Marital rape is now effectively a crime under the new Domestic Violence Bill, according to Ursula Owusu, Vice-President of the Ghana Chapter of the International Federation of Women Lawyers (FIDA). Despite the failure to repeal Section 42(g) of the Criminal Code, 1960 (Act 29), which barred marital rape cases, a new clause inserted into the Domestic Violence Bill at the last minute during its Committee Stage will no longer allow husbands to hide behind the 'consent' protection provided by Section 42(g) of Act 29.
The new clause reads: "the use of violence in the domestic setting is not justified on the basis of consent”. Ms Owusu believes that this “empties Section 42(g) of its offensiveness. The consent provided by Section 42(g) has been removed. Whether married or single any citizen of Ghana can give and revoke their consent to the use of force against them at any time.”
This change to the law is despite the Government's apparent change of heart last year when it decided not to repeal Section 42(g), following heated responses to a public consultation, with the Deputy Attorney-General and Minister of Justice, Kwame Osei-Prempeh, commenting at the Second Reading of the Bill in November that “the inclusion of marital rape in the bill has the tendency of breaking families and destroy its purpose of harmony in marriages.”
The subject created a storm last year when the Bill had its First and Second Readings, but the subtle amendment at Committee Stage appears to have largely slipped under the radar. Last year's controversy on marital rape centred around the contentious Section 42(g). The Bill passed last week does not specifically address Section 42(g), but Women's Rights campaigners hope and expect that the new clause will in effect negate the regressive measure contained in the Criminal Code of 1960.
Speaking to The Statesman the Minister for Women and Children's Affairs, Hajia Alima Mahama, confirmed that following the Domestic Violence Bill, “consent will not be a defence,” and reiterating that “nobody can come to court and say they consented to violence.” The Minister also confirmed that she does not intend to issue guidance to the courts about how they should adjudicate between the two opposing laws on consent, saying that “it is their job to interpret” the law.
Ms Owusu is optimistic with regards to how the law will play out in court, commenting that: “The Judiciary will have to interpret the law as it stands today and I know they have the competence to determine which piece of legislation to give effect to the comprehensive law which defines the offence of domestic violence and sets its parameters or the anachronistic stone age provision in our criminal code which is discriminatory and offends against all sense of justice. Lawyers should have a fine time with this.” It is likely that there will therefore be initial landmark cases that will establish precedent on the subject, which later prosecutions will then be able to rely upon.
Ms Owusu said she had formerly been of the opinion that so long as Section 42(g) remained on the statute books “The law would be taking away with one hand what it was giving with the other and it would make full implementation of the Domestic Violence Law difficult, if not impossible.” But she no longer believes this to be the case as a result of the ingenious nature of the new clause.
Nevertheless, Ms Owusu adds that “hopefully, the Attorney General will have the political will to hasten its [Section 42(g)'s] demise by taking steps to repeal it in the fullness of time.” Adwoa Bame, Executive Director of The Women's Initiative for Self-Empowerment, an NGO providing counselling and support to women and children survivors of violence, also confirmed that whilst they believe marital rape can now be prosecuted under the new Domestic Violence Bill, they will continue to call for a repeal of Section 42(g).
Human Rights' lawyer and activist Nana Oye Lithur yesterday called on the Government to “sit down and harmonise the Domestic Violence Act with existing law, especially the Criminal Code”.
Speaking exclusively to The Statesman, Ms Oye Lithur also criticised the disparity between the punishment for rape and marital rape, arguing that “we need to have a sentencing regime that is consistent”. Under Ghana's Criminal Code rape carries a minimum sentence of 7 years and a maximum of 25, whilst under the new provisions of the Domestic Violence Bill husbands convicted of marital rape could only receive a maximum jail sentence of 2 years, which is tantamount to “discrimination with regards to married women.”
The changes to the Bill have resulted in a delay in its printing and consequently the President's Office is yet to receive the Bill for signature, but a source at the Castle confirmed that it is a given that the President will grant the Bill his assent.