that “persons” included only male persons, thus excluding women from the legal profession.

'n Prokureurs firma was bereid om Madeline Wookey as 'n geartikelde klerk in te skryf, maar Wookey het teenkanting van die Kaapse Regsvereniging ontvang, wat geweier het om haar artikels te registreer. Wookey het 'n aansoek by die Kaapse Hooggeregshof ingedien, wat die Vereniging beveel het om haar te registreer. Die Regsvereniging het hierdie besluit aan die Appel-afdeling beroep en geargumenteer dat die Wookey nie as 'n prokureur toegelaat kon word nie omdat sy 'n vrou is. Die Appélaat Afdeling was ontbied om te besluit of die term "persone" wat in die statuut wat die toelating van prokureurs tot die balie hanteer slegs "manlike persone" insluit het of ook vroue ingesluit het. Hulle het vasgestel dat "persone" slegs manlike persone ingesluit het, en het dus vroue by die regsprofessie uitgesluit.



Schlesin v. Incorporated Law Society, 1909 TSC 363. Transvaal Supreme Court (Transvaal Hoofgeregs Hof) (1909)


Employment discrimination, Gender discrimination

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.



Tumwesigye Kasim v. Uganda Court of Appeals of Uganda (2009)


Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This appeal was limited to sentencing only. Appellant was convicted of defilement of a six-year-old girl and was sentenced to 14 years imprisonment. Appellant was a teacher at the victim’s school. The school held a special program for students during school holidays. During this program, appellant took the victim into his office at school and had sexual intercourse with her. Despite his warning not to tell anyone, the victim told her brother, who told her parents. A medical examiner confirmed that she had been defiled. On appeal, appellant argued that the sentence of 14 years was too harsh. In support, he argued that he was the sole breadwinner for 11 dependents, including two lame dependents and four orphans. Appellant also argued that since the victim was a very young child, she had already gotten over the trauma of the defilement. The court upheld the sentence and ruled against appellant. The court found that, as a teacher, he had a duty to protect the victim, but instead chose to ravish her, disgracing himself, his profession, and society.



Mashita Katakwe v. Hakasenke High Court of Zambia (2006)


Gender discrimination, Gender violence in conflict, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

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.



Law & Advocacy for women in Uganda v. Attorney General Constitutional Court of Uganda (2010)


Female genital mutilation or female genital cutting, Harmful traditional practices

Petitioners challenged the tribal practice of female genital mutilation and argued that it is inconsistent with the Ugandan Constitution. They argued that the practice is cruel, inhuman, and degrading, and endangers the right to life and privacy under the Constitution. The two issues before the court were whether the petition raised any matter for constitutional interpretation and whether the practice of female genital mutilation should be declared as null and void under the constitution. At trial, petitioners produced unchallenged affidavits supporting the fact that female genital mutilation was practiced crudely, wantonly, and without anesthesia, causing permanent damage and trauma to the victim, including incontinence, paralysis, and even death. The court first held that the petition did raise serious questions for constitutional interpretation. Second, the court held that, while the Constitution protects free exercise of cultural or religious custom, such exercise must not infringe on human dignity or the right to be free from cruel, inhuman, or degrading treatment. Thus, the court held that female genital mutilation was inconsistent with the provisions of the Constitution, and thus declared the custom void.



Sabwe Abdu v. Uganda Supreme Court of Uganda (2010)


Sexual violence and rape, Statutory rape or defilement

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.



Sekandi Hassan v. Uganda Supreme Court of Uganda (2007)


Acid violence, Domestic and intimate partner violence

Appellant was convicted of murder and sentenced to death. The deceased, a 16-year-old girl, lived with her mother and brother. For approximately a year, the deceased would sneak out and have sexual intercourse with appellant, a married man who lived approximately 200 meters away from the deceased. A week before the incident, the deceased told her mother that appellant had impregnated her. This greatly displeased her mother, and she reported this to LCs officials. On the night of the incident, the deceased’s mother noticed appellant at her residence before appellant and the deceased left for the night. The next morning, the deceased was found lying by the side of the road about one mile from her home. She was in critical condition and had severe acid burns. Unable to speak, she wrote her information on a piece of paper, including her name and the name of the person who brought her to her location (appellant). She died later that day, and a medical examiner found the cause of death to be severe burns and pulmonary edema. Appellant was later arrested and convicted. He appealed the conviction, arguing that the conviction rested on weak circumstantial evidence and that his alibi deserved re-evaluation. On appeal, the Supreme Court ruled against appellant. They found that the case against appellant relied on the credibility of the deceased’s mother and brother, who, due to proximity and prior acquaintance, knew appellant very well. The court also found that the fact that the deceased’s mother was pursuing actions against appellant gave him a motive for the murder, so as to avoid a possible defilement charge. In sum, the court held that there was ample evidence to convict appellant over his alibi and hence dismissed the appeal.



Sgt. Canbera Dickson v. Uganda Court of Appeals of Uganda (2010)


Sexual violence and rape

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.



Mugasa Joseph v. Uganda Court of Appeal of Uganda (2010)


Sexual harassment, Sexual violence and rape, Statutory rape or defilement

This appeal was limited to sentencing only. Appellant was convicted of defilement of a baby girl and was sentenced to 17 years imprisonment. Appellant was a relative of the child and was known as a teacher of Christianity. Appellant requested a more lenient sentence of 10 years. The Court of Appeals ruled against Appellant and increased his sentence to 25 years, citing the policy consideration that, despite the fact that defilement can be punishable by death, individuals still continue to defile babies. Thus, the court used this case as an opportunity to send a message to society that “violating the rights of child females must stop.”



People v. Chipikili Subordinate Court of the First Class for the Lusaka District (2010)


Sexual harassment, Sexual violence and rape

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.



State v. Baloyi Constitutional Court of South Africa (Konstitutionele Hof van Suid Afrika) (2000)


Domestic and intimate partner violence

An army officer was convicted for breaching an interdict issued by a magistrate ordering him not to assault his wife or prevent her or their child from leaving their home. He appealed to the Transvaal High Court which declared that Section 3(5) of the Prevention of Family Violence Act was unconstitutional to the extent that it placed the burden on him to disprove his guilt. The Constitutional Court overturned the High Court's judgment, finding that the purpose of an interdict was to protect the victim of domestic violence and indicate that society would not stand by in the face of spousal abuse. As such, fairness to the complainant required that the enquiry proceedings be speedy and dispense with the normal process of charge and plea, but in fairness to the accused, the presumption of innocence would still apply to the summary enquiry.

'n Weermag beampte is skuldig bevind aan die oortreding van 'n interdik wat deur 'n landdros uitgereik is, wat hom beveel het om nie sy vrou aan te val of te verhoed dat sy of hul kind hul huis verlaat nie. Hy het appèl aangeteken by die Transvaal se Hooggeregshof wat verklaar het dat artikel 3(5) van die Wet op die Voorkoming van Gesinsgeweld ongrondwetlik was in die mate dat dit die las op hom geplaas het om sy skuld te weerlê. Die Konstitusionele Hof het die uitspraak van die Hooggeregshof omgekeer en gevind dat die doel van 'n interdik was om die slagoffer van huishoudelike geweld te beskerm en te kenne te gee dat die samelewing nie die mishandeling van ‘n huweliksmaat sou bystaan nie. As sodanig het billikheid teenoor die klaer vereis dat die ondersoekverrigtinge vinnig moes verloop en met die normale proses van aanklag en pleit afgehandel word, maar in billikheid teenoor die beskuldigde, sal die vermoede van onskuld steeds van toepassing wees op die ondersoek.



Ephrahim v. Pastory and Kaizingele High Court of Tanzania (1990)


Gender discrimination, Property and inheritance rights

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.



State v. Engelbrecht High Court of South Africa (Hooggeregshof van Suid Afrika) (2003)


Domestic and intimate partner violence

In determining sentencing for a woman convicted of murdering her spouse, expert testimony regarding battered woman syndrome is more relevant to the sentencing decision than to the assessment of the legality of the defendant's actions. The court reviewed a line of cases involving women convicted of murdering their abusive partners. Although the court cited a variety of mitigating factors that should be considered (e.g., the sustained nature of the abusive conduct, the presence of children in the home,etc.), it held that foremost is the actual effect sustained domestic violence has on women. As a result, the court found expert testimony confirming that the defendant suffered form the syndrome to be a "substantial and compelling" reason to suspend the defendant's sentence.

By die bepaling van vonnisoplegging vir 'n vrou wat skuldig bevind is aan die moord op haar eggenoot, is kundige getuienis rakende die mishandelende vroue sindroom meer relevant op die vonnisoplegging as die beoordeling van die wettigheid van die verweerder se optrede. Die hof het 'n reeks sake ondersoek waar vroue skuldig bevind is aan die moord op hul geweldadige eggenote. Alhoewel die hof 'n verskeidenheid versagtende faktore noem wat in ag geneem moet word (soos die volgehoue ​​aard van die misbruik, die teenwoordigheid van kinders in die huis, ens.), het hy beslis dat die belangrikste effek is, is die gevolg wat huishoudelike geweld op vroue het. As gevolg hiervan het die hof genoegsame getuienis gevind wat bevestig dat die verweerder gely het aan die sindroom gevind as 'n "wesenlike en dwingende" rede om die vonnis van die verweerder op te skort.



Uganda Association of Women Lawyers and 5 Others v. The Attorney General Constitutional Court of Uganda (2004)


Divorce and dissolution of marriage, Gender discrimination

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.



State v. Ferreira and Others Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2004)


Domestic and intimate partner violence, Gender violence in conflict, Gender-based violence in general

The appellant, convicted of hiring two workers to kill her abusive husband, argued for a reduced sentence. The court held that a lesser sentence is permitted only when there are "truly convincing" circumstances or where a life sentence is disproportionate or unjust. Expert testimony regarding battering and its effects showed how her behavior fit a well-known pattern for abused women. The court found this testimony convincing and held that the appellant's use of third parties to kill her husband did not invalidate her claim to be a victim of battering. Additionally, the court held that appellant's failure to testify should have no effect on her credibility. The court reduced her sentence but declined to acquit the appellant because of the premeditated nature of the act.

Die appellant, wat skuldig bevind is aan die huur van twee werkers om haar geweldadige man dood te maak, het aangevoer vir 'n verlaagde vonnis. Die hof het beslis dat 'n verlaagde vonnis slegs toegelaat word as daar 'werklik oortuigende' omstandighede is, of as 'n lewenslange vonnis buite verhouding of onregverdig is. 'n Getuienis van kundiges rakende die geweld en die gevolge daarvan het getoon hoe haar gedrag pas by 'n bekende patroon vir mishandelde vroue. Die hof het bevind dat hierdie getuienis oortuigend was en het bevind dat die applikant se gebruik van derde partye om haar man te vermoor nie die feit ongeldig gemaak dat sy ‘n slagoffer van geweld is nie. Verder het die hof beslis dat haar versuim om te getuig geen effek op haar geloofwaardigheid moes hê nie. Die hof het haar vonnis verminder, maar het geweier om die applikant vry te laat weens die voorbedagte aard van die handeling.



Carmichele v. Minister of Safety and Security Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2001)


International law, Sexual violence and rape

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.



State. v. Jackson Supreme Court of Appeal (Hoogste hof van Appèl) (1998)


Sexual violence and rape, Statutory rape or defilement

The appellant, a 24-year-old police officer at the time of the charged conduct, was convicted of the attempted rape of a 17-year-old girl. She fought him off and managed to escape the car. The examining physician found some evidence of unlubricated sexual contact, but no conclusive evidence of penetration. He appealed on the grounds of the cautionary rule, encouraging the court to handle accusations of rape cautiously to prevent false convictions. The Court held that the cautionary rule was based on outdated stereotypes against women and that in criminal cases, the burden is on the State to prove the guilt of the accused beyond a reasonable doubt, without an application of a general cautionary rule. The Court adopted the formula used in England whereby a judge could choose, on a case by case basis, to use caution only in cases where it was proven that the complainant was untrustworthy for some reason, e.g. had made previous false complaints or bore the defendant a grudge.

Jackson is aangekla van poging tot verkragting van S., 'n 17-jarige meisie, toe hy haar polse vasgebind het en gepoog het om met haar gemeenskap te hê. Sy het hom afgeveg en daarin geslaag om uit die motor te ontsnap en is daarna deur 'n dokter ondersoek wat bewyse van ongeoorloofde seksuele kontak gevind het, maar geen geweldige bewys van penetrasie nie. Jackson het appèl aangeteken op grond van die versigtigheidsreël en aangemoedig dat beskuldigings van verkragting versigtig hanteer moet word om vals skuldigbevindings te voorkom. Die hof het beslis dat die versigtigheidsreël gebaseer is op verouderde stereotipes teen vroue en dat in strafregtelike gevalle dit die las van die Staat is om die skuld van die beskuldigde bo alle redelike twyfel te bewys sonder die toepassing van 'n algemene versigtigheidsreël. Die Hof het die formule wat in Engeland gebruik is aanvaar waardeur 'n regter, van geval tot geval, kon kies om versigtig te wees in gevalle waar daar bewys is dat die klaer om een ​​of ander rede onbetroubaar was, bv. het vorige vals klagtes gemaak of teen die verweerder 'n wrok gehad het.



Director of Public Prosecutions, Transvaal v. Minister for Justice and Constitutional Development and Others Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2009)


Sexual violence and rape, Statutory rape or defilement

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.



State. v. J.M. Supreme Court of Appeal (Hoogste hof van Appèl) (2002)


Sexual violence and rape, Statutory rape or defilement

The appellant, M., was tried before a regional magistrate for the rape of his six-year-old daughter during 1989. He was convicted and sentenced to ten years imprisonment, which he appealed. The Court held that, especially given the age of the complainant at the time, the question of a consensual sexual relationship is moot and further stipulated that the sexual history of the complainant is not relevant in a charge of rape, unless the Court specifically judges it to be so.

Die appellant, M., is voor 'n streeklanddros verhoor weens die verkragting van sy sesjarige dogter gedurende 1989. Hy is skuldig bevind en gevonnis tot tien jaar gevangenisstraf, waarop hy appèl aangeteken het. Die hof het beslis dat die vraag na 'n konsensuele seksuele verhouding, veral gegewe die ouderdom van die klaagster destyds, verkeerd is en verder bepaal dat die seksuele geskiedenis van die klaer nie relevant is op 'n aanklag van verkragting nie, tensy die hof dit spesifiek beoordeel om so te wees.



Egglestone v. The State Supreme Court of Appeal (Hoogste hof van Appèl) (2008)


Sexual violence and rape, Statutory rape or defilement

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.



State. v. Mahomotsa Supreme Court of Appeal (Hoogste hof van Appèl) (2002)


Sexual violence and rape, Statutory rape or defilement

The accused was charged and convicted on two separate counts of rape for raping two 15-year-old girls more than once and sentenced to six years imprisonment for the first count and 10 years imprisonment for the second. On appeal, the defense argued that the sentence was too severe because of mitigating circumstances, specifically that the victims did not suffer serious physical or psychological injuries and that both victims had previously been sexually active. The Court dismissed the appeal and held that the sentences were, in fact, too lenient, especially as the victims' previous sexual history was irrelevant and also that the extent of harm to the victims matters less because rape is a basic violation of dignity. The sentence was increased to 8 years for the first count and 12 years for the second.

Die beskuldigdes is op twee afsonderlike aanklagtes van verkragting aangekla en skuldig bevind vir die verkragting van twee 15-jarige meisies meer as een keer en gevonnis tot ses jaar gevangenisstraf op die eerste en tien jaar gevangenisstraf op die tweede. Op appèl het die verdediging gesê dat die vonnis te ernstig was weens versagtende omstandighede deurdat die slagoffers nie ernstige liggaamlike of sielkundige beserings opgedoen het nie en dat albei die slagoffers voorheen seksueel aktief was. Die hof het die appèl van die hand gewys en beslis dat die vonnisse in werklikheid te versagtend was, veral omdat die vorige seksuele geskiedenis van die slagoffers nie van belang was nie en dat die skade aan die slagoffers minder belangrik is omdat verkragting 'n basiese waardigheidskending is. Die vonnis is verhoog tot 8 jaar vir die eerste en 12 jaar vir die tweede.



K. v. Ministry of Safety and Security Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2005)


Sexual violence and rape

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.



SONKE Gender Justice Network v. Malema Equality Court for the District of Johannesburg (Gelykheidshof vir die Distrik Johannesburg) (2009)


Gender discrimination, Sexual harassment, Sexual violence and rape

The respondent made comments at a political rally regarding the consent of the complainant in Jacob Zuma's rape trial. Specifically, he opined that a rape victim would leave early in the morning, but the complainant in this case had stayed for breakfast and requested money for a taxi. The plaintiff, a gender justice organization, sued him for hate speech, unfair discrimination, and harassment of women. The court found that the respondent's comments were based on prohibited grounds as outlined in South Africa's Equality Act, specifically sex and gender. The court also found the comments expressed by the respondent constituted "generalizations about women, rape, and consent which reinforce[d] rape myths." Moreover, the respondent's words suggested "that men need not obtain explicit [sexual] consent from women." The court found the respondent liable for hate speech and harassment. For these reasons, the court concluded the respondent infringed the rights of women and ordered him to pay a fine and make a public apology.

Die respondent het tydens 'n politieke saamtrek kommentaar gelewer rakende die toestemming van die klaer in die verkragtingsverhoor van Jacob Zuma. Spesifiek het hy gesê dat 'n verkragtingslagoffer vroegoggend sou vertrek, maar die klaer het in hierdie geval vir ontbyt gebly en geld gevra vir 'n taxi. Die eiser, 'n organisasie vir geslagsregverdigheid, het hom gedagvaar vir haatspraak, onbillike diskriminasie en teistering van vroue. Die hof het bevind dat die kommentaar van die respondent gebaseer is op verbode gronde soos uiteengesit in die Suid-Afrikaanse Wet op Gelykheid, spesifiek seks en geslag. Die hof het ook bevind dat die opmerkings deur die respondent uitgespreek 'veralgemenings oor vroue, verkragting en toestemming wat verkragtingsmites versterk'. Verder het die respondent se woorde voorgestel "dat mans nie eksplisiete [seksuele] toestemming van vroue hoef te verkry nie." Die hof het bevind dat die respondent aanspreeklik is vir haatspraak en teistering. Om hierdie redes het die hof tot die gevolgtrekking gekom dat die respondent die regte van vroue geskend het en hom beveel het om 'n boete te betaal en 'n openbare verskoning te doen.



Masiya v. Director of Public Prosecutions (Pretoria) Constitutional Court of South Africa (Konstitusionele Hof van Suid Afrika) (2007)


Sexual violence and rape, Statutory rape or defilement

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.



V. v. Minister of Safety and Security Supreme Court of Appeal (Hoogste hof van Appèl) (2002)


Sexual violence and rape

The appellant was assaulted, raped, and robbed by Andre Gregory Mohamed, who had escaped from prison where he was facing 22 charges for indecent assault, rape and armed robbery. The appellant sued the State for damages, arguing that the police owed her a legal duty to take reasonable steps to prevent Mohamed from escaping and causing her harm and that they had negligently failed to comply with such duty. The Constitutional Court applied its recent holding in Carmichele v. Minister of Safety and Security, finding that the state is obliged both by the Constitution and by international law to protect women from violence. Thus, the police should be held liable for their negligence in not taking reasonable action to prevent Mohamed's escape, especially in light of the fact that they knew that Mohamed was a dangerous serial rapist who was likely to commit further offenses against women should he escape. The court affirmed the state's liability for any damages suffered by the applicant.

Die appellant is aangerand, verkrag en beroof deur Andre Gregory Mohamed, wat uit die tronk ontsnap het waar hy op 22 aanklagte teregstaan ​​vir onsedelike aanranding, verkragting en gewapende roof. Die appellant het die Staat vir skadevergoeding gedagvaar, met die argument dat die polisie is aan haar 'n wettiglike verpligting skuldig om redelike stappe te neem om te verhoed dat Mohamed ontsnap en haar skade te berokken en dat hulle nalatig was en versuim het om aan hierdie plig te voldoen. Die Konstitusionele Hof het hul onlangse beslissing in Carmichele v. Minister van Veiligheid en Sekuriteit toegepas en het bevind dat die staat deur die Grondwet sowel as die internasionale reg verplig is om vroue teen geweld te beskerm, en die polisie moet aanspreeklik gehou word vir die nalatigheid daarvan deur hul nie redelike stappe te doen het om die ontsnapping van Mohamed te voorkom nie, veral in die lig van die feit dat hulle geweet het dat Mohamed 'n gevaarlike reeksverkragter is wat waarskynlik verdere misdrywe teen vroue sou pleeg as hy sou ontsnap. Die Hof het die staat se aanspreeklikheid bevestig vir enige skade wat die applikant gely het.



Media 24 Ltd. & Another v. Grobler Supreme Court of Appeal (Hoogste hof van Appèl) (2005)


Gender discrimination, Sexual harassment

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.



Van Zijl v. Hoogenhout Supreme Court of Appeal of South Africa (Hoogste Hof van Appèl van Suid Afrika) (2004)


Sexual violence and rape, Statutory rape or defilement

The appellant suffered years of sexual abuse by her uncle, the respondent, during her childhood. She sued him for damages at the age of 48 and the respondent claimed that her suit should have been brought within one year of her attaining her majority. The Court held that the victim of sexual abuse as a child who only in adulthood acquired an appreciation of the responsibility of the abuser for the abuse may sue the abuser within three years of acquiring that appreciation.

Die appêlant het jare se seksuele mishandeling deur haar oom, die respondent, tydens haar kinderdae gely. Sy het hom gedagvaar vir skadevergoeding op die ouderdom van 48 en die respondent het beweer dat sy haar saak binne een jaar van haar mondigwording moes gebring het. Die hof het beslis dat die slagoffer van seksuele mishandeling as kind wat slegs in volwassenheid 'n gewaarwording vir die verantwoordelikheid van die molesteerder vir die misbruik verkry het. Die gemolesteerde kan binne drie jaar van die gewaarwording (bewuswording), die molesteerder dagvaar.



W.N. v. The State Supreme Court of Appeal of South Africa (Hoogste Hof van Appèl van Suid Afrika) (2008)


Sexual violence and rape, Statutory rape or defilement

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.



R v. Mkhatshwa Supreme Court of Swaziland (2007)


Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of raping his 12 year old daughter and sentenced to 22 years imprisonment. The Court upheld the sentence in light of the heinous nature of rape as a crime and the importance of society sending a message of severe condemnation of the crime.



Omar v. Government of the RSA Constitutional Court of South Africa (Konstitutionele Hof van Suid Afrika) (2006)


Domestic and intimate partner violence

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



Rex v. Mfanzile Mkhwanazi High Court of Swaziland (2003)


Sexual violence and rape, Statutory rape or defilement

The accused was charged on two counts of rape of a 14 year old girl and of an 11 year old girl. The Court noted that in cases where the complainants are young and may be prone to flights of imagination leading to false accusations, the accusations should only be doubted in so far as the child's capacity for recollection and observation seem questionable. In this case, the children were found to be trustworthy and the accused convicted of both counts.



Andrew Manunzyu Musyoka (Deceased) High Court of Kenya at Machakos (2005)


Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

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.



Nkabane v. Nkabane High Court of Lesotho (1987)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, Gender-based violence in general, Property and inheritance rights

The plaintiff wife sought a decree of divorce on the grounds of the defendant's desertion on the grounds that the defendant abused her and drove her out of the matrimonial home to live with another woman. The Court found that the defendant was previously married through Lesotho customary law to the other woman at the time of the marriage to the plaintiff; thus, the defendant's marriage to the plaintiff was null and void. However, the Court declared that the relationship was a "putative marriage" for the purposes of dividing the plaintiff and defendant's joint property.



S. v. Katamba Supreme Court of Namibia (1999)


Sexual violence and rape, Statutory rape or defilement

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



Nandi v. Bobo High Court of Kenya at Nairobi (Nairobi Law Courts) (2006)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

The petitioner-wife sought the dissolution of her marriage on the grounds of cruelty and adultery because the respondent assaulted her, locked her out of their matrimonial home, and forced her to have sex with him while he was drunk. The Court found that the petitioner's testimony was believable and established cruelty that endangered her life and health. The Court therefore dissolved the marriage. (Kenya domestic law does not explicitly recognize marital rape.)



Rex v. Rankhebe High Court of Lesotho (1987)


Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement

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.]



Uke v. Iro Court of Appeal of Nigeria (2002)


Gender discrimination, Property and inheritance rights

The Court of Appeal held that the Nnewi Customary Law that precluded a woman from giving evidence in land matters was unconstitutional because it discriminated against women. The respondent sued the appellant over a piece of land on Ikoponkwo, claiming that the appellant made an ingress into that land. The respondent claimed that he inherited it from his father who inherited from the respondent’s grandfather. The appellant argued that the respondent’s “Kingman,” who binds the respondent, gave the land to the appellant as a gift. The appellant argued that a woman cannot give evidence in relation to the title of the land. The court then rejected the appellant’s argument and held that under section 41(1) of the 1999 Nigerian Constitution, “any laws or custom that seek to relegate women to the status of a second-class citizen thus depriving them of their invaluable and constitutionally guaranteed rights are laws and customs fit for the garbage and consigned to history.” The court reasoned that because some of the laws and customs the appellant relied upon treated women as a “second-class” citizen, they must not be given credence. Under this holding, the court then decided to dismiss the appeal because it found no merit in the appellant’s arguments.



Suleiman v. Republic High Court of Kenya at Machakos (2004)


Sexual violence and rape, Statutory rape or defilement

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.



Rex v. Tauhali and Mashea High Court of Lesotho (1999)


Sexual violence and rape

Both of the accused were convicted of raping a 25-year-old woman when each took turns helping the other to rape the complainant. Two women who were with her tried to drive off the accused, but they threw rocks at the women and chased them off. The Court noted that the punishment for rape carries a maximum sentence of life imprisonment and a minimum sentence of five years imprisonment when there are no mitigating or aggravating factors. Aggravating factors include (1) violence in addition to the violence of the rape, (2) use of a weapon to intimidate or physically harm, and (3) repeated rape. The Court upheld the conviction and overturned the previous sentence of five years each to eight years, finding that gang rape calls for a higher sentence. In its discussion of the elements of rape, the Court noted that if one perpetrator held a woman down while another raped her, then the first would also be guilty of rape. In addition, in contradiction of international standards, the Court stated that women lack the necessary anatomy to commit rape and therefore can only be guilty of rape by assisting a male perpetrator.



Ali v. Republic Court of Appeal of Kenya at Mombasa (2006)


Sexual violence and rape

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.



Theko v. Theko High Court of Lesotho (1982)


Divorce and dissolution of marriage

The plaintiff-wife sought the dissolution of her marriage to the defendant on the grounds of his previous marriage under the Sotho custom. The Court declared the marriage to be null and void on the grounds that the plaintiff agreed to the marriage through fraud, believing that the defendant was unmarried at the time and would not have agreed to the marriage if she had known the truth.



Mulundi v. Republic Court of Appeal of Kenya at Machakos (2005)


Gender violence in conflict, Sexual violence and rape, Statutory rape or defilement

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.



Kamwendo v. Republic High Court of Malawi (2004)


Sexual violence and rape

The accused was convicted of rape and sentenced to a custodial term of imprisonment of 18 months. He appeals on the grounds that the lower court erred in convicting him in contradiction of the Medical Report that found it was a fabricated rape. The Court dismissed the appeal finding that the complainant's story was corroborated by the evidence and did not therefore require the Medical Report's corroboration as well and also that the Medical Report is not to be taken as conclusive evidence of penetration. The evidence also showed that the intercourse the appellant had with the complainant was non-consensual because the consent was fraudulently obtained. After this decision, the Malawi High Court banned the corroboration rule in sexual violence cases in Republic v Kaliyati.



Murunga v. Republic Court of Appeal of Kenya at Nakuru (2008)


Sexual violence and rape

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.



Republic v. Chiledzelere High Court of Malawi (2007)


Gender-based violence in general, Sexual violence and rape

The accused was convicted of attempted rape and sentenced to five years imprisonment with hard labor for accosting the complainant and assaulting her with the intent to have intercourse with her before he was prevented from doing so by the arrival of the witness. The appeal was dismissed because the accused's actions in fondling the complainant and tearing her underwear provided clear evidence of his intent. The sentence was upheld because of the aggravating factors that the accused was told that the complainant was a married woman and the traumatic effect of the tearing of the woman's underwear. [Note: International legal standards do not discriminate on the basis of marital status in determining the gravity of a rape.]



Kamau v. Republic High Court of Kenya at Nakuru (2004)


Sexual violence and rape

The appellant was convicted of rape and sentenced to 12 years imprisonment with hard labor and six strokes of a cane. The complainant testified that on the day of the incident, she met the appellant at a bar and agreed to spend the night with him for a sum of money. The appellant took her to a house where he and two colleagues raped the complainant all night in turns. The appellant testified at trial that they had an "arrangement" with the complainant and did not rape her. The complainant testified that she had withdrawn her consent before intercourse with the appellant and his co-perpetrators. The morning after, the complainant escaped the house to report the rapes to the police and received treatment for her injuries at a hospital. Ruling on the appeal, the High Court found that that the complainant withdrew her initial consent before the sexual act and that the appellant is guilty of rape. The Court also reduced the sentence to six years imprisonment and set aside the corporal punishment, which was outlawed by the Criminal Law (Amendment) Act of 2003.



Republic v. Hwangwa High Court of Malawi (2008)


Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of defiling a 12-year-old girl and appealed the conviction on the grounds that the intercourse was consensual and that he believed the complainant was older than 12 years at the time. The Court dismissed the appeal and noted that the evidence was sufficient to prove a lack of consent but also that, at 12 years old, the complainant was too young to give consent. The Court also noted aggravating factors, including that the appellant had intercourse with the complainant on multiple occasions and the appellant had threatened the complainant against telling her parents.



Chepkwony v. Republic High Court of Kenya at Nakuru (2006)


Sexual violence and rape, Statutory rape or defilement

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.



Republic v. Makaluni High Court of Malawi (2002)


Sexual violence and rape

The accused was convicted of rape and sentenced to four years' imprisonment. The sentence was appealed by the judge who reviewed the lower court's decision because the reviewing judge found the sentence inadequate. The Court upheld the sentence, stating that it was not so excessively inadequate as to merit interference and taking note of the factors used in determining sentences for rape offenders: violence used to commit the rape, a repeated rape, a carefully planned rape, whether the defendant has previous convictions for rape or other serious offenses, whether the victim was subjected to any further sexual indignities, whether the victim was very young or very old, and the physical and mental effects upon the victim. The factors to warrant a harsher sentence were not judged to be present in this case, and the sentencing judge's decision was within his discretion.



Ochieng v. Republic High Court of Kenya of Kisii (2008)


Sexual violence and rape, Statutory rape or defilement

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.



Republic v. Mzungu High Court of Malawi (2007)


Sexual violence and rape, Statutory rape or defilement

The appellant was charged with defilement for having unlawful carnal knowledge of a girl under 13 years of age. The trial court convicted him of indecent assault because there was no penetration. He appealed his conviction for indecent assault because it was not included in the original charge. He also argued that his sentence was excessive. The Court dismissed the appeal of the conviction on the grounds that where the evidence is sufficient to sustain the lesser charge of indecent assault but may not be sufficient for defilement, the accused may be convicted of the lesser crime even when it was not included in the original charge. However, the Court upheld the appeal of the sentence and lowered it, despite of the fact that women and girls need to be protected, taking into account the mitigating factor of the appellant's youth.



Wafula v. Republic High Court of Kenya at Bungoma (2005)


Sexual violence and rape, Statutory rape or defilement

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.



Republic v. Peter High Court of Malawi (2008)


Statutory rape or defilement

The appellant was found guilty of defiling a girl under 13 years of age and appealed on the grounds that the sentence is excessive and that his taking care of his grandparents should be considered as a mitigating factor. The complainant had since been diagnosed with a sexually transmitted infection and medical examinations revealed multiple instances of sexual abuse. The appellant testified that neither he nor his wife had a sexually transmitted infection, but the Court did not find this claim persuasive because neither of them had been tested (neither took the initiative to be tested and the government could not force them to be tested). The Court dismissed the appeal and upheld the sentence, considering the harm done to the complainant in infecting her with a sexually transmitted infection.



Achoki v. Republic Court of Appeal of Kenya at Kisumu (2011)


Sexual violence and 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.



Mwaura v. Republic Court of Appeal of Kenya at Nakuru (2007)


Sexual violence and rape, Statutory rape or defilement

The accused was charged with defilement of a girl under the age of 14 years, and was convicted and sentenced to 14 years imprisonment. He appealed for leniency on the grounds that he was remorseful, suffering from acute pneumonia and only 17 years of age at the time of the incident. The Court upheld the sentence finding that the sentence of 10 years for defilement of a girl and 5 years for indecent assault is not excessive and no circumstances existed to justify mitigating the sentence.



Vaux v. Vaux High Court of Malawi (2007)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, International law, Property and inheritance rights

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.



Affaire B.S. C/ Comission de P Court of Appeal of Burkina Faso at Ouagadougou (2003)


Employment discrimination, Gender discrimination

The Court found that the employer had acted inconsistently in offering Mrs. B.S. one-month extensions on her fixed term contract and then ending her contract at a time when she would otherwise have begun maternity leave on the grounds that there were no more project-related funds to cover her employment. This inconsistent behavior supported the finding that Mrs. B.S. had been unfairly dismissed because of pregnancy. Under Article 33 of the Labor Code, the Court awarded damages to Mrs. B.S. for unfair dismissal. Furthermore, the Court faulted the employer for having violated Article 84 of the Labor Code which states that pregnant employees must enjoy maternity benefits under the Caisse Nationale de Sécurité Sociale, including 14 weeks of paid leave, and awarded Mrs. B.S. the maternity benefits that she would have received had she not been unfairly dismissed.



Affaire Zabsonre Asseta C/ Direction Regionale de la Santé de Tenkodogo Court of Appeal of Burkina Faso at Ouagadougou (2001)


Employment discrimination, Gender discrimination, Sexual harassment

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.



Attorney General v. Unity Dow Court of Appeal of Botswana at Lobatse (1992)


Gender discrimination, International law

The respondent, Ms. Unity Dow, brought a case to the High Court of Botswana asserting that sections 4 and 5 of the Citizenship Act violated her right to equal protection of the law and protection from discrimination on the basis of sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers. The respondent had one child with an American man prior to their marriage and two children after. Botswana's citizenship requirements allowed only children born outside of marriage to inherit their mother's citizenship, so the respondent's first child was a citizen of Botswana while the two born during her marriage were not. Though not the central issue of the case, the Court noted that an immediate effect of the law could be the expulsion of the husband and non-citizen children from Botswana. The Court of Appeal upheld the High Court's decision in finding that the Citizenship Act discriminated on the basis of gender under both the Botswana Constitution and the Declaration on the Elimination of Discrimination Against Women because it punishes a female citizen for marrying a non-citizen male. In addition, the Court considered similar cases in different countries in reaching its opinion. (High Court decision available at: https://www.law.cornell.edu/sites/www.law.cornell.edu/files/women-and-ju...)



Makuto v. State Court of Appeal for Botswana at Lobatse (2000)


Sexual violence and rape

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.



Masusu v. Masusu High Court of Botswana at Lobatse (2007)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children. The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the grounds that under customary law, a wife who divorces her husband is at fault because a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.



Mogodu v. State High Court of Botswana (2005)


Sexual violence and rape

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.



State. v. Matlho Court of Appeal of Botswana (2008)


Gender-based violence in general, Sexual violence and rape

The appellant challenged the sentence for rape under the sections of the Penal Code that set forth mandatory minimum sentences for rape charges depending on circumstances such as the perpetrator's use of violence or the perpetrator's status as being HIV positive. Section 142(5) of the Penal Code prohibits a sentence for rape from running concurrently with any other offense; the sentences must be served consecutively. The appellant was convicted on two counts of rape and sentenced to the mandatory minimum sentence of 10 years for each count, resulting in a total of 20 years imprisonment, which he claimed was a violation of the constitutional prohibition on "torture or inhuman or degrading punishment." The Court upheld the conviction, noting that although it was undeniably severe, it was not disproportionate to the offense, especially in light of the increase in the incidence of rape in Botswana and the heinous nature of rape itself.



State. v. Ketlwaeletswe Court of Appeal of Botswana at Lobatse (2007)


Sexual violence and rape, Statutory rape or defilement

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.



Sekoto v. Director of Public Prosecutions Court of Appeal of Botswana at Lobatse (2007)


Domestic and intimate partner violence

The appellant appeals his conviction for the murder of his live-in girlfriend and his sentence of 12 years imprisonment. The Court upheld the sentence, noting the increasing incidence in Botswana of former lovers killing their partners and opining that the courts should impose appropriately stiff sentences as a deterrent.



Legislation

Penal Code (Law No. 58 of the Year 1937 Promulgating the Penal Code) (with amendments through 2018): Articles 267-269, 290 (Rape & Indecent Assault) (1937)


Sexual violence and rape, Statutory rape or defilement

Article 267 of the Penal Code provides for a punishment of rigorous imprisonment (meaning imprisonment with hard labor) for anyone who rapes a woman, which shall be permanent if the perpetrator is a “Specified Perpetrator, meaning an ancestor of the victim, other person responsible for her upbringing or having power over her, or a paid servant of the victim or the perpetrator . Article 267 does not address rape of men. Article 268, however, is gender-neutral. It prescribes three to seven years of rigorous imprisonment with hard labor for indecent assault of a person by force or threat, or an attempt to do so. The punishment for indecent assault may increase if (i) the victim was less than 16 years old, or (ii) the perpetrator is a Specified Perpetrator. The punishment for indecent assault increases to permanent rigorous imprisonment with hard labor when a Special Perpetrator indecently assaults a person under 16 years old. Finally, Article 269 provides that anyone who indecently assaults a minor under 18 years of age without force or punishment is subject to imprisonment. If the victim was less than seven years of age or the perpetrator is a Specified Perpetrator, the penalty is rigorous imprisonment with hard labor. Article 290 provides that kidnapping a woman is punished with permanent rigorous imprisonment with hard labor. If the kidnapper also rapes the woman, the sentence is death. English translation available here.



Penal Code (Law No. 58 of the Year 1937 Promulgating the Penal Code) (with amendments through 2018): Articles 260-264 (Abortion) (1937)


Abortion and reproductive health rights

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.



Constitution of Egypt (2014)


Employment discrimination, Gender discrimination, Gender-based violence in general

Article 11 requires that the state guarantee equality between women and men in all civil, political, economic, social, and cultural rights in accordance with the provisions of the Constitution. The state must work to adopt measures ensuring the proportional representation of women in the houses of parliament, as determined by the constitution. In addition, the state must ensure women’s rights in pursuing public employment, employment in the senior management of the state, and appointment in judicial agencies without discrimination. The state is committed to the protection of women against all forms of violence and guarantees the empowerment of women in reconciling familial duties and professional obligations. Article 53 mandates that all citizens enjoy equality under the law, equally in their rights, freedoms, and general obligations, without discrimination on the basis of religion, faith, sex, origin, race, color, language, disability, economic status, political affiliation, geography, or otherwise. Such discrimination, as well as the incitement of hate, constitutes a crime punishable under the law. The state is committed to adopting the necessary measures to eliminate all forms of discrimination, and the law establishes a special independent commission to this end. English translation available at: https://www.constituteproject.org/constitution/Egypt_2014.pdf.



Law No. 10 of the Year 2021 (2021)


Female genital mutilation or female genital cutting

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.



Gender Equality Act (2014)


Abortion and reproductive health rights, Employment discrimination, Harmful traditional practices, Sexual harassment

The Gender Equality Act promotes gender equality for men and women in all parts of society, and seeks to prohibit and provide redress for sex discrimination, harmful practices (including social, cultural, or religious practices that are physically or sexually harmful) and sexual harassment. Under the Act, persons (and the government) are prohibited from treating people less favorably than they would otherwise due to sex. The law defines and criminalizes sexual harassment, including workplace harassment. Moreover, the law places an affirmative obligation on the government to ensure that employers are developing appropriate procedures and policies to respond to and eliminate issues of workplace sexual harassment. The law also ensures equal access to education at all levels regardless of sex, and affirmatively requires the government to provide equal access. Further, the law provides an affirmative right to sexual and reproductive health, including access to health services and the right to choose whether or not to have a child. A Human Rights Commission in Malawi is tasked with the enforcement of this law, including gender-based quotas for membership on Commission. The penalties for violating the Act include large fines and imprisonment of up to five years.



Constitution of Malawi (2017)


Domestic and intimate partner violence, Employment discrimination, Forced and early marriage, Gender discrimination, Gender-based violence in general, Property and inheritance rights, Sexual violence and rape

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.



Trafficking in Persons Act (2015)


Abortion and reproductive health rights, Trafficking in persons

The Trafficking in Persons Act provides for the prevention and elimination of human trafficking, in addition to establishing the National Coordination Committee against Trafficking in Persons which serves to coordinate and manage related issues in Malawi (the “Committee”). The Act applies to offenses committed at least partly in Malawi (or in contemplation of committing a crime inside Malawi), committed by a citizen of Malawi, or involving the trafficking of a citizen of Malawi. The Committee is responsible for coordinating and overseeing investigations and prosecutions under the Act, as well as formulating policy, educational programming, and recommendations with Malawi on the topic, amongst other responsibilities. The Act provides the Committee with affirmative responsibilities to trafficked persons, including access to adequate health care and shelter, protection from discrimination, and legal support. The Act criminalizes the trafficking of other persons, punishable up to 14 years of imprisonment. The Act provides a list of aggravating factors that can extend the punishment by life imprisonment, including if a trafficked person becomes pregnant or is forced to terminate a pregnancy. There are additional penalties associated with trafficking in children, including a maximum sentence of 21 years imprisonment, as well as for benefiting from exploitation or trafficking and providing support for trafficking offenses. The Act further regulates international transportation organizations, and provides specialized investigatory and judicial mechanisms for the enforcement of the Act.



Código Penal Título VI – Artigos 377-390: Crimes Contra a Paz e a Comunidade Internacional (Penal Code: Crimes Against Peace and the International Community) (2020)


Gender-based violence in general, International law, LGBTIQ

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.



Código Penal Capítulo VI – Artigo 223: Circunstâncias agravantes (Penal Code: Aggravating Circumstances) (2020)


Gender-based violence in general, LGBTIQ

The Penal Code includes the follow aggravating circumstances if a crime involves discrimination on the basis of race, color, ethnicity, place of birth, sex, sexual orientation, sexual harassment, belief or religion, political or ideological convictions, social ideological convictions, social status or origin, or any other form of discrimination.

O Código Penal inclui as seguintes circunstâncias agravantes: se o crime envolve discriminação com base em raça, cor, etnia, local de nascença, sexo, orientação sexual, assédio sexual, crença ou religião, convicção política ou ideológica, convicção ideológica social, status social ou origem, ou qualquer outra forma de discriminação.



Código Penal Capítulo VI: Crimes Contra a Dignidade das Pessoas (Penal Code: Crimes Against Dignity) (2020)


Gender-based violence in general, LGBTIQ

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.



Código Penal Capítulo IV – Seção III: Crimes Contra a Autodeterminação Sexual (Penal Code: Crimes Against Sexual Self-Determination) (2020)


Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The Penal Code distinguishes and applies different penalties in accordance with the age of the minor. Pursuant to article 192, the prohibition of the perpetration of a sexual act with a minor under 14 years old or leading that minor to practice such acts with a third person is punished with up to 12 years in prison. Again, the law makes a distinction whether the act involved penetration, in which case the maximum punishment increases to 15 years. If the minor is under the age of 16, pursuant to article 193, the perpetration of a sexual act leads to a maximum penalty of five years, which increases to eight years if there was penetration. Article 194 provides penalties for cases in which the minor is in the perpetrator’s custody.. Article 198 punishes the crime of child pornography with up to five years of imprisonment and is defined as to 1) promote, facilitate, or allow minors to participate in any kind of obscene interaction (including films, photographs, talks, recordings, etc.); 2) using minors in pornographic tapings or photos; or 3) giving such tapings, recordings, or pornographic instruments to a minor. The maximum penalty is increased to 10 years in prison in case the child pornography is produced with the intent to be spread through information systems or if the agent offers, makes available, or transmits such child pornography through information systems. An individual who acquires, obtains, or facilitates the access to child pornography is punished with up to five years of imprisonment and, if such agent practices such acts as means of profession, the maximum penalty is increased to 10 years.

O Código Penal distingue e aplica penalidades diferentes de acordo com a idade do menor. De acordo com o artigo 192, a proibição da perpetração do ato sexual com menor de 14 anos de idade ou a orientação ao menor para praticar tais atos com uma Terceira pessoa é punível com até 12 anos de prisão. Novamente, a lei faz uma distinção se o ato envolve penetração, caso em que a punição máxima aumenta para 15 anos. Se o menor tem menos de 16 anos de idade, de acordo com o artigo 193, a perpetração do ato sexual leva a uma penalidade máxima de cinco anos, que aumenta para oito anos se houve penetração. O artigo 194 prevê penalidade para casos em que o menor está sob custódia do perpetrador. O artigo 198 pune o crime de pornografia infantil com até cinco anos de prisão e é definido como 1) promover, facilitar, ou permitir que menores participem de qualquer tipo de interação obscena (incluindo filmes, fotografias, falas, gravações, etc); 2) usar menores em vídeos ou fotos pornográficos; ou 3) dar tais vídeos, gravações, ou instrumentos pornográficos a menores. A penalidade máxima aumenta até 10 anos na prisão no caso em que a pornografia infantil é produzida com a intenção de ser divulgada por meio de sistemas de informação ou se o agente oferecer, disponibilizar, ou transmitir tal pornografia infantil por meio de sistemas de informação. O indivíduo que adquire, obtém, ou facilita o acesso a pornografia infantile é punido com até cinco anos de prisão e, se esse agente pratica tais atos como meios profissionais, a penalidade máxima aumenta para 10 anos.



Código Penal Capítulo IV – Artigos 189-190, 195-197: Tráfico Humano (Penal Code: Human Trafficking) (2020)


Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

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).



Código Penal Capítulo IV: Crimes Sexuais - Crimes Contra Liberdades Sexuais (Penal Code: Crimes Against Sexual Liberties) (2020)


Sexual violence and rape

The law distinguishes the crimes of “sexual aggression” and “sexual aggression with penetration.” A person commits the crime of sexual aggression (article 182) if (i) he or she practices a sexual act by means of coercion, violence, or threat against someone, including a spouse, or (ii) he or she enables another person to commit such act against a third person and the sentence ranges from six months to four years of imprisonment. However, article 183 states that if the coerced sexual act involves penetration, the crime committed is “sexual aggression with penetration,” which entails a higher sentence of up to 10 years in prison. Penetration is defined as “copulation, anal or oral, oral intercourse and vaginal or anal penetration with any part of the body or objects used in circumstances of sexual involvement (article 181(c)). Additional crimes (articles 184-187) involve sexual acts committed (i) against persons with diminished capacity or those unable to consent; (ii) by taking advantage of a position or function in certain sectors or by a person in a position of authority; and (iii) by means of another person’s error. Both “ii” and “iii” carry sentences of up to three years in prison or a fine while (i) carries a sentence of up to 12 years in prison if penetration occurs. Finally, article 188 prohibits artificial procreation without the woman’s consent.

A lei distingue os crimes de “agressão sexual” e “agressão sexual com penetração”. A pessoa realiza o crime de agressão sexual (artigo 182) se (i) ele ou ela pratica ato sexual por meio de coerção, violência, ou ameaça contra alguém, incluindo um cônjuge, ou (ii) ele ou ela permite que outra pessoa realize tal ato contra uma terceira pessoa e a sentença varia entre seis meses e quatro anos de prisão. Entretanto, o artigo 183 estabelece que se o ato sexual coagido envolve penetração, o crime cometido é “agressão sexual com penetração”, que implica uma sentença de até 10 anos na prisão. Penetração é definido como “copulação, anal ou oral, relação oral e penetração anal ou vaginal com qualquer outra parte do corpo ou objetos usados em circunstâncias de envolvimento sexual (artigo 181(c)). Crimes adicionais (artigos 184-187) envolvem atos sexuais cometidos (i) contra pessoas com capacidade diminuída ou aqueles impossibilitados de consentir; (ii) ao tirar vantagem de posição ou função em certos setores ou por uma pessoa em posição de autoridade; e (iii) por meio do erro de outra pessoa. Ambos “ii” e “iii” carregam sentenças de até três anos na prisão ou multa enquanto (i) carrega sentença de até 12 anos de prisão se houver penetração. Finalmente, o artigo 188 proíbe procriação artificial sem o consentimento da mulher.



Código Penal Capítulo II: Crimes Contra a Integridade Física e Psíquica (Mutilação genital feminine) (Penal Code: Crimes Against Physical Integrity) (2020)


Female genital mutilation or female genital cutting

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.



Código Penal Capítulo II – Seção II: Crimes Contra a Vida Intra-Uterina (Penal Code: Crimes Against Intra-Uterine Life) (2020)


Abortion and reproductive health rights, Sexual violence and rape

Articles 154-158 prohibit 1) anyone, without the pregnant woman’s consent, to provoke or cause a miscarriage; 2) anyone, with the pregnant woman’s consent, to perform or assist with an abortion; and 3) any pregnant woman from, by any means, participating or consenting to an abortion. These three felonies carry sentences of 2-8 years, 1-5 years, and 5 years of imprisonment, respectively. (article 154). Article 155 provides for increased sentences if the abortion harms the woman’s physical integrity or causes death. Exempt from criminal liability are abortions carried out with the pregnant woman’s consent to 1) remove the risk of death or great harm, or 2) the fetus’ life is inviable, or 3) the pregnancy is a result of rape and the abortion is done within the first 16 weeks of the pregnancy. All these circumstances must be verified and reported in writing by a doctor ahead of the interruption (article 156). It is also forbidden to promote services for the interruption of pregnancies and any "propaganda" (articles 157 and 158).

Artigos 154-158 proíbe 1) quem, sem o consentimento da mulher grávida, provocar aborto ou interrupção da gravidez; 2) quem, com o consentimento da mulher grávida, realizer aborto ou ajudá-la a fazer; e 3) a mulher gravida que, de qualquer maneira, participar ou consentir com o aborto. Esses três crimes carregam sentenças de 2-8 anos, 1-5 anos, e 5 anos de encarceramento, respectivamente (artigo 154). O artigo 155 prevê aumento de pena se o aborto lesa a integridade física da mulher ou causa a sua morte. Isentos de responsabilidade criminal são os abortos realizados com o consentimento da mulher, na medida em que 1) remove o risco de morte ou grave lesão, ou 2) a vida do feto é inviável, ou 3) a gravidez é resultado de um estupro e o aborto é feito durante as 16 primeiras semanas de gravidez. Todas essas circunstâncias devem ser verificadas e reportadas por escrito ao médico responsável pela interrupção (artigo 156). Também fica proibido promover serviços para interrupção de gravidez ou qualquer propaganda desse tipo de prática (artigos 157 e 158).



Plano Nacional de Ação para a Implementação da Resolução Nº 1325/2000 do Conselho de Segurança das Nações Unidas sobre Mulheres, Paz e Segurança – Decreto Presidencial Nº 143/17 (2017)


Gender discrimination, Gender violence in conflict, International law

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.



Lei n. 24/2019: Parte Especial, Título Um, Capítulo Sete, Seção Três (2019)


Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

This section outlines the punishments for prostitution. Anyone who promotes or facilitates prostitution by a woman is subject to one-two years in prison, but anyone who promotes another’s prostitution through violence, fraud, abuse of authority, or exploitation of the other’s situation is punishable with two-eight years in prison. Whomever habitually partakes in prostitution with someone under the age of 18 can be imprisoned from two-eight years or be fined for up to one year.

Essa seção estabelece as sanções para prostituição. Aquele que promove ou facilita a prostituição de uma mulher está sujeito a um-dois anos de prisão, mas aquele promove a prostituição de outra pessoa por meio de violência, fraude, abuso de autoridade, ou exploração da situação alheia é punido com dois-oito anos de prisão. Quem habitualmente realiza prostituição com uma pessoa menor de 18 pode ser preso de dois-oito anos ou sofrer multa até um ano.



Lei n. 24/2019: Parte Especial, Título Um, Capítulo Sete, Seção Um (2019)


Employment discrimination, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

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.



Lei n. 24/2019: Special Part, Title One, Chapter One, Section One, Article 160 (2019)


Gender discrimination, Gender-based violence in general, LGBTIQ

Article 160 increases the penalty for murder to 20-24 years in prison if the crime was motivated by racial, religious, or political hatred, or generated by color, ethnic, or national origin, sex, sexual orientation, or gender identity of the victim.

O artigo 160 aumentou a pena para o crime de homicídio para 20-24 anos de prisão se o crime for motivado por ódio racial, religioso, ou político, ou gerado pela cor, etnia, ou origem nacional, sexo, orientação sexual, ou identidade de gênero da vítima.



Lei n. 24/2019: Special Part, Title One, Chapter One, Section Two (2019)


Abortion and reproductive health rights

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.



Diploma Ministerial n. 60/2017 (2017)


Abortion and reproductive health rights

The law outlines clinic conditions to perform safe abortions, provisions for post-abortion care, the situations in which abortions can be given, definitions of the different types of pregnancies and abortions, and instructions for how to handle situations in which the woman is incapable of giving a written or verbal consent. Some acceptable abortion circumstances include if the woman’s life or physical health is at risk, the pregnancy is a result of a sexual assault or failed contraceptive, or if the woman has HIV or AIDS. The law also references the ICPD (Conferências de População e Desenvolvimento) in 1994 as well as the UN World Conference in 1993 to define reproductive rights and apply it to Mozambique’s national context. It acknowledges that abortions are an ethical issue in addition to a legal issue, and so does not oblige healthcare professionals who have moral objections to carry out the procedure, except when there is a risk of life for the pregnant woman.

A lei esboça condições clínicas para realização de abortos seguros, disposições para cuidados pós-aborto, situações em que abortos podem ser realizados, definições dos diferentes tipos de gravidezes e abortos, e instruções de como lidar com situações difíceis nas quais a mulher é incapaz de dar consentimento verbal ou escrito. Algumas circunstâncias permitidas de aborto incluem se a vida da mulher ou sua saúde física estão em risco, se a gravidez é resultado de abuso sexual ou de contraceptivo que falhou, ou se a mulher tem HIV ou AIDS. A lei também referencia a ICPD (Conferências de População e Desenvolvimento) em 1994, assim como a Conferência Mundial da ONU em 1993 para definir os direitos reprodutivos e aplicá-los ao contexto nacional de Moçambique. Ela reconhece que abortos são um problema ético em adição a um problema legal, assim não obriga os profissionais da saúde que têm objeções morais a realizar o procedimento, exceto quando há risco de vida para a mulher grávida.



Plano Nacional de Acção Para Prevenção e Combate à Violência Contra a Mulher 2008-2012 (National Plan of Action for Preventing and Combating Violence Against Women) (2008)


Domestic and intimate partner violence, Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement

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.



Plano Nacional de Ação para a Implementação da Resolução Nº 1325/2000 do Conselho de Segurança das Nações Unidas sobre Mulheres, Paz e Segurança – Decreto Presidencial Nº 143/17 (2017)


Gender discrimination, Gender violence in conflict, International law

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 for men and women, and appeals for a higher degree of participation of women, and to 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.



Regime Jurídico do Trabalho Doméstico e de Proteção Social do Trabalhador de Serviço Doméstico – Decreto Presidencial Nº 155/16 (Legal Regime of Domestic Work and Social Protection) (2017)


Employment discrimination

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).



Comissão Nacional de Prevenção e Auditoria de Mortes Maternas e Neonatais – Decreto Presidencial Nº 52/12 (National Commission of Audit and Prevention of Deaths of Mothers, Newborns and Infants) (2012)


Abortion and reproductive health rights

The President approved the creation of the National Commission of Audit and Prevention of Deaths of Mothers, Newborns and Infants in March 2012. This commission was established to contribute to the reduction of maternal and infant mortality by investigating maternal death, defining appropriate evidence-based interventions and recommending corrective actions. The priorities set out by the commission are to: 1) increase universal access to reproductive health services, namely family planning, prenatal care, and delivery by qualified personnel, and 2) prevention of sexually transmitted infections, including HIV/AIDS.

O Presidente aprovou a criação da Comissão Nacional de Prevenção e Auditoria de Mortes Maternas e Neonatais em Março de 2012. Essa comissão foi estabelecida para contribuir com a redução de mortalidade maternal e infantil ao investigar a morte maternal, definindo intervenções apropriadas baseadas em evidências e recomendando ações corretivas. As prioridades estabelecidas pela comissão são para: 1) aumentar o acesso universal a serviços básicos de saúde reprodutiva, nomeadamente planejamento familiar, assistência pré-natal, e parto realizado por pessoa qualificada, e 2) prevenir a transmissão de doenças sexualmente infecciosas, incluindo HIV/AIDS.



Política Nacional para Igualdade e Equidade de Gênero (Decreto Presidencial Nº 222/13) (National Policy for Gender Equality and Equity) (2013)


Employment discrimination, Gender discrimination

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.



Plano Executivo Contra a Violência Doméstica (Decreto Nº 26/13) (Executive Plan to Combat Domestic Violence) (2013)


Domestic and intimate partner violence

The Executive Plan to Combat Domestic Violence envisages to protect and improve the life conditions for families and for women through the implementation of programs that aim to fight domestic violence. The objective is to protect victims, reduce the numbers of domestic violence overall, and prevent such acts of violence, including by spreading social and public awareness of domestic violence and sexual and reproductive education. The Executive Plan sets out as priorities: 1) to implement national legislation and guarantee the application of ratified international treaties, 2) to regulate the Domestic Violence Act (Lei Nº 25/11), and 3) to process and standardize all data relating to domestic violence, as well as facilitating access to justice for the victim. The Executive Plan also implements a schedule for the adoption of actions aimed at combating domestic violence.

O Plano Executivo Contra a Violência Doméstica visa proteger e melhorar as condições de vida para famílias e mulheres por meio da implementação de programas que objetivam combater a violência doméstica. O objetivo é proteger as vítimas, incluindo a difusão de conhecimento social e público sobre violência doméstica e educação sexual e reprodutiva. O Plano Executivo estabelece as prioridades: 1) implementar legislação nacional e garantir a aplicação dos tratados internacionais ratificados, 2) regular a Lei contra a Violência Doméstica (Lei Nº 25/11), e 3) processar e padronizar todos os dados relativos a violência doméstica, assim como facilitar acesso à justiça pela vítima. O Plano Executivo também implementa um cronograma para a adoção de ações que visam combater a violência doméstica.



Lei contra a Violência Doméstica (Lei Nº 25/11) (Law Against Domestic Violence) (2011)


Domestic and intimate partner violence

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.



The Criminal Procedure Second Amendment (Act 85 of 1997) (1997)


Sexual violence and rape

This Act amends the Criminal Procedure Act of 1997 and provides for the further regulation of detention and bail of those who are arrested. The Act substitutes subsection 11(b) of §60 of the original Act, tightening bail conditions for schedule 5 crimes, which includes rape. The substituted section holds that the court must order an accused to be detained in custody until they are dealt with in accordance with law, unless the accused can offer sufficient evidence to satisfy the court that they should be released in the interests of justice.



Commission on Gender Equality Amendment (Act 17 of 2013) (2013)


Gender discrimination

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 Customary Marriage and Divorce (Registration) (Amendment) Law (1991)


Divorce and dissolution of marriage, Property and inheritance rights

This amends the previous law to make the registration of customary marriages optional rather than mandatory. The law also makes optional notification to the state of the dissolution of customary marriages registered under the act. The amendment mandates that a marriage performed under customary law under the act will follow customary intestate succession law granting that the reviewing court or tribunal is satisfied by oral or documentary evidence that the deceased and surviving spouse had been validly married under customary law.



Human Trafficking Act (2005)


Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

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.



Intestate Succession Law (1985)


Gender discrimination, Property and inheritance rights

The Intestate Succession Act governs family inheritance when a property owner dies without a will. The law provides a uniform system of intestate succession applicable regardless of the type of marriage (i.e., secular, customary, or Muslim). The estate is distributed through the various sections according to the number and type of heirs involved in the distribution. Section 5, for example, sets guidelines for how to divide an estate survived by both spouse and child, while section 6 dictates how to divide an estate when survived by a spouse only.



Domestic Violence Act (2007)


Domestic and intimate partner violence, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

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.



Labour Act (2003)


Employment discrimination

The Labour Act outlines workers’ rights in the public and private sectors. Part VI provides specific safeguards for women, such as the protection of pregnant women and the right to maternity, annual, and sick leave. Any violation of these provisions can be reported to the National Labour Commission. Section 55 prohibits employers from assigning pregnant women workers night work or overtime without their consent. Further, after the fourth month of pregnancy, employers cannot assign pregnant women to work outside her place of residence if the assignment is deemed detrimental to her health by a medical practitioner or midwife. Female workers are entitled to a period of maternity leave of at least 12 weeks in addition to any period of annual leave she is entitled after her period of confinement. Moreover, while on maternity leave a worker is entitled to full remuneration and benefits and cannot be dismissed for absence. The Act also specifies that every worker shall receive equal pay for equal work without distinction of any kind. Finally, section 87 prohibits an organization’s or trade union’s constitution or rules from discriminating against any person on grounds of race, place of origin, political opinion, color, religion, creed, gender, or disability.



Matrimonial Causes Act (1971)


Divorce and dissolution of marriage, Property and inheritance rights

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.



Children's Act (1998)


Forced and early marriage, Property and inheritance rights, Trafficking in persons

This Act consolidates the laws relating to children. It provides an overview of children’s rights, delineates the broad requirements concerning child maintenance and adoption, regulates child labor and apprenticeship, and discusses other ancillary matters concerning children generally. Part 1, Sub-Part 1 specifies several children’s rights and parental duties such as the right to parental property, education and well-being, social activity, and opinion. This Sub-Part also protects children from exploitative labor, torture, degrading treatment, and forced betrothal, dowry, or marriage. The penalty for any violation of these rights is imprisonment not to exceed one year or the payment of a fine not to exceed 5 million currency points or both. Section 14 of this Sub-Part sets the minimum age for any marriage at 18. Part IV of the Act then outlines the adoption process and gives jurisdiction to the High Court, Circuit Court, or Family Tribunal in the area where the adopter or adoptee resides at the time of the application. It further states that only a minor (a child under the age of 18) can be adopted by husband and wife jointly; father or mother alone or jointly with the spouse; a relative of 21 years; or a single person of 25 years and at least 21 years older than the child to be adopted. Finally, Part V of the Act delimitates the employment of children and prohibits any type of work before 13 years old.



Constitution of the Republic of Ghana (Amendment Act 1996) (1996)


Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

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.



Ghana Criminal Code Part II, Chapter 3 (Female Circumcision) (2003 Amendment Act (FGM)) (2003)


Female genital mutilation or female genital cutting, Harmful traditional practices

The Criminal Code (Amendment) Act introduced Section 69A, which prohibits female genital mutilation. In 2007, Parliament amended 69A, and expanded the definition of liability to include anyone who “carries out female genital mutilation and excises, infibulates or otherwise mutilates the whole or any part of the labia minora, labia majora and the clitoris of another person” and specified that liability on summary conviction mandated imprisonment for a minimum of five years and a maximum of 10 years.



Ghana Criminal Code Part II, Chapter 6 (Offences Against the Person: Marriage-related Offences) (1960)


Forced and early marriage, Statutory rape or defilement, Trafficking in persons

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."



Ghana Criminal Code Part II, Chapter 6 (Offences Against the Person: Sexual Offences) (1960)


LGBTIQ, Sexual violence and rape, Statutory rape or defilement

Chapter 6 of the Criminal Code outlines various sexual offenses criminalized in Ghana. Rape is criminalized in Sections 97 and 98 and is defined as the "carnal knowledge of a female of sixteen years or above without her consent." Rape is classified as a first-degree felony, and a person convicted of rape shall be imprisoned for a minimum of five years and a maximum of 25 years. Section 99 clarifies that "carnal knowledge or unnatural carnal knowledge" is complete upon proof of the least degree of penetration. Statutory rape is outlined in Section 101. It states that a person convicted of having sexual intercourse with a child under 16 years of age, with or without his or her consent, shall be imprisoned for a minimum of seven years and a maximum of 25 years. Similar punishment is outlined in Section 1012 for the defilement of anyone who is considered an "idiot, imbecile or mental patient." It states that a person who has sexual intercourse with a person they know has a mental incapacity commits an offense and shall be imprisoned for a minimum of five years and a maximum of 25 years. Indecent assault is outlined in Section 103. It states that a person commits indecent assault if he or she, without consent, forcibly makes any sexual bodily contact, or sexually violates another person, in any manner not amounting to “carnal knowledge or unnatural carnal knowledge.” Indecent assault is a misdemeanor and carries a minimum of six months imprisonment. “Unnatural carnal knowledge” is outlined in Section 104, which states that a person convicted for having ‘unnatural carnal knowledge’ may face different penalties depending on what act he or she commits. "Unnatural carnal knowledge" is defined as sexual intercourse with a person in an unnatural manner or with an animal. Section 104 has been interpreted as prohibiting homosexuality.



Ghana Criminal Code Chapter 2, Section 14 (Provisions relating to consent) (1960)


Sexual violence and rape, Statutory rape or defilement

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.



Law on Eliminating Violence against Women, No. 58 of 2017 (يتعلق بالقضاء على العنف ضد المرأةقانون أساسي عدد 58 لسنة 2017 مؤرخ في 11 أوت 2017) (2017)


Gender-based violence in general, International law

The law aims to put in place measures to eliminate gender-based violence against women in order to achieve equality and respect for human dignity by adopting a comprehensive approach to prevention of all forms of violence, to punish its perpetrators, and to protect victims of violence. The law applies to vulnerability and all forms of violence, including physical, moral, sexual, political, and economic. It adopts the internationally agreed definition of violence against women consistent with the Declaration on the Elimination of Violence against Women adopted by the UN General Assembly in 1993.



Gender & Development Act (Amending Title 12) (2001)


Gender discrimination

§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).



Defense Act of 2008 (2008)


Gender discrimination

The Act establishes the Armed Forces of Liberia (AFL), which consists of army, coast guard, and air force. The Act lays out the organization of the AFL and the responsibilities of different staff. The Act provides that the AFL must reflect the ethnic, gender, and religious diversity of the country (§ 7.1). §8.7 provides that the AFL shall provide equal opportunities to people regardless of gender difference.



Constitution of Liberia (1986)


Gender discrimination, Property and inheritance rights

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.



Penal Law (Title 26) (1978)


Abortion and reproductive health rights, Divorce and dissolution of marriage, Domestic and intimate partner violence, LGBTIQ, Sexual violence and rape, Stalking, Statutory rape or defilement

Chapter 16 sets forth criminal offenses for conduct against the family. §16.3 provides that an abortion after 24 weeks of pregnancy is a felony, unless it is conducted by a licensed physician upon his belief that the pregnancy causes danger to the mother or the child would be born with a grave defect. §16.1-16.2 prohibits bigamy, polygamy, incest, or deviate sexual intercourse with a family member and designates these acts as felonies. Separately, the Law prohibits harassment, which is defined as a written threat, an offensive telephone call, or repeated telephone calls with no legitimate communication purpose with the intent to frighten or harass the recipient. Chapter 14 Subchapter D outlines crimes involving sexual violence against persons committed on or after January 17, 2006. The age for statutory rape is 18 years. Gang rape constitutes first-degree felony. The Law defines lack of “consent” as including violence or the threat of violence against the victim or another person, the victim’s unconsciousness, a physical disability that prevents the victim from being able to to communicate his or her consent, or intentionally forcing the victim’s consent. The following acts constitute first-degree rape: rape of an underage victim, gang rape, rape that results in permanent disability to the victim, and use of a deadly weapon. The maximum punishment for first-degree rape is life imprisonment, and the maximum punishment for second-degree rape is 10 years imprisonment. Chapter 14 Subchapter D also covers sexual violence crimes committed before January 17, 2006. For those earlier offenses, the following constitute rape: a male has sexual intercourse with a female that is not his wife by force or by impairing her power to control her conduct; or a male has sexual intercourse with a female less than 16 years old. First-degree rape includes the following: the defendant causes serious bodily injury to the victim, the defendant has sexual intercourse with a female under 16 years of age, or the defendant has sexual intercourse with a female who has not previously consented. The change of language regarding crimes committed after 2006 indicates several important gender-related developments. First, the new language explicitly allows for the prosecution of men and women as perpetrators of rape. Second, it allows for the prosecution of rapes of male victims. Third, it no longer exempts “marital rape” from prosecution. Finally, it raises the age of statutory rape from 16 to 18 years. However, the Law also criminalizes homosexuality, making “voluntary sodomy” a misdemeanor (chapter 14.74).



Domestic Relations Law (1973)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

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.



Nigeria Penal Code Act (1960)


Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The Penal Code applies to the northern states of Nigeria. Section 55(1)(d), subject to customs that have been recognized as lawful, allows a husband to “correct[] his wife” as long as it does not amount to “grievous hurt.” Section 55(2) goes on to state that the correction must be reasonable in kind or degree with regards to the age, physical, and mental conditions of the person being corrected. Grievous hurt is defined in section 241 as “(a) emasculation; (b) permanent deprivation of the sight of an eye, of the hearing of an ear or the power of speech; (c) deprivation of any member or joint; (d) destruction or permanent impairing of the powers of any member or joint; (e) permanent disfiguration of the head or face; (f) fracture or dislocation of a bone or tooth; (g) any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.” The law concerning abortion is found in sections 232. Referenced in the law as the causing of a miscarriage, abortion is only legal to save the life of the mother. Any person, including the mother, can be guilty of the offense and will be punished with up to 14 years in prison, a fine, or both. Sections 233-235 discuss the causing of a miscarriage intentionally or unintentionally through acts against the mother. These offenses also carry a penalty of imprisonment, fines, or both. Section 282 discusses rape and specifies that sexual intercourse by a man with his wife is not rape if she has gone through puberty. No longer available at External URL. Please contact the Women & Justice Collection for a PDF copy.



Labour Act (1990)


Employment discrimination, Gender discrimination

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.



Same Sex Marriage (Prohibition) Act (2013)


Gender discrimination, LGBTIQ

The Same Sex Marriage (Prohibition) Act makes it illegal for same-sex individuals to marry, enter into a civil union, or gain entitlement to any benefits of a valid marriage. Additionally, it prohibits the public display of same-sex relationships. Any marriage or union entered into legally outside Nigeria is considered void within the country and no related benefits are recognized. The Act specially defines marriage as between a man and a woman and establishes criminal penalties against people who solemnize, witness, or aid various events supporting homosexuality. Sections 2-3; 5(3). The act also prohibits registering any same sex organizations and public displays of same sex romantic affection. Section 4. Punishments include imprisonment for 10-14 years depending on the offense. Section 5.



Matrimonial Causes Act (1990)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

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.



Violence Against Persons (Prohibition) Act (2015)


Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape, Statutory rape or defilement

As stated in the accompanying Explanatory Memorandum, the Violence Against Persons (Prohibition) Act aims to “prohibit[] all forms of violence against persons in private and public life, and provide[] maximum protection and effective remedies for victims and punishment of offenders.” The Act provides general protections against offenses including infliction of physical injury, coercion, offensive conduct, willfully placing a person in fear of physical injury, willfully making false statements against another person, damage to property with intent to cause distress, and deprivation of personal liberty. The Act also provides protections against offenses that affect women disproportionately, including a prohibition of female genital mutilation; forceful ejection from home; forced financial dependence or economic abuse; forced isolation; emotional, verbal and psychological abuse; harmful widowhood practices; and spousal battery, among others. Notably, the Act defines the offense of rape in Section 1(1) without an exception for marital rape, which had not traditionally been recognized as an offense (note that the Penal Code Act of 1960 does include an exception for marital rape). The Act provides a procedure for injured parties to apply for a protection order and empowers the High Court of the Federal Capital Territory with jurisdiction to hear and grant applications brought under the Act. As stated in Section 47, the Act is a product of federal legislation enacted in regard to criminal law, a residual matter over which the states have exclusive legislative power pursuant to the Nigerian Constitution. Thus, the VAPP Act applies only to the Federal Capital Territory and is not binding law in a state unless adopted by that state.



Trafficking in Persons (Prohibition) Enforcement and Administration Act (2015)


Gender discrimination, Trafficking in persons

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.



National Commission for Women Act (1992)


Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The National Commission for Women Act established the National Commission for Women to promote the general welfare of Nigerian women, “promote the full utilization of women in the development of human resources and bring about their acceptance as full participants in every phase of national development, with equal rights and corresponding obligations,” and “work towards total elimination of all social and cultural practices tending to discriminate against and de-humanise womanhood.” Some of the Commission’s objectives include “mobilizing women collectively in order to improve their general lot and ability to seek and achieve leadership roles in all spheres of society” and “raising consciousness about the rights of women, the availability of opportunities and facilities, their social, political, and economic responsibilities.”



Evidence Act (1990)


Sexual violence and rape

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.



Criminal Code Act (1990)


Abortion and reproductive health rights, Gender discrimination, Sexual violence and rape

The Criminal Code applies to the southern states of Nigeria. The Criminal Code Act distinguishes between the treatment of assault on men and assault on women, with Chapter 29 (Sections 351-356) addressing “Assaults” and Chapter 30 (Sections 357-362) addressing “Assaults on Females: Abduction.” Notably, indecent assault on a man is considered a more serious offense and carries a higher sentence than does indecent assault on a woman. Under Section 353, “[a]ny person who unlawfully and indecently assaults any male person is guilty of a felony, and is liable to imprisonment for three years.” In contrast, under Section 360, “[a]ny person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanor, and is liable to imprisonment for two years.” Rape is defined in section 257. It is defined as “unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband.” Abortion is criminalized by sections 228-230. Abortion is defined in Section 228 as an attempt to procure a miscarriage. A mother trying to cause her own miscarriage is liable for imprisonment for seven years, while anyone who administers to her a poison or otherwise induces a woman’s miscarriage is liable for imprisonment for 14 years, and anyone who supplies or obtains any item with the knowledge of its intended use to cause an abortion is liable for imprisonment for three years. Sections 228-230. The laws derive culpability from intent and apply regardless of whether the woman is actually pregnant.



Constitution of the Federal Republic of Nigeria (1999)


Employment discrimination, Gender discrimination

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.



Anti-Trafficking in Persons Act (2011)


Forced and early marriage, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

This Act criminalizes slavery in all forms and provides protection and support for victims of trafficking. As defined by the Act, "'exploitation' includes, at the minimum, induced prostitution and other forms of sexual exploitation, forced marriage, forced or bonded services, or practices similar to slavery, servitude or the removal of human organs." The definition of trafficking is comprehensive and defined in Part 2, Section 5(3) of the Act. The Act proscribes further that victims “shall not be liable for crimes committed in connection” to their own trafficking and that “the past sexual behavior of a victim of trafficking is irrelevant and inadmissible for purpose of proving that the victim was engaged in other sexual behavior or to prove sexual predisposition of the victim.” The Act provides an aggravated trafficking designation in cases where the trafficked person dies, becomes disabled physically or mentally, suffers mutilation, contracts a sexually transmitted disease including but not limited to HIV or AIDS, or develops a chronic health condition. The Act also mandates the temporary material support and care for any child victim; provision of accommodation, counseling, and rehabilitation services for victims; and mandates attempted reintegration of adult victims into their families and communities.



Children's Protection and Welfare Act (2011)


Divorce and dissolution of marriage, Gender discrimination

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.



National Assembly Election (Amendment) Act (2011)


Gender discrimination

The National Assembly Election (Amendment) Act, 2011 repeals and replaces the National Assembly Elections Act of 1992. Section 47(2)(b) states that political parties shall “arrange the candidates in order of preference from top to bottom, with a female or male candidate immediately followed by a candidate of the opposite sex; and (c) include equal numbers of “women and men.”



Companies Act (2011)


Employment discrimination, Gender discrimination

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.



Education Act (2010)


Gender discrimination

The Education Act of 2010 makes primary education free and compulsory for male and female children. Part 2(4)(2)(C) states that “The Minister, Principal Secretary, Teaching Service Commission, proprietors of schools, teachers and school boards shall promote the education of the people of Lesotho” and “ensure that the learner is free from any form of discrimination in accessing education.” While Part 9, Section 41 of the act establishes that at least two of the five members of the proposed Teaching Service Commission must be women.



Penal Code Act (2010)


Abortion and reproductive health rights, Sexual violence and rape, Statutory rape or defilement

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.



Legal Capacity of Married Persons Act (2006)


Gender discrimination

The Legal Capacity of Married Persons Act, 2006 (“LCOMP”) removes the minority status of married women and other incidental matters. LCOMP removed the marital power that a husband has over the person and the property of his wife. In addition, LCOMP removes certain restrictions which the marital power places on the legal capacity of a wife, including entering into a contract, suing or being sued, registering immovable property in her name, acting as an executrix of a deceased’s estate, acting as a director of a company, binding herself as surety, and performing any other act that was restricted by any law as a result of the marital power before the commencement of the Act.



Local Government (Amendment) Act (2004)


Gender discrimination

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.



Sexual Offences Act (2003)


Sexual violence and rape, Statutory rape or defilement

The Sexual Offences Act recognises marital rape as a crime. Section 3(3) of the Sexual Offences Act provides that marriage or any other relationship shall not be a defence against a charge under the Act. Section (5)(2) makes criminally liable "a person who induces another to submit to a sexual act through the use of his authority, status, power, privilege, or other undue influence, commits an offence." Other sections provide for compulsory HIV testing of perpetrators of sexual violence and penalize those who commit sexual violence while knowing that they are HIV positive.



Constitution of Lesotho (1993)


Employment discrimination, Gender discrimination

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.



Constitution of the Republic of Uganda (1995)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Article 21 of the Constitution of Republic of Uganda prohibits gender discrimination generally and enshrines the principle of equality before the law, regardless of sex, race, color, ethnicity, tribe, religion, political belief, or social or economic standing. Article 31 sets the minimum age for marriage at 18 and provides for equal rights between men and women during marriage and divorce. Article 33 pertains specifically to the rights of women and requires that (1) the government must provide opportunities to enhance the welfare of women and enable them to reach their full potential, (2) women have rights equal to men in areas including political, economic, and social activities, and (3) laws, customs, traditions, and cultures that are "against the dignity of women" are prohibited by the Constitution. Article 22 enshrines protection for the right to life and allows for abortion in accordance with the law.



Anti-Human Trafficking Act (2014)


Trafficking in persons

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.



Employment (Amendment) Act of 2010 (2010)


Employment discrimination, Gender discrimination

Sections 113-118 of the Employment (Amendment) Act pertain to the rights of women to maternity leave from their employers. The amendment compels employers to pay employees on maternity leave not less than 50% of their salary, establishes the right to maternity allowance unaffected by notice of termination of contract of employment, and prohibits serving notice of termination of contract of employment during maternity leave. It establishes in Section 117 that female employees are entitled to only one maternity allowance per woman. Section 118 mandates that an employer permit a female employee for a half hour twice a day to “suckle her child or otherwise feed him herself” for “six months immediately after her return to work.”



Customary Law Act (1969)


Gender discrimination, Harmful traditional practices

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.



Section 44 of the Interpretation (Amendment) Act, 2010 (2010)


Forced and early marriage

Section 44 requires a gender-neutral interpretation of statutory language. It states that use of male-specific language includes women and the use of female-specific language includes men. Finally, section 44 notes that the terms "person" and "party" are not limited to natural persons even if accompanied by gendered language. The Interpretation Act commenced in 2013.



The Married Persons Property Act of 2014 (2014)


Property and inheritance rights

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 Abolition of Marital Power Act 34 of 2004 (2004)


Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The full title of the Abolition of Marital Power Act 34 of 2004 is “An Act to provide for the abolition of marital power, to amend the matrimonial property law of marriages, to provide for the domicile of married women, to provide for the domicile and guardianship of minor children and to provide for matters incidental thereto.” The Act provides for equal powers in property ownership for spouses. It also gives women equal powers to assume guardianship of minor children and in determining the domicile of their children. Furthermore, it removes the common law position of the husband as head of the family. Its effect is limited to common law marriage; it has no effect on customary or religious marriages (couples may marry under customary or common law).



Marriage (Amendment) Act of 2001 (2001)


Forced and early marriage, International law

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.



Public Service (Amendment) Act 14 of 2000 (2000)


Employment discrimination, Sexual harassment

In 2000, the Public Service Act was amended to recognize sexual harassment. Sexual harassment is defined as “any unwanted, unsolicited or repeated sexual advance, sexually derogatory statement or sexually discriminatory remark made by an employee to another,” and it covers all offensive or objectionable remarks made in or outside the workplace that cause the recipient discomfort or humiliation or that “the recipient believes interferes with the performance of his or her job security or prospects” or that “create[s] a threatening or intimidating work environment.” The Act delineates the penalties for sexual harassment.



Penal Code (Amendment) Act of 1998 (1998)


Gender discrimination, Sexual violence and rape

In 1998, the Penal Code Act was amended to make the offence of rape gender-neutral and to move away from a phallus-specific definition. The Amendment introduced a minimum sentence of 10 years to a maximum term of life imprisonment and made bail unavailable to persons accused of the offense. The amendment also made mandatory HIV testing for persons convicted of rape, and in the case wherein rape was accompanied by violence or the rapist was unaware of his or her HIV+ status, a minimum sentence of 15 years with corporal punishment was introduced. For cases wherein the convicted person was aware of his or her HIV status, the minimum sentence was set at 20 years imprisonment with corporal punishment. Excerpts of amended language available here.



Domestic Violence Act (2008)


Domestic and intimate partner violence

The Domestic Violence Act (No. 10 of 2008) seeks to provide survivors of domestic violence with protection. The Act defines domestic violence as "any controlling or abusive behaviour that harms the health or safety of the applicant." The Act empowers Courts including Customary Courts to pass an order (Section 7 of the Act prescribes orders available to applicants such as restraining orders and interim orders) that seeks to immediately protect applicants (victims); Section 9 (2) (b) (i) provides that the order shall direct a member of the Botswana Police to prohibit the respondent (the offender) from committing an act of domestic violence. The Act also outlines the jurisdiction of the courts, describes how an applicant can file an application for an order by the court, details how documents are served to respondents, and explains the nature of proceedings in a domestic violence case.



Constitution of Botswana (2006)


Employment discrimination, Gender discrimination, Sexual violence and rape, Trafficking in persons

Section 6 of the Constitution of Botswana adopted in 1966, and amended in 2006, prohibits sexual slavery or trafficking. It includes the following provisions: 1) No person shall be held in slavery or servitude. (2) No person shall be required to perform forced labour. Section 7 of the Constitution of Botswana adopted in 1966, and amended in 2006, prohibits sexual violence that constitutes torture. It includes the following provisions: (1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the country immediately before the coming into operation of this Constitution. Section 15 of the Constitution of Botswana adopted in 1966, and amended in 2006, prohibits the making of discriminatory laws



Política de Género e Estratégia da sua Implementação (Gender Policy and its Implementation) (2006)


Gender discrimination

Outlines a general plan for the creation of institutional mechanisms that will assist in the implementation of policies targeting gender inequality. Critical areas identified include economic empowerment, education, basic needs, and childbirth mortality.



Penal Code 2014: Lei nº 35/2014 (2014)


Abortion and reproductive health rights, Domestic and intimate partner violence, Sexual violence and rape

The Code defines certain crimes and their penalties. The Code includes provisions defining and prohibiting sexual assault and domestic violence. The Code legalizes abortions performed within 12 weeks of gestation. The Code also eliminates attenuating circumstances previously associated with the crime of rape, such as the possibility of acquittal in cases where the perpetrator married the victim. In addition, the Code decriminalizes prostitution.



Lei do Trabalho: Lei nº 27/2007 (Labor Act) (2007)


Employment discrimination, Gender discrimination

The law governs rights associated with labor. The law grants women the right to a 60-day paid maternity leave. In contrast, fathers receive a one-day paternity leave on the day immediately following the birth of the child. The law also provides that mothers have the right to up to 30 absences from work per year in order to care for minor children who are either sick or have suffered an accident.



Lei de Terras: Lei nº 19/97 (Land Law) (1997)


Property and inheritance rights

The law governs ownership and use of land. Articles 10 and 15 of the law provide that women have the same right as men to use and manage land. The law also provides that land can be inherited regardless of gender. However, article 12 states that land acquisition requires compliance with “customary norms and practices that are not contrary to the Constitution.”



Lei da Família: Lei nº 10/2004 (Family Code) (2004)


Divorce and dissolution of marriage, Employment discrimination, Forced and early marriage, Gender discrimination, Property and inheritance rights

The law defines family relationships and establishes certain “rights of the family.” The law prohibits various forms of discrimination against women, including through polygamy, inheritance, age at marriage and choice of children. The law defines marriage as a “voluntary union between a man and a woman”, which requires mutual consent. Coerced marriage is subject to annulment. The law provides that both husband and wife have the right to “represent the family”, to administer the family finances, and to work. The law also outlines provisions for divorce. Husbands are required to pay child support in case of divorce,



Lei de Prevenção e Combate ao Tráfico de Pessoas: Lei nº 6/2008 (Law to Prevent Trafficking and Combat in Persons) (2008)


Trafficking in persons

The law defines and prohibits human trafficking. The penalty for human trafficking is 16 - 20 years imprisonment. Longer prison sentences are recommended when the victim is a woman or a child. The law provides that victims can benefit from witness protection measures and other forms of assistance, such as medical services and counseling.



Lei Sobre a Violência Doméstica Praticada Contra a Mulher: Lei nº 29/2009 (Law on Domestic Violence Against Women) (2009)


Domestic and intimate partner violence, Sexual violence and rape

The law defines and prohibits acts of domestic violence, including sexual and moral violence, which do not result in death. Moral violence consists of publishing content that offends the honor or character of a woman. The penalty for domestic violence is established according to the rules of the national Penal Code. The law also includes community service as a potential penalty. The penalty for “non-consensual sex” is six months to two years imprisonment. The penalty may be increased if the perpetrator maintained sexual relations with the victim despite being aware that he was infected with HIV. However, lawmakers chose not to include an article in the law which would have prohibited traditional practices that violate women’s sexual and reproductive rights (e.g. the traditional practice whereby widows must marry their deceased husband’s brother).



Constituição da República de Moçambique (Constitution of the Republic of Mozambique) (2007)


Gender discrimination

Article 36 of Mozambique’s Constitution provides that “men and women are equal before the law in all aspects of political, economic, social and cultural life.” Article 120 recognizes and protects the roles of maternity and paternity. It acknowledges the importance of family to the development of children - socially, morally, and ethically - and so ensures an education to the future generation based on the country’s values, namely equality between men and women. Article 122 states a woman’s rights to participate in society. It specifically supports women’s participation in the struggle for national liberation and defense of sovereignty and democracy, as well as promotes women in their growing role in all spheres: political, economic, social, and cultural.

O Artigo 36 da Constituição de Moçambique prevê que “homens e mulheres são iguais perante a lei em todos os aspectos políticos, econômicos, sociais, e culturais." O artigo 120 reconhece e protege os papéis de maternidade e paternidade. Ele reconhece a importância da família para o desenvolvimento da criança – social, moral, e eticamente – e então garante uma educação para a próxima geração baseada nos valores do país, nomeadamente a igualdade entre homens e mulheres. O artigo 122 estabelece os direitos da mulher em participar da sociedade. Ele especificamente apoia a participação feminina no esforço pela liberação nacional e a defesa da soberania e democracia, assim como promove a mulher no seu papel crescente em todas as esferas: política, econômica, social, e cultural.



Recognition of Customary Marriage Act (1998)


Divorce and dissolution of marriage

The Act recognizes customary marriages solemnized in accordance with customary law. Customary law is defined as, “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.” Both monogamous and polygamous marriages are recognized under the Act. Although registration of a customary marriage is peremptory, a failure to register a customary marriage does not affect the validity of that marriage. The definition of customary law in this Act does not apply to Hindu and Muslim customary marriages.

Die Wet op Erkenning van Gebruiklike Huwelike (1998)

Egskeiding en ontbinding van huwelik​

Die Wet erken gebruiklike huwelike wat in gewoontereg voltrek word. Gewoontereg word beskou as “Die gewoontes en gebruike wat tradisioneel onder die inheemse bevolkingsgroepe van Suid-Afrika nagekom word en wat deel vorm van die kultuur van daardie bevolkingsgroepe.” Beide monogame en poligiene gebruiklike huwelike word erken onder die wet. Alhoewel registrasie van ‘n gebruiklike huwelik bindend is, sal versuiming om dit te registreer nie die geldigheid van die huwelik affekteer nie. Hindoe en Moslem gebruiklike huwelike val nie onder die definisie van gewoontereg vir dié wet nie.



Prevention and Combating of Trafficking in Persons Act (2013)


Forced and early marriage, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The Act defines and prohibits human trafficking. The PCTP Act adopts a broad definition of human trafficking, namely, that a person is guilty of human trafficking if he or she delivers, recruits, transports, transfers, harbours, sells, exchanges, leases or receives another person, through various means, including the use of force, deception, or coercion, aimed at the person or an immediate family member for the purpose of exploitation. Furthermore, a person who adopts a child, facilitated or secured through legal or illegal means; or concludes a forced marriage with another person, for the purposes of exploitation of that child or person, is guilty of an offence. The PCTP Act criminalizes various acts that constitute or relate to trafficking in persons and imposes harsh penalties, including life imprisonment for trafficking in persons; 15 years’ imprisonment for engaging in conduct that causes a person to enter into debt bondage or benefiting from services of a trafficking victim; and 10 years’ imprisonment for facilitating trafficking. The PCTP Act also provides for severe fines and enables the state to confiscate the assets of traffickers.

Die Wet op Voorkoming en Bestryding van Handel in Persone (2013)

Gedwonge en minderjarige huwelike, seksuele geweld en verkragting, statutêre verkragting of besoedeling, mensehandel​

Die Wet definieer en verbied mensehandel. Die Wet aanvaar ‘n wye definisie van mensehandel, naamlik dat ‘n persoon skuldig is aan mensehandel indien hy of sy betrokke is by die werwing, vervoer, verskuiwing, huisvesting of ontvang van persone of gebruik van dreigemente, geweld of ander vorme van dwang, teen ‘n persoon of familielid met die doel van uitbuiting. Verder, ‘n persoon wat ‘n kind aanneem deur wettig of onwettige middele te gebruik; of ‘n gedwonge troue af te dwing met ‘n ander persoon, met die doel om uitbuiting van die kind of persoon, is skuldig aan ‘n oortreding. Die Wet kriminaliseer verskeie dade wat bestaan uit of verband hou met mensehandel, en dit stel swaar strafmaatrëels daar, insluitend lewenslange tronkstraf vir mensehandel; 15 jaar tronkstraf vir gedrag wat lei tot die skuldigbevinding van ‘n persoon wat betrokke was en voordeel trek uit die dienste van ‘n mensehandel slagoffer; en 10 jaar tronkstraf vir die fasilitering van mensehandel. Die Wet maak ook voorsiening vir strawwe boetes en gee die staat die reg om bates van mensehandelaars te konfiskeer.



Reform of Customary Law of Succession and Regulation of Related Matters Act 11 (2009)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Act abolishes the customary rule of primogeniture in as far as it applies to the law of succession and further extends the application of the Intestate Succession Act to the deceased estates of Africans who die intestate (without a will) and provides guidelines for interpreting the Intestate Succession Act in order to give effect to the new provisions and to ensure the protection of the rights of women to inherit.

Die Wet op Hervorming van die Gewoontereg van Opvolging en Regulering van Verwante Aangeleenthede 11 (2009)

Geslags diskriminasie, Skadelike traditionele gebruike, Eiendom en erfenisregte​

Die Wet skaf die gebruiklike rëel van primogeniture af vir sover dit van toepassing is op die erfreg en brei die toepassing van de Wet op Intestate Opvolging verder uit op die afgestorwe boedels van Afrikane wat intestaat sterf (sonder ‘n testament) en bevat riglyne vir die inerpretasie van die Intestate Opvolgingswet om uitvoering te gee aan die nuwe bepalings en om die beskerming van die regte van vroue om te erf te verseker.



Criminal Law Amendment Act No. 105 (1997)


Sexual violence and rape

Section 51 of the Act provides for certain mandatory sentences and sentencing guidelines which a regional court or high court may impose and consider for, inter alia, rape and compelled rape (minimum sentences may be reduced for compelling and substantial circumstances). The Act specifically provides that when considering imposing a sentence in respect of the offence of rape, a court must not consider the following circumstances as constituting compelling circumstances to deviate from the minimum sentencing guidelines: the complainant’s sexual history, lack of physical injury, culture or religious beliefs of accused or any relationship of the parties prior to assault.

Kriminele Wet Wysigings Wet 105 (1997)

Seksuele geweld en verkragting​

Artikel 51 van die Wet bepaal vir sekere verpligte vonnisse en vonnisriglyne wat 'n streekhof of hooggeregshof mag oplê en oorweeg vir, onder andere, verkragting en dwangverkragting (minimum vonnise kan verminder word vir dwingende en wesinglikke omstandighede Die Wet bepaal spesifiek dat ‘n hof nie die volgende omstandighede as dwangende omstandighede moet oorweeg om ‘n vonnis vir die misdryf van verkragting op te le nie, maar moet afwyk van die minimum riglyne vir vonnis oplegging: die seksuele geskiedenis van die klaer, ‘n gebrek aan liggaamlike besering, kultuur of godsdienstige oortuigings van beskuldigdes of enige verhouding van die partye voor aanranding.



Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (2007)


Sexual violence and rape

The Act was adopted to comprehensively and extensively deal with all sexual offences under a single statute. The act, inter alia, repeals the common law offences of rape and replaces it with an expanded definition of rape applicable to all form of sexual penetration without consent irrespective of gender and repeals other common law offences related to indecent assault and penetration and replaces them with broader statutory offences.

Kriminele Wet (Seksuele Misdrywe en Verwante Aangeleenthede) Wysigings Wet 32 (2007)

Seksuele geweld en verkragting​

Die Wet is aangeneem om alle seksuele misdrywe onder 'n enkele wet volledig en omvattend te hanteer. Die Wet, onder andere, herroep die gemeenregtelike misdrywe van verkragting en vervang dit met 'n uitgebreide definisie van verkragting wat van toepassing is op alle vorme van seksuele penetrasie sonder toestemming, ongeag geslag, en herroep ander gemeenregtelike oortredings wat verband hou met onsedelike aanranding en penetrasie en vervang dit met breër statutêre misdrywe.



Sexual Offences Act (1998)


Sexual harassment, Sexual violence and rape, Trafficking in persons

The Sexual Offences Act recognizes in its preamble that women are particularly vulnerable to becoming victims of sexual offences, particularly adult prostitution. The Act prohibits prostitution, the operation of brothels, and other activities related to prostitution and brothel-keeping.

Seksuele Oortredings Wet (1998)

Seksuele teistering, Seksuele geweld en verkragting, Mensehandel​

Die Seksuele Oortredings Wet erken in die aanhef dat vrouens veral kwesbaar is om slagoffers te word vir seksuele misdrywe, veral volwassenes prostitusie. Die Wet verbied prostitusie, die bedryf van bordele, en ander aktiwiteite wat verband hou met prostitusie en bordeelhouding.



Domestic Violence Act and the Domestic Violence Regulations (1999)


Domestic and intimate partner violence

The Domestic Violence Act and the Domestic Violence Regulations promulgated thereunder offer complainants (any person in a domestic relationship who alleges she/he is the subject of domestic violence, including a child in the care of the complainant) the maximum protection possible from domestic abuse by imposing obligations on the police and other organs of state to prevent and assist the elimination of domestic violence (defined as including, inter alia, sexual abuse, physical abuse, stalking and harassment). Persons deemed to be in a domestic relationship include, inter alia, persons married by any law or custom, persons living (or who recently lived) together, parents of a child and parties in a romantic or sexual relationship. The Act allows any complainant to obtain a protection order against a respondent by application to the court and allows for interim orders to be granted without the respondent having received notice of such application in certain circumstances. When granting a protection order the court must make an order for the arrest of the respondent and may make an order to confiscate any weapons in the respondent’s possession.

Wet op Gesinsgeweld en die Regulasies vir Gesinsgeweld (1999)

Gesinsgeweld en intieme maatskaplike geweld​

Die Wet op Gesinsgeweld en die regulasies daarvan uitgevaardig bied klaers (enige persoon in ‘n huishoudelike verhouding wat beweer dat hy of sy die onderwerp is aan huishoudelike geweld, insluitend ‘n kind in die sorg van die klaer) die hoogste moontlike beskerming teen huishoudelike geweld aan deur verpligtinge op te lê aan die polisie en ander staatsorganisasies om die uitskakeling van huishoudelike geweld te voorkom (omskryf as, onder andere, seksuele mishandeling, fisiese mishandeling, agtervolging en teistering.) Persone wat geag word om ‘n huishoudelike verhouding te hê is, onder andere, persone wat getroud is volgens enige wet of gewoonte, persone wat saamwoon (of wat onlangs saam gewoon het), ouers van ‘n kind en partye in ‘n romantiese of seksuele verhouding. Die Wet laat enige klaer toe om ‘n beskermingsbevel teen ‘n respondent te kry deur aansoek by die hof en laat toe in sekere omstandighede dat tussentydse bevele toegestaan kan word sonder dat die respondent kennis gegee word vir sodanige aansoeke. By die toestaan van 'n beskermingsbevel moet die hof 'n bevel maak vir die inhegtenisneming van die respondent en kan 'n opdrag gee om enige wapens in die respondent se besit te konfiskeer.



Promotion of Equality and Prevention of Unfair Discrimination Act (2000)


Employment discrimination, Female genital mutilation or female genital cutting, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape

The purpose of the Promotion of Equality and Prevention of Unfair Discrimination Act is to give effect to section 9 of the Constitution of the Republic of South Africa, read in conjunction with item 23(1) of its sixth schedule. The effect of this is to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith. Section 8 expands on the provisions of Section 9 by setting out, without limitation, the following specific examples of such prohibited discrimination: (a) gender-based violence; (b) female genital mutilation; (c) the system of preventing women from inheriting family property; (d) any practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child; (e) any policy or conduct that unfairly limits access of women to land rights, finance, and other resources; (f) discrimination on the ground of pregnancy; (g) limiting women’s access to social services or benefits, such as health education and social security; (h) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons; and (i) systemic inequality of access to opportunities by women as a result of the sexual division of labor. The Act further regulates which party will bear the burden of proof in discrimination cases and further sets out which factors should be taken into account in determining whether discrimination is fair or unfair.

Wet op die Bevordering van Gelykheid en die Voorkoming van Onbillike Diskriminasie (2000)

Diskriminasie op werksgeleenthede, verminking van vroulike geslagsorgane of sny van vroulike geslagsdele, geslagsdiskriminasie, geslagsgebaseerde geweld in die algemeen, skadelike tradisionele praktyke, regte op erf en erfenis, seksuele geweld en verkragting​

Die doel van die Wet op die Bevordering van Gelykheid en die Voorkoming van Onbillike Diskriminasie is om uitvoering te gee aan artikel 9 van die Grondwet van die Republiek van Suid Afrika, in samewerking met artikel 23(1) van die Grondwet se sesde skedule. Die effek hiervan is om onbillike diskriminasie en teistering te voorkom en te verbied; om gelykheid te bevorder en onbillike diskriminasie uit te skakel; om haat-spraak te voorkom en te verbied; en om voorsiening te maak vir aangeleenthede wat daarmee verband hou. Artikel 8 brei die bepalings van Artikel 9 uit, sonder beperking, deur die volgende spesifieke voorbeelde van sodanige verbode diskriminasie uiteen te sit: (a) geslagsbaseerde geweld; (b) geslagtelike verminking van vroulike geslag; (c) die stelsel wat voorkoom dat vrouens familie-eiendom erf; (d) enige praktyk, met inbegrip van tradisionele, gebruiklike of godsdienstige praktyk, wat die waardigheid van vrouens belemmer en die gelykheid tussen vrouens en mans ondermyn, insluitend die ondermyning van die waardigheid en welstand van die meisie-kind; (e) enige beleid of optrede wat vrouens se toegang to grondreg, finansies en ander hulpbronne beperk; (f) diskriminasie op grond van swangerskap; (g) beperking van vrouens se toegang tot maatskaplike dienste of voordele soos gesondheidsopvoeding en sosiale sekuriteit; (h) die weierig van toegang tot geleenthede, insluitende toegang tot dienste of kontraktuele geleenthede vir die lewering van dienste vir oorweging, of versuim om stappe te neem om die behoeftes van sulke persone redelik te voorsien; en (i) sistematies ongelykheid van toegang tot geleenthede van vroue as gevolg van die seksuele verdeling van arbeid. Die Wet reguleer verder watter party die bewyslas in diskriminasiesake sal dra en lê verder uit watter faktore in ag geneem moet word by die bepaling of die diskriminasie billik of onbillik is.



The Constitution of the Republic of South Africa (1996)


Gender discrimination

Section 9 of the Constitution provides for the right to equality. Section 9(1) provides that "Everyone is equal before the law and has the right to equal protection and benefit of the law." Section 9(3) states that "The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth". Section 9(4) provides that "No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination." Finally, subsection (5) provides that "Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair." This includes discrimination on the basis of gender, sex or pregnancy.

Die Grondwet van die Republiek van Suid Afrika (1996)

Geslags diskriminasie​

Artikel 9 van die Grondwet maak voorsiening vir die reg op gelykheid.​ Artikel 9(1) bepaal dat “Almal gelyk is voor die Wet en het die reg op gelyke beskerming en voordeel van die Wet”. Artikel 9(3) bepaal dat “die Staat nie onbillik direk of indirek mag diskrimineer teen iemand op een of meer gronde nie, insluitend ras, geslag, seksuele orientasie, swangerskap, huwelikstatus, etniese of sosiale oorsprong, kleur, ouderdom, gestremdheid, godsdiens, gewete, geloof, kultuur, taal en geboorte nie“. Artikel 9(4) bepaal dat “Geen persoon mag regstreeks of onregstreeks onbillik teen iemand diskrimineer op een of meer gronde ingevolge subartikel (3) nie. Nasionale wetgewing moet verorden word om onbillike diskriminasie te voorkom of te belet” Ten slotte bepaal subartikel (5) dat “ Diskriminasie op grond van een of meer van die gelystes in subartikel (3) onbillik is, tensy daar vasgestel word dat die diskriminasie wel billik is.” Dit sluit in diskriminasie op grond van geslag of swangerskap.



Termination of Pregnancy Act (1977)


Abortion and reproductive health rights

if the continuation of the pregnancy is a serious threat to the mother’s health; (iii) if there is a serious risk that, if the child is born, it will suffer from a physical or mental defect that will cause the child to be severely disabled; (iv) where the pregnancy is a result of unlawful intercourse. Unlawful intercourse includes rape (this does not include marital rape), incest and mental handicap. However, a legal abortion can only be performed by a medical practitioner in a designated institution with the written permission of the superintendent of the institution. In cases where the mother’s life is in danger, the superintendent will not give permission until they have two different medical opinions regarding the danger to the mother. In circumstances of rape/incest, the superintendent must give permission after he receives written confirmation from a magistrate that the woman complained about the rape or the incestuous conduct. Contravention of the act by a medical practitioner in terminating a pregnancy or superintendent in providing permission not in accordance with the TPA constitutes an offense for which they could be liable for a fine not exceeding USD 5000, and/or to imprisonment for a period not exceeding five years.



Administration of Estates Act (2002)


Harmful traditional practices, Property and inheritance rights

The AE Act removed inheritance laws unfavorable to widows in civil and registered customary marriages. It recognizes a union contracted according to customary rites, even without formal registration under the Customary Marriages Act of 1951 (currently under Parliamentary review as of July 17, 2019). The AE Act provides that the property of an estate is to be divided by the surviving spouse and the children, regardless of the sex of the children. It also stipulates that a widow whose husband died intestate retains rights to the family’s land upon the death of her husband.



The Domestic Violence Act (2007)


Domestic and intimate partner violence, Harmful traditional practices

The DVA protects and provides relief for victims of domestic violence. It defines and prohibits domestic violence in the form of physical, emotional, sexual, and economic abuse as well as acts of abuse derived from any cultural or customary practices that discriminate against or degrade women. Examples include, but are not limited to, forced virginity testing, female genital mutilation, pledging women and girls to appease spirits, forced marriage, child marriage, forced wife inheritance or sexual intercourse between fathers-in-law and newly married daughters-in-law. The penalty for committing an act of domestic violence as defined under section 3 is a fine not exceeding USD 5,000 and/or imprisonment for a period not exceeding ten years. The DVA also imposes duties on the police. Stations must have, where possible, one police officer with domestic violence expertise. Further, a police officer who receives a complaint of domestic violence must advise the complainant about how to obtain shelter or medical treatment and about their right to seek relief under the DVA. The DVA also requires that complaints made to police officers should be taken by officers of the same sex as the complainant, if complainant so requests. Moreover, police officers have the authority to arrest a person suspected of committing an act of domestic violence without a warrant and bring that person before a magistrate within 48 hours. Finally, the DVA provides for protection and relief to survivors of domestic violence by enabling them to apply for a protection order when an act of domestic violence has been committed, is being committed, or is threatened. It also allows someone acting with the consent of the complainant to make an application for a protection order on his or her behalf with the leave of the court. A person who fails to comply with a protection order is guilty of an offense and liable for a fine not exceeding USD 200 and/or imprisonment for up to five years.



Constitution of Zimbabwe (Amendment No. 20) (2013)


Divorce and dissolution of marriage, Domestic and intimate partner violence, Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Zimbabwe’s new 2013 Constitution addressed women’s rights and gender equality, and its bill of rights addressed damaging cultural and discriminatory practices. A gender commission was also established to accelerate the implementation of provisions related to women. More specifically, the Constitution recognized gender equality and women’s rights among Zimbabwe’s founding values and principles. It mandated that the State and all its institutions consider gender equality in laws and policy, to implement measures that provide care and assistance to mothers, and to grant women opportunities to work. The State must also prevent domestic violence, ensure marriages are consensual, and that there are equal rights in marriages. In the event of dissolution of marriage, the State must provide for the rights of spouses and children. The state is also obliged to afford girls and boys equal educational opportunities. The bill of rights specifically stipulates that women are equal to men, including deserving equal opportunities in political, economic, and social activities. Provision was also made for legislative seats reserved for women in the National Assembly. Finally, gender equality must be considered in making judicial appointments.



Local Authorities Act (1992)


Gender discrimination

The Local Authorities Act establishes local authority councils within local government and defines their powers, duties and functions. The Act provides that the slate of candidates from any given political party up for election in a municipal, village or town council election must contain at least three female persons where the council consists of 10 or fewer members and at least five female persons where a council consists of 11 or more members, in an attempt to increase the presence of women in decision making positions.



Combating of Immoral Practices Act (1980)


Sexual violence and rape, Trafficking in persons

The Combating of Immoral Practices Act aims to prevent and reduce prostitution and the existence of brothels. The Act imposes a criminal penalty for keeping a brothel of imprisonment for a period not exceeding three years or imprisonment and a fine. The Act punishes procuring or attempting to procure any female to have unlawful carnal intercourse with imprisonment for a period not exceeding five years. The Act also imposes criminal sentences for offenses related to prostitution and various immoral acts, such as the owner or occupier of a property permitting such acts, living on earnings of prostitution, or enticing someone to commit an immoral act.



Social Security Act (1994)


Employment discrimination, Gender discrimination

The Social Security Act provides maternity benefits to women through a compulsory combined scheme for sickness, maternity and death benefits through matching employer and employee contributions. The Act establishes the National Medical Benefit Fund to administer the payments for such benefits and the National Pension Fund for pension benefits for those who have retired. The Act also makes a provision for the funding of training programs for disadvantaged and unemployed persons through a Development Fund.



Communal Land Reform Act (2002)


Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Communal Land Reform Act 2002 aims to regulate the allocation of customary land rights in communal lands and to establish Communal Land Boards. Communal land that previously belonged to indigenous communities is now vested in the state, which then distributes and allocates the land among the rural communities. This Act takes precedence over customary law and is much more favorable to women’s rights. Under the Act, four women must be appointed to the Communal Land Boards. Furthermore, the Act provides that a customary land right that was allocated to a particular holder of such right shall upon the death of such holder be re-allocated to the surviving spouse. This provides protection to a surviving wife who may now remain on the communal land where previously she would lose the rights to such land upon the death of her husband.



Affirmative Action (Employment) Act (1998)


Employment discrimination, Gender discrimination

The aim of this Act is to achieve equal employment opportunities through affirmative action plans to redress the conditions of designated persons in the Act who have been previously disadvantaged by past discriminatory laws and practices with the aim of eliminating discrimination in the workplace. The Act also establishes an Employment Equity Commission. Women are specifically mentioned as a designated group. An affirmative action plan achieves its purpose by obliging employers to make equitable efforts to accommodate and further the employment opportunities of those in designated groups. Employers must also fill positions of employment by giving priority and preferential treatment to those in designated groups. Where employers do not adhere to the Act, they may be referred to the Commission or to mediation, and may be placed under review. Furthermore, any person who discriminates against a person who has participated in the proceedings provided for in the Act, or obstructs or prevents compliance with the Act by any party, or fails to comply with certain provisions of the Act can be held criminally liable and on conviction be liable to a fine not exceeding N$16,000 or to imprisonment for a period not exceeding 4 years or both.



Co-Operatives Act (1996)


Employment discrimination, Gender discrimination

This Act states that where a co-operative has more than five female members, or if more than one-third of its members are women (whichever is the lesser) and no woman has been elected as a member of its board, the board must appoint a woman as a board member within its first meeting to increase the representation of women in management positions. A similar provision is provided for sub-committees of boards.



Labour Act (2007)


Employment discrimination, Gender discrimination, Sexual harassment

The Labour Act (the “Act”) establishes protections for employees and regulates the employer/employee relationship. In particular, this Act prohibits any form of child labor, forced labor, or discrimination and/or sexual harassment in the workplace. The Act also provides for basic conditions of employment to which an employer must adhere, including maternity leave for female employees. An employer may not provide disadvantageous terms in an employment contract or promote unfair labor practices. Violations of this Act expose employers to various penalties. Employees may refer disputes to the Labour Commissioner or the Labour Court to obtain relief.



Maintenance Act (2003)


Divorce and dissolution of marriage, Gender discrimination

The Maintenance Act (the “Act”) imposes equal rights and burdens in relation to the payment of child support (and enforcement of child support orders) on both parents and abolishes customary laws to the contrary. The Act also states that husbands and wives are equally responsible for each other’s maintenance.



Children's Status Act (2006)


Gender discrimination, Property and inheritance rights

Among other things, the Children’s Status Act gives children born out of wedlock the same legal privileges as children born to married couples (e.g., inheritance rights, custody, guardianship, etc.) and provides various legal mechanisms (e.g., court orders) to protect these rights.



Married Persons Equality Act (1996)


Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Married Persons Equality Act (the “Act”) abolishes the marital power of the husband over his wife and her property and amends community property laws. It further provides women with the power to register immovable property in their own name, gives them legal capacity to litigate and contract, and allows them to act as directors of companies. The Act also establishes that the minimum age for marriage is 18, thereby prohibiting child marriages.



Abortion and Sterilization Act (1975)


Abortion and reproductive health rights, Forced sterilization

The Abortion and Sterilization Act (the “Act”) was adopted from South Africa and prohibits abortions, except in extreme circumstances where either: (i) the mother’s life is in danger; (ii) not having an abortion would constitute a serious threat to the mother’s mental health; (iii) there is a serious risk that the child will be born with physical and/or mental defects; or (iv) the child is a product of rape or incest. It also criminalizes performing abortions, except in the circumstances listed above. Finally, the Act states the circumstances in which sterilizations may be performed, including on people incapable of consent.



The Combating Rape Act (2000)


Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement

The Combating of Rape Act (the “Act”) seeks to prevent rape and provides minimum imprisonment sentences for rape. It also abolishes the previous law, which presumed that a boy under the age of 14 was incapable of rape and sexual intercourse. This Act also regulates the granting of bail to perpetrators to further protect the rights of the victim, and provides protection to victims of rape and sexual abuse. Finally, it abolishes the customary rule, common among rural areas, that marriage is a justification for, or a defense to, rape.



The Combating Domestic Violence Act (2003)


Domestic and intimate partner violence

The Combatting of Domestic Violence Act (the “Act”) prohibits domestic violence, which it broadly defines to include physical abuse, sexual abuse, economic abuse, intimidation, harassment, entering the private residence of the complainant without consent, emotional, verbal or psychological abuse, and any threats of the above. Various types of relationships are also covered, including customary or religious marriages and relationships where the parties are not married. The Act amends the Criminal Procedure Act 1977, and allows courts to issue protection orders for victims and to punish perpetrators with a fine not exceeding N$8,000 and/or imprisonment not exceeding two years.



The Constitution of the Republic of Namibia (1990)


Divorce and dissolution of marriage, Employment discrimination, Forced and early marriage, Gender discrimination

The Constitution serves as the fundamental law of Namibia and establishes the Republic of Namibia as an independent, secular, democratic, and unitary state safeguarding the rights to justice, liberty, dignity, and equality. Chapter 3 of the Constitution protects fundamental rights and freedoms, including the right to equality and freedom from discrimination, including on the grounds of sex. It also bans child marriages and mandates equal rights for men and women entering into marriage, during the marriage, and at the dissolution of the marriage. Additionally, Parliament may not make any laws that contravene the Constitution, nor can the Executive take any action that abolishes or contravenes Chapter 3 of the Constitution. Any such laws or actions would be invalid.



The Revised Criminal Code of the Federal Democratic Republic of Ethiopia (2004)


Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The Ethiopian Criminal Code criminalizes most forms of violence against women and girls including physical violence within marriage or cohabitation (Article 564), Female Genital Mutilation/ Circumcision (Articles 565-6), trafficking women (Article 597), rape (Articles 620-28), prostitution/exploitation of another for financial gain (Article 634), and early marriage (Article 648). The Criminal Code outlaws abortion, except in cases of rape or incest, risk to the life of the mother or fetus, severe or incurable disease or birth defect, a mother who is mentally or physically incapable of raising a child, or “grave and imminent danger” that can only be addressed by terminating the pregnancy.



Revised Family Code (2000)


Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The current family law in Ethiopia provides that there must be, inter alia, consent by both spouses to constitute a valid marriage (Article 6); respect and support between spouses (Article 49); equal rights in the management of the family (Article 50); fidelity owed by both husband and wife (Article 56). This is a substantial step forward in Ethiopian law.



Constitution of the Federal Democratic Republic of Ethiopia


Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Gender-based violence in general, Harmful traditional practices, International law

Article 9 of the FDRE Constitution provides that all international treaties ratified by Ethiopia are integral parts of the law of the land. Similarly, Article 13.2 provides that fundamental rights and freedoms shall be interpreted in a manner conforming to the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia. Ethiopia has ratified many of these treaties including ICCPR, ICESCR, and CEDAW. Article 35 of the FDRE Constitution pertains to the Rights of Women. The article provides for equal rights under the constitution, equal rights with men in marriage, entitlement to affirmative measures, protection from harmful traditional practices, the right to maternity pay, the right to consultation, property rights (including acquiring and controlling and transferring property), employment rights, and access to family planning education. It is worth noting that this article explicitly imposes an obligation and accountability on the state to protect women from violence at Article 35.4: “The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs and practices that oppress or cause bodily or mental harm to women are prohibited.”



Social and Economic Development Policy Act (2006)


Abortion and reproductive health rights, Employment discrimination, Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape, Statutory rape or defilement

This Act provides policies that address the improvement of the quality of life of individuals and the reduction of the growth rate of the population. (§§ 1-3). §7 sets forth that the Ministry of Gender Development and women’s organizations shall implement gender policy to achieve gender equity, specifically, to increase women’s participation in the work force and in political institutions, to protect women’s property rights in statutory law and customary practices, and to prevent various forms of violence against women, including female genital mutilation, early marriage, teenage pregnancy. §5 sets forth that the family planning facilities shall actively involve the participation of women in deciding family size. §10 states that marriage of young girls before 18 years old, and marriage of boys before 21 years old should be discouraged.



An Act to Amend the New Penal Code Chapter 14 Section 14.17 and 14.71 and to address Gang Rape (2006)


Sexual violence and rape, Statutory rape or defilement

The Act to Amend the New Penal Code Chapter 14 Section 14.17 and 14.71 (the “Law”) and to address Gang Rape provides the definition for rape, gang rape and the concept of consent. Under Section 1(a)(i) and (ii), a person (male or female) commits rape if they intentionally penetrate the vagina, anus, mouth or any other opening of another person’s body with their penis or a foreign object or any other part of their body without the victim’s consent. Under Section 1(b), rape is committed where the victim is less than 18 years old, provided the perpetrator is above the age of 18 years. Under Section 2, the Law provides that the crime of gang rape has been committed if (i) a person purposefully promotes or facilitates rape (ii) a person agrees with one or more other person(s) to engage in or cause rape as defined in Section 1 above. Additionally, consent is defined as agreeing to sexual intercourse by choice where that person has a) freedom of choice and b) the capacity to make that choice. The Law also provides a number of circumstances where there is a presumption of a lack of consent. These fall into three categories: 1) where violence is used or threatened against the victim; 2) where the victim was unable to communicate to the accused at the time of the act (e.g. because of disability or unconsciousness); 3) where the perpetrator impersonated a person known to the victim in order to induce the victim to consent.



HIV Control of the Disease and Related Issues (Amending Title 33) (2010)


Abortion and reproductive health rights, Employment discrimination, Gender discrimination, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement

The Act regulates sexually transmitted diseases including HIV, provides information for treatment of HIV, and provides punishment for violations. §18.3 of the Act provides that the Ministry of Health and Social Welfare, the Ministry of Education, and the Ministry of Youth and Sports shall provide education on the prevention and control of HIV. §18.4-18.5 provide that educating the public regarding HIV and AIDS is part of the national response, and the government shall train all relevant personnel. While §18.7 provides that all employees shall receive the HIV training regarding the prevention and control of HIV and AIDS. Several portions of the act speak to the rights of women and girls specifically. §18.9(a) of the Act notes that when providing HIV and AIDS service to women and girls differences in sex and gender should be considered. §18.9(b) directs the government agencies, when implementing the strategies, policies and programs to address the following issues: protection of the equality of women in private and public life, to address their rights to refuse sex and to access reproductive services independently, to address men’s equal responsibilities in sexual and reproductive health, to increase educational, economic, and employment opportunities to women, to reduce inequalities in laws regarding marital issues, and to protect women’s rights in religious contexts. §18.9(c) covers pregnant women with HIV and grants them the right to marry. The government shall provide them with consultation and information regarding future pregnancy decisions and the protection of future children from HIV. Section 18.9(d) requires the government to implement national education and training to health care providers to reduce HIV infection caused by sexual assault, protect the confidentiality of the HIV test result, report the sexual violence, and assist the investigation of such violence, and to develop and implement education and training for security personnel and prosecuting authorities in conducting investigations and prosecutions about the sexual violence. §18.27 provides that willful transmission of HIV by an infected person who knows his or her HIV test constitutes first degree felony. §18.28 prohibits discrimination on the basis of HIV status.



Sexual Crimes Court, New Chapter 25 Establishing Criminal Court “E” – Title 17 – Liberian Code of Laws Revised


Sexual violence and rape, Statutory rape or defilement

The statute establishes a Sexual Offense Court, Criminal Court “E” that has original jurisdiction over all sexual offense cases. §25.2 provides that the crimes adjudicated in this court include: rape, gang rape, aggravated involuntary sodomy, involuntary and voluntary sodomy, corruption of minors, sexual abuse of wards and sexual assault, and other crimes listed under the “Sexual Offenses” described under Subchapter D of Chapter 14 and 16 of the Penal Law, as well as human trafficking that involves sexual offenses. The law provides procedures to try sexual offense cases. §25.3 provides that cases involving rape shall be tried in camera, and the judge has the authority to seal the names and addresses of the rape victims. §25.7 provides that the cases are to be tried by jury, and §25.8 provides that the final decisions of the Sexual Offenses cases shall be appealed to the Supreme Court of Liberia. §25.10 provides that the President shall nominate a clerk to keep dockets and records of all the cases and provide a monthly summary of the cases to the Supreme Court of Liberia. Additionally, the Law grants these courts the ability to provide interim relief to protect victims. In this respect, the Law specifically refers to the ability of the court to ensure that child victims are placed in protective custody.



Trafficking in Persons Act (2005)


Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

This act defines human trafficking and provides punishment for and methods of preventing human trafficking. §1.100-§1.102 of the act define human trafficking as including recruitment, transportation, and retention of a person by force or coercion for the purpose of slavery, forced labor, keeping a person in a state of servitude, prostitution, other commercial sexual exploitation, and removal of human organs. §3 provides that a person that commits trafficking must pay restitution to the victim. §7 provides that the Court shall sentence a person convicted of human trafficking to prison for at least one year, and that the offender can be sentenced to prison for longer periods under different situations. §8 provides that the fact that the victim was old enough to consent to sex shall not serve as a defense to the human trafficking offense. While §9 provides that the victim is immune from the prostitution or other criminal offenses caused by human trafficking. Art. II, §1 provides that the President shall implement a National Plan to prevent human trafficking and shall appoint members to a task force on implementation, which shall be led by the Minister of Labor. The Law also provides that a victim has a right to restitution including damages to compensate for costs of medical treatment, rehabilitation, transportation costs, lost income, legal fees, and general compensation for distress and pain as well as any other loss suffered. Compensation is paid by the defendant directly to the victim upon conviction. The right to restitution is not affected by the victim returning to his or her home country or by the victim not being present in Liberia. Section 9 provides immunity to any immigration offence that may have been committed as a direct result of being trafficked. Additionally, under Section 8, the Law confirms that consent to sex is not a valid defence to trafficking when violence is used to commit the crime. The Law also imposes corporate liability on international transport companies that fail to verify that passengers in company vehicles which enter other countries have the requisite travel documentation. A company may be fined for failing to comply. Additionally, a company that knowingly facilitates trafficking is liable for the cost of accommodating and providing meals to the victim and any dependent.



Offenses Against the Family, Chapter 16: Penal Law - Title 26 - Liberian Code of Laws Revised (1978)


Abortion and reproductive health rights, Gender discrimination, Harmful traditional practices

Under Section 16.1 of the Penal Law, bigamy, and polygamy are illegal unless a legal defense is provided. Such defenses include a defendant’s belief that his or her former spouse is dead. Under Section 16.3, abortion beyond the 24th week of pregnancy is illegal. An abortion is legal if it occurs only after a licensed physician determines there is a substantial risk that continuing the pregnancy would gravely impair the mother’s physical and/or mental health. An abortion may also be justified if the child would be born with grave physical or mental defects or if the pregnancy was the result of illegal intercourse such as rape. Additionally, the abortion must be sanctioned by two physicians who have certified in writing the reasons why the abortion is necessary. The Penal Law also prohibits a woman from carrying out an abortion herself by any means once beyond the 24th week of pregnancy.



Equal Rights of the Customary Marriage Law of 1998 (1998)


Domestic and intimate partner violence, Dowry-related violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

This law defines “customary marriage” as the marriage between a man and a woman performed according to the tribal tradition of their locality and provides that a wife’s rights and duties within a customary marriage are the same as a wife’s rights and duties in a statutory marriage (a statutory marriage is a civil marriage license under the Domestic Relations Law). §2.1 provides that all customary marriages are legal, and the duties and liabilities of the statutory wife shall be accorded to all customary wives. §2.2 provides that the husband shall not recover the dowry from the wife or her parents; while §2.3 provides that a customary wife receives one-third of her husband’s property upon marriage. §2.6 provides that a customary wife has exclusive right to the properties she receives before or during the marriage, but she needs the husband’s consent to conduct business in her own name. §2.6 also states, however, that if the husband attempts to control his wife’s property he will have committed theft of property and he will be subject to a fine for such theft. §2.9 establishes that the minimum age for a tribal woman to enter into a customary marriage is 16, while §2.10 provides that the parents shall not choose the husband for their daughter against her will. Various sections provide for the rights of women on the event of her husband’s death: §3.2 states that a widow in a customary marriage is entitled to one-third of her deceased husband’s property; §3.3 provides that the widow has the freedom to enter into a new marriage upon the death of her husband; §3.5 provides that the widow has the right to petition to the probate court to administer the property of the decedent; §3.4 prohibits the husband’s family from compelling a widow to marry her deceased husband’s relative; and §3.7 establishes that the living spouse retain the right to custody of the minor children.



Reports

Proposta do Programa Quinquenal do Governo 2015-2019 (2015)


Employment discrimination, Gender discrimination

The plan outlines general goals for the Government to work towards in four years. It highlights a need for specific attention towards issues of gender inequality, protection and empowerment of women, and education for women and children so that they can develop a more active role in civil society. The plan sets out to promote measures that strengthen gender equality and the rights of vulnerable peoples, as well as to spread knowledge on the rights of women and children.

O plano esboça metas gerais para o Governo trabalhar nos próximos quatro anos. Ele destaca a necessidade de atenção especial aos problemas de desigualdade de gênero, proteção e empoderamento feminino, e educação para mulheres e crianças, para que elas possam desenvolver um papel mais ativo na sociedade civil. O plano se propõe a promover medidas que possam fortalecer a igualdade de gênero e os direitos das pessoas vulneráveis, assim como a espalhar conhecimento sobre os direitos das mulheres e crianças.



National Strategic Plan on Gender-based Violence & Femicide (2020)


Femicide, Gender-based violence in general, LGBTIQ

The South African government released a National Strategic Plan (“NSP”) in response to the 2018 Summit on Gender-Based Violence and Femicide. The Summit identified key interventions and developed strategies regarding gender-based violence and other challenges women and children face in South Africa. The NSP was published as a framework to recognize and affirm the challenges and rights identified at the Summit. The vision of the NSP is “A South Africa free from gender-based violence directed at women, children and LGBTQIA+ persons” and is enacted through six key pillars: 1. accountability, coordination and leadership; 2. prevention and rebuilding social cohesion; 3. justice, safety, and protection; 4. response, care, support, and healing; 5. economic power; and 6. research and information management. The NSP lists specific general strategies and defines the roles and responsibilities of key stakeholders to accelerate, advance, and realize the vision and outcomes of the NSP. The NSP outlines the specific short-and long-term goals and which stakeholder is responsible for specific targets under each pillar. It also provides a brief history of gender-based violence and femicide in South Africa, as well as a summary of relevant legislation in South Africa.



Handbook on Juvenile Law in Zambia (2014)


Gender-based violence in general

The Handbook aims to function as a practice guide for judicial officials and legal practitioners who work in the area of juvenile law. It addresses a range of issues from the constitutional, statutory, and human rights framework of juvenile law, special issues that arise in cases of child sexual abuse, and procedural protections for juvenile witnesses.



Avon Global Center 2013 Women and Justice Conference Report (2014)


Acid violence, Gender discrimination, Female genital mutilation or female genital cutting, Harmful traditional practices, Gender violence in conflict, Forced and early marriage, Gender-based violence in general

In December 2013, the Avon Global Center hosted its annual conference in New York, NY on "State Responsibility to End Violence Against Women: The Due Diligence Principle and the Role of Judges."


Sexual Violence by Educators in South African Schools: Gaps in Accountability (2014)


Gender-based violence in general, Sexual harassment, Sexual violence and rape

The Centre for Applied Legal Studies at the University of Witwatersrand and Avon Global Center for Women and Justice at Cornell Law School released a joint report on sexual violence committed by educators against students in South African schools.

Die Sentrum vir Toegepaste Regstudies by die Universiteit van Witwatersrand en Avon Global Centre for Women and Justice by Cornell Law School het 'n gesamentlike verslag vrygestel oor seksuele geweld wat opvoeders teen studente in Suid-Afrikaanse skole gepleeg het.



Avon Global Center 2010 Women and Justice Conference Report (2011)


Femicide, Gender violence in conflict, Gender-based violence in general

In 2010, the Avon Global Center for Women and Justice held a conference in Washington, DC to discuss advances and obstacles to securing justice for women and girls in conflict and post-conflict areas.



Avon Global Center 2012 Women and Justice Conference Report (2013)


Statutory rape or defilement, Sexual violence and rape, Gender-based violence in general

In December 2012, the Avon Global Center for Women and Justice hosted its annual conference. The topic for 2012 was addressing sexual violence against girls in Southern Africa.


"They are Destroying Our Futures" Sexual Violence Against Girls in Zambia's Schools (2012)


Gender discrimination, Gender-based violence in general, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

A report by the Avon Global Center for Women and Justice at Cornell Law School, Women and Law in Southern Africa-Zambia, and the Cornell Law School International Human Rights Clinic examining the problem of sexual violence against girls in school in Zambia.



Hidden in the Mealie Meal (2007)


Gender discrimination, Gender-based violence in general, Property and inheritance rights, Sexual violence and rape

Human Rights Watch Report on the Zambian government's failure to meet its international obligations to combat violence and discrimination against women. The report documents abuses that obstruct women's ability to start and adhere to HIV treatment regimens, including violence against women and insecure property rights (2007).



Elected to Rape: Sexual Terror in Mugabe's Zimbabwe (2009)


Sexual violence and rape

AIDS-Free World, December 2009.



The Role of the Judiciary in Promoting Gender Justice in Africa (English) (2008)


Gender discrimination

Report of the Partners for Gender Justice Conference, Accra, Ghana 19-21 Nov. 2008. English version.


The Role of the Judiciary in Promoting Gender Justice in Africa (French) (2008)


Gender discrimination

Report of the Partners for Gender Justice Conference, Accra, Ghana 19-21 Nov. 2008. French version.


“I Am Not Dead, But I Am Not Living" Barriers to Fistula Prevention and Treatment in Kenya (2010)


Gender-based violence in general

Human Rights Watch report describing the situation of women with fistula in Kenya, including the increased risk of stigma and violence and the impact of a health system that fails to properly address the problem of fistula. July 15, 2010. Copyright 2010 Human Rights Watch.



Evaluation: Strengthening of Prosecution of SGBV Offences through support to the Sexual and Gender Based Violence Crimes Unit (SGBV CU) in Liberia (2010)


Gender-based violence in general, Sexual violence and rape

UNFPA Report presenting the findings, analysis and recommendations from the Evaluation of the SGBV Crimes Unit, which has as its purpose to prosecute perpetrators of gender and sexual based violence, particularly rape, in Liberia (November 2010).



Nowhere to Turn: Failure to Protect, Support & Assure Justice for Darfuri Women (2009)


Gender discrimination, Sexual violence and rape

By Physicians for Human Rights with Harvard Humanitarian Initiative.



After the guns fall silent: Sexual and gender-based violence in Timor-Leste (2009)


Gender violence in conflict

Report by Timor-Leste Armed Violence Assessment, examining the scale and magnitude of sexual and gender-based violence (SGBV) directed against women and girls in Timor-Leste (November, 2009).



Afraid and Forgotten: Lawlessness, Rape, and Impunity in Western Côte d'Ivoire (2010)


Sexual violence and rape

Human Rights Watch Report documenting the often brutal physical and sexual violence in the western administrative regions of Moyen Cavally and Dix-Huit Montagnes in the Cote d'Ivoire (2010).



"Now, The World Is Without Me": An Investigation of Sexual Violence in Eastern Democratic Republic of Congo (2010)


Sexual violence and rape

A Report by the Harvard Humanitarian Initiative With Support from Oxfam America, April 2010



Soldiers Who Rape, Commanders Who Condone (2009)


Sexual violence and rape

Human Rights Watch Report documenting persistent sexual violence by the army in the Democratic Republic of Congo, and the limited impact of government and donor efforts to address the problem (2009).



In Pursuit of Peace (2010)


Gender discrimination

Launched in tandem with the June 2010 Review Conference of the Rome Statute of the International Criminal Court; includes recommendations for improving gender sensitivity at the ICC, and particular statements by activists from DR Congo, Central African Republic and Uganda.


Bottom of the Ladder: Exploitation and Abuse of Girl Domestic Workers in Guinea (2007)


Gender-based violence in general, Sexual violence and rape

Human Rights Watch Report documenting how girls as young as 8 years old work up to 18 hours a day as domestic workers in Guinea, frequently without pay, and are often insulted, beaten and raped by their employers (2007).



International Case Law

G.N. v. Burundi Committee Against Torture (2017)


International law, Statutory rape or defilement

G.N., a mother, brought the action on behalf of her nine-year-old daughter, C.N. A friend of the family, Captain D.K., was conducting night patrols and he stopped by the family home. G.N.’s husband was not at home, so the Captain said he was going to leave and wanted to take C.N. with him home. G.N. declined saying it was late, but when she returned to the kitchen to finish cooking the meal and then called for her daughter, she was no longer there. Neighbors informed G.N. that she had left with D.K. She looked for C.N., but did not see her. The serviceman was a friend of the family. She thought C.N. would soon return. When G.N.’s husband returned home, she informed him that C.N. had not returned and he reassured her so they decided to wait. C.N. returned home the next day. G.N. eventually learned from C.N. that D.K. had taken her to his house, raped her, and, when she cried, threatened her with his firearm if she made any more noise. He sent her to sleep with his own children and the next day gave her 500 Burundian francs (USD 0.30). He told her never to speak about the rape and threatened her and her mother if she revealed their secret. However, a week after the incident, her mother persisted in asking C.N. because she could not stand up and said she had a stomach ache. The victim’s father raised the issue with Captain D.K., who proposed an out of court settlement, which was rejected by G.N. G.N. took C.N. for a medical examination, which confirmed the rape and she reported the rape to the military prosecutor’s department. G.N. appealed to the domestic courts, which dismissed the case because of the ten-day period between the incident and reporting of it and the calmness and availability of the Captain. After seeking domestic remedies with no action taken, G.N. appealed to the Committee submitting that her daughter was the victim of a violation of articles 2(1), 12, 13 and 14, read in conjunction with article 1 and, alternatively, with article 16 of the Convention. The Committee found that the sexual abuse to which C.N. was subjected by an official of the State acting in his official capacity and the associated acts of intimidation fall within the scope of article 1 of the Convention. The Committee also determined the investigation was not impartial, effective and prompt, contrary to articles 12 and 13 of the Convention. It relied on the fact it was closed quickly and prosecutors did not seek additional evidence to pursue the case or arrest any other suspects, meaning the perpetrator of the rape has gone unpunished even though Burundi law provides that rape is punishable by life imprisonment when committed against a child under the age of 12. As the child received no redress, the Committee also found that Burundi violated its obligations under article 14 of the Convention. Finally, the Committee urged Burundi to: (1) promptly reopen an investigation; (2) provide reparation including compensation for the material and moral harm caused, restitution, rehabilitation, measures of satisfaction and a guarantee of non-repetition; (3) prevent threats/acts of violence against G.N. and C.N. for lodging the complaint; and (4) advise the Committee within 90 days of the steps taken.



Prosecutor v. Gacumbitsi International Criminal Tribunal for Rwanda (2004)


International law, Sexual violence and rape

Mr. Sylvestre Gacumbitsi served as the mayor of the Rusumo Commune during the tragic events that took place in Rwanda in 1994. The Trial Chamber found Mr. Gacumbitsi guilty of genocide and the crimes against humanity of extermination and rape. The Trial Chamber held that Mr. Gacumbitsi planned, instigated, ordered, committed, and aided and abetted the killing and raping of Tutsi civilians. Moreover, Mr. Gacumbitsi was directly involved in certain instances in such acts. This case is important, among others, since the Trial Chamber has used a broad definition of rape - recognizing various forms of sexual violence as constituting rape.



Prosecutor v. Akayesu International Criminal Tribunal for Rwanda (1998)


Gender violence in conflict, Gender-based violence in general, Sexual violence and rape

Mr. Jean Paul Akayesu served as the mayor of the Taba commune and was responsible for maintaining law and public order in Taba during the tragic events which took place in Rwanda in 1994. The court held that Mr. Akayesu had knowledge of the killing of thousands of Tutsis in Taba, but did not attempt to prevent such acts even though he had the duty to do so. Moreover, Mr. Akayesu was involved and even took an active role in some instances. In addition, the court held that Mr. Akayesu had knowledge of sexual assaults of civilians who sought refuge at the bureau communal by armed local militia but did not attempt to prevent such acts even though he had the duty to do so. The court found that Mr. Akayesu was guilty of genocide and crimes against humanity. On appeal, the Appeal Chambers dismissed Mr. Akayesu claims and upheld the judgment of the court a quo. This case is important because it established for the first time that sexual violence constitutes a crime against humanity and a tool of genocide by a government official. It is also worth noting that the court’s broad definitions of rape and sexual violence were the first of their kind in international law.



Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan African Commission on Human and Peoples' Rights (2009)


Sexual violence and rape

In 2003 an armed group known as the Sudan Liberation Movement/Army issued a political declaration and clashed with respondent State’s armed forces. The Respondent State engaged in a succession of human rights violations against suspected insurgents, including the rape of women and girls. The respondent state denied several of the allegations, argued that local remedies were not exhausted, and submitted that the claims had already been settled by other international mechanisms. The Commission noted that “cases of sexual and gender based violence against women and girls in and outside IDP camps have been a common feature of the Darfur conflict. The right to liberty and security of the person, for women and girls, and other victims of the Darfur conflict has remained an illusion.” The Commission held that the respondent State violated Articles 1, 4, 5, 6, 7(1), 12(1) and (2), 14, 16, 18(1) and 22 of the African Charter. The Commission recommended that the State take all necessary and urgent measures to ensure protection of victims of human rights violations in the Darfur region, including: conducting effective official investigations into abuses committed by members of military forces, undertake major reforms of its legislative and judicial framework, take steps to prosecute those responsible for human rights violations, and take measures to ensure that victims of human rights abuses are given effective remedies.



Hadijatou Mani Koraou v. Republic of Niger ECOWAS Community Court of Justice (2008)


Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Trafficking in persons

The applicant, who was born to a mother in slavery, was sold to a local chief at age 12. For the next nine years she was subjected to rape, violence, and forced labor without remuneration. When Niger’s Supreme Court failed to convict her "owner" under Article 270.1-5 of the Nigerien Criminal Code, which made slavery illegal in 2003, the applicant brought her case before the ECOWAS Community Court of Justice under Article 9(4) of the Supplementary Protocol A/SP.1/01/05. The court ruled that the applicant had been a slave under the definition in Article 1 (I) of the Slavery Convention of 1926 and that in failing to convict her former "owner," Niger had not upheld its legal responsibility to protect her from slavery under international law. This case was the first ECOWAS ruling on slavery and only the second conviction made under Niger’s 2003 anti-slavery law. The case gained a high level of publicity, setting the precedent for women to fight back against the traditional slavery practices common to Niger and other ECOWAS nations. As of 2009, there had been approximately 30 more cases upholding the prohibition of slavery in Niger.



INTERIGHTS and EIPR (on behalf of Sabbah and Others) v. Egypt African Commission on Human and Peoples' Rights (2012)


Custodial violence

The African Commission on Human and Peoples’ Rights found that three men convicted in the 2004 and 2005 bombings on Egyptian resort towns were tortured and denied a fair trial before being sentenced to death by Egypt’s Supreme Emergency State Security Courts, violating the African Charter on Human and Peoples’ Rights. The Commission ruled that Egypt should repeal the death sentences, immediately release the men, and provide them compensation. Additionally, the Commission found that Egypt’s state security courts were not independent and were unable to meet international fair trial standards. This ruling establishes a requirement for African states to prevent torture. It also makes clear that judicial proceedings must take place in a fair, independent court in order to uphold human rights, and that the African Commission on Human and Peoples’ right will actively enforce these standards.



Saadia Ali v. Tunisia CAT Committee (2008)


Gender-based violence in general

Saadia Ali, a dual French/Tunisian citizen, was attempting to obtain an official document from the court of first instance in Tunis when she was taken into custody, stripped of her clothing, and beaten by a prison guard in front of fifty male prisoners for verbally criticizing a Tunisian public official. Upon regaining consciousness, Ali was given a summary trial without due process and a suspended sentence of three months imprisonment for attacking a public official. Ali’s lawyer initiated a complaint with the office of the State prosecutor, which rejected the complaint without further explanation. In her complaint to the Committee Against Torture, Ali alleged violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT), and cited violations of internationally recognized standards on the administration of justice and articles 25 and 26 of Tunisia’s Code of Criminal Procedure. The Committee held that Tunisia’s actions towards Ali were tantamount to torture and violated articles 1, 12, 13, 14, and 16 of the Convention. The deliberate infliction of severe pain and suffering upon Ali by Tunisian public officials constituted torture under article 1 and cruel, unusual, or degrading treatment within the meaning of article 16. The Committee also held that the State’s dismissal of the complaint and delay in investigating Ali’s case established a violation of articles 12 and 13, under which a State has the obligation to promptly investigate allegations of torture. The State’s failure to act on the complaint and immediately launch an investigation equated to a breach of the State’s obligations under article 14 to provide redress to victims of torture in the form of restitution, compensation, and rehabilitation.



Interights (on behalf of Husaini and Others) v. Nigeria African Commission on Human and Peoples' Rights (2005)


Custodial violence, Gender discrimination, Gender-based violence in general, Harmful traditional practices

Interights, an international human rights organization, filed a complaint before the Commission on behalf of several complainants, arguing that Nigeria's Islamic Sharia courts had violated their rights to a fair trial and due process. The main complainant, S.H., a nursing mother, was sentenced to death by stoning for adultery. She was tried under Sharia law, according to which adultery is punishable by death. The petitioners also included A.L., a woman sentenced to similar punishment for adultery, and B.M., an unmarried woman who received 100 lashes as punishment for zina (voluntary premarital sexual intercourse). In response to the complaint, the Chairman of the African Commission sent an urgent appeal to Nigerian President Olusegun Obasanjo, urging him to suspend further implementation of the Sharia penal statutes and convictions under those laws pending the outcome of the complaints before the Commission. In response to the Chairman's urgent appeal, the Secretary General of the African Union formally brought the matter to President Obasanjo. The President's Chief of Staff wrote to the Chairman of the African Commission that while the federal government could not suspend the operation of Sharia law, the administration would ensure that the "right to life and human dignity" of S.H. and the others would be adequately protected. Before the court ruled on admissibility of the complaint, the complainant moved for withdrawal of the complaint, and it was withdrawn from the Commission.



Doebbler v. Sudan African Commission on Human and Peoples' Rights (2003)


Custodial violence, Gender discrimination, Gender-based violence in general

Eight female students of the Nubia Association of Ahilia University were arrested for engaging in immoral activities that violated the public order, in contravention of Sudan's Criminal Code, which incorporates Islamic Sharia law. The immoral activities the women committed consisted of "girls kissing, wearing trousers, dancing with men, crossing legs with men, sitting with boys, and sitting and talking with boys." The women were punished with fines and between 25 and 40 lashes. The lashing took place in public by use of a wire and plastic whip. The wire and plastic whip were unclean, the lashing was not under the supervision of a doctor, and the women were bareback in public while they were lashed. The complaint asserted that the punishment violated Article 5 of the African Charter on Human and Peoples' Rights, which guarantees the right of individuals to human dignity and prohibits cruel, inhuman or degrading punishment and treatment. The Commission found that the lashing violated article 5 of the African Charter. It requested that Sudan abolish the punishment of lashing and compensate the women for their injuries.



Zimbabwe Human Rights NGO Forum v. Zimbabwe African Commission on Human and Peoples' Rights (2006)


Sexual violence and rape

Violence erupted in Zimbabwe between the constitutional referendum of 2000 and the parliamentary elections. Supporters of ZANU (PF) engaged in various human rights violations including the rape of women and girls. The respondent state claimed that it could not be held accountable because those committing the crimes were non-state actors and the actions were not encouraged by any government policy. The Commission determined that "[a] state can be held complicit where it fails systematically to provide protection of violations from private actors who deprive any person of his/her human rights." However, the Commission found that the complainant had the burden of "establishing that the state condones a pattern of abuse through pervasive non-action." Here, the Commission found that Zimbabwe violated the victims' rights to judicial protection and to have their case heard under articles 1 and 7(1), respectively, of the African Charter. It explained that the the state had adopted Clemency Order 1 of 2000 (which permits those who have committed politically motivated crimes to be exonerated, with the exception of murder, rape, and other similar crimes) and that Zimbabwe did not "demonstrate due diligence" in providing justice for the victims of the violent crimes. The Commission requested that Zimbabwe investigate the reported crimes, bring those who committed the crimes to justice, and provide victims with adequate compensation. This case is important because it establishes that a state can be held accountable for the human rights violations of private actors. Under this case, if the state does not address mass rape with "due diligence," then the state itself can be held accountable.



Democratic Republic of Congo v. Republics of Burundi, Rwanda, and Uganda African Commission on Human and Peoples' Rights (2003)


Sexual violence and rape, Gender violence in conflict

The armed forces of Burundi, Rwanda, and Uganda engaged in systematic violence against the people of the Democratic Republic of Congo (the DRC). As part of that violence, approximately 2,000 HIV-positive Rwandan and Ugandan soldiers raped Congolese women and young girls in order to spread AIDS to the Congolese population. The DRC brought the complaint asserting, among other things, that the mass rape and deliberate infection of women and girls with HIV constituted a violation of human rights under the African Charter. The respondents did not deny the occurrence of mass rape and infection, but responded that "there is never group responsibility for violations" like rape. The Commission noted that the mass rape of women and girls as a tool of systematic violence violated article 76 of the first Protocol Additional to the Geneva Conventions of 1949, which provides that "[w]omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other forms of indecent assault" and also "offend[ed] the African Charter and the Convention on the Elimination of All Forms of Discrimination Against Women." It therefore held that this offense violated articles 60 and 61 of the African Charter, which enable the African Commission to draw inspiration from international law on human and peoples' rights and take into consideration general principles of law, such as the humanitarian law principles contained in the Geneva Conventions. The Commission urged the respondent states to abide by their obligations under the African Charter and other applicable international and regional law and immediately withdraw their armed forces from the DRC. The Commission also requested that adequate reparations be paid to the DRC for and on behalf of the victims of the human rights violations.


African Institute for Human Rights and Development (on behalf of Sierra Leonean Refugees in Guinea) v. Republic of Guinea African Commission on Human and Peoples' Rights (2004)


Custodial violence, Gender violence in conflict, International law, Sexual violence and rape

In a radio speech, President Lasana Conté of Guinea called on the citizens and armed forces of Guinea to engage in mass discrimination against Sierra Leonean refugees in Guinea. This allegedly resulted in numerous human rights violations against the refugees, including the widespread rape of Sierra Leonean women in Guinea. According to the complaint, Sierra Leonean women were raped as a way to "punish them for being so-called rebels." The soldiers and civilians used weapons to intimidate and threaten the women. The women were of various ages and were raped in such places such as homes, prisons, and refugee camps. The Commission expressed understanding for countries such as Guinea that take on refugees from war-torn nations, and noted that such countries may be justified in taking some measures to ensure the security of their citizens. However, based on eyewitness testimony and other evidence, the Commission determined that the situation in Guinea at the time of President Lasana Conté's speech led to violations of the refugees' human rights under the African Charter. It requested that a Joint Commission of the Sierra Leonean and Guinean governments be formed to determine the extent of the losses and how to compensate the victims.



Malawi African Association and Others v. Mauritania African Commission on Human and Peoples' Rights (2000)


Sexual violence and rape

Between 1986 and 1992 violence escalated between the northern Mauritanian population and the southern black ethnic groups. The Northern Mauritanian population's military raided the south, detained hundreds of individuals, imposed curfews, and inflicted various forms of violence and intimidation. The complaint notes that men from the southern black ethnic groups were subjected to forms of torture and humiliation (such as the "jaguar" where a "victim's wrists are tied to his feet . . . [,] then [he] is suspended from a bar and kept upside down, sometimes over a fire, and is beaten on the soles of his feet") while the women were "simply raped." The Commission determined that the mass rape and other forms of violence violated the African Charter, in particular Article 6. Article 6 states that "every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law." The Commission requested that the respondent state compensate the victims of the violations and carry out an assessment of the "deep-rooted causes" of the "degrading practices" (it did not specify whether it considered these practices to include rape).



Aumeeruddy-Cziffra and 19 other Mauritian Women v. Mauritius Human Rights Committee (1981)


Gender discrimination, International law

Twenty Mauritian women submitted a communication to the Committee stating that the Immigration (Amendment) Act of 1977 and the Deportation (Amendment Act) of 1977 constitute discrimination based on sex against Mauritian women, violation of the right to found a family and a home, and removal of the protection of the courts of law. Prior to the enactment of these laws, alien men and women married to Mauritian nationals could equally enjoy residence status by virtue of their marriage. Under the new laws, however, alien husbands of Mauritian women must apply for a “resident permit” subject to rejection by the Minister of the Interior at any time. The new laws do not similarly affect alien wives of Mauritian men. The complaint specifically alleged several violations of the Covenant on Civil and Political Rights including: article 2 obligations to recognize rights under the Covenant without distinction based on sex; article 3 obligations to ensure the equal enjoyment of civil and political rights regardless of sex; article 26’s guarantee that all persons are equal before the law and are entitled without discrimination to equal protection of the law; article 17’s protection against arbitrary or unlawful interference with privacy, family, and the home; and article 23’s obligations to protect an individual’s right to marry. Although the Committee found that seventeen of the complainants were unmarried and therefore unaffected by the legislation in question, the Committee concluded that the future possibility of deportation and the existing precarious resident situation of foreign husbands in Mauritius represented an interference by the State with the family life of the remaining victims. The Committee held that any discrimination on the ground of sex within Mauritian legislation without sufficient justification was tantamount to a violation of articles 2 and 3 in conjunction with article 17, as well as direct violations of article 26 and 23. The Committee recommended that Mauritius adjust the provisions of the Immigration (Amendment) Act and the Deportation (Amendment) Act in order to implement the State’s obligations under the Covenant to prevent sex discrimination in its laws and regulations.



Articles

Child Sex Abuse Within the Family in Sub-Saharan Africa: Challenges and Change in Current Legal and Mental Health Responses (2014)


Sexual violence and rape

By Cynthia Grant Bowman & Elizabeth Brundige. 47 CORNELL INT’L L.J. 233 (2014). Copyright 2014 by the Cornell International Law Journal.



The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments (2011)


Gender-based violence in general

By Valerie Oosterveld. 44 CORNELL INT'L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.



Gender, Discourse, and Customary Law in Africa (2010)


Gender-based violence in general

By Johanna E. Bond. 83 S. Cal. L. Rev. 509-574 (2010). Reprinted from Southern California Law Review, Volume 83. Copyright 2010 Southern California Law Review.


Memoranda

Anti-Human Trafficking Legislation in Tanzania and 6 Countries Around the World (2013)


Gender-based violence in general, Trafficking in persons

In 2008, Tanzania adopted the Anti-Trafficking in Persons Act (ATPA) to combat human trafficking, mandate stricter investigation and prosecution, and afford protection to victims of trafficking. This report: explains and evaluates the ATPA, including the effectiveness of its implementation since its enactment in 2008; describes similar acts around the world, including an evaluation of those laws’ implementation and effectiveness; offers specific recommendations for Tanzania to enhance the effectiveness of its anti-trafficking law.



Assessing the Impact of Mandatory Minimum Sentences on Sexual Offences in Tanzania (2013)


Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement

With the goal of assessing the impact of mandatory minimum sentences for sexual offences in Tanzania, this memorandum provides a comparative study with a small sample of jurisdictions – including Canada, Kenya, Lesotho, Zambia, South Africa and Tanzania - to showcase how different countries have utilized mandatory minimum sentences to address sexual offences. It also explores whether imposing mandatory minimums has resulted in a reduction of the commission of the sexual offences they target.



Domestication of the U.N. Convention on the Rights of the Child and the role of national courts (2013)


Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement

This memorandum describes several success stories from countries that have domesticated the Convention on the Rights of the Child into their national laws and also examines the role of the courts. In particular, this memorandum focuses on how Lithuania, Bangladesh and South Africa have implemented their laws and/or the role that the courts have played in preventing child abuse and exploitation.



Gender Based Violence in Africa (2011)


Gender-based violence in general

This memorandum provides a brief overview of the issue of gender based violence in Sub-Saharan Africa with relevant statistics.



Problems in Prosecuting or Adjudicating Corruption Cases in Tanzania (2012)


Gender discrimination, Gender-based violence in general

This memorandum provides a brief overview of corruption in Tanzania and efforts taken by the government to address the problem. The memorandum also examines the problems that emerge in prosecuting or adjudicating corruption cases in Tanzania and the reasons corruption cases fail.



Proceeds of crime in Tanzania (2012)


Gender-based violence in general

This memorandum examines the rules governing forfeiture of proceeds of crime in Tanzania.



Problems Women and Child Victims and Witnesses Encounter in Sexual Offenses Cases in Tanzania (2012)


Gender discrimination, Gender-based violence in general

This memorandum examines the particular problems that women and children confront as vulnerable victims and witnesses in sexual offenses cases in Tanzania.



Exclusion of women from the legal profession in the United States of America, the United Kingdom and South Africa (2012)


Employment discrimination, Gender discrimination

This memorandum provides a brief overview of the key statutes, cases, and legal arguments that sanctioned the exclusion of women from the bar and, by extension, the bench, in the United States of America, the United Kingdom, and South Africa.

Hierdie memorandum bied 'n kort oorsig van die belangrikste wette, sake en regsargumente wat die uitsluiting van vroue van die bar en, ter aanvulling, van die raad in die Verenigde State van Amerika, die Verenigde Koninkryk en Suid-Afrika goedgekeur het.



Resources Relating to the Effects of Polygamy (2010)


Gender-based violence in general

This memorandum provides some resources on the effects of polygamy on women, men, children and society at large.


Resources Relating to Female Genital Mutilation (2010)


Female genital mutilation or female genital cutting

This memorandum provides some resources relating to Female Genital Mutilation.