Tamale, the law is also unfair to men
Apr 11, 2006
Sylvia Tamale’s article in New Vision of March 11 titled, “Adultery law violates our Constitution†exposed serious weaknesses in our laws. I agree that the law on adultery is against the principle of equality of all persons before the law as provided for under Article 21(1) of the Constitution
By Hamis Kaheru
Sylvia Tamale’s article in New Vision of March 11 titled, “Adultery law violates our Constitution†exposed serious weaknesses in our laws. I agree that the law on adultery is against the principle of equality of all persons before the law as provided for under Article 21(1) of the Constitution. This is because, as Tamale rightly notes, the Penal Code provision on adultery is very restrictive on wives but ‘linient’ on cheating husbands.
However, women activists need to address injustices against women and men equally. This way, they will be fighting for true equality, thereby removing the impression that their intention is to remove one form of domination, where women are the victims, and create another where women dominate men.
Therefore, women activists should not close their eyes to the provisions that are clearly unfair to men such as those on rape and defilement. For example, the Penal Code says any person who has carnal knowledge of a woman or girl without her consent, or with consent obtained by force, intimidation, threats or fear of bodily harm, is guilty of rape, and if convicted shall be laible to suffer death. What happens to a woman who forces a man into a sexual relationship? What if armed women met a man along a village path at night and forced him to sleep on one of them at gun point? Under our laws these women would not be guilty of rape, for a woman can not rape a man!!
A man would also be guilty of rape if he impersonated a woman’s husband to have sex with her. What happens if my wife has a twin sister who comes into our bed while my wife is away and waits for me to join her after supper? With a voice and physical features similar to my wife’s, I would not be able to tell that I am sleeping with another woman. But this woman would not be guilty of rape through impersonation!! In otherwords, a husband must be able to identify his wife properly but not vice-versa.
The provision on defilement is even more ridiculous. It says any person who unlawfully has sexual intercourse with a girl under 18 years is liable to suffer death. What happens to a woman above 18 years who has sex with a boy below 18 years. Here it is the boy who can be charged with rape, if the woman so wishes, but the woman can’t face defilement.
Even where both the male and female are below 18 years, the boy would be guilty of defilement and the girl innocent. A colleague reminded me that actually a high percentage of remand cases are young men accused of defilement. “Often they are boys who actually married the girl but failed to pay the bride price!!†This proves that something is terribly wrong with the law on rape and defilement, but women activists prefer to highlight other provisions and to call for castration of rapists.
The provisions on rape and defilement means that a 40-year old woman who induces a 17-year old boy into sex by providing expensive clothes and perhaps a car or house is not guilty of either offence. However, the woman can later turn around and say the boy raped her. And the poor boy would be sent to the gallows. This could even be a housekeeper the woman hired with good intentions but later got attracted to. In this case who should be castrated? The woman or boy?
It is interesting that even where a woman has consented to sex but later changes her mind during the act, the man will be guilty of rape if he does not stop the moment the woman communicates her change of mind, no matter how far they are from climax. Indeed women have used these unfair provisions to extort money from men or to frame and bring them down for various reasons.
Therefore, equality before the law as provided for under Article 21(1) of the Constitution should be sought in respect of both men and women, and the Penal Code Act should also be scrutinised in the sme spirit.
Sylvia Tamale’s article in New Vision of March 11 titled, “Adultery law violates our Constitution†exposed serious weaknesses in our laws. I agree that the law on adultery is against the principle of equality of all persons before the law as provided for under Article 21(1) of the Constitution. This is because, as Tamale rightly notes, the Penal Code provision on adultery is very restrictive on wives but ‘linient’ on cheating husbands.
However, women activists need to address injustices against women and men equally. This way, they will be fighting for true equality, thereby removing the impression that their intention is to remove one form of domination, where women are the victims, and create another where women dominate men.
Therefore, women activists should not close their eyes to the provisions that are clearly unfair to men such as those on rape and defilement. For example, the Penal Code says any person who has carnal knowledge of a woman or girl without her consent, or with consent obtained by force, intimidation, threats or fear of bodily harm, is guilty of rape, and if convicted shall be laible to suffer death. What happens to a woman who forces a man into a sexual relationship? What if armed women met a man along a village path at night and forced him to sleep on one of them at gun point? Under our laws these women would not be guilty of rape, for a woman can not rape a man!!
A man would also be guilty of rape if he impersonated a woman’s husband to have sex with her. What happens if my wife has a twin sister who comes into our bed while my wife is away and waits for me to join her after supper? With a voice and physical features similar to my wife’s, I would not be able to tell that I am sleeping with another woman. But this woman would not be guilty of rape through impersonation!! In otherwords, a husband must be able to identify his wife properly but not vice-versa.
The provision on defilement is even more ridiculous. It says any person who unlawfully has sexual intercourse with a girl under 18 years is liable to suffer death. What happens to a woman above 18 years who has sex with a boy below 18 years. Here it is the boy who can be charged with rape, if the woman so wishes, but the woman can’t face defilement.
Even where both the male and female are below 18 years, the boy would be guilty of defilement and the girl innocent. A colleague reminded me that actually a high percentage of remand cases are young men accused of defilement. “Often they are boys who actually married the girl but failed to pay the bride price!!†This proves that something is terribly wrong with the law on rape and defilement, but women activists prefer to highlight other provisions and to call for castration of rapists.
The provisions on rape and defilement means that a 40-year old woman who induces a 17-year old boy into sex by providing expensive clothes and perhaps a car or house is not guilty of either offence. However, the woman can later turn around and say the boy raped her. And the poor boy would be sent to the gallows. This could even be a housekeeper the woman hired with good intentions but later got attracted to. In this case who should be castrated? The woman or boy?
It is interesting that even where a woman has consented to sex but later changes her mind during the act, the man will be guilty of rape if he does not stop the moment the woman communicates her change of mind, no matter how far they are from climax. Indeed women have used these unfair provisions to extort money from men or to frame and bring them down for various reasons.
Therefore, equality before the law as provided for under Article 21(1) of the Constitution should be sought in respect of both men and women, and the Penal Code Act should also be scrutinised in the sme spirit.