Getting rid of the dowry and therefore the sense of ownership a man has over a woman would seem a place to start, but the lawyers thought it would be easier to change the law than to tackle ancient customs. They also thought that 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,” said Sampson. “Furthermore, it will establish a culture of accountability for women’s human rights and improve the physical safety and security of women.”
Building public awareness was a critically important step, as evidenced by the brouhaha in the villages before the law was even written. Everyone knew the change in the law was coming eventually; there were regular radio broadcasts alerting citizens all over Kenya. But the men, for the most part, pretended it was not happening. Jedidah Wanjiku said, “We need a delegation to come from Nairobi 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.
The sticking point for these women, as well as the reformers in Nairobi, is customary law. All three countries operate with two distinct sets of laws—the formal laws of the state, and customary laws that aren’t codified, aren’t written down and are determined by men. The customary law regarding marital rape is that neither wife nor husband can deny sex to the other unless one is “sick, menstruating, in childbirth or attending a funeral.” The chiefs enforce these customary laws, and most villagers, as well as the lawyers discussing the laws, agreed that they worked against the rights of women, either out of ignorance or in collusion with men.
Ngeyi Kamyongolo, a law professor at the University of Malawi, told me, “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.” Because it regulates marriage, divorce, inheritance and property, because it’s patriarchal, biased and goes against gender equality, women pay a mighty price for obeying its rules. Elizabeth Archampong of the faculty of law at Kwame Nkrumah University said, “When you get married there’s the presumption you will give yourself up, any time, every time and all the time for sex.” And Seodi White, a lawyer from Malawi, said that violence is often a part of the marital bargain and gave me some graphic examples: 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 spit out coins after doing so, still another cutting off his wife’s labia majora and selling it as a charm—all these terrible acts considered legal as she is his property. In Ghana, Marceline Kabir, a nurse, told me, “When a woman tries to run away from her husband, other villagers will catch her and bring her back. Even a child of a forced marriage or a woman with wounds from female genital mutilation will be sent back to her husband. And even if he’s drunk and abusive, the woman has no say.” She told a story about a woman in her village who ran for her life when her husband was beating her. She was caught, trussed up like a goat and brought back to her husband. What’s more, if a woman reported the rape or the abuse, she was likely to suffer more grief from the other villagers. One woman walked around for more than a year with a dislocated shoulder because she didn’t dare ask for help for fear that her husband would throw her out of the house to fend for herself if she exposed the fact that he had beaten her.
Customary law is seen as the personal law of all citizens, so no one can opt out of it. Kamyongolo gave me another 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 found her husband guilty only of manslaughter.”
Malawi, Ghana and Kenya reformed some of their laws around sexual violence in 2006 and 2007, and marital rape was part of the package, but in each jurisdiction the parliamentarians on the review committee said, “Get rid of the marital rape section—it will never pass—our men will never allow it.” The reformers in all three countries succumbed, and the reforms went through without mention of marital rape.
The Canadian women on the Three to Be Free team had faced a similar resistance back home in Canada. Jennifer Koshan, a professor of law at the University of Calgary, told her African colleagues the story of how many male members of Canada’s House of Commons had burst out laughing, joking to each other across the floor about beating their wives, when MP Margaret Mitchell presented the sexual-assault law-reform package in the House in 1982. “Before 1983 there was immunity for men who raped their wives in Canada for the same reasons African women are struggling with now: women were assumed to be property once married and there was implied consent because of marriage vows,” she said. Even today some judges rely on old adages like “When a woman says no she means yes.”
Mary Eberts, who has spent most of her career pursuing cases that promote equality in Canadian law, says, “Marital rape is one of the toughest barriers to the full equality of women, conceptually at least, since it is a remaining incident of married women’s inferior, or non-existent, legal position. I do not, though, see that it is the only keystone to change. Each barrier will still have to be taken, one by one.” Eberts, too, believes that it’s often easier to change the jurisprudence first, because there you are dealing with educated elites who have less allegiance to “the way it was” in many areas than do the people who hold “custom” dear. “They also know in their heart of hearts that changing the jurisprudence gives them the best of both worlds: they can look progressive without necessarily affecting real change, because changing the jurisprudence is not the whole story. There remain enforcement issues, i.e., maybe the law will be changed on the books but won’t be enforced with vigour. But for those to whom symbolism is important, it seems like a victory.”
~
In Nairobi that February, just three years ago, the women sat like a posse around the long meeting table, creating their strategy to change the law, sharing the stories of rape and domestic violence that brought authenticity to the project, poised to pounce when the time is ripe. They debated the wording of the new statute, parsing every sentence, trying out the vocabulary. Were the language and interpretation broad enough? What about consent—was the definition precise enough?
Effie Owuor, a recently retired judge who is a driving force for women’s rights in Kenya, blazed the trail as the first woman magistrate (officiating in a lower court), then as the first woman judge. She was currently the chair of her country’s task force on sexual offences. She said, “It’ll be difficult for a judge in Kenya to convict on marital rape in view of the clear omission of marital rape in the code.” She suggested it might be better to catch the person with an assault charge rather than try to make sexual violence stick.
Other women at the table asked this icon of women’s progress questions such as, “How would you deal with marital rape when it’s a child in a forced marriage?” The no-nonsense judge replied, “I would put it under the Children’s Act and say ‘customary law is in conflict with written law. This is a child. I argue for the child. I don’t want to hear any other argument.’ That’s all I would say.”
And if it was an adult rather than a child?
“I’d use the ‘person’ argument. Move away from the issue of marriage. Tell them, ‘She didn’t consent to a beating through marriage. It is nonsense to say there’s consent here.’ I’d go with that until I convict.”
The judge said she’d already seen the signs of change. “It used to be that a woman’s role was to read the closing prayer at the village meeting. Not anymore. Change isn’t coming from on high down. It’s coming from the grassroots up.”
The discussion at that table was history in the making. A lawyer from each country described the existing laws in Ghana, Malawi and Kenya, as well as in Canada. Then together they dissected ea
ch one. They thrashed out the details—where to delete a section or add an amendment. Judge Owuor reminded them, “We need to remove certain sections of the penal code such as ‘this does not apply to married women.’ ” Then she advised that they sneak the marital rape law into the middle of the code and presume that most MPs wouldn’t read the whole thing. “Or wait for a day when the members who are against it are not in the Parliament.”
Some felt that they needed to tread softly with language, dressing up the law with phrases acceptable to villagers—for example, positioning it from a perspective of caring about and protecting women rather than using words like marital rape, and using phrases seen to be free of violence rather than to be equal. “Play on humanity,” suggested Seodi White. “Use non-politicized language such as ‘a man who loves his wife wouldn’t beat her.’ ”
That approach didn’t get much support at the table.
Together these women underscored the consequences for a woman who reports violence: she may have to get up at four o’clock in the morning and pay bus fare out of scant resources to get to the court in the city. She gets home at eight at night, after waiting her turn in the court and catching a bus back to the village; her children are hungry, and it’s too dark to plant the fields, which is the work she needs to do to grow food for the family. Her case gets postponed over and over again.
“No wonder she gives up,” said Judge Owuor. “When you go to court, the social worker is there collecting your children because you aren’t at home taking care of them and your man is next door carrying on.” They all agreed that a woman can’t have access to justice without looking at these issues. “Sexual assault and abuse affect us physically, but also socially and emotionally; it affects families, jobs, the entire country,” said Judge Owuor.
Her views were backed up by the Kenyan member of parliament Millie Odhiambo, who said, “This new law being proposed will not be very well received. They’ll say it’s not African style.” But she also said, “Domestic violence used to be a topic no one would talk about; now, people are being prosecuted left, right and centre.”
Seodi White summed up the conundrum. “The issue is about a law that gets into the blankets, the bedroom. We’re not criminalizing all men. We’re criminalizing the act—and the bad men. It’s doable. It’s a process we need to negotiate with the general public, hear their views, give a little, take a little. Somewhere along the line, we’ll get it right.”
~
When I asked Fiona Sampson in August 2012 how the reform process was going, she said, “We have been researching the treatment of consent in sexual assault law and discovered a sticking point relating to the legal treatment of marital rape, i.e., wives are understood to have consented to any/all sex upon marriage.” They have scheduled another strategy workshop to vet the research completed to date, and to decide whether next steps will be more public legal education and awareness-building, a formal request for marital rape to be written into the penal code, or litigation, which, if successful, could force the hand of the court.
My bet is that they’ll get it right soon. While touring the villages in the district of Kirinyaga, I talked to three groups of men: men over seventy, who were so horrified by discussing the topic with me that they suggested we meet in the woods out of the view of the other villagers; forty-something men; and men under thirty. The older men were outraged with the suggestion that women should have the right to say no to sex, but they admitted that sex was no longer a big part of their lives, so if the law was passed, it wouldn’t really matter to them. The men in their forties said that they’d fight the passing of the law, they’d go to Nairobi en masse, they’d march in front of the legislature. But if they lost, they’d obey. The twenty-somethings? Well, they couldn’t imagine what the fuss was about. Said one, “The young men sleep with their girlfriends. The women do as they wish. They all go to work. It’s not an issue with them.”
At a public meeting to air opinion on the proposed law, John Chigiti, a Nairobi lawyer, described the discussion of the topic as a potential win-win situation for everyone. “We need to create a critical mass that can rally around this issue. Discussions like this are the way to do that.” When a member of the public asked about backlash, Melanie Randall, a law professor from the University of Western Ontario, replied, “They’ll say the law has no place in the bedroom; that this law breaks up families and attacks men; that it doesn’t value children. Don’t let that deter you. The strength of the backlash shows the efficacy of your work.” Her advice: “Diffuse it or ignore it.”
At the end of the event, the facilitator, Judy Thongori, a family lawyer in Nairobi, spoke for everyone in the room when she said, “Ten years from now people will look back at this meeting and say, I was in the room that day; the end of marital rape started right here.”
EIGHT
The Anatomy of Change
At Tahrir Square, we broke the barrier of fear. Once that barrier is down the people can do anything.
— HODA ELSADDA, professor, University of Cairo
Change is one part nerve, two parts knowledge and three parts tenacity. The new revolutionaries know that you have to speak your truth and use the law of the land to hold the state accountable for changing the status quo and then be prepared to wait out the naysayers.
But the process begins with finding the nerve to conquer fear. That’s what happened on Egypt’s Tahrir Square during eighteen remarkable days in January and February 2011 that transformed both the Egyptians who rose up during that raucous, dangerous, joyful revolution, and Egypt itself. This is a country that traces its history back eight thousand years; it’s where the pyramids that were built about forty-five hundred years ago still stand watch, evidence of a rich and storied past. Characters like Alexander the Great and Mark Anthony and Cleopatra and Julius Caesar left their impressive marks on this place. Its ancient history also boasts equality among the sexes: women could own and sell property, make their own contracts, marry and divorce, receive inheritances and pursue legal disputes in court. Some, like Hatshepsut and Cleopatra VII, among others, became pharaohs. Contemporary Egypt is a contradictory place that has embraced equal wages for women and maternity leave but also enforces draconian personal status laws that favour men over women in marriage, divorce and inheritance.
The women of the Arab Spring want change in their personal lives, but first they needed to knock out the dictators.
Hoda Elsadda was chair of Arabic studies at Manchester University in England when the first hints of an uprising began in Tunisia. The early rumblings of change rolled into Egypt in October, and as soon as it looked as if the seeds of a similar revolution could germinate there, she took a leave of absence from her job and went home to Cairo. “I had to be here,” she told me as we sat in her book-lined office in Cairo exactly one year after the hated Egyptian president Hosni Mubarak was forced to resign. “I couldn’t stay away from Egypt when the changes we’d hoped would come for forty years were potentially on the doorstep.” By the time Mubarak was ousted, on February 12, 2011, she knew what her own next steps had to be. “I went back to England and resigned from my job, because now was the time to shape the future of Egypt—I wouldn’t be anyplace else.” She moved to Cairo and took a job as professor of literature at Cairo University.
Elsadda was no stranger to protests, but the ones she’d been in before the Arab Spring were events with five hundred people surrounded by ten thousand police. In Tahrir Square the protester numbers kept swelling; by the end of the first day there were more of them than police. “I’m fifty-two years old. I wanted to show my support but was undecided about actually going to Tahrir Square, so I decided I would think about joining the protesters later.” In the meantime, her nieces were calling to ask her to go with them to the square. Her brother said to his daughters, in no uncertain terms, “Don’t go.” She knew of friends who were literally locking up their children so they would not go.
Like others, she was drawn to the protest by activists
like Asmaa Mahfouz, twenty-six, who put a message on her Facebook page about a week before the now-famous date of January 25, 2011. It read, “I’m making this video to give you one simple message. We want to go down to Tahrir Square on January 25. If we still have honour and we want to live in dignity on this land, we have to go down on January 25. We’ll go down and demand our rights, our fundamental rights. Your presence with us will make a difference, a big difference!” All Egyptians should come, she exhorted, “for freedom, justice, honour and human dignity.” And she added, “Whoever says women shouldn’t go to the protests because they will get beaten, let him have some honour and manhood and come with me January 25.”
Elsadda decided to go to the square on January 28, three days after the protest began. “We went—all of us together, the whole family—and we stood together for eighteen days. It was a kind of euphoria. I met all my old friends—the usual suspects in the human rights movement, the women’s movement, plus people you’d never expect, like my own brother, who became a born-again revolutionary.”
It wasn’t all fearlessness. She says she awakened every morning with some part of her dreading going to the square. “I had no illusions about the level of violence the state would use. But once there with all the others, I felt totally safe. I felt we were part of history, we were changing Egypt. We were taking a stand. It was very exciting, like an adrenalin high.”
She describes the value of being connected by a common cause: “It makes people better than each one was.” Although the revolution is now described as the social network revolution and the youth revolution, Elsadda says it was neither. “It was the Egyptian people together who did this.” There were young and old people, some who had never seen a mobile phone joining hands with Twitter wizards. Women with their faces fully covered worked alongside secular women. “There is normally a huge gap between the rich and the poor in Egypt,” says Elsadda, “but this was eighteen days of solidarity. We shared food and water; we were united by a common cause. It tells you a better future is possible.”
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