In October 2005, Zainab Bangura testified in Trial Chamber II of the Special Court as an Expert Witness on the issue of ‘forced marriage’ during the war in Sierra Leone. She was commissioned by the Prosecution in February 2005 to prepare a report on forced marriage in respect of the trials against the RUF and AFRC accused persons. In the Report, forced marriage was captioned as the ‘Bush Wife Phenomenon’. The Prosecution’s objective during the trials was to prove that ‘forced marriage’ during the war in Sierra Leone constituted war crimes and crimes against humanity. If the Trial Chamber upholds this charge, it would become an international precedent to make criminal this type of wartime gender-based violence. This article gives a critical analysis of what constitutes ‘forced marriage’ as encompassed in the “Bush Wife Phenomenon” in the context of the Sierra Leone war. Under which scope this phenomenon becomes a war crime and/or crime against humanity.
According to Zainab Bangura, forced marriage arose when a young girl/woman was abducted during the war, came under the total control and command of a rebel/soldier (captor) claiming her to be his wife. This happened when the captor proclaimed yu na mi wef, in the Krio lingua franca, meaning ‘you’re my wife’. At that point, the victim was left with no option but to accept the “marriage”. Following this, she did all the chores at the house as expected of a regular housewife. In return, the ‘bush husband’ ensured that he provided her protection and support in terms of food and clothing. Consequently, forced marriage became a means of survival for most girls/women behind rebel lines during the war. Some of these relationships continued even after the war, although with some adjustment; that is to say the ‘bush wives’ now have the option to leave. However, most ‘bush wives’ decided to stay because they have children from these relationships and, others because of the stigmatization or fear of reprisal as they are already labelled ‘rebel wives’.
During the war, forced marriage was rampant. Given that some of the girls were forced into early marriages, the effects on their lives have become indelible. Most of the girls were impregnated when they were still under age. The much needed parental or family care during pregnancy was lacking. Even though some girls and women have attempted to reintegrate after the war, some communities have continued to make them feel unwelcome. They are made to feel guilty for their involvement with the ‘bush husbands’ and their children are sometimes regarded illegitimate and of ‘rebel blood’. This makes social reintegration difficult for them and they subsequently returned to their ‘bush husbands’ again.
‘Bush wives’ were highly respected within “their communities” at that time than the ‘non-bush wives’. On cross-examination of the Expert Witness, the Defence pointed out that the ‘bush wives’ were protected by their ‘bush husbands’ during the war and continued to stay with them at peacetime. They further pointed out that it was not indicative of forced marriage as alleged by the Prosecution but a betrothal one. Even though it involved an initial abduction but it later proved to be a marriage of convenience. It was a choice, wherein one was supposed to choose between the devil and the deep blue sea, but a choice nonetheless!!! There were situations when some young girls/women opted for it, because it guaranteed their protection and respect amongst the rebels and colleague abductees.
It is worth noting that, forced marriage and arranged marriage may be likened to betrothal marriages, wherein a woman is engaged in a contract of marriage. In betrothal marriages consent of the parties counts greatly to influence the relationship. Zainab Bangura stated in the Report that, during the war girls were forced into such relationships by using the barrel of the gun and later, though in a smaller number, were legitimized after the war. It became a marriage of circumstance because most of the ‘bush wives’ cannot detach themselves from that ‘relationship’. Most of them bore children in the relationship and that cannot be reversed.
From all indications, forced marriage may have got a long-standing existence in Sierra Leone but was oversighted because it was done during peacetime and customs accepted it. In effect, it was not classed as a crime.
However, the Witness’s narrative indicated a dichotomy between the ‘bush wife’ phenomenon and the Sierra Leone customary law marriages. According to the Report, Sierra Leoneans practised a sort of arranged marriages before the war especially under customary rites. This was common practise in the provincial areas and around the Freetown environ. Customary law as recognized in the Sierra Leone legal system in relation to customary law marriages normally seeks to establish that the consent of the girl is subordinate to that of the parents /guardians (especially the father). She is only informed of the marriage shortly before it. This again, may be seen as forced marriage because the voluntary consent of the girl is not sought. The Witness’s testimony referred to it as ‘arranged marriages’ because it was done during peacetime.
Is Forced Marriage a Crime?
Municipal laws do not criminalize forced marriage in the actual sense, as there is no existing statute or judicial precedent to the effect. What is the nature of forced marriage as a crime? Sierra Leonean laws generally and customary law in particular see the essence of the family and community participation in marriage as of prime value because this is where the couples turn to whenever problems arise in their relationship. The family and community ensure the legitimacy of the relationship and the law comes in to legalize it. This may be the rationale for the Report to refer to such relationships as arranged marriages instead of forced marriages.
How can forced marriage constitute a war crime or crime against humanity considering the fact that it is a new phenomenon that does not have any prior international acclamation and can only be (in this instance) related to the conflict in Sierra Leone? Under the Statute of the Special Court, for a crime to be regarded as a war crime and/or crime against humanity, it must have been committed in a pattern that is said to be widespread and systematic against any civilian population. With relation to forced marriage, Article 2 (g) provides that the Special Court can prosecute persons who have committed crimes that includes among other things “…rape, sexual slavery, enforced prostitution, forced pregnancy and other forms of sexual violence….” In addition to that Art.3 (e) asserted that the Court can also prosecute persons that have committed or ordered the commission of the serious violation of Art. 3 Common to the Geneva Conventions of 12 August 1949, and of additional Protocol II of 8 January 1977 and these violations includes inter alia “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault. Furthermore, Art. 5 (a) of the Statute makes room for municipal crimes to be prosecuted by the Special Court and this pertains to “offences relating to the abuse of girls under the Prevention of Cruelty to Children Act 1926 (Cap. 31) and that is to say:
1. Abusing a girl under 13 years of age, contrary to Sec. 6
11. Abusing a girl between 13 and 14 years of age, contrary to Sec. 7
111. Abducting of a girl for immoral purposes, contrary to Sec. 12….”
In the Report, Zainab Bangura refers to forced marriage during the war as “[t]he physical abduction of a young girl/woman by a rebel or soldier and, in most cases, coercing and terrorizing her into living with that rebel as a wife”. Based on this, forced marriage may be classified as a war crime or crime against humanity because it has characteristics of the elements stated above, and they include inter alia rape, enslavement, sexual slavery, and acts of terror and conscription of children into armed conflict.
The ‘Bush Wife Phenomenon’ in the context of the Sierra Leone war becomes a unique case in itself. If it is upheld by the Trial Chamber then it becomes a precedent in international tribunals of this nature to follow its ruling but if rejected, it may become an ‘obiter dictum’ for future trials to make projections on. The SLCMP therefore encourages the Trial Chamber to look on both the pros and cons of the ‘Phenomenon’ in order to come up with a reasonable decision on the issue, as posterity will reference it in similar circumstances when they do appear again in the international limelight.