Is the law on sexual offences indeed biased against women?

By Nick Opoku

10/7/2018
 
Many have suggested that Ghana’s law on sexual offences is biased towards women. This article proposes to test the validity of this suggestion and interrogate the extent to which such perceptions of bias are supported by a rigorous review of the current legal framework. The article isolates and focuses in greater detail on the offence of rape, particularly in light of the fact that the provision on rape has received more judicial attention than other sexual offences.


The law on sexual offences

Chapter Six of the Criminal Offences Act, 1960 (Act 29), as amended by Section 11 of the Criminal Code Amendment Act 1998 (Act 554), covers nine sexual offences: rape; defilement; carnal knowledge of an idiot, imbecile or mental patient; indecent assault; unnatural carnal knowledge; incest; householder permitting defilement of a child; procuration; and seduction or prostitution of a child under 16 years.
Of these nine sexual offences, only rape is drafted in a language which is not gender neutral. Therefore, it may be inaccurate to suggest that the law on sexual offences is biased towards women.

Rape

Rape is defined in Section 98 of Act 29 as having carnal knowledge of a female of not less than sixteen years without her consent. Thus a person can be convicted of rape if the prosecution establishes that the victim is a female aged 16 years or above; the accused had carnal knowledge of the victim; and the carnal knowledge was without the victim’s consent.

It is important to note that lack of consent is crucial to a rape charge. The accused will have a complete defence if he is able to prove that the said rape victim consented to the sex.  However, according to Section 14 of Act 29, consent is void if it obtained by deceit or duress; given by reason of a fundamental mistake; if the victim was under a permanent or temporal incapacity resulting from intoxication or any other cause, as to render her incapable of understanding the nature or consequences of the sex to which she has purportedly consented.

Carnal knowledge

According to Section 99 of Act 29, carnal knowledge is complete upon proof of the least degree of penetration of the vagina by a penis. In the case of Gligah & Atiso v The Republic (2010), Dotse JSC observed that carnal knowledge is ‘the penetration of a woman’s vagina by a man’s penis. It does not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what is known as brushwork, penetration would be deemed to have occurred and carnal knowledge is taken to have been completed.’

A dated law

By our laws, only females can be raped. However, contrary examples exist.
In 2014, Daily Mail reported the story of a man who had gone to a salon in Meshchovsk, Russia, with the intention of robbing it but ended up being a rape victim. The female shop owner, a black belt holder in karate overpowered the would-be robber, and then in a scene reminiscent of Quentin Tarantino's Pulp Fiction, tied him up, stripped him naked and, for the next three days, used him as a sex slave to 'teach him a lesson'—force feeding him viagra to keep the lesson going. Both were arrested by the police. The female shop owner admitted to having sex with her victim a couple of times.

A 2011-2016 data gathered by the Domestic Violence and Victim Support Unit (DOVVSU) of the Ghana Police Service shows that more females continued to suffer from rape and assault with only a handful of the victims being males. Out of 1,862 reported cases of rape, there were only 6 males.
The disproportionate number may be informed by several factors. However, to draft the law on rape to suggest that only females can be victims of rape is dated.

The Equal justice challenge

Article 17 of the 1992 Constitution provides for equality before the law and non-discrimination of persons on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status. Article 35 (5) of the Constitution captured under the Directive Principles of State Policy also provides that the State shall amongst others prohibit discrimination and prejudice on the grounds of place of origin, circumstances of birth, ethnic origin, gender or religion, creed or other beliefs.

In the case of Commissioner of CHRAJ & ORS v Ghana National Fire Service & Attorney-General (2018), Justice Anthony Yeboah observed that “...under international law and our constitutional law, the right to non-discrimination or freedom from discrimination generally and, particularly, on the ground of gender is acknowledged and protected.”

In my view, our law on rape undermines the principle of ‘equality before the law’ as male victims of rape cannot come forward for fear of stigma and a lack of legal recourse. In a society where men are perceived the ‘stronger sex’ and women, the ‘weaker sex’, a man raped in Ghana by a woman - even when evidence exists - may find it difficult to lodge a complaint with law enforcement agencies. Even if such a complaint is lodged, there is no basis in law for the prosecution of a female rapist. Further, the law on rape prescribes no punishment for women who rape men. A law that inherently takes away the right of one gender to have access to equal justice is no good law and should be amended.

Recommendation

Calls have been made for the amendment of the entire Criminal Offences Act, 1960 (Act 29) on the basis that it is dated. I support such calls. In amending the provisions on the offence of rape, we could take a cue from other jurisdictions with commendable practices.

In Kenya for instance, Section 3 of the Sexual Offences Act, No. 3 of 2006, provides for the offence of rape thus:

‘(1) A person commits the offence termed rape if

(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;

(b) the other person does not consent to the penetration; or

(c) the consent is obtained by force or by means of threats or intimidation of any kind.’

In my view, this law is gender neutral, contains all the elements required for a successful prosecution of a rapist (whether male or female) and it is an objective reflection of the situation on the ground. I propose that any amendment of our law on rape should be modelled after this and other best practices.

Appointment of new EC: Broad consultation is not sinful, Mr President

By Nick Opoku 

1/7/2018


The Electoral Commission (EC) Chairperson and two Deputy Chairpersons have been sacked in accordance with the due process for stated misbehaviour. We are all aware of how their dismissal came about. Naturally, a process to usher in a new EC Chair and two Deputy Chairpersons must begin. The 1992 constitution is clear on how the appointment of the EC Chair and Deputies should be made. Article 70 (2) of the 1992 Constitution says ‘The President shall acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission.’

However in a country where competition for political power is so intense and often acrimonious, one would wonder if the decision to appoint three key officers of the constitutionally independent EC should continue to be the ‘sole decision’ of the President.

No real check on President’s appointment power

In my view, the decision to appoint Chairpersons of the EC is the sole decision of the President because the current position of the law as per the Supreme Court decision in Ghana Bar Association v. Attorney General (2016) is that the ‘advice’ of the council of state (as used in Article 70(2)) is not binding. So for a Council of State which is legally toothless and has neither soft power nor public influence, it will most likely be reduced to a rubber stamp in the appointment process.
This means there is no real check on the President’s appointing power in this process especially with a majority in parliament. Therefore in the absence of any real check on the President’s appointing power, it is more likely than not that the President, acting like any rational politician, will appoint someone who will favour his political party. (Please note, the adjective here is ‘any rational politician’)


We can’t reduce every key decision into legalistic arguments
There have been calls for broad stakeholder consultations involving civil society organizations and political parties in a quest to find a new Chairperson of the EC.
3 years ago, ahead of the appointment of Madam Charlotte Osei as EC Chair by then President John Mahama, similar calls were made.  My friend, Samson Lardy Anyenini, in an April 24, 2015 article titled, ‘New EC Boss- Mr Prez, avoid the temptation to sin’ argued that such calls were ‘needless’ and the President should avoid ‘sinning’ against ‘the clear unambiguous terms of the constitution’. He wrote, “Those political parties and CSOs advocating and almost demanding any consultations outside of the clear injunction to the President to appoint ‘on the advice of the Council of State’...I say without any equivocation, are ill-advised and must halt the unhealthy unconstitutional crusade.” He still stands by this argument.

Well, I disagree with Samson on this. We cannot limit ourselves to precise law with the view that every political problem should be settled with ‘unambiguous terms of the constitution’. The governance of a nation cannot be reduced into legalistic arguments. The constitution serves as a signpost for our progress. Absolutely nothing bars the President from engaging in stakeholder consultations in this appointment process if this will ensure the legitimacy of the EC and clothe him or her with the full public approval to execute his or her mandate. There’s nothing unconstitutional nor ill-advised about this.

In the case of Tuffour v. Attorney-General (1980), Sowah JSC famously observed:
‘A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life. The Constitution has its letter of the law. Equally, the Constitution has its spirit. ...Its language, therefore, must be considered as if it were a living organism capable of growth and development.
Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. ...A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.’

If broad stakeholder consultations will give the country an EC Chair and two Deputy Chairpersons who will execute their mandate without fear or favour, then Mr President please feel free. A gentleman’s agreement between the political parties that the appointments will be more consultative with more deliberation in a depoliticized manner is not ‘sinful’ either. If the political class can agree to make this work and not reduce this appointment process to narrow legalistic arguments, we can make some progress.
On April 18, 2015, then NPP presidential candidate Nana Akufo-Addo pointed out to then President Mahama ahead of the former EC Chair’s appointment that ‘all citizens of Ghana have a stake in the appointment...in many other jurisdictions across the world, whoever successfully emerges as head of the Electoral Commission is put through a rigorous selection procedure, which includes wide stakeholder consultation, vetting by a committee, often in public, and finally, approval by a special majority of the legislature. Appointment by the President is then a formality.” Mr President, the ball is in your court now.

The Constitutional Amendment Route: Better late than never


We may decide to go the constitutional amendment route. If we decide to, we could take a cue from other jurisdictions with commendable practices.
Kenya, for instance, advertises the position of Electoral Commission Chair and commissioners. Interviews of shortlisted applicants are then conducted in public. The process then continues as follows:
‘After conducting interviews, the Selection Panel shall select two persons qualified to be appointed as IEBC (Independent Electoral and Boundaries Commission) Chairperson and nine persons qualified to be appointed as members of the electoral body and shall forward the names to [the President]  for nomination of one person for appointment as the Chairperson and six persons for appointment as members.
The President shall within seven days of receipt of the names forward the list of nominees to the National Assembly for approval in accordance with the Public Appointments (Parliamentary Approval) Act.

He shall, within seven days of receipt of the names approved by the National Assembly, by notice in the Gazette, appoint the Chairperson and the members of the Commission. The Selection Panel shall stand dissolved upon the requisite appointments being made’

Public interviews of candidates for the EC Chair and Deputy Chairpersons will highlight their professional competence or lack thereof. The public will also have the opportunity to supply any evidence of political bias and give the candidates the opportunity to defend themselves. Subsequent parliamentary approval would allow bi-partisan consensus to develop around the candidates. These reforms will ensure the appointments are not tagged as partisan and the candidates will be free to execute their mandates with full public support.