Batswana are against marital rape-BONELA
Lebogang Mosikare | Friday April 23, 2021 17:52
FRANCISTOWN: In most African countries, it is a well-known fact from time immemorial that although culture has its advantages, it also has its negatives.
This, expert remark, is reinforced by the fact that in most African societies, Botswana included, men treat women and the girl child as sub-humans who should always obey without questioning instructions from men.
The practice, experts add, is one of the reasons that is still continuing even today in Botswana that is used to justify Gender-Based Violence (GBV) and inequality.
In Botswana for example, traditional beliefs and practices have reinforced how women and girls should be treated.
But some pundits are of the opinion that culture is dynamic and as such it should not be used as a smokescreen to undermine the rights of women and girls.
The Botswana Network on Ethics Law and HIV/AIDS (BONELA) holds the view that sexual violence is all pervasive and manifests itself in a number of forms, which exist in all institutions of life including the most basic unit of human society, the family.
However, BONELA-whose mandate is to promote, protect and fulfill a human rights approach to HIV/AIDS and broader issues in Botswana through awareness raising, capacity building and advocacy-found out that most Batswana still hold the view that there is no marital rape.
The executive director of BONELA, Cindy Kelemi said: “BONELA was instrumental in pursuing the enactment of the Domestic Violence Act of 2009. As a result, the issue of marital rape was discussed extensively. Country wide consultations were conducted through Kgotla meetings where Batswana vehemently opposed the idea of marital rape.”
She added: “After the enactment of the Domestic Violence Act, BONELA continued to lobby both Parliament and Ntlo ya Dikgosi to include marital rape as a form of domestic/gender-based violence.
To date, BONELA has received four cases related to marital rape. These were discordant couples, where one marriage partner is HIV/positive and the other is negative. All these cases were settled out of court as per the complainants’ wishes.”
The cases of marital rape, Kelemi explained, indicate that marital rape is a reality in our communities, particularly amongst discordant couples.
“It is therefore, imperative that the law recognises this form of violence. The conjugal rights discourse, should not be used to deny women access to justice,” she said.
The position of BONELA regarding marital rape is supported by Refilwe Nasha.
In a 2020 dissertation that was submitted at the Faculty of Law at the University of Cape Town (UCT) entitled, “Criminalising Marital Rape in Botswana: The Need for Legal Reform”, Nasha has also observed that marital rape is not a criminal offence in Botswana-a situation that she says should be reviewed and changed.
According to Nasha, this therefore, means that Botswana recognises all other types of sexual offences to the exclusion of spousal rape.
“Marital rape is a form of intimate partner violence that the UN Convention on the Elimination of all Forms of violence Against Women refers to as domestic violence. Marital rape is also a form of gender-based violence against women because it is a violence that is directed against women because they are women. Marital rape results in serious medical, emotional and mental harm.”
As a result, marital rape violates numerous human rights that range from the right not to be subjected to torture or to cruel, inhuman, or degrading treatment or punishment, the right to security and liberty of the person, as well as the right to health, just to mention a few, says Nasha.
Nasha adds that it is surprising that Botswana has up to now not enacted legislation that will criminalise marital rape despite the fact that international rights that Botswana ratified hold a different perspective.
“The human rights that are violated by marital rape are provided for under international human rights instruments that Botswana has ratified. Further, the Constitution of Botswana contains, in its Bill of Rights, a provision that guarantees every person in Botswana protection of the law regardless of sex,” says Nasha.
Nasha says studies conducted on GBV-currently spiralling out of control in Botswana-show that there is a strong possibility of marital rape due to some cultural factors that give men sexual entitlement in a marriage.
Nasha is therefore of the firm view that any form of violence against women is a violation of women’s human rights.
The United States of America (US) government has also found Botswana wanting in not recognising marital rape.
In its Country Reports on Human Rights Practices for 2020, the US Department of State says that the law in Botswana criminalises rape but does not recognise spousal rape as a crime.
But the law is not static. In a landmark ruling delivered in the United Kingdom (UK), Botswana’s former colonial master and where Botswana inherited its Constitution, the court ruled that marital rape exists and should not be downplayed.
In the R versus R judgement in the UK, a husband defended the ‘conviction for attempted rape’ on the ground that marriage gave irrevocable consent.
His contention was refuted and the court convicted him as the exception to marital rape is a ‘legal fiction under the common law’.
The court stated that for a person to be penalised for rape, the relationship between parties is immaterial.
This is according to a position paper that appeared in The Leaflet, an Indian independent platform for cutting-edge, progressive, legal and political opinion publication.
The above ruling may in future have a bearing in Botswana since it may be used as case law.