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Charles Kungwengwe Correspondent
A local newspaper carried that story .And hair-raising stories of this nature are always hitting news headlines. Some prophets of doom have attributed this phenomenon to some of the signs of the times. I certainly beg to differ. You were also told that this development is caused by unfriendly economic
times bedevilling our society but I say unto you: The problem, as I see it, is mostly gender related.
What then is gender? According to both common nonsense and everyday English parlance, the term gender means sex. Admittedly, the two terms are synonyms but can hardly be employed interchangeably. Could they? A big ‘NO’ indeed. The term sex, on one hand, is a concept that is biologically determined and deals with whether one is either male or female and that determination can be perceived with the naked eye. For example, if we doubt someone’s sex we can easily ask him to strip nude naked and invade his private sphere. Gender, on the other hand, is a social construct. It is sociologically determined andor comes from socialisation. In line with this reasoning, the American psychoanalyst, Robert Stoller, as cited in Sociology in Perspective by Mark Kirby et al, distinguishes sex and gender, and rightly so ,in the following manner’
“The anatomical features which mark out men and women might be labelled as ‘sex’ while ‘gender’ is culturally constructed” (1997:161).
Sociologically speaking, socialisation is a process by which the norms and values of the society are inculcated into one from birth to death. It is the politics of the sexes or what we associate the sexes with. Here we are talking about masculinity and femininity. Also included in the universal set are concepts of matriarchy and patriarchy, the latter of which encourages the subordination of women and the attendant glorification of macho societies. If I were to pause and ask you right now about what God‘s sex really is, the most spontaneous response, and ironically from women themselves, for that matter, will surely be that He is male. That response is quite understandable because it is how we have been socialised. Women are expected to be emotional while men must be rational. Men must also be stoical and indifferent to pain. I am sure those so much into literature would remember the tragic hero, Okonkwo, in Chinua Achebe‘s “Things Fall Apart” and he is a summarised version of a classic description of manhood. The problem, as I see it, is deeply rooted in our culture and, sadly, our culture is male dominated. It is deeply rooted in patriarchy.
Since the earliest of the times women have been portrayed as sex toys or objects of male sexual gratification. I am sure those who have witnessed them dance in a sexually suggestive manner would understand what this writer means here. The dancing style speaks volumes and seems to be confirming or lending credibility to such claims and stereotypes.
It is hardly surprising, therefore, that when parents buy a toy for the girl child it is almost always a doll while the boy child gets a toy gun or model car. Parents are thus re-enforcing the view that getting married and procreating children is the ultimate good in life for the girl child. The afore described is the ascribed role forof women and there is virtually nothing more pleasing to a woman than the mere prospects of getting married. From a tender age the girl child is taught how to please her prospective spouse in bed and this ‘apprenticeship’ is attained through various initiation ceremonies. Against that background ,the girl child has been rushing to get married at a very tender age and at the slightest given opportunity in order to put the newly acquired theory into practice. When in times of financial crises such as the ones obtaining in Zimbabwe at the moment, parents are always ready and raring to have the girl child pull out of school in favour of the boy child who, it is erroneously believed, is the only one who can maintain the family name. Perhaps, to borrow Chinua Achebe‘s philosophy, in ”Things Fall Apart”, the boy child can best be enlikened to;
One of “. . . the young suckers that will grow when the old banana tree dies”
An idle mind,they say, is the devil’s workshop. Those girls idling around, and out of school, would want to seek solace in marriage. In some extreme cases the girl child is offered in marriage to a well-to-do man by her poverty stricken parents in exchange for money, the root cause of all evils. Which is precisely why in a sense some people link this problem to economic ills besetting the society. Again this writer does not totally subscribe to this amateurish reasoning because if it were so this problem should then affect both the girl and the boy child and not just one sex being at the receiving end.
Some primitive communities still practice that ritual of giving away a virgin girl child to a murdered person‘s relatives as part of payment to appease the angry spirits. As a result, the unfortunate girl gets married to the deceased person‘s relatives even if she does not approve of the marriage, let alone, love the man concerned at all. For fear of opening up the proverbial Pandora’s Box, I would not venture into certain religious sects’ practices of arranged marriages between extremely young girls and very old church members under the guise that such marriages would have obtained God’s seal of approval. All this is a gross violation of the girl child‘s fundamental right to freedom of association.
Needless to say, the macho society encourages men to feed on a diet of sexual aggression, that is rape,as a way of subordinating women and, unfortunately, these women also include the girl child. Instead of having the culprits prosecuted for this act of criminality, the girl‘s parents would rather have the perpetrator marry the young girl victim.
Perpetrators of rape on the young girls include those HIV positive who erroneously believe that being intimate with young people would help cure their ailment and also misinformed business tycoons who have an uncanny propensity of directing their sexual venom into the girl child out of the mistaken belief that such a sexual encounter would boost the latter ‘s business fortune.
Lest you forget -a typical macho man believes that deflowering and marrying young virgins would surely boost his ego and to him it is part and parcel of trophy collection! And what are the implications of this tendency onto the girl child?:Apart from exposure to HIV/AIDS, the girl child is being thrust into the world of adulthood earlier than was the case in the yesteryears.
Without the much needed education ,a catalyst for the acquisition of economic resources ,the empowerment of women, a concept that has gained popular usage in recent years, will always remain unrealistic ,if not romantic. Furthermore, the girl ‘s mind is still naive and therefore exploitable given that she has not been exposed to the vulgar aspects of life. That makes her ill equipped to deal with life ‘s challenges as a wife and parent, for that matter, while her so-called husband does have an inexhaustible wealth of experience in that regard. Coupled with these misfortunes, the girl child cannot realise her immense potential ,not even an iota, and the nation at large cannot derive maximum benefit out of that potential.
The sad reality is that our legislation hardly makes considerable strides in righting the current wrong in which women,in general,and the girl child ,in particular, are treated ,at best ,as playing second fiddle to their boy counterparts ,and ,at worst,as if outside the bounds of normal society.
This flaw is understandable given that legislation, just like customary law and the Roman-Dutch Common law, reflects the interests of males: customary law is a product of the historical development of the so-called culture which ,as already alluded to, is largely patriarchal in nature. All Roman-Dutch scholars were either male or were influenced by patriarchy. Across the globe there are just a few islands of female legislators in a vast sea of male ones. You need to know that before a law comes into existence it starts off as a Bill and, of course, in order for it to pass a litmus test it must have been subjected to rigorous voting. In their sane minds men would never vote for a Bill that is potentially prejudicial to their own interests but, instead, one that tends to marginalise women .The bible, also, cannot go unaccused in this regard because all the 5 books of the Old Testament were written by a man, Moses, who was motivated by the desire to elevate both patriarchy and the Abrahamic tradition. Those who wrote after him, though there are some slight variations here and there with the Mosaic ideas, were simply freshening his ideological skeleton.
Charles kungwengwe is a law lecturer at Gaborone University College of law in Botswana and a self styled gender activist.
What then is the modus Vivendi? First and foremost members of the community, as i see it, need to be vigilant and report cases of girl child marriages. Remember prior the coming into being of the Zimbabwean Codification and Reform Act chapter 9:23 (Act 232004)there was a statutory provision that made it an offence to have carnal knowledge of a girl below 16 years given her mental immaturity. And the fact that she had given consent was no defence at all then. Sadly, the current Codification and Reform Act section 64(2) has made the already bad situation worse by further lowering the girl‘s consenting age to a mere 14 years. That revelation is shocking and not meant for the faint-hearted or those of a nervous disposition lest they collapse! Admittedly, according to our Marriage Act (section 22) a person who has attained 16 years can marry but parental consent is a prerequisite. Even then 16 years, as I see it, is too early given that biologically speaking her physical features would still be developing and, besides, it is still a school going age. As such, one does not need to be a fire-eating or fire-spitting feminist to realise that marrying such a person will be a gross violation of her constitutionally entrenched fundamental right to education. The fact that our family laws allow the Minister discretion to condone the marriage of a girl below 16 years does not help the situation either. (section 22:1 of the Marriage Act 5:1 of 1996).Law makers should therefore elevate the girl’s marriageable age to at least 18 years ,the legal majority age ,and that’s the situation obtaining in most civilised jurisdictions .Very deterrent punishments should be imposed on those who violate this law. The girl‘s consenting age must be in line the constitutionally entrenched marriageable age ,that is ,eighteen. (section 78 of the constitution). It is also ironic to realise that married women below the age of 18 cannot exercise their democratic right to cast their votes in elections yet our law of persons provides that when once a person who is below that age gets married she automatically graduates into a major .That status cannot be revoked even if she gets widowed or divorced. In our country the constitution is the supreme law of the land and, through statutory interpretation, our judiciary should interpret the above section so as to uphold the bill of rights component of the constitution. Given the limited space and time available , this paper will not venture into the meaning and interpretation of the wording’ — any law that is inconsistent with the constitution will be declared null and void to the extent of those inconsistencies’ but underline the words’ to the extent of those inconsistencies’.
As I see it, we need more women in the August House if the gender equation is to be balanced. Considering that women do not vote for each other, the quota system net in our law needs to be stretched far and wide to cater for more female legislators in the name of the Affirmative Action. These women will be a check and balance or monitoring mechanism to ensure that the tendency to pass retrogressive legislation recedes into the background and be a thing of the past.
Over and above that ,our mindsets,as I see it ,need to be changed .Remember the concept ‘gender ‘ is a social construct and can be deconstructed through education ,both formal and informal. In this age formal education is the chief socialising agent .Informally the elderly at home, who mould or deflower the girl’s virgin mind, must inculcate progressive ideas into the girl’s mind and make her informed about her entitlements.
However ,it is quite refreshing to note that Zimbabwe ‘s criminal law provides a number of offences and punitive measures regarding those who deliberately infect other people with sexually transmitted diseases ,and even HIV. (sections 78 -80 of the Codification and Reform Act).This information needs to be disseminated to all and sundry, including both the predator and the prey. It is also heart-warming to note that we have parted ways with the unwritten common law and our criminal law is now written and hence accessible to everyone. Being forewarned, through this information, is being forearmed in the light of the Latin maxim ”ignoratia juris nomi nem excusat”(ignorance of the law is no defenceexcuse).see section 236(1)(b) of the Zimbabwean Codification and Reform Act.
It is also quite refreshing indeed to note that lawyers, when interpreting pieces of legislation,have to have certain presumptions of statutory interpretation at the forefront of the minds as well. One of them is that the legislature did not intend to go against the constitution. Consequently ,they would give an interpretation that harmonises with the spirit and purport of the constitution ,though in practice that interpretation might not necessarily have been the one intended by the legislature.
Before concluding this discussion we also need to invoke comparative analysis in order to check how other jurisdictions elsewhere are handling the same problem. For that purpose we are going to explore Botswana law.
Section 14 of the Marriage Act 29:01 of Botswana provides that a person who is below 18 years may not contract a valid marriage. I hope the use of the permissive modal verb ‘may’ is not by design but by accident. What is more, section 147 of this country‘s penal code makes it criminal to have a sexual encounter with a girl who has not attained 16 years and that crime is called defilement. The flaw of this provision is that subsection 5 of the same section provides that it is a valid defence to prove that one is married to the under -aged girl or ,alternatively, to prove that one had reasonable grounds to believe and in fact genuinely believed that the girl in question had come of age. Here the court would have the unenviable task to investigate and expose the existence or otherwise of both negligence and intention, in which case it would have to invoke both the objective and subjective tests .Maybe the legislators had in mind a situation where someone instituted such a marriage elsewhere, outside Botswana, where it is admissible and then eventually came to settle in Botswana.We call this phenomenon ‘a conflict of laws’.
As can be seen, the girl child is in trouble, not only in Zimbabwe, but across the globe given that ,despite the fact that the concept globalisation is in constant use ,there is no universally accepted age at which she can give consent. In France, for example ,the consenting age is 15 while Russia, during the Soviet Union days ,considered the attainment of’ sexual maturity’ and that term is quite promiscuous or relative in nature. Islamic societies lower their consenting age while European nations range from 14 to 16.The United states vary from one state to another. In some states it can be as low as 12 years. Generally, these differences are influenced by cultural variations in the different locations. On the whole ,most societies have fixed the age at 16. And having said that, the world must forge a common age and enforcement of that age must be strictly enforced through international instruments.
What is the position of international law on this issue? The weakness that we have with international law is that it can only be invoked on a state that has ratified any of its Conventions or treaties and non ratification means that state is not bound to follow that law. Even if a signatory ,the united Nations which has ,more often than not been arm -twisted by America , is only active when American interests are at stake .Furthermore ,member states are not bound to act parrot to the International law but must customise it to suit local political ,economic ,social ,cultural and environmental factors obtaining in that country. For example, Zimbabwe has ratified the United Nations Convention on the Rights of the Child and the good news is that the Convention defines a child as someonea child who has not attained the age of 18 but its weakness lies on the domestication of the Convention by different countries. Accordingly, the state is at liberty to define majority age according its own domestic legislation. Suppose according to the domestic law it stood at 14 years? It goes without saying, on that basis, that a country is free to exploit the girl age and the global vision of reducing poverty on the part of women cannot be realisedwill remain a pipe-dream.
In conclusion, the girl child’s rights, just like those of the Asian tiger, as i see it, are galloping into extinction and must be protected at all costs and our constitution must have express provisions to that effect. In fact the entire legal system (common law, statutes, customary law etc.) and ,even religion, need a shake-up of earthquake proportions if we are to win the battle against the abuse of the girl child. As already alluded to, the judiciary, the watchdog for the Bill of rights, must, through statutory interpretation, interpret pieces of legislation and all other sources of law in such a way that they must be intra vires the constitution. Also feminist groups must double their efforts in this fight if it is to be crowned with success. Everyone in the community needs to be educated on the rights of the girl child. It is never too late to mend. Also it is better late than never.
- Charles kungwengwe is a law lecturer at Gaborone University College of law in Botswana and a self styled gender activist.
Peter Tanyanyiwa
Online Reporter