Fareda Banda

Women, Law and Human Rights in Southern Africa

This article examines the development of human rights in the Southern African Development Community (SADC).1 It looks at personal laws and the attempts of parties in postcolonial states to deal with conflicts that arise between the dictates of state customary law, which may be discriminatory towards women, and the move towards embracing human rights with their focus on the removal of sex and gender-based discrimination. While it is clear that there has been enormous progress made in enshrining womens rights, the article urges caution, noting that there are limits to the laws power to change behaviour. Law cannot always provide a solution to discrimination rooted in socio-economic and cultural dispossession. The article is divided into four parts. Part one introduces the legal systems of the region. Part two offers a discussion of the different constitutional models illustrated by case law relating to inheritance. Part three provides an overview of the African engagement with human rights before moving on to consider the two Declarations of the SADC in dealing with gender-based discrimination and violence against women.2 Part four focuses on the rights contained within the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women, adopted by the African Union in July 2003.3

International Conceptions of the Family

Abstract This article examines the evolving way the ‘family’ and ‘family life’ have been understood in international and regional human rights instruments, and in the case law of the relevant institutions. It shows how the various structural components which are considered to constitute those concepts operate both between relevant adults and between adults and children. But it also shows that important normative elements, in particular, anti-discrimination norms, operate both to undermine the perception of some structures as constituting ‘family’, and to modify those structures themselves. This raises the question how far human rights norms should be seen as protecting family units in themselves or the individual members that constitute them. Key words Human rights – family – family life – gender discrimination – marriage – same-sex relationships - parental relationships – violence against women

“If You Buy a Cup, Why Would You Not Use It?” Marital Rape: The Acceptable Face of Gender Based Violence

There are cases that one never forgets. DPP v. Morgan is one of those for me. I read it as an eighteen-year-old in my first year of law school. It was in the criminal law class where we were being taught about rape. The facts left me shocked and outraged. Morgan went out drinking with his friends. At the end of the night, he invited the friends back to his house. He told them that they could have sex with his wife and added that they should not worry if she appeared to resist, because she liked it that way. The friends duly came over and helped themselves to his wife as per his instructions. Morgan also forced her to have sex with him despite her protestations. She experienced injuries which necessitated medical treatment. His friends were convicted of rape, but he was convicted of indecent assault. This seemed strange. Had they all not forced her to have sex with them despite her clearly expressed refusal? Why was he charged with a lesser crime? The reason was simple: he was her husband. Under the law as it then operated in England, there was no recognition of marital rape. Her consent to lifelong sex on demand, even if it was against her will, was taken as part of the contract of marriage. The words “I do” spoken at the time of the marriage, were taken to mean free access for the husband for as long as they both lived, or until the marriage was legally dissolved or a formal separation was in place.