Opinion: Need to reform South Sudan Legislation on RAPE
By Ajang Langar,
A young South Sudanese woman found in a military garisson held against her will by the South Sudanese warring parties soldiers(Photo credit: Nyagoah Tut Pur.)
May 20, 2020(SSNN) — It’s really absurd that recently a group of three men raped a young girl of 8 years in South Sudan. As we await their arrest, and conviction once their case is proved beyond reasonable doubt, I want to salute all those people that went to the streets to protest against rape and demand for the girl’s justice. Surely, we are together and justice will be served. Well that’s not the only case, there are many that are unreported and I hope the victims will come out soon.
Rape in a laymen understanding is forceful sex with a person against her will. Well that is correct as it extends the same preposition into the legal setup. Legally it is broadened to list out what amounts to consent and what doesn’t amount to consent. Different international laws and national laws have defined Rape for example the Elements of Crimes of the Rome Statute of the ICC define rape as the act whereby: the perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body and South Sudan laws have gone ahead to adapt this definition though a little restricted in its definition.
South Sudan defines Rape as sexual intercourse with a person against that person’s will or consent (Section 247 of the Penal Code). It further goes ahead to state in S247(2) that sexual intercourse with a man or woman under eighteen years is rape and consent given by such person is not consent at all. This is an effort to protect minors (children) whose physical appearance in most cases plays a role into them having sexual intercourse at tender age and also the belief that such persons are not capable of making right decisions. Section 247(3) outlaws’ marital rape. The issue of marital rape is still a big controversial issue in most countries especially African countries and it will only be solved once thorough research and harmonization of cultural laws and state laws is done. The definition of rape seems to be restricted penile penetration and doesn’t include instances where objects were used, oral sex or penetration through any sexual glans. The punishment of rape being fourteen years imprisonment with a fine or not.
In one of the leading international cases decided by the international criminal tribunal for Rwanda, it was held in Prosecution v Akeyeksu that While rape has been defined in certain national jurisdictions as nonconsensual intercourse, variations on the act of rape may include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual. During the 1994 Rwandan genocide, different objects were inserted in women through their different body openings and this decision thus broadened it even if sexual organs e.g penis or vagina aren’t used and the perpetrator inserted objects, then he or she is equally liable to a conviction of rape.
The South Sudanese laws are restricted and need a lot of reforms in regard to Rape ranging from its definition, consent (as the most important ingredient to prove rape), punishment and marital rape.
RECOMMENDATIONS/ AMENDMENTS NEEDED.
Definition of rape.
According to our law, penile penetration into the mouth and penetration of the genital organs or the anus with objects falls outside the definition of rape. However, they are taken to components of gross indecency (section 249 of the PCA) and this doesn’t capture the seriousness of the crime.
Thus, I suggest that the definition of rape is changed so as to include penile penetration into the mouth, penetration of genital organs or the anus, nose with objects. When such a step is welcomed, then the definition will be in conformity with international jurisprudence and legislations of other countries. The amendment would also protect individuals that fall victims of rape.
Consent.
For the offence of rape to exist, the sexual intercourse should have taken place against the will or voluntary consent of the victim. However much the ingredient of consent is well stipulated in our laws, there are some changes needed to be adopted by our legislature.
The circumstances in which consent is absent should be clarified in our legislation and what amounts to consent should also be clarified. Thus, it would be more appropriate to distinguish between acts of penetration that have been committed without the consent of the victims and those committed with the consent of the victim (where it is not valid). Acts falling the former position would include, where force is applied overpowering the victim, taking advantage of the inability to give consent by the victim ( when the victim is stupefied, intoxicated, psychologically unwell, being asleep or unconscious) whereas acts falling in the latter position would include, consent obtained through intimidation, threats, abuse of power, use of fraudulent means and Consent of Minors. This would encompass the different forms of non-consensual sex.
Attempted rape.
The South Sudanese legislation has not created the offence of attempted rape. There is need to amend it to include this felony as a lot such cases are prevalent in the country and these victims cannot press charges for an offence that doesn’t exist in our laws. This would also capture the seriousness of rape as a whole being that it’s against human dignity and no one deserves to go through such n experience. In turn perpetrators of such offence would be brought to books to deter future attempts of rape. Many countries have attempted as an offence for example, Uganda and its punishment being life imprisonment (section 125 of the Ugandan Penal Code) and thus would be great if our legislation adopted such step. The law should come to protect individuals that fall victims of this offence which is not in our legislation.
The Punishment of Rape.
According to section 247 of south Sudanese Penal Code, the punishment of rape is fourteen years with fine or not. The punishment seems to be light being that not everyone convicted of rape is sentenced to such a term if we are consider the different evidence presented by the state, also corruption where some judges would be bribed, some judges are also lenient and biasness being another consideration. So, at the end a few meet up to this term after thorough evaluation of evidence and thus not capturing the seriousness of the offence. The absence of the offence of attempted rape also plays a role to this lightness of the punishment yet it should have been heavier.
Thus, I propose that the legislation is amended to stipulate a maximum term being a sentence to life imprisonment for rape upon conviction and a minimum being 7years because any sentence below that would undermine the seriousness of the offence. Attempted rape being punishment to a term not exceeding 10 years.
The law should also specify factors that constitute aggravating circumstances to guide the discretion of judges in determining adequate punishment for example gang rapes, rape leading to grievous bodily harm, rape leading to death, rape of minors etc.
Protection, counselling of rape victims.
I suggest that our law concerned with rape provides for the establishment of special procedures and programs to ensure victim safety and provides counselling and medical treatment. As it is most times, victims are threatened while giving their evidence, others stopped from pressing charges etc. and thus there is need to protect them from all this. Similarly, victims should always be counselled and given medical treatment to ensure that they are mentally good and also reduce risks of suicides.
Marital rape
There is no marital rape as an offence (section 247(3) of the Penal code) in South Sudan, this would be basically due to the different cultural laws and perceptions of people ranging from religions to individual thoughts. Marital rape is still a big controversy in most African countries and outside Africa. However, many international laws have created this offence to mean non-consensual sexual intercourse within marriage and countries where it is not an offence have based their reasoning on the Bill of rights in conjunction with different conventions on Rights of women. For example, Maputo protocol.
I propose that there is thorough research done in South Sudan to harmonize cultural laws and state laws so as to cater and protect people that fall victims of this offence since it’s a form of human degradation
Personal Advice.
To the victims, always find a way to report to the police, persons or organizations concerned when your evidence is still fresh so as to ease your case against the Accused
Much us we all want the government to protect us, we should always be vigilant and look out for oneself. We should know that these laws are a cure to what we experience but never preventive measures. Thus, I advise each and everyone especially girls who are in most cases fall victims to avoid such circumstances that would expose you to this inhumane act because these perpetrators may not always be brought to justice and you will end up living with this bad experience throughout tormenting you due to the fact that rape is hard to prove in courts since it occurs mostly on a one on one experience and corroborating your evidence comes at a hard task. For example, drinking yourself out that you cannot understand your state of mind and always let your conscience guide you.
In the same spirit, my fellow brothers let’s stop this inhumane act towards our sisters. We should look out for one another and start better co-existence amongst ourselves and learn how to obtain consent especially express consent because implied consent always misleads.
The author, Ajang Longar, can be reached for more information through email at ajanglongar@gmail.com
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