Introduction
In the preceding edition of the SLCMP Newsletter, the Monitor, an article deliberating on a draft Bill that provides for laws intended to promote gender equality was published. The SLCMP promised to publish the remaining aspects of the draft. In view of that, this article continues to examine the Customary Marriage Act together with the Domestic Violence Act as provided for by the proposed Bill. It stresses on the provisions that protect women from discrimination and violence. These two areas are unique by virtue of the fact that until now, no law has been promulgated to cover them. The SLCMP therefore lauds the timely intervention of the legislative arm of government as domestic violence has never been an issue of great concern in Sierra Leone. Failing to act promptly could really be detrimental to the justice system of this country as, in a report recently published by Human Rights Watch, it is stated that 67% of urban women had been beaten by a male partner. Moreover, the situation is not helped by customary law- the law that governs the majority of the citizens of this country. Since it is under customary marriage that women in Sierra Leone are discriminated the most, it is therefore important that the draft Bill be enacted into law; Moreover, it makes provision for the two areas that are lacking in legislation in our statute books that are in dire need of rules to regulate their conduct and practice.
The Customary Marriage Act, 2005
The proposed Customary Marriage Draft is meant to provide for the recognition of customary marriages entered into before and after the commencement of this Act. It is geared towards capacitating women in the law, registration and dissolution of customary marriages.
It repeals sec16 and 17 of the Christian Marriage Act (Cap 95), which justifies bigamy in marriages contracted under native or customary law. It further repeals all byelaws enacted by local authorities, relating to the registration of customary marriages and divorces that used to exist prior to the enactment of this Act. It provides for an application to be made to the Registrar –General for registration of all customary marriages entered into on or before the ratification of this Act, three months subsequent to the date of marriage or the date of the commencement of the Act as the case may be.
Sec 8 provides that the Registrar-General upon application and upon satisfactory completion of conditions of a statutory declaration can register the marriage and will notify the public of such registration. Such notice will be placed on a notice board at the office of the Registrar General, twenty-eight days subsequent to the date of application for the registration of the marriage. In the event there is any person who knows of a cause why the two shall not marry, he/she shall file the grounds for objection to a Local Court. If upon hearing, the court is satisfied that there are legal grounds supporting the objection, the court will grant an order empowering the Registrar-General to expunge any entries made in the register. The same procedure applies to the dissolution of a customary marriage. On registration or dissolution of any marriage, a certified true copy of the entry will be issued to both parties.
It further provides that a customary marriage entered into before or after the passing of this Act shall be valid if certain requirements are met. The requirements include: that the prospective spouses must consent to the marriage and they should be above the age of eighteen. Presently, under Customary Law, there is no fixed minimum age for marriage. The practice is that, once the person has reached puberty he/she is eligible to marry. Worse still, girls are given into marriage to older men even before they attain puberty. Moreover the prospective husband to any marriage has to consent to it, whilst on the contrary; the girl’s consent is subordinate to that of her father or an elder male relation.
The proposed Customary Marriage Bill bars any spouse who has already contracted a civil, Christian or Muslim marriage rite from entering into a valid customary law marriage with the existing spouse or another. In the event wherein the marriage was simultaneously celebrated by both Christian, Muslim, civil or customary rites, such marriage will be governed by the law that the parties have agreed to be applicable. On the other hand, if no law was laid down, the court shall take into consideration the spouse’s mode of life, together with the rules and customs that they observe to determine the prevalent law.
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The draft Bill strives to discourage polygamous marriages under Customary Law as recommended by the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The Convention recommends that polygamous marriages be prohibited as it contravenes a woman’s right to equality with a man, and can as well have such serious emotional and financial consequences on her dependants. In accordance with the CEDAW, the Act gives women the option to choose between polygamy and monogamy. It grants both spouses the right to enter into an ante nuptial agreement that the union is going to be a monogamous one. However, in the absence of such a declaration, the marriage will be polygamous. Additionally, it provides in sec 5(3) that in a polygamous customary marriage, the male spouse cannot marry an additional spouse without the consent of the existing wife/wives. Unless in a case wherein the wife/wives unreasonably withhold consent. Furthermore, it tries to eradicate the practice of bigamy. Sec 5 states that a person who is a spouse to a customary marriage cannot subsequently marry another by either civil, Muslim or Christian during the existence of the customary marriage.
Contrary to the current practice, part V of the Draft provides that a wife of a customary marriage shall have the same legal powers as her husband even in the area of decision-making. Further, bride price is to be considered as a gift and non-refundable on dissolution of the marriage.
Currently, under customary law, women are discriminated in the area of property devolution; however, the draft Bill provides that at the death of spouse, the provisions of the draft Intestate Succession Act, 2005 shall apply. The particular Act in question was discussed in the preceding publication and creates equality between the sexes in the area of property succession.
Sec 19 of the proposed Customary Marriage Act further makes it an offence to apply for the registration of a marriage not lawfully contracted under the relevant customary law, to prevent the registration of a customary law marriage or dissolution and to make a false entry into the register with intent to defraud or alter any entry into the register. The punishment for such an offence is a fine of a sum not exceeding Le 250,000/00 or imprisonment not exceeding five years or both.
The Domestic Violence Act 2005
The intended Domestic Violence Act provides remedies for victims of domestic violence. It also guarantees victims a protection through speedy and effective remedy. It commences by defining the elements that comprise domestic violence. It states that, for an act or abuse to comprise domestic violence, there must be the existence of a domestic relationship. The interpretation text defines a domestic relationship as a marital/divorced/separated relationship that was contracted by customary, civil, Christian or Muslim law between the complainant and the defendant. It also includes cohabitation and repute, a betrothal relationship and an ordinary relationship between lovers actively engaged in sex as domestic relationships. Domestic violence is defined as a physical, sexual, emotional, verbal, psychological and economic abuse. It includes intimidation, stalking, trespassing and damage to the complainant’s property.
Economic abuse is defined as an unreasonable deprivation or disposal of financial, economic or household resources to which the complainant is entitled by law or which he/she requires out of necessity or interest.
It further defines emotional abuse as repeated insults, ridicules, name-callings, threats or obsessive possessive jealousy, which will invade the complainant’s privacy, liberty, integrity and security. Harassment and intimidation are defined as repeatedly engaging in conducts that induces fear of harm on the complainant. Sexual abuse is defined as any conduct that humiliates or degrades the sexual integrity of the complainant. Stalking is interpreted as repeated pursuing or accosting of the complainant.
Part II of the said Act provides for measures to be taken when a police officer witnesses the scene or an incident of domestic violence is reported to him. The Act requires the Police to hasten to render reasonable assistance to the complainant including the provision of a suitable shelter or a medical treatment. It also permits police officers to arrest with/without warrant if an incident consisting of the elements that comprise domestic violence happens in their presence.
The Act provides for protective mechanisms for the complainant prior or subsequent to court proceedings. The complainant or any other person with genuine interest in the well being of the complaint such as public officers, teachers, counselors or social workers may apply for a probation order either prior to or subsequent to court proceedings. The court has power upon application made to issue protection orders prohibiting a defendant from committing or abetting the commission of domestic violence. Such orders include injunctions; prohibiting the defendant from entering the house, office or educational institution of the complainant.
Furthermore, the courts under sec 5(1)h may issue a protection order to prevent the molestation or harassment of the complainant. The court can also provide an additional protection that will care for the safety, health and well being of the complainant.
Sec 6 provides for an interim protection order to be made by the courts notwithstanding that the defendant was not notified of the proceedings; wherein there is a prima facie evidence that the defendant committed domestic violence and has caused undue hardship on the complainant as a result of the act. The court may order the defendant to pay emergency monetary relief after weighing him/her up. The court may even go a step further to make a restraining order against the defendant from having contact with any child if, it’s in the interest of the complainant. If the court thinks, after issue of a protection order, the complainant may suffer imminent harm, it may order for the arrest of the defendant.
Sec 11 gives the complainant right to apply for a variation or setting aside of the protection order and if the court is satisfied that there is good cause will waive the order.
Having exhausted the provisions enshrined in the proposed Bill, the SLCMP reiterates that from the time of publication of Part 1 of this article onto date, very little progress has been made to fast-tract the enactment of the Gender Bill. As stated in the previous article, the draft contains many relevant provisions that guarantees the rights of women and therefore should be treated with the utmost attention it deserves.
At present, there is no statute that governs domestic violence; cases of such nature are merely prosecuted under the Offences Against the Person’s Act of 1961. Moreover, prosecution is only tenable when the violence is of such a grave consequence relating to assault, battery, rape or wounding with aggravation. However, in cases of minute offences comprising elements of domestic violence such as economic abuse, harassment, intimidation, stalking to name but a few, there is no statute that protects victims from such abuse of perpetrators. The SLCMP therefore urges civil society groups, especially those concerned with gender related issues, to support the Bill by exerting pressure on all the authorities concern to enact it into law.
It also urges the Government to prioritize and not politicize issues affecting women. This Bill, it must be noted, has been reviewed thrice with no enactment. The SLCMP will continue to monitor progress and sensitize the public of this draft.