Expanding the List of Gender Based Crimes

Tags: Article | Domestic Violence Act

Gender based crimes are familiar to Ghanaians. A number of international treaties have been signed and ratified by Ghana which demonstrate the State’s commitment not only to be part of a community that endorses human rights as a central pillar to development, but also recognizes the overarching importance of protecting the rights of citizens through policy and programs. In the case of Ghana, examples of ratified treaties and endorsed agreements that touch on gender based violence include the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW); Optional Protocol to CEDAW; Declaration on the Elimination of Discrimination against Women (DEVAW); Convention against Torture (CAT); Protocol to the African Charter on the Rights of Women in Africa among others.

Within this international context has grown awareness of, knowledge and a quest to take action on gender based crimes. The media reports daily a plethora of stories on domestic violence, rape, defilement, incest, dehumanising customary practices and murder. In a large percentage of the cases men are perpetrators and girls and women are the victims. There are in existence laws that deal with general crimes as well as laws on domestic violence, cruel widowhood rites, female genital mutilation, ‘trokosi’ (bondage of female virgins), the latter being offences against women. So much public education has gone on over the years in schools, villages, associations, through the media and many more that people generally have heard of one or more of the crimes listed above.

An analysis of the action or inaction of state and non-state actors has implications on whether proposals to expand the list of gender based crimes are tenable. While some of these actors have roles to play in introducing new laws, promoting respect for the rights of people and preventing abuse; others actors are responsible, in cases of breach of the law, for prosecuting crimes, sentencing the guilty and where appropriate providing other non-criminal remedies to the victim. But underlying the action or inaction of these different actors are characteristics of a religious or cultural nature that affect the ease or difficulty associated with an expansion of gender based crimes.

This article attempts to bring to the fore actions that constitute crimes that have not been topics for discussion in the press, among activists or by law enforcement agencies. These ‘other’ kinds of gender based violence could fall under the Domestic Violence Act which has expansive gender neutral language; or be considered as amendments to the Criminal Offences Act. The article provides recent examples of actions against women that make these proposals plausible. Possible reactions of different actors are extensively discussed with recommendations that require futuristic thought and approach to issues by society, the police, the Judiciary and the Legislature are provided.

Proposals for Expanding the List Gender Based Crimes in Contemporary Ghana

Violence during conflict

What every nation strives for is a peaceful environment within which to develop its infrastructure, health, education, agriculture, industry, social services and the legal system among others. Thus the argument whether democracy is the sine qua non for development or vice versa continues to engage our attention. Democracy and development has eluded many West African countries which have over the last two decades witnessed war at varying degrees. The dire consequences of conflict in Sierra Leone, Liberia, Guinea and La Cote D’Ivoire are bitter reminders to West Africans. Yet, in other West African countries, albeit without a history of war, ethnic conflicts, land disputes, chieftaincy disputes, and religious conflicts erupt every now and then, Ghana being no exception.

The economic disparity between the north and south of Ghana has affected development. While the southern part of Ghana is demonstrably better developed in terms of infrastructure, education, health facilities, minerals and markets, the north comprising Upper East, Upper West and Northern Regions are less developed. Statistics on poverty also show that the three northern regions and Central region are the poorest in the country¹. It is in these 3 northern regions where ethnic conflicts have often led to wide-scale destruction of property, death and migration to the South. There are about 110 internal conflicts in Ghana². These are on land ownership, land use and chieftaincy and political disputes. Examples include the Nkonya/Alavanyo, Dagbon, Bawku, Anloga, Gbese conflicts. Others are the political clashes in Chereponi, Akwatia, Agblogloshie and Atiwa.

The impact of conflict on women is well known and documented. Women and children’s lives are put in danger. Burnt huts mean women and children must put up with neighbours. They are unable to go to farm or school. The northern region has a large number of women who are labelled witches and banished to camps³. Conflicts lead to further neglect of aged women and people with disability.

Data on gender based violence from the Police is not disaggregated enough to be able to identify the ones that emanate from conflicts, nor are there official state reports on rape of girls and women in conflict situations. There are no statistics of women and girls who may have suffered any particular kind of violence, most likely of a sexual nature, during any of the internal conflicts. Neither do we know of any kinds of abuse against boys, also likely of a sexual nature that may have happened during these internal conflicts. Yet what are generally reported in the media are the diseases, starvation, destruction of farm lands and houses, disruption of economic activities in these conflict areas, injuries and death.

The caution though is if the security agencies know of violence that are perpetrated against girls and women, boys and men because of their gender, it is important to bring the issue up for national discussion and solution. If there are no records of such violence, then the security agencies and the National Disaster Management Organisation (NADMO) may want to look at these matters.

Internet-related Violence against Women’s Bodies

Cyber crime popularly known locally as ‘sakawa’ is generally understood to involve situations where unsuspecting foreigners are swindled through the internet to part with money. A disturbing phenomenon relating to the use of the internet involves young men enticing women to engage in sexual acts that are recorded purportedly to be put on the internet. An example is the incident in Aburi in the Eastern Region of Ghana in March 2010 when Happy FM, a radio station reported a gentleman named Kwame who was getting women to pose nude or get into sexual acts that were recorded purposely for the internet.

Poverty, illiteracy and ignorance of the power of technology underlie the Aburi case. Obviously this gentleman preyed on these women because they are women. And of course the cyber sex industry is huge. Yet what would be the specific crime that this gentleman could be brought under? We do not know if the police arrested and prosecuted this person.

The Aburi case may not be the only one in the country. However it has brought to the fore dangerous persons who use women’s bodies and abuse women’s dignity for profit.

Violence against girls and women during natural disasters

Natural disasters on the magnitude of Haiti and Chile seem far from happening in Ghana. But the flooding in 2007, 2008, 2009 and 2010 in parts of the northern regions and Western Region are recent examples of disasters. Sexual aggression and violence happen when there is a breakdown of social order during a catastrophe. For those living in temporary shelters or tents, children separated from parents, girls and women there are dangers including sexual abuse.

Often focus is on reconstruction, provision of social services and reversion of economic activities including provision of housing, treating diseases and provision of clean water among others, which often ignore the psychological healing that victims of abuse of a gendered nature require.

State implicated violence against women

An emerging phenomenon of gender based violence that implicates the state which requires mention and discussion is the deliberate ‘targeting’ of particular persons including women who are harassed, intimidated and humiliated⁴. The cases of 3 women are mentioned here. These women’s cases could be summed up as ‘politically’ motivated. They have been harassed, disgraced and their persons disrespected by individuals within government. Two of these women are members of the opposition party – New Patriotic Party, who are quite vocal and have made their discontent with the current National Democratic Party government publicly known. One of these women had an orphanage she managed which has been presently shut down by the State. The story is that she was operating the orphanage without the appropriate licence from the Social Welfare Department. She was prosecuted but the court ruled in her favour. The second woman has been disparaged by individuals in government to the extent of being labelled as ‘someone who sat in the laps of a minister to build her house’. She has received threats and her mother was visited at night by armed men who wanted to see the daughter. In the case of woman three the story was that she operated a professional school that was alleged by the government to train women to become call girls. It was alleged she had received certain favours from the previous party in Government – the New Patriotic Party, now the opposition party, including use of diplomatic passports by some staff of her non-profit organization.

Each of these stories was published in the newspapers, discussed on radio and television. What is baffling though is that the rationale behind these state actions is not very clear. While the state has purported to give reasons for its actions – those have not been so convincing. The question remains why women are being targeted and humiliated because of their affiliation to the opposition party?

Partner killing

Perhaps it is time to breakdown the crime of homicide (murder, manslaughter) further to include femicide or matricide because of the increasing rate at which wives and female partners/girlfriends/cohabittees are being killed in Ghana. Femicide is simply defined as the “killing of females simply because they are females” (Wikepedia). Examples include rape murder, mutilation, battery that leads to wife killing and honour killings. These crimes are indeed homicide but when they are committed because of the position of the woman as a wife, cohabittee or girlfriend, then should not the offence be analyzed within the context of gender relations? The point is leaving it as simply homicide negates opportunities provided to judges to interpret the law, analyze the circumstances and at a minimum provide dictum that covers gender considerations beyond what the Criminal Offences Act provides. Additionally, analysis could be grounded within the Domestic Violence Act as well as other international women’s rights treaties and similar cases from other jurisdictions.

This is not to say that women as wives, cohabittees of girlfriends do not cause egregious bodily harm or murder their partners. Comparatively, at least in Ghana, cases of femicide far exceed that of women killing partners. 72 cases of spousal murders were recorded in the media between 1999 and 2005⁵. In recent years, there are many more of such cases reported⁶.

Rape during robbery

Another worrying trend in Ghana is rape during robberies. There have been reports of in newspapers of women and girls who are raped when armed robbery occurs. It is not clear if police statistics capture the case as robbery and rape or simply robbery [see table 1]. Additionally is the charge of rape listed on the charge sheet and considered in prosecuting the robbery and in sentencing? In considering such a crime, it should be acknowledged that men and boys could also be raped during robbery.

Prostitution

Although the Criminal Offence Act covers prostitution, there is the need to reconsider new language to address the emerging trend of ‘imported’ prostitution which will engulf the country because of the oil boom. Additionally, prostitution has to be redefined to include boys and not the current focus on girls and women⁷. In instances where the police get reports of prostitutes who are physically abused by foreigners, what often happens? Such cases will increase in the future and it is important to reconsider how to deal with it. Our laws should be strengthened to punish clients of prostitutes as well. Sweden, Norway and Iceland have laws that punish the client.

Sexual Harassment

Current legal provisions on sexual harassment may not be strong enough to deter people from sexually harassing others. In fact many Ghanaians do not think sexual harassment is a serious matter which has implications for the work performance of victims. The Constitution provides in Article 17 tha9t there shall be non-discrimination on the basis of gender. In relation to this, the Commission on Human Rights and Administrative Justice (CHRAJ) recommended in a case in 1999 that advances made by a male boss to a female junior staff constituted discrimination⁸. Other provisions on sexual harassment are found in the Labour Act, 2003 (Act 651) and Domestic Violence Act, 2007 (Act 732).

The interpretation section (Section 42) of the Domestic Violence Act defines harassment to mean sexual harassment. This section is very expansive taking into account quid pro quo and hostile environment types of sexual harassment. Whereas the Domestic Violence Act defines sexual harassment that does not leave any doubt in the minds of public or law enforcement agents, Article 17 of the Constitution will require judicial interpretation in way that can bring out the gendered dimensions of the case. Section 175 of the Labour Act defines sexual harassment to include unwelcome, offensive and importune sexual advances against male or female workers. Maybe a more expansive language like the one in the Domestic Violence Act would be more welcome as it will mean people are likely to take sexual harassment more seriously.

Roles and Responsibilities of the Police, Judiciary and Legislature in Expanding Gender Based Crimes

Police

One of the fundamental responsibilities of the Ghana Police is to protect citizens from harm. In this respect the Criminal Offences Act provides a list of actions that constitute crimes under the laws of Ghana. But offences against the State are also found in other pieces of legislation in addition to the Criminal Offences Act⁹. Examples of laws of a gendered nature that are scattered in other pieces of legislation include – Intestate Succession (Amendment) Law, 1991 (PNDCL 264) which makes interference with chattel of a surviving spouse an offence; and the Children’s Act, 1998 (Act 560) that makes forced marriage an offence. The Domestic Violence Act is an example of a law that criminalises domestic abuse.

One finds it quite interesting that 3 years after the DV Act came into force the Act is not being used by the police or the courts. Yet so much public education goes on by the State, NGOs and individuals. The grand excuse by the police is – ‘we do not have directives on how to prosecute crimes under the Act.’ Meaning a higher authority over the prosecutions unit of the Ghana Police Service must develop the necessary protocols and issue a directive that will give the police the ‘power’ to prosecute under the Act. Is this body within the Ghana Police Service, the Ministry for Interior, the Ministry for Women and Children’s Affairs or the Attorney General’s Office? Whichever state agency has the ultimate responsibility, certainly something is not being done. The Ministry for Women and Children’s Affairs has a Domestic Violence Secretariat which works in consultation with a number of other state agencies to ‘actualise’ the Act. It works with the Department of Social Welfare, Domestic Violence Victim Support Unit of the Ghana Police Service, Ghana Health Service and NGOs. But the concern is that when the functionality and effectiveness of the Act is located within a Ministry for Women and Children’s Affairs, it delimits the seriousness and scope to which the Act can be employed. In fact the Act is then interpreted as a law for women and children rather than domestic violence as a developmental social canker that affects every person – citizen, resident or foreigner in Ghana. At the same time, one understands the reasoning behind entrusting the effectiveness of the Act within a Ministry for Women and Children, after all women are the majority of victims. Thus the current protocols being developed under the auspices of the Ministry for Women and Children are bound to face delays, non-attachment of seriousness by the other sector agencies and even the Police. If the Women and Juvenile Unit of the Ghana Police Service was changed to Domestic Violence Victim Support Unit to reflect the gender-neutrality of domestic violence, then the ‘operationalisation’ of the DV Act should be tagged onto each agency whose mandate straddles aspects of domestic violence. Department of Social Welfare must in their policy formulation and budget, place domestic violence as a central pillar. So should the case be for the Ghana Health Service, Police etc.

Another factor that affects the implementation of DV Act is that the Police are selective in their thinking of what applies to them under the Act. In a recent workshop with a section of DOVVSU, officers thought civil and occupation protection orders under the Act were civil matters that had little to do with the police¹⁰. That is not surprising after all the title to that lot of sections in the Act is ‘civil protection’ and not ‘criminal protection’ orders. But the Act has 12 out of 42 sections that are dedicated to civil protection orders. In fact a reading of the Act makes it more of a criminal document than a civil document. Herein lies the earlier dilemma of offences been scattered in more than the Criminal Offences Act. Like many other Acts, the DV Act is seen as a civil law with components of criminal law but a holistic reading shows the reverse – a criminal law with components of a civil law!

The dilemmas that confront the police are further expatiated with a few more cases below. Under the Intestate Succession (Amendment) Law (PNDCL 264) when a surviving spouse is ejected from the matrimonial home by family members or household chattel interfered with by family members, the police must arrest and prosecute. Such action by family members is gender-based – a widow is mostly the victim who loses her property because of the inferior status accorded women in our society. Another example is cruel widowhood rites which are also offences but there aren’t many cases that are prosecuted under this law¹¹. In March 2009 a much- publicized story of three (3) widows from New Longoro in the Kintampo North District in the Brong Ahafo Region who are all over 70 years, these women had been confined for 9 years because the final funeral rites of the late husband who was a chief had not been performed¹². The hullabaloo about this case was that many people proffered different proposals to deal with the matters. Some said – it was customary for the rites to be done to free the women; others said it was a human rights violation that required the Commission on Human Rights to intervene, The Ministry for Women and Children’s Affairs attempted to broker a deal with the women and family members. The District Assembly and Member of Parliament for the area were also involved in ensuring the funeral rites were performed. In fact the women said they would not leave confinement until those rites were performed for fear of facing the wrath of the deceased. What was baffling was that the police did not intervene to cause an arrest under the offence of cruel widowhood rites.

Therefore what should the police do to ensure the Domestic Violence Act and gender-based offences that are scattered in other pieces of legislation are enforced with the same seriousness as the Criminal Offences Act? There are other acts that are not yet crimes. Examples are the proposals made earlier and the practice of labelling old women as witches and banishing them to witch camps. Until an act is made a crime, how do we expect the police to react? In much the same way, if the existing penal law does not spell out clearly offences in a way to enable the police to incorporate emerging acts against the person, we cannot blame the police for not doing their work. Added to that is the fact that some police officers may not be abreast with all these new laws to build an arsenal of criminal offences.

Judiciary

The role of the judiciary in expanding the list of gender based crimes may be better explained with summaries of three (3) cases from South Africa and Namibia. These cases demonstrate the extent to which the courts are enjoined to interpret laws within a social justice context to protect men and women. The courts in these cases used gender arguments to explain the law and to give stiffer punishments to the perpetrators.

1. Ghana Living Standards Survey (GLSS)4 & 5
2. Interview with Dr. Kwesi Aning, KAIPTC on 20th October 2009
3. Kukuo and Gambaga Camps are examples.
4. The real names of these women will not be used in this article.
5. ‘Man kills wife and attempts to bury her’ on myjoyonline.com on 24 September 2010; Mensah Adinkra in his article titled ‘Spousal Homicides in Contemporary Ghana’ 2008 reports that between 1999 and 2005, there were 72 reported cases of spousal homicides in Ghana.
6. ‘Habitual wife beater kills wife for allegedly stealing his money’ is the caption of a story on Peace FM on 28th Sept. 2010.
7. Criminal Code, 1960, Section 279 states “prostitution includes the offering by a female of her body commonly for acts of lewdness for payment although there is no act or offer of an act of ordinary sexual connexion.” The Criminal Code is now the Criminal Offences Act, 2007.
8. Fan Air Case, 1999
9. Criminal Offences Act, 2007 (Act 471) previously the Criminal Code, 1960
10. Workshop by WiLDAF Ghana on the Domestic Violence Act and Protection Orders for officers of DOVVSU in July 2010.
11. Criminal Code (Amendment) Act, 1994
12. www.ghanadistricts.com/districts1 on1/wenchi/?arrow=nws & read accessed on 29 September 2010.

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