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Jedidah Wanjiku, 29: 'They need to say that women have feelings, that a bully in the house is not good and women are the same as men.' (Sally Armstrong/Sally Armstrong for The Globe and Mail)
Jedidah Wanjiku, 29: 'They need to say that women have feelings, that a bully in the house is not good and women are the same as men.' (Sally Armstrong/Sally Armstrong for The Globe and Mail)

Marital rape in Africa: The right to say no Add to ...

The women said the consequences for refusing sex were harsh and immediate. "He'll kick you out of the house, send you to the bush to spend the whole night outside with the kids. He'll burn your clothes, kill your chickens and eat them and sell your goats," said Ms. Wanjiku. (Among the women in the room, hers was the only husband who did not follow those practices. Asked why later, he cited his religious beliefs.)

"We need a delegation to come from Nairobi," Ms. Wanjiku said, "and tell the people here to change the way we behave. They need to say that women have feelings, that a bully in the house is not good and women are the same as men. The men in the village will listen to people who come from outside."

So far no one had come.

Yet in Nairobi, the human-rights lawyers were sitting around a long table sharing stories and creating strategy. A lawyer from each country described its existing law. Then they dissected it - where to delete a section or add an amendment, or remove language such as, "This does not apply to married women." They debated wording: Was the definition of consent precise enough?

When the three chosen countries made their first passes at reforming laws around sexual violence in 2006 and 2007, each had aimed to curb marital rape, but parliamentary review committees insisted on getting rid of the provision, saying men would never allow it.

The sticking point has been customary law. As in most African countries, Kenya, Malawi and Ghana have both formal state law and customary laws, which aren't written down. Chiefs are in charge of arbitration, and they, the lawyers agreed, tend to collude with other men against the rights of women. Customary law usually trumps state law.

"Customary law is what we live with. It defines a woman's identity, how she relates to others and it is the most accessible form of dispute resolution," said law professor Ngeyi Kamyongolo of the University of Malawi.


The Canadian women, however, could recall resistance, too. Jennifer Koshan, who teaches law at the University of Calgary, told the story.

In 1982, when NDP member of Parliament Margaret Mitchell raised the issue of domestic sexual assault for the first time in the House of Commons, some members laughed and called out to each other, making derisive gestures about beating their wives. In January of 1983, Bill C-127 passed, making domestic sexual assault a crime.

"Before 1983," Prof. Koshan said, "there was impunity for men who raped their wives in Canada for the same reasons African women are struggling with now: Women are assumed to be property once married, and there is implied consent because of marriage vows."

Seodi White, a lawyer from Malawi who joined the group when she was a visiting scholar at the University of Toronto, added that in Africa today, violence is often a part of the bargain: a man jamming a broken piece of furniture into his wife's vagina, another applying a python to her vagina because a witch doctor told him it would then spit out coins, still another cutting off her labia majora and selling it as a charm - all of it legal, because she is his property.

Linus Kariuki, 40: 'If my wife refuses to have sex with me, I will rape her. And then I'll beat her because she didn't obey me.'

Prof. Kamyongolo provided the ultimate example: "A man killed his wife because she refused to have sex with him. He was arrested by the state and charged with murder. But since a woman has no right to say no, the customary law court declared her behaviour 'provocative' and the chiefs who heard her case in the court found her husband guilty only of manslaughter."

Getting rid of the dowry, which systematizes husbands' ownership of wives, might be a more fundamental reform. But it's easier to change jurisprudence than to tackle ancient customs.

What's more, Ms. Sampson said the criminalization of marital rape would have a trickle-down effect. "Women will achieve increased equality under the law and will be recognized as persons rather than property. Furthermore, it will establish a culture of accountability for women's human rights."

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