Reduce executive incompetence not SOSPA sentences

During the January 2009 Tanzanian parliamentary session, to my shock and that of fellow activists and sane citizens, I listened to the incomprehensible. The minister of justice and constitutional affairs dared to suggest that the law related to sexual offences – the Sexual Offences Special Provision Act (SOSPA) of 1998 – be reviewed, not because it was failing to serve the victims and survivors of violence, rather because the sentences were deemed too high for the perpetrators of violence.

In democratic countries, public officials are asked to resign for blunders of lesser importance. How does an officer whose primary duty is to ensure the rule of law and that those aggrieved have access to justice dare advocate for those who have been found in violation of the law? I must remind the reader that the primary mission of the Ministry of Justice, as indicated on its official website, is the administration of justice through the prosecution of criminal and civil cases.

Thankfully, women, human rights activists, and the media recognised this contradiction and voiced their disapproval. Among others, Rai, ThisDay, and Tanzania Daima covered the actual remarks and the ensuing retort in their papers. In addition to voicing our horror, I would like our activism to move to censoring public officials as well as the governments under which they serve for breaching national, regional, and international commitments, particularly in regard to women. Actively seeking to enforce accountability is the only means of ensuring that these commitments will be taken seriously, as observed by many representatives attending the 53rd session on the ongoing Commission of the Status of Women.

Tanzania recently relinquished the chair of the African Union, an entity which passed the African Protocol on the Rights of Women in Africa in 2003, and which came to force in November 2005. Moreover, a Tanzanian, Dr Asha-Rose Migiro, serves as the deputy to the UN, an institution which in the last few years has spearheaded a global agenda against gender-based violence. Also, our very own Gertrude Mongella, the secretary general of the Fourth World Conference on Women, is now the president of the African Parliament. Do we not have a moral obligation to discuss respectfully, with our leadership, an issue of global significance?

In fact, during his recent visit to Tanzania, the UN Secretary General Ban Ki-moon underscored the importance for governments to deal effectively with acts of violence committed against women. Furthermore, on 8 March, International Women’s Day, Ban Ki-moon reminded governments of the year-long campaign to end violence against women. Importantly, he emphasised that violence against women cannot and should not be tolerated, particularly because it is an attack on humanity, and defeats the objectives of equality and empowerment pursued by the community of nations. If anything, both the secretary general and women want more to be done against gender-based violence, not less.

So, what may have informed the conclusion of the minister of justice and constitutional affairs? It may be that government officials are ill-informed of the reality of the situation. Perhaps it may be attributed to the deep-rooted sexism in our political and governance culture, and an obliviousness to the atrocities committed against women’s bodies in their own homes and communities, the very crimes which often go unpunished simply because they concern women. Possibly, part of the resistance in acknowledging crimes committed against women is the perception, even among legal practitioners, that gender-based violence (GBV) law favours women and seeks to prosecute men. However, are these perceptions accurate? Such a conclusion cannot be reached without measured and thorough research, as I will demonstrate below.

Suffice to say, the conclusion which the minister arrived at in front of parliament is unfathomable and unconscionable, particularly when one considers the troubling figures of violence against women available to the UN, and which the secretary general cited in his remarks on 8 May. Ban Ki-moon stated that one in five women worldwide suffers rape or attempted rape. In some countries, one in three women are beaten, forced into sex, or abused. Tanzania is not immune from this reality. Data gathered in the World Health Organization (WHO) Multi-Country Study on Women’s Health and Domestic Violence against Women (2005), the International Violence against Women Survey (2002), the UN secretary general’s database on violence against women, and the Tanzania Health and Demographic Health Survey of 2004–05 are all useful reference points for the minister as he considers this ill-advised move.

A study I undertook in Zanzibar between 2006 and 2007 found that over 75 per cent of all public institutions interviewed report receiving cases involving gender-based violence. In over half of these institutions, GBV matters comprise 41 per cent of the caseload, while in four of the 12 institutions interviewed they constitute over 50 per cent of the caseload. Women are more likely to report GBV crimes to institutions.

All of the institutions identified sexual assault as the most frequent form of complaint. Eleven institutions further identified attempted rape to be of high concern, comprising 30 per cent of the caseload in some institutions. In 58 per cent of the institutions, sexual assault comprises about 30 per cent of the caseload.

Girls are more likely to be victims of sexual violence than women or male children. Interviews held with medical personnel in various district hospitals in Unguja and Pemba confirmed that a high number of female children exhibit prolonged sexual activity, indicating a prevalence of protracted incidences of sexual abuse which are largely unaddressed. The same information was confirmed in law reports.

While the few cases reported to institutions hardly reflect the actual scale of crime, the files of cases involving sexual crimes attest to the preponderance of sexual health issues among young girls in Zanzibar. In regard to the fact that young women are most at risk of HIV/AIDS infection, there should be more done to protect women, especially young women, from sexual predators.

Most activists are perpetually faced with scepticism when advocating for action against GBV. Religious quarters, the media, and politicians often ridicule and blame women for the violence perpetrated against them, suggesting that the predominance of violence may not be an issue as we live in a violent culture.

The study in Zanzibar found that 67 per cent of respondents indicated that physical violence is often used to coerce others or make them submissive; this was suggested in a culture where violence is more verbal than physical. Seventeen per cent of respondents reported experiencing sexual violence, 6 per cent of respondents reported being fondled or touched inappropriately on the breasts or buttocks and 5 per cent were raped.

Similarly, 17 per cent of respondents indicated having a sibling subjected to GBV, especially sexual abuse. About 41 per cent of the cases concerned female relations, including those with disabilities. In fact, most siblings suffer sexual violence above other forms of violence, with at least half of the respondents whose siblings have experienced GBV citing sexual crimes such as rape (27 per cent) and sodomy (21 per cent).

During focused group discussions carried out across the island, it was revealed that approximately 29 per cent of GBV in the community affects young girls, 10 per cent impacts women, and about 12 per cent of cases affects male youth. An alarming 28 per cent of the cases involve children. Forced marriages are also reported in 55 per cent of communities interviewed. In at least four communities, it did not appear uncommon for girls to be taken out of school to be married off, contradicting national laws and opposing Millennium Development Goal 3.

While evidence suggests that gender-based violence is a legitimate and profound problem, the study did not find a single institution that was uniquely and systematically working on GBV advocacy or GBV services in Zanzibar. The Zanzibar Female Lawyers Association (ZAFELA) has only recently taken the issue into consideration. In such an atmosphere, one wonders what happens to victims and survivors of violence.

Largely, there is very little willingness to take action against GBV at both official and unofficial levels. Only 16 per cent of GBV cases were reported to the police for further action. In 47 per cent of the GBV cases reported by individuals, nothing happened to the abuser. Commonly, no action is taken against perpetrators of violence. About 10 per cent of respondents indicated that the issue is normally resolved within or between families.

In 18 per cent of the recorded incidents of abuse, the abuser was forced to marry the girl through a private arrangement. In order to protect the honour of a sexually abused young woman, particularly if she is pregnant, marriage is perceived as an appropriate response for 38 per cent of cases in the study. More parents want the option of marriage over prosecution or imprisonment, giving little consideration to the fact that forcing a young woman into marriage, especially if the sexual act was not consensual, is doubly traumatising for the victim of the sexual crime.

Although activists in Zanzibar, like those on the mainland, celebrated the passage of SOSPA, they are dismayed that sexual violence continues to be viewed more as a moral crime rather than as a legal crime. It is thus not surprising that about 34 per cent of respondents consider sexual crimes as private issues. Only 16 per cent think that it is a criminal offence, affirming that more needs to be done in the area of legal literacy. While there are provisions to address GBV, only 50 per cent of functionaries interviewed indicated using the Penal Decree in matters concerning GBV, the remaining 31 per cent used religious laws, and 18 per cent used medical guidelines when dealing with GBV cases.

The study found knowledge of laws related to GBV to be very low in communities. Over 65 per cent of individuals interviewed were not aware of any law related to GBV. Largely, local customs and religious law are used to solve GBV matters. In so doing, perpetrators of violence escape criminal prosecution and thus defeat the intent of the law.

Equally, few functionaries in public institutions were familiar with the content of GBV related laws. Over 70 per cent of functionaries interviewed during the study reported not having copies of any of the relevant laws, as opposed to 30 per cent with access to these laws. Also, an equal percentage of functionaries report never having read any of the laws concerning GBV, which ultimately raises questions concerning their ability to preside effectively over such issues.

Moreover, under the law, GBV offences are not considered to be cognisable offences which would entitle police officers and prosecutors to investigate, arrest, and prosecute without a warrant on the merit of the crime. Consequently, less than two-thirds of GBV perpetrators are convicted within courts, mainly on account of insufficient evidence and the deliberate tampering with evidence. The problem is greater in cases involving sexual offences, where 40 per cent of cases fail due to insufficient evidence, allowing many sex offenders to escape prosecution.

Other than gaps in the substantive law – gaps that are being tirelessly pinpointed by many activists led by the Tanzania Media Women’s Association (TAMWA) – procedural rules contribute to the inefficacy of the substantive law. The research established issues with jurisdiction, documentation, investigation and evidence. Moreover, functionaries do not have the capacity to competently handle GBV cases; almost all functionaries interviewed have never been trained in aspects of GBV law and its application.

I ask the minister, other public officials and legislators to ascertain their facts before spouting claims that border on incompetence and tactlessness. No one will think of them to demand expert guidance should they require it from people who have made the issue their vocation. Perhaps if they fussed less about hefty allowances under their misplaced sense of self-importance they would truly begin working for the population they represent.

The problems encountered today by lawyers, activists, victims and survivors of gender-based crimes are the shortcomings of the Ministry of Justice and Parliament responsible for drafting, discussing and passing the laws. To gain our confidence, it would be smarter and more productive if these institutions learn from their past mistakes and improve on their performance, rather than continuing to compromise our sense of well-being and security.

* Salma Maoulidi is an activist and the executive director of the Sahiba Sisters Foundation in Dar es Salaam, Tanzania.
*Please send comments to [email protected] or comment online at http://www.pambazuka.org/.