Thesis Law 2020 Nasha Refilwe M

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Criminalising Marital Rape in Botswana: The Need for Legal Reform
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Student: REFILWE M. NASHA
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NSHREF001
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LLM (CONSTITUTIONAL AND ADMINISTRATIVE LAW)
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Supervisor: Associate Professor Waheeda Amien

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Word Count: 23141 (without the Bibilography)

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Research dissertation presented for the approval of Senate in fulfilment of part of the
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requirements for the degree of Master of Laws in Constitutional and Administrative Law in
approved courses and a minor dissertation. The other part of the requirement for this
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qualification was the completion of a programme of courses.

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I hereby declare that I have read and understood the regulations governing the submission of
LLM dissertations, including those relating to length and plagiarism, as contained in the rules
of this University, and that this dissertation conforms to those regulations.
Signature:
Refilwe Madonna Nasha

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The copyright of this thesis vests in the author. No
quotation from it or information derived from it is to be
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published without full acknowledgement of the source.
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The thesis is to be used for private study or non-
commercial research purposes only.
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Published by the University of Cape Town (UCT) in terms
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of the non-exclusive license granted to UCT by the author.

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The copyright of this thesis vests in the author. No quotation from it
or information derived from it is to be published without full
acknowledgement of the source. The thesis is to be used for private
study or non-commercial research purposes only.
Published by the University of Cape Town (UCT) in terms of the non-

exclusive license granted to UCT by the author.
2
ACKNOWLEDGMENTS
I would like to thank God for granting me this opportunity to study for LLM.
My highest gratitude goes to Professor Waheeda Amien for her valuable advice and guidance
during the course of writing this dissertation.
I would also like to thank the Government of Botswana, Attorney General’s Chambers and
the Legislative Drafting Division for the financial assistance without which it would not have
been possible to pursue the LLM (Constitutional and Administrative Law) programme for
which I am submitting this research dissertation.
My heartfelt gratitude goes to my friend Bonno Modimakwane-Theleso for her tireless effort
to help me with the research for this dissertation. You are a good friend and I will forever
cherish our friendship. Kaone Solomon-Dihutso your proof–reading skills are amazing, thank
you my sister.
My sincere gratitude also goes to my mother for her love and patience and for taking care of
my babies while I was away.
3
DEDICATION
I dedicate this dissertation to my late baby girl, Liyana Atiena Omogolo Shabane- David.
You left Mommy with a broken heart nnana, but I take solace in that heaven has gained a
beautiful angel in you. I love you Yana, I love you every day and I will miss you every day.
REST MY ANGEL
4
TABLE OF CONTENTS
STUDENT: REFILWE MADONNA NASHA NSHREF001 1
DECLARATION 2
ACKNOWLWDGEMENTS 3
DEDICATION 4
TABLE OF CONTENTS 5
LIST OF ABBREVIATIONS 7
CHAPTER 1: INTRODUCTION 8
1.2: Limitations of the Study 11
1.3 Justification of the Study 12
1.4: Dissertation Structure 16
CHAPTER 2: MARITAL RAPE IN BOTSWANA: BACKGROUND AND LEGAL

POSITION 18
2.1 Introduction 18
2.2 Violence against Women in Botswana 18
2.3 Public perception on marital rape 19
2.4 Domestic law on marital rape 22
2.4.1 The Constitution of Botswana 22
2.4.2 Domestic Violence Act 25
2.4.3 Penal Code 25
2.4.4 Abolition of Marital Power Act 26
2.5 Botswana National Vision 2036 27
2.6 Conclusion 27
5
CHAPTER 3: MARITAL RAPE UNDER INTERNATIONAL LAW AND ITS
APPLICATION IN BOTSWANA 29
3.1 Introduction 29
3.2 International Law Requirement for the Criminalisation of Marital Rape 29
3.3 Protection of Married Women’s Human Rights: International Human Rights
Law Perspective 36
3.4 Limitations of Penal Sanctions in Addressing Marital Rape 43
3.5 Conclusion 46
CHAPTER 4: HOW THE LAW IN BOTSWANA CAN BE REFORMED TO

CRIMINALISE MARITAL RAPE: LESSONS FROM OTHER
JURISDICTIONS 48
4.1 Introduction 48
4.2 Law Reform 48
4.3 Legal Interventions on Marital Rape in South Africa and Zimbabwe 50
4.3.1 The South African legal framework 50
4.3.2 The Zimbabwean legal framework 53
4.4 Lessons that Botswana Can Learn from South Africa and
Zimbabwe with Regard to Marital Rape 55
4.5 Conclusion 57
CHAPTER 5: RECOMMENDATIONS 59
5.1 Legal Reforms 59
5.2 Political Will 60
5.2.3 Public Education 60
CHAPTER 6: CONCLUSION 62
BIBLIOGRAPHY 64
6
LIST OF ABBREVIATIONS
AU African Union
Banjul Charter African Charter on Human and People’s Rights
CAT Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment
CEDAW Convention on the Elimination of all Forms of Violence Against

Women
CESCR Committee on the Economic, Social and Cultural Rights
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
SADC Southern African Development Community
UDHR Universal Declaration of Human Rights
UN United Nations
UNDP United Nations Development Programme
UNPF United Nations Population Fund
WHO World Health Organisation
7
CHAPTER 1: Introduction
Marriage is rooted in every society and it is traditionally perceived to be a sacred enclave for
the parties involved. However, marriage is proving not to be a celebrated sacred enclave that
it is considered to be as it can be a place of pure terror. Particularly in Botswana, the small
amount of literature on marital rape indicate the existence of marital rape, a form of violence
that has been said to result in serious medical, emotional and mental health consequences for
its victims.1 For instance, in her article Ellece reported that there is an increase in the
incidence of marital rape in Botswana.2 Ellece validated the existence of marital rape in
Botswana by a local newspaper article that reported that ‘a man who had recently been
diagnosed as being HIV-positive forced his HIV-negative wife to have unprotected sex with
him. When she refused, the husband raped her and abused her physically and emotionally’.3
Further, the findings of the Gender-based violence Indicators Study Botswana, which
was conducted in 2012, showed that a greater proportion of men in Botswana believe that if a
man has paid bride price for his wife, he owns her and she must have sex with him whenever
he wants.4 According to the GBV Indicator Study Botswana, out of the 70 per cent of all the
people who took part in the study, 37.7 per cent of men as opposed to 20.5 per cent of women
were of the view that payment of bride price gives men sexual entitlement in marriage. A
further 48.5 per cent of the 70 per cent men who took part in the study thought that a woman
cannot refuse sex with her husband. The significance of these findings is that they indicate
the possibility of sexual violence in marriage due to societal norms that promote male sexual
entitlement and limit women’s option to refuse their husband’s sexual advances.5 Other
studies conducted on gender-based violence in Botswana6 indicate that women are the most
affected by gender-based violence. The studies also confirm that, like in other parts of the
world, most violence against women in Botswana takes place in domestic settings, whereby
the perpetrators are intimate partners, members of the women’s families or close
1
JA Bennice and PA Resick ‘Marital rape: History, research, and practice’ (2003) 4 (3) Trauma, Violence &
Abuse 228 at 230.
2
SE Ellece ‘“Be a fool like me”: Gender construction in the marriage advice ceremony in Botswana – a critical
discourse analysis’ (2011) 25 (1) Agenda 43 at 43.
3
Ibid.
4
The Gender-based violence Indicator Study Botswana (2012) at 72; (hereinafter referred to as GBV Indicator
Study Botswana).
5
Ibid.
6
Some of those studies include the 1999 national study on violence against women that was undertaken by
Women’s Affairs Department and the 2011 Gender-based violence Indicators Study that was undertaken by the
same Government department under a different name, Gender Affairs Department.
8
acquaintances. 7 What is being implied here is that most women are subjected to all sorts of
violence where there exists a domestic relationship.8 The studies specifically indicate that the
most common gender-based violence is inflicted by intimate partners who may be a current
or former intimate partner. The significance of these findings is that they further corroborate
the strong possibility that marital rape exists in Botswana.
The 2012 study on gender-based violence that was conducted by the Gender Affairs
Department of Botswana in partnership with GenderLinks9 Botswana has shown that three in
five women have experienced violence in a domestic relationship.10 The study also revealed
that gender-based violence is the most flagrant violation of women’s human rights in
Botswana.11
The Botswana National Relationship Study, which was conducted in 2018, a follow up
to the GBV Indicator Study Botswana, also reported that most of the violence reported during
the study occurred within intimate relationships and that 37 per cent of women who took part
in the study reported experiencing violence, that includes sexual violence, in an intimate
relationship.12 In relation to sexual violence specifically, the BNRS, which was conducted by
the Ministry of Nationality Immigration and Gender Affairs, found that 5.4 per cent of the
four thousand two hundred and twenty four (4224) women who took part in the study had
suffered from sexual intimate partner violence compared to 4.7 per cent for non-partner
sexual violence.13 Despite some evidence that there exist sexual violence against wives,
marital rape is still striving for legislative recognition in Botswana, seeing that for some
reasons that elude me, marital rape is not a statutory criminal offence in Botswana.
The existence of marital rape in Botswana and lack of legislative recognition thereof is
further showcased by Peggy Ramaphane of the Women Against Rape Trust,14 who is
reported to have remarked that ‘[d]espite the thorough and explicit definition of rape under
7
G Mookodi ‘The dynamics of domestic violence against women in Botswana’ (2004) 18 Pula: Botswana
Journal of African Studies 55 at 55.
8
Domestic Violence Act (Cap. 28:05); sesction 2 defines domestic relationship as ‘a relationship between an
applicant and the respondent in any of the following ways- (a) they are or were married to each other; (b) they
are or were cohabiting; (c) they are a child of the applicant or respondent; (d) they are family members; (e) they
would be family members related by affinity if the persons referred to in paragraph (b) were, or could be
married to each other; (f) they share or shared the same residence; or (g) they are or were in an engagement,
dating including an actual or perceived romantic, intimate or sexual relationship’.
9
Genderlinks is a Non-Governmental Organisation that advocates for gender equality in Botswana.
10
GBV Indicator Study Botswana op cit (n4) 13.
11
12
The Botswana National Relationship Study (2018) at 7; (hereinafter referred to as the BNRS).
13
The BNRS op cit (n12) 8.
14
Women Against Rape Trust is a Non-Governmental Organisation that advocates for the protection of women
against rape.
9
the Penal Code, many spouses in Botswana continue to live under the wrath of sexually
abusive husbands because the definition of rape in the Penal Code is silent on marital rape,
leaving marital rape as “social crime”’.15
Rape is defined in Botswana at section 141 of the Penal Code,16 which provides:
Any person who has unlawful carnal knowledge of another person, or who causes the
penetration of a sexual organ or instrument, of whatever nature, into the person of another for
the purposes of sexual gratification, or who causes the penetration of another person's sexual
organ into his or her person, without the consent of such other person, or with such person's
consent if the consent is obtained by force or means of threats or intimidation of any kind, by
fear of bodily harm, or by means of false pretences as to the nature of the act, or, in the case of
a married person, by personating that person's spouse, is guilty of the offence termed rape.
It must be noted that marital rape is recognised as a form of intimate partner violence,
commonly referred to as domestic violence under the CEDAW,17 which Botswana acceded to
in August 1996.18 Marital rape is also a form of gender-based violence against women
because it is a ‘violence that is directed against a woman because she is a woman.’19
It must also be noted that there has been some research on marital rape that has
informed the different ideas of what marital rape entails. For instance, in their scholarly
article, Randall and Venkatesh describe marital rape as unwanted and coerced sexual
relations in which the perpetrator is the victim’s abusive spouse.20 Mahoney and Williams
define marital rape as ‘any unwanted sexual penetration (vaginal, anal or oral) or contact with
the genitals that is the result of actual or threatened physical force or when the wife is unable
15
Sunday Standard Reporter ‘When a man rapes his wife’ Sunday Standard 9 February 2012 available at
http://www.sundaystandard.info/when-man-rapes-his-wife, accessed on 11 December 2018.
16
Penal Code Cap. 08:01.
17
Committee on the Elimination of Discrimination against Women ‘General Recommendations No. 19:
Violence against Women’ (1992) at para 6 available at
http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm, accessed 9 September 2017.
18
According to UNICEF ‘Introduction on the Rights of the Child: Definition of Key terms’ available at
https://www.unicef.org/french/crc/files/Definitions.pdf,accessed on 13 March 2019, accession is an act by which
a state becomes a party to a treaty that is already in existence and signed by other states. Accession has the same
legal effect as ratification which means an act whereby a state consents to be bound to a treaty and its objectives.
Ratification requires states to seek approval for the treaty to apply at domestic level and, enact necessary
legislation to domesticate the treaty.
19
United Nations Secretary-General ‘Ending violence against women: From words to action’ (2007) at page 11
available at http://www.unwomen.org/en/digital-library/publications/2006/1/ending-violence-against-women-
from-words-to-action-study-of-the-secretary-general,accessed on 29 August 2017; For the purposes of this
dissertation, the terms gender-based violence and domestic violence will be used inter-changeably to refer to
violence against women that includes marital rape.
20
M Randall and V Venkatesh ‘The right to say no: The crime of marital rape, women’s human rights, and
international law’ (2015) 41 Brook . J. Int’l L. 153 at 158.
10
to give affirmative consent to sex’.21 The definition is said to include sexual exploitation that
involves sexual contact such as when a husband coerces a wife to engage in sexual acts with
someone else.22 The same view on marital rape is shared by Hancox who defines marital rape
as ‘any unwanted sexual acts by a spouse or an ex-spouse, committed without the consent
and/or against a person’s will, obtained by force, or threat of force, intimidation, or when a
person is unable to consent’.23 Marital rape generally occurs in the context of abusive marital
relationships that are characterised by various forms of violence,24 and is reported to occur at
greater frequency, globally, than what Linda Williams call ‘classic’ rape.25
1.2 Limitations of the Study
The biggest challenge for this dissertation is that marital rape cases are not recorded because
marital rape is not a statutory offence in Botswana. As a result, there is no scientific evidence
that serves as authority that marital rape does occur in Botswana therefore, justifying its
criminalisation. The lack of scientific evidence on marital rape in Botswana is acknowledged
by Magdaline Madibela, a representative of the Gender unit of the Southern African
Development Community, who was cited as saying ‘[m]arital rape in Botswana is rife and
goes unreported because it is not deemed as a criminal offence…’26 A senior police officer in
the Botswana Police Service was also reported to have made utterances to the effect that ‘we
as the Botswana Police Service cannot police in the bedroom’,27 suggesting that he and his
colleagues do not deal with marital rape and therefore did not gather statistics that could
inform the prevalence of marital rape in Botswana.28
However, the GBV Indicator Study Botswana cited one married woman who relates her
rape ordeal at the hands of her husband as follows:
21
P Mahoney and LM Williams Sexual assault in marriage: Prevalence, consequences, and treatment of wife
rape (1998) Page 3.
22
Ibid.
23
G Hancox ‘Marital rape in South Africa; Enough is enough’ (2012) available at
http://www.osisa.org/buwa/south-africa/marital-rape-south-africa.html, accessed on 12 December 2018.
24
W Kamau; P Nyaundi and J Serwanga ‘The legal impunity for marital rape in Kenya: A women’s equality
issue’ (2016) at page 1 available at http://theequalityeffect.org/wp-content/uploads/2013/04/Marital-Rape-
Paper-Winnie-Kamau-Final-edited-July-18.pdf, accessed on 10 June 2018.
25
LS Williams ‘The classic rape: When do victims report?’ (1984) 31 (4) Social Problems 459 at 459; ‘Classic’
rape situation, involves violent sexual attack by a stranger.
26
Sunday Standard Reporter op cit (n15).
27
R Chakamba ‘The push to get every African country to criminalise marital rape’, 21 October 2016, available
at https://www.newsdeeply.com/womenandgirls/articles/2016/10/21/push-get-every-african-country-
criminalize-marital-rape, accessed on 12 December 2018.
28
The unavailability of statistics on marital rape in Botswana was also communicates to me by Botswana Police
when I wrote to request the same.
11
I was sleeping with my three children when my husband arrived. I was on my way to open the door when
I heard a loud bang on the door … he was drunk and did not utter a word until we reached the bedroom.
Just as I was climbing into bed he held me down and raped me and afterwards he told me to go back to
my mother’s house … it was a painful experience.29
A similar story by another married woman is told by Women and Law in Southern Africa
Research Trust, Botswana. In this particular story, a seventeen year who was married off by
her parents to an elderly man who paid bride price, was physically abused and forced into sex
by her husband whenever she refused to sleep with him.30
These stories and the one reported by Ellece, are examples that there is some evidence
that marital rape exists in Botswana, even if marital rape is not reported on because it is not
recognised as a crime.
1.3 Justification of the Study

My argument in this dissertation is that, even without scientific evidence, any form of
violence against women is a violation of human rights. As a result, it is necessary for
Botswana to put measures in place, including criminalising marital rape, to protect married
women’s human rights. The basis of my argument is that even though a sovereign state,
Botswana is member of the United Nations and is therefore bound by its international
obligations to prevent, eradicate and punish any form of violence that violates human rights.31
Botswana’s obligation came about by virtue of its ratification of international instruments,
both at United Nations and African Union level, which prohibit all forms of violence against
women. Other than what international law provide in regard to criminalisation of marital
rape, I am convinced that marital rape needs to criminalised in order to provide effective
protection and remedies for married women against marital rape. I also share the sentiments
of researchers who are convinced that failure to criminalise marital rape in many jurisdictions
is a contributing factor to common incidents of marital rape. As an example, Russell states:
[t]he fact that it (marital rape) remains legal in most states and countries not only perpetuates the problem
but probably helps cause it, because it allows men and women alike to believe that wife rape is somehow
acceptable. The first step toward reversing the destructive attitudes that lead to this destructive act is to
make wife rape illegal.…32
29
30
Woman and Law in Southern Africa Research Trust, Botswana ‘Chasing the mirage: Women and the
administration of justice’ (1991) 75.
31
United Nations Secretary-General op cit (n19) 13.
32
D Russell Rape in Marriage 2 ed (1982) 357.
12
Marital rape violates, under the Constitution of Botswana, fundamental rights and
freedoms such as the right to protection from inhuman treatment. The provision on protection
from inhuman treatment stipulates that ‘[n]o person shall be subjected to torture or to
inhuman or degrading punishment or other treatment’.33 The Constitution of Botswana at
section 3 (a) insists that –
[w]hereas every person in Botswana is entitled to the fundamental rights and freedoms of the
individual, that is to say, the right, whatever his or her race, place of origin, political opinions,
colour, creed or sex, but subject to respect for the rights and freedoms of others and for the
public interest to each and all of the following, namely; life, liberty, security of the person and
the protection of the law.
Based on the constitutional and international obligations, domestic law ought to protect
married women from sexual violence in their domestic relationships with their spouses. It is
on this basis that I argue for marital rape to be criminalised.
Before I conclude justification of study, I must emphasise that lack of scientific
evidence to measure the extent of marital rape will impede informed analysis and policy
making where marital rape is concerned. However, in the words of Justice Ian Kirby, ‘[r]ape
is the most serious, humiliating and invasive assault against a person that should not be
permitted just because the perpetrator is a spouse.’34
Despite constitutional obligation and ratification of international instruments, both at
United Nations and African Union level, the Botswana legal framework was found to be
inadequate in respect of domestic violence, as the Penal Code does not prescribe punishment
for domestic violence, thus affording women insufficient protection from domestic
violence.35 As a result, the Report on the Review of all Laws affecting the Status of Women
in Botswana is reported as having recommended that:
[a] special statute or provisions on domestic violence should be passed to specifically make domestic
violence a criminal offence, providing stiff penalties for violators, and giving Magistrates jurisdiction to issue
restraining orders in domestic violence cases. 36
Throughout this dissertation, I will argue from the point of view that criminalising marital
rape will dispel a culture of impunity whereby violence against women is accepted by both
the Government and the society. The serious medical, emotional and mental harm that have
33
Section 2(1) of the Constitution of Botswana.
34
Letsholathe vs the State 2008 (3) BLR 5 (HC).
35
GK Gatang ‘Curbing Domestic Violence in Botswana: an Analysis of the Domestic Violence Act’ (2009) 11
European Journal of Law Reform 403 at 406.
36
Ibid.
13
been said to result from marital rape also warrant the proscription of marital rape without
having to rely only on scientific evidence to justify why marital rape should be criminalised.
I will also argue, as alluded to earlier in the chapter, that not a lot has been written on
marital rape in Botswana, but I believe a story like the one reported by GenderLinks about a
husband who abused his wife physically, sexually, emotionally and verbally over her
unwillingness to have unprotected sex with him,37 speaks volumes about the existence of
marital rape in Botswana and does not need to be augmented by some statistics that may not
even be accurate. The point being made here is that even if there is no scientific evidence to
show prevalence of marital rape, the devastating effects of marital rape on the woman
concerned should be enough to warrant its prohibition.
Further, my argument will be that the law of Botswana recognises rape as a criminal
offence but, as already alluded to, is silent on marital rape. This silence on marital rape in the
law creates what some scholars view as legal impunity for men who rape their wives, thereby
legitimising marital rape.38 The silence of the Penal Code on marital rape has also caused
considerable confusion among some Batswana who are reported to not be certain whether
marital rape can ever attract criminal responsibility in Botswana.39
The silence of the law on marital rape is also evident from the Domestic Violence Act
(hereinafter referred to as DVA Botswana),40 which was enacted in 2008 to provide
protection for survivors of domestic violence. The DVA Botswana has been criticised for
failing to protect married women against marital rape because it does not specifically prohibit
marital rape.41 As indicated previously in this dissertation,42 DVA Botswana defines a
relationship between married persons as a domestic relationship and provides for the
definition of domestic violence in terms of the Act. According to section 2, which is the
interpretation section of the DVA Botswana,
37
Genderlinks Botswana ‘Marital rape case breaks new ground’, 7 October 2011, available at
http://genderlinks.org.za/programme-web-menu/botswana-marital-rape-case-breaks-new-ground-2011-10-07/,
accessed on 12 December 2018.
38
Randall and Venkatesh op cit (n20) 155.
39
LM Dingake, M Grensens and P Kidd ‘Women’s Access to Justice in Botswana: Identifying the Obstacles
and Need for Change’ (2013) International Commission Of Jurists 74.
40
Domestic Violence Act (Cap. 28:05).
41
G Toka ‘Marital rape remains a contentious element of domestic violence’ Sunday Standard 9 April, 2009
available at http://www.sundaystandard.info/marital-rape-remains-contentious-element-domestic-violence-0,
accessed on 16 November 2018.
42
Domestic Violence Act (Cap. 28:05) op cit (n8).
14
“domestic violence” means any controlling or abusive behaviour that harms the health or safety of the
applicant and includes –
(a) physical abuse or threat thereof;

(b) sexual abuse or threat thereof;
(c) emotional, verbal or psychological abuse;
(d) economic abuse;
(e) intimidation;
(f) harassment;
(g) damage to property;
(h) where the applicant and the respondent do not stay in the same home, entry into the applicant's
home without his or her consent;
(i) unlawful detainment; or
(j) stalking.”
A high prevalence of gender-based violence in domestic relationships and the silence of
the law on marital rape as discussed above, suggest that there is a gap in Botswana’s
domestic violence legislation. The gap necessitates the review of Botswana’s legislation to
provide for penal provisions against marital rape.
To advance my argument, the dissertation will answer the research question of whether there
exists a need to criminalise marital rape in Botswana? The dissertation will also answer the
following questions:
1. What is the position of the domestic law of Botswana on marital rape?

2. What could be the benefits and limitations of criminal law in addressing marital
rape?
3. What lessons can Botswana learn from South Africa and Zimbabwe, if any, with
regard to recognising gender equality and criminalising marital rape?
Based on the silence of the law on marital rape, and the research questions contained
herein, my intention is to highlight the gaps in the domestic laws of Botswana and show case
the necessity of criminalising marital rape as a means to addressing marital rape. Further, the
dissertation will offer recommendations as to how the gaps in the law can be addressed. This
dissertation will also serve as a guide for future studies by providing information on marital
rape in Botswana.
The method used in this dissertation is desk-based research, which will be based on a
literature review of both primary and secondary sources on the topic of marital rape. The
method will include consideration of domestic laws of Botswana on gender-based violence
15
and Botswana’s international obligations on issues of violence against women, particularly
marital rape. The analysis of legal responses and legislation from other jurisdictions such as
South Africa and Zimbabwe will assist in identifying the best practice and legislative reform
model to be used to address marital rape in Botswana.
1.4 Dissertation Structure
The dissertation will take the following structure:
Chapter 2: Marital Rape in Botswana: Background and Legal Position
This chapter seeks to provide a background on domestic violence in the arena of violence
against women in Botswana. The purpose of the background is to shed some light on how
marital rape is not recognised as a form of domestic violence in Botswana. In this chapter, I
will also discuss the lack of legal framework on marital rape therefore answering the research
question on the position of domestic law of Botswana on marital rape.
Chapter 3: Marital Rape under International Law and its Application in Botswana
This chapter aims to make a case for why marital rape should be criminalised in Botswana. In
this chapter, I discuss the international law requirement for the criminalisation of marital rape
showing that Botswana has an international obligation to take measures as well as legislative
reforms to protect women against violence from both private and public sources. I also
discuss that internationally recognised human rights are violated by marital rape hence the
need for its criminalisation. Further I discuss the limitations of penal sanctions in addressing
marital rape.
Chapter 4: How the Law of Botswana can be Reformed to Criminalise Marital Rape:
lessons from Other Jurisdictions
In this chapter, marital rape will be discussed in terms of South African and Zimbabwean
law. The chapter will also highlight the lessons that Botswana can learn from the
jurisprudence of South Africa and Zimbabwe with regard to marital rape.
Chapter 5: Recommendations
This chapter offers recommendations based on the findings.
16
Chapter 6: Conclusion
This chapter concludes the dissertation by highlighting some of the findings in the
dissertation.
17
CHAPTER 2: MARITAL RAPE IN BOTSWANA: BACKGROUND AND LEGAL
POSITION
2.1 Introduction
This chapter discusses the high prevalence of domestic violence in Botswana which has
already been said to indicate the strong likelihood of the existence of marital rape in
Botswana. Focus will be placed on how the public perceive domestic violence which is
marital rape including perceptions on sexual entitlement in a marriage. Political will to
address gender-based violence will be looked at to determine the level of commitment, on the
part of Government, to address specifically marital rape. Also subject to examination in this
chapter, is the legal framework of Botswana on marital rape.
2.2 Violence against Women in Botswana
The high prevalence of violence against women in Botswana has been noted by the United
Nations Population Fund, which observes that
Gender-based violence is one of the most prevalent human rights violations in the world. It
knows no social, economic or national boundaries. Worldwide, an estimated one in three
women will experience physical or sexual abuse in their lifetime. In Botswana, over 67
percent of women have experienced abuse, which is over double the global average. Gender-
based violence undermines the health, dignity, security and autonomy of its victims, yet it
remains shrouded in a culture of silence and normalisation. Victims of violence, majority of
which are women and girls, can suffer sexual and reproductive health consequences,
including forced and unwanted pregnancies, sexually transmitted infections including HIV,
and even death.43
The high prevalence of violence against women in Botswana was also noted, with concern,
by the former President of Botswana, Mr Festus G. Mogae, in the 2007 State of the Nation
Address when he said
On a more sombre note, violence and abuse against women remain high. Addressing this scourge calls
for more public education and proactive law enforcement, as well as legislative measures, such as those
envisaged in the proposed Domestic Violence Bill.44
43
United Nations Population Fund Botswana website available at http://botswana.unfpa.org/en/topics/gender-
based-violence-1, accessed on 14 August 2017.
44
State of the Nation Address by His Excellency Mr. Festus G. Mogae President of the Republic of Botswana
To the Opening of The Fourth Session of the Ninth Parliament: Achievement, Challenges and Opportunities, 5
November 2007, at para 65, available at http://www.bankofbotswana.bw/assets/uploaded/sotn-2007.pdf,
accessed on 6 September 2017.
18
To address the high prevalence of violence against women in Botswana, the Parliament of
Botswana passed the long awaited DVA Botswana. The nation welcomed this piece of
legislation as an important step towards the protection of the rights of vulnerable groups that
are most affected by domestic violence, and signalling Botswana’s commitment to up-
holding human rights.45 The DVA Botswana as passed, recognises that sexual abuse can
occur within a domestic relationship, including marriage,46 a development that has been
commended by civil society as recognising that power imbalances exist in many relationships
between men and women and that it is necessary to protect women from sexual violence in
the home.47
As indicated in the introduction, the DVA Botswana has, however, been criticised for
not addressing the issue of marital rape despite the same being a form of domestic violence.48
The Act, which purports to ‘provide for the protection of survivors of domestic violence’,49
fails to prohibit one of the treacherous forms of violence within a domestic setting. The draft
Domestic Violence Bill that was produced by the women’s Non–Governmental
Organisations’ (NGO) coalition specifically prohibited marital rape but the provision was
dropped by Parliament due to public pressure. The provision on marital rape was also
dropped due to the non-criminalisation of marital rape, which would have made the DVA
Botswana incompatible with the Penal Code. The decision to drop marital rape from the
DVA Botswana denied marital rape legal recognition therefore, leaving married women with
very little legal protection against marital rape.50
2.3 Public Perception on Marital Rape in Botswana
Throughout the public consultations on the Domestic Violence Bill in Botswana, the
resistance to criminalising marital rape persisted. The general perception at the kgotla
meetings51 was that criminalising marital rape would destroy the sanctity of marriage. Most
45
L Mooketsi ‘Civil Society Organizations Welcome Domestic Violence Bill’ Mmegi online 18 February 2008
available at http://www.mmegi.bw/index.php?sid=2&aid=79&dir=2008/February/Monday18, accessed on 6
September 2017.
46
Section 2 of the Domestic Violence Act (Cap. 28:05).
47
Mooketsi op cit (n45).
48
Toka op cit (n41).
49
Short title of Domestic Violence Act (Cap. 28:05).
50
L Mooketsi ‘Domestic Violence Bill in the offing’ Mmegi Online 23 April 2007 available at
http://www.mmegi.bw/index.php?sid=1&aid=97&dir=2007/April/Monday23, accessed on 6 September 2017.
51
A kgotla in setswana is a traditional or customary court. Government uses these customary courts to consult
member of the public on government plans and strategies. Intended laws are discussed at these meeting as part
19
people at these meetings could not comprehend how a husband could be said to have raped
his wife because according to them, consent to sex between a husband and a wife is part of
the marriage contract. Since these kgotla meetings are usually held in the rural areas, rural
dwellers trivialised marital rape and regarded it as a western phenomenon that departs from
Tswana tradition on marriage.52 The rural dwellers also felt that marital rape is a concept that
is brought about by unmarried urban based women who, as a result, do not know anything
about marriage.53 These public perceptions on sexual entitlement in marriage were confirmed
by the GBV Indicators Study Botswana which revealed that Tswana traditional norms
regarding marriage demand women to always be sexually available to their husbands.54 The
GBV Indicators Study Botswana further indicated that sexual entitlement for men in marriage
is as a result of men who are of the view that if a man paid bride price, he owns his wife and
therefore she must have sex with him when he wants to and that a wife cannot refuse to have
sex with a husband that has paid bride price for her.55 Due to sexual entitlement that men
believe they have over their wives, it did not come as a surprise when a greater proportion of
women, who took part in the GBV Indicators Study Botswana, agreed that it is possible for a
woman to be raped by her husband.56
According to the Ending Violence Against Women: From words to action, a study
conducted by the UN Secretary General, violence against women is ‘a manifestation of
historically unequal power relations between men and women, which have led to domination
over women by men…’57 In Botswana, the same finding was made by the GBV Indicators
Study Botswana, which found that gender-based violence ensues as a result of gender
inequality between men and women. The GBV Indicators Study Botswana further found that
violence against women, especially marital rape, is perpetuated by culturally based
patriarchal practices that rendered women socially inferior to men. For instance, in Tswana
tradition a woman is treated as a minor throughout her life such that before marriage, she is
under the authority of her father and then after marriage, she is subjected to the authority of
her husband after marriage.58 The status of a woman as a legal minor throughout her life is
corroborated by Woman and Law in Southern Africa Research Trust, Botswana who reiterate
of the consultation the drafting process of legislation in Botswana. In most cases, the views and opinions
expressed at these meetings form and represent majority views within the communities.
52
Hansard ‘Domestic Violence Bill, 2007, page 242.
53
Ibid.
54
55
Ibid.
56
Ibid.
57
58
Mookodi op cit (n7) 57.
20
that under customary law, a woman is first under the guardianship of her father; when she
marries, she is delivered to her husband’s home to join his family and comes under the
guardianship of her husband.59
Gender-based violence in Botswana is also perpetuated by the lack political will, which
is brought on by stereotypical assumptions about the nature of relations in marriage, on the
part of legislators, in matters relating to gender-based violence particularly marital rape. This
lack of political will is evidenced by the remarks made by one legislator during the debate of
the Domestic Violence Bill in Parliament, when he said ‘while I wholeheartedly support the
Bill… I could not fathom…rape within marriage’.60 The Honourable member of Parliament
continued to state that ‘marriage in Tswana law or traditions and customs is predicated on
conjugal rights’.61
Political leaders mention gender-based violence in passing, making the voice of the
politicians not to be enough in the campaign against gender-based violence.62 This has
resulted in minimal political influence on the issues surrounding gender-based violence. The
political leadership has not played any significant role in influencing public opinion, policy
nor social change on matters relating to gender-based violence.63 The lack of political will to
address gender-based violence has been noted by the GBV Indicators Study Botswana64 and
informally condemned by gender activists at numerous platforms, such as the consultative
meetings on the implementation of the DVA Botswana. This was my personal observation
during the consultative meetings of the Domestic Violence Regulations, which I drafted in
2013.Another personal observation was that the gender activists at the consultative meetings
of the Domestic Violence Regulations perceive that Government cares more about cattle than
women’s rights following the establishment of special stock theft courts to curb stock theft in
Botswana, while the Government has not heeded the calls by gender activist groups to
establish specialised gender-based violence courts.
The lack of political will to address gender-based violence is substantiated further by
political speeches that hardly make reference to issues relating to gender-based violence.65
An analysis of speeches by political leaders, by the GBV Indicators Study Botswana, show
that from 2009 to 2011 out of 188 speeches that were obtained, for the purpose of the Study,
59
Woman and Law in Southern Africa Research Trust, Botswana op cit (n30) 69.
60
Hansard ‘Domestic Violence Bill op cit (n52) 287.
61
Ibid.
62
63
Ibid.
64
Ibid.
65
Ibid.
21
from government website, websites of political parties and the media, 15 percent referred to
gender-based violence while only six percent had gender-based violence as the main topic.66
The argument being made here is that gender-based violence in Botswana does not enjoy the
highest level of support from the Government like for example the National Strategic
Framework, which is an agreed HIV and AIDS Action Framework that provides the basis for
coordinating the work of all partner in HIV and AIDS related issues.67 The high level support
is demonstrated by the chairmanship of the National AIDS Council by the former President,
Festus Mogae, while the current President, Lieutenant General Dr. Seretse Khama Ian
Khama, has made many public statements that demonstrate national commitment to HIV and
AIDS.68 That having been said, the role of political leaders in influencing political opinion,
policy and social change cannot be over emphasised. It is therefore paramount that political
leaders be seen to cultivate a conducive political environment that speaks against and does
not tolerate any form of gender-based violence including marital rape. My personal opinion is
that if political leaders who are the representatives of the people and are closer to the people
than the central government take an active part against gender-based violence, then
significant progress can be made in addressing all forms of gender-based violence. The
importance of political will is also recognised by the BNSR which holds that ‘at all levels of
gender-based violence, political commitment is imperative.’69
2.4 Domestic law on marital rape
2.4.1. The Constitution of Botswana
The Constitution of Botswana contains a Bill of Rights that protects fundamental rights and
freedoms of individuals.70 As alluded to in the introductory chapter, in the Bill of Rights
contained in the Constitution of Botswana, every person in Botswana is guaranteed the
protection of the law regardless of sex.71
As a matter of fact women are accorded the same protection of the law as men under
the Constitution of Botswana. Section 3 (a) of the Constitution as it provides for fundamental
rights and freedoms of the individual has been viewed by some researchers as being against
66
GBV Indicator Study Botswana op cit (n4)74.
67
68
Ibid.
69
The BNRS op cit (n12) 132.
70
Sections 3 to 19 (chapter II) of the Constitution of Botswana.
71
Section 3 (a) of the Constitution of Botswana.
22
marital laws which take away the requirement of free consent from women. Section 3(a) of
the Constitution which provides that
every person in Botswana is entitled to the fundamental rights and freedoms of the individual, that is to
say, the right, whatever his or her race, place of origin, political opinions, colour, creed or sex, but
subject to respect for the rights and freedoms of others and for the public interest to each and all of the
following, namely life, liberty, security of the person and the protection of the law,
is also said to have engendered an aberration of Botswana’s stand on marital rape such that it
can be used to justify the amendment of the Penal Code provisions on rape, to include marital
rape.72
The same can however not be said about section 15(4) (c) of same Constitution, which
provides that the law against discrimination shall not apply to any law so far as that law
makes provision with respect to adoption, marriage, divorce, burial, devolution of property on
death or other matters of personal law. No scholar nor court, known to me, has provided an
opinion on section 15 of the Constitution, but as is currently drafted, section 15 (4) (c)
renders the Penal Code provision on rape constitutional despite its discriminatory effect on
married women based on their marital status. I say this because the Constitution allows for
making laws that are discriminatory if they relate to marriage therefore justifying the non-
criminalisation of marital rape in Botswana.
Nevertheless, the courts of Botswana have in some cases recognised that ‘a constitution
is a living document’ which ‘interpretation must be informed by contemporary norms and
circumstances, not what the original framers had in mind,’73 and that the doctrine of marital
rape exempt was ‘totally unacceptable, and a historic aberration’.74
The judgement in the case of [G…] [K…] v [B…] [O…] [K…] 75further pointed out
that section 15 (4) of the Constitution is subordinate to section 3. In the case of Losang v The
State76 the judge stated emphatically that the law does not condone atrocities whereby women
are subjected to acts of violence by their abusive spouses. The same sentiments were
expressed by Justice Dingake in Mmusi v Ramantele when he remarked –
72
NP Swartz; OO Itumeleng; and AM Danga; ‘Is husband criminally liable for raping his wife? A comparative
analysis’ (2015) 3 (3) International Journal of Academic Research and Reflection 8 at 17.
73
[G…] [K…] v [B…] [O…] [K…] 2015 MAHGB-00291-14.
74
Letsholathe vs the State 2008 (3) BLR 5 (HC).
75
[G…] [K…] v [B…] [O…] [K…] supra (n73) at para 82.
76
Losang v the State 1985 BLR 281 (CA).
23
I wish to point out that there is an urgent need for Parliament to scrap/abolish all laws that are
inconsistent with section 3(a) so that the right to equality ceases to be an illusion or a mirage, but where
Parliament is slow to effect the promise of the Constitution, this Court, being the fountain of justice and
the guardian of the Constitution, would not hesitate to perform its constitutional duty when called
upon to do so.77
In a ground breaking unanimous decision, on June 11, 2019, the Botswana High Court
held that
Our Bill of Rights, entrenched and enshrined in our Supreme Law (the Constitution), is manifestum of
progressive, long lasting and enduring rights,, which yearn for judicial recognition and protection. Any
limitation in the enjoyment of such rights, therefore, ought to be reasonably justifiable within the
hallowed democratic dispensation that subscribe to the rule of law, which recognises and protects both
the majority and minority rights and interests.78
Based on the cases cited in this section, I hold the view that it is no longer acceptable to
let marital rape, and other violations of women’s human rights, go unpunished in law on
account of constitutional provisions that are not in tune with the rights based contemporary
norms, that call for gender equality and equal protection under the law, regardless of one’s
gender orientation.
Constitutional rights are an essential indicator of the level of respect for human rights
in a country.79 For that reason and for the purposes of this dissertation, the Constitution of
Botswana does not set the tone for legal interventions on violence against women, in so far as
it does not contain provisions that specifically protect women from both private and public
sources of violence.80
The argument being made here is that the Constitution of Botswana contains a simple
gender equality provision, in the form of the already cited section 3(a), that cannot be said to
promote gender equality or protect women from violence particularly domestic violence.81 In
view of the manner in which the Constitution of Botswana is drafted, the Constitution does
not provide enough influence for the legislature to come up with gender progressive
legislation that can be of significance for gender equality and most importantly for protection
of women against violence. The Constitution of Botswana does not also influence review of
77
Mmusi v Ramantele 2012 MAHLB-000836-10.
78
Letsweletse Motshidiemang v Attorney General 2019 MAHGB-000591-16.
79
SADC Gender Protocol Barometer (2018) 41.
80
D Scribner and P A. Lambert ‘Constitutionalizing difference: A case study analysis of gender provisions in
Botswana and South Africa’ (2010). 6 Politics & Gender 37 at 55.
81
As a reminder, the Constitution at section 3 provides that every person in Botswana is entitled to the
fundamental rights and freedoms of the individual namely security of the person and the protection of the law
regardless of their sexual orientation.
24
laws and policies on gender issues.82 Scribner and Lambert argue that gendered constitutional
provisions strengthen the legal foundation for rights claims and challenges to discriminatory
laws and give constitutional weight and justification to legislation.83
2.4.2 Domestic Violence Act
As already pointed out in this chapter and the previous chapter, the DVA Botswana was the
brain child of an NGO coalition. The Act provides for measures to protect victims of
domestic violence. The Act as passed in 2008 recognises under section 2 that sexual violence
can take place in a marriage as it defines a domestic relationship to include marriage. The Act
also includes sexual violence or threat thereof in the list of violence that constitute domestic
violence under the Act. As already stated, the Act falls short in that it does not make specific
reference to marital rape, something that has been taken as a failure to protect married women
against sexual abuse from their husbands. Another criticism on the DVA Botswana stem from
the fact that the proceedings instituted under this Act are of a civil nature therefore failing to
at least criminalise ‘sexual abuse’ that can take place in a marriage relationship.
2.4.3 Penal Code
The Penal Code was amended in 1998 to among other things, make the offence of rape
gender sensitive. The effect of the 1998 amendment is that as it stands, it is legally possible
for both sexes to commit rape and/ or be raped.84 Regarding marital rape, section 141 of the
Penal Code does not specifically proscribe marital rape and only refers to marriage when it
provides that a person is guilty of an offence termed rape if, in the case of a married person,
such person impersonates that married person’s spouse. This provision is interpreted as
suggesting that there cannot be rape in marriage under Botswana law.85 This interpretation is
supported by Botswana Police Service who were not able to provide statistics on marital rape
for this dissertation. The reason advanced for the unavailability of marital rape statistics was
that there is no statutory offence termed marital rape in Botswana and as a result the Police,
when recording rape cases for statistical purposes, does not record rape statistics according to
the relationship between the victim and the perpetrator, except in cases of statutory rape86.
According to Botswana Police Service, of the 4 215 rape cases recorded by the Police in the
82
Scribner and Lambert op cit (n80) 39.
83
Ibid.
84
Swartz; Itumeleng; and Danga op cit (n72) 16.
85
Ibid.
86
This was the explanation given by the Botswana Police Service when I approached them seeking statistics on
marital rape.
25
reporting period of 2015/16, there is no record of how many of those cases were marital rape.
The silence of the Penal Code on marital rape and domestic or family violence has resulted in
the lack of statistical evidence on marital rape, making it easy for the legislature to ignore and
continue to ‘not fathom rape within marriage’.87 Failure to not specifically define and impose
punishment on marital rape does not therefore afford married women sufficient protection
from the crime of marital rape, as cases of marital rape can only be dealt with under the
general law of assault rather than by specific laws on violence against women.88
My opinion is also that failure to criminalise acts of domestic or family violence in the
Penal Code has resulted in the reluctance of the Police to address cases of violence when they
are being reported by the victims. A story of a survivor that portrays this reluctance is one
which goes like ‘he assaulted me once again and I reported the matter to the Police. This was
not the first time: he had been warned many times by the Police not to hit me again. But each
time the Police had not taken any serious action, saying it was family matter that should be
resolved in the home.’89 If the Police can tell a victim to go back home for an assault that is
already criminalised in the Penal Code, what would stop them from doing the same in the
case of marital rape which is not criminalised at all?
2.4.4 Abolition of Marital Power Act90
Marital rape in Botswana has been linked to the notion of marital power whereby the husband
was regarded as the head of the family thus, rendering the wife a minor.91 The Abolition of
Marital Power Act of 2008 promotes gender equality by providing for equal powers between
spouses. The Act brought to an end the husband’s marital power therefore removing
restrictions which the marital power placed on the legal capacity of a wife and abolished the
common law position of the husband as head of the family. Even though the Abolition of
Marital Power Act does not specifically provide for gender-based violence or marital rape in
particular, it presents a woman as an equal partner in marriage therefore ousting the gender
stereotypes that create a conducive environment for all forms of gender-based violence
including marital rape. The Act recognises the significant change in family forms and
87
Hansard ‘Domestic Violence Bill ‘Member of Parliament Honourable Lefhoko’s debate on Domestic
Violence Bill’ (2007) 287.
88
89
Mookodi op cit (n7) 62.
90
Abolition of Marital Power Act (Cap. 29:07).
91
26
therefore reflect such change. One can only hope that with time, the equality that the
Abolition of Marital Power Act brings in
marriages would result in husbands realising that a woman has equal rights in their sexual
relationship.
2.5 Botswana National Vision 2036
In terms of the National Vision 2036, which acts as a ‘compass that directs the nations to
ultimate goals’, 92 Pillar 4 provides as follows
[t]he Constitution and human rights framework in Botswana will ensure human equality, to uphold the
rule of law, …while offering individual liberties in which all residents are allowed and encouraged to
contribute positively to society. Batswana will live in full enjoyment of their constitutionally guaranteed
rights. Botswana will be among the top countries in the protection of human rights. 93
Botswana’s aspirations and vision speak volumes on inclusivity. In that regard, married
women are not be excluded from enjoying their constitutionally guaranteed rights.
2.6 Conclusion
Marital rape is a form of gender-based violence that is perpetuated by the traditional
perception that payment of bride price entitles the husband to unrestricted conjugal rights
with the wife. The failure to explicitly recognise this form of violence in the DVA Botswana
helped seal the fate of the women of Botswana because as a result they have minimal
recourse in the law as marital rape is not recognised as an offence punishable by law. The
Penal Code which establishes the criminal code in Botswana is also silent on marital rape. If
anything, this legislation can be said to endorse the marital rape exemption because it makes
it an offence for a person to personate one’s spouse in order to have sexual encounter or
carnal knowledge of that person as is referred to in the Act. Generally the Constitution of
Botswana does guarantee women equal protection of the law even though section 15(4) (e) is
drafted in a manner that allows for discrimination based on one’s marital status. This
however is countered by the courts willingness to interpret the Constitution in its
contemporary social context, such that practice of violence against women cannot be
condoned.94 Justice Kirby was cited saying that the doctrine of spousal exemption was totally
unacceptable and an historic aberration. Through the National vision 2036, Botswana has a
92
Botswana National Vision 2036 (2016), at page 3, available at http://www.hrdc.org.bw/vision-2036,
accessed on 8 July 2019.
93
Botswana National Vision 2036 op cit (n95) 25.
94
[G…] [K…] v [B…] [O…] [K…] supra (n73) at para 81.
27
vision that women and men will, by the year 2036, live in full enjoyment of their
constitutionally guaranteed rights. One can therefore hope that married women will be
afforded equal protection of the law as any other person in Botswana.
28
CHAPTER 3: MARITAL RAPE UNDER INTERNATIONAL LAW AND ITS
APPLICATION IN BOTSWANA
3.1 Introduction
Marital rape, like rape that is committed by non-partners, causes both physical and
psychological harm and injury to the victims.95 Marital rape violates jus cogens96 such as the
prohibition against torture, as well as other fundamental international human rights such as
the right to life, liberty and security of the person, equal protection under the law and non-
discrimination.97 Moreover, marital rape violates rights critical to the autonomy and well-
being of individual women such as the right to health and to equality within the family.98
It is on the basis of the just cited jus cogens different international instruments, as will
be discussed in this chapter, call on state parties to criminalise marital rape. My argument in
this Chapter is therefore that the law in Botswana ought to reflect international law position
on the protection of married women from sexual violence in their domestic relationships with
their spouses. This argument is motivated by the judgement in the case of Ahmed v Attorney
General.99 The High Court in this case held that
[a]fter all, if Botswana is party to international agreements, treaties, protocols, etc for the sake of far-
sighted domestic reward (rather than paying simple lip-service), then the laws of those countries who
are parties to such agreements are inextricably part of the process. 100
I will also discuss, in this Chapter, the limitations of criminal sanctions in addressing marital
rape.
3.2 International Law Requirement for Criminalisation of Marital Rape

In a report on Violence against Women in the Family, released in 1989, the United Nations
initiated a change in the emphasis in international law from protection of the family to
protection of individuals within the family.101 This factor is said to be important because even
though human rights protection instruments, such as the Universal Declaration on Human
Rights, promote protection of family unit as the natural and fundamental unit of society that
95
HD Meshesha Analysis of Marital Rape in Ethiopia in the Context of International Human Rights
unpublished LLM thesis (University of South Africa) (2014) iv.
96
jus cogens are norms of international law that are argued to be hierarchically superior. The significance of
these in Botswana is that marital rape violates a set of international law rules which are peremptory and from
which no derogation is allowed.
97
98
Ibid.
99
Ahmed v Attorney General 2002 2 BLR 431 (HC).
100
Ahmed supra (n99) at 440.
101
B Meyersfeld Domestic Violence and International Law (2010) 19.
29
is entitled to protection by the society and the state,102 most violence against women take
place within a family unit.103
Botswana is a member of the international community whereby violence against
women is considered a violation of human rights,104 which should be condemned. As a result,
there are numerous international reports, conventions, resolutions and directives that require
state parties to criminalise marital rape. For instance, in 2006 the United Nations Secretary-
General’s report titled ‘Ending Violence against Women: From Words to Action’, the Beijing
Platform is said to have urged governments ‘to treat all forms of violence against women and
girls as criminal offences.’105 Still in the report, the United Nations Secretary-General noted
as follows
[s]tate inaction with regard to the proper functioning of the criminal justice system has particularly
corrosive effects as impunity for acts of violence against women encourages further violence and
reinforces women’s subordination. Such inaction by the State to address the causes of violence against
women constitutes lack of compliance with human rights obligations. 106
International and regional treaties that require Botswana to take action against marital rape
are the Convention on the Elimination of all forms of Discrimination Against Women, the
African Charter on Human and People’s Rights, Protocol to the African Charter on Human
and People’s Rights on the Rights of Women in Africa, and the Southern Development
Community Protocol on Gender and Development.
(a) Convention on the Elimination of All Forms of Discrimination Against Women
Botswana has acceded to one of the United Nations human rights instruments which
emphases on the protection of women as individuals. The instrument being referred to is the
Convention on the Elimination of All forms of Discrimination against Women (hereinafter
referred to as CEDAW), which was drafted in 1979 as the first international treaty focusing
specifically on the human rights of women.107 Botswana’s accession which took place in
August 1996. The text of the CEDAW does not address violence against women explicitly
however, the United Nations Committee on the Elimination of Discrimination Against
Women (hereinafter referred to as CEDAW Committee), in one of its recommendations,
102
Universal Declaration on Human Rights, Article 16 (3).
103
Meyersfeld op cit (n101) 20.
104
Meshesha op cit (n95) 4.
105
106
107
30
asserts that the definition of discrimination as contained in article 1 of the CEDAW include
gender-based violence.108 Still in the General Recommendations No. 19, the Committee
recommended that
(a) States parties should take appropriate and effective measures to overcome all forms of gender-
based violence, whether by public or private act; and
(b) States parties should ensure that laws against family violence and abuse, rape, sexual assault
and other gender-based violence give adequate protection to all women, and respect their
integrity and dignity…
CEDAW calls on state parties to change the way public and private entities and
individuals treat women.109 The call for change on how public and private entities and
individuals treat women by CEDAW is important in relation to marital rape because it brings
the state into the private realm of the family by compelling the state parties to equalise private
relationships and intervene when discrimination marks both public and private affairs.110
By acceding to CEDAW, Botswana is obligated under article 2(f) of CEDAW to ‘take

all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against women.’
Botswana is further obligated under article 5 (a) to ‘modify the social and cultural patterns of
conduct of men and women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women.’ In the wording
of General Recommendation No. 25 of the CEDAW Committee, Botswana is under an
obligation to ‘ensure that there is no direct or indirect discrimination against women in its
laws and that women are protected against discrimination.’111
Indirect discrimination against women is envisaged in instances where laws, policies

and programmes are based on seemingly gender-neutral criteria which in their actual effect
have a detrimental impact on women.112 Gender-neutral laws, policies and programmes may
be founded on patriarchal principles and thus still fail to take into account adverse
108
Committee on the Elimination of Discrimination against Women op cit (n17).
109
Meyersfeld op cit (n101) 24.
110
Ibid.
111
Committee on the Elimination of Discrimination against Women ‘General Recommendations No. 25 on
article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on
temporary special measures’ (2004) UN Doc. A/59/38 at para 7 available at
http://www.un.org/womenwatch/daw/cedaw/31sess.htm, accessed on 9 September 2017.
112
Ibid.
31
stereotypical expectations, attitudes and behaviour directed towards women.113 The case in
point is section 141 of Botswana Penal Code that provides the definition of rape, which has
been amended to be gender neutral but still fail to dispel the insidious gender-based violence
in the form of marital rape.
Specifically to Botswana, the call for criminalisation of marital rape was also made by
the CEDAW Committee.114 The CEDAW Committee expressed its concern at the prevalence
of violence against women and girls, including domestic violence, which appears to be
tolerated by society.115 While noting, with appreciation, the enactment of the DVA Botswana,
which has already been said to provide civil remedies to victims, including protection orders,
the CEDAW Committee also expressed its concern at the legislative gaps in the area of
domestic violence, including the lack of specific legislation on marital rape.116 The CEDAW
Committee recommended that, as a state party to the Convention, Botswana should prioritise
attention to the adoption of comprehensive measures to address violence against women and
girls in accordance with the general recommendation No. 19 on violence against women.
The CEDAW Committee further called on Botswana to enact legislation on marital
rape, sexual harassment and on all forms of sexual abuse.117 Among other things, the
proposed legislation is to ensure that violence against women and girls constitutes a criminal
offence and that women and girls who are victims of violence have access to immediate
means of redress and protection; and perpetrators are prosecuted and adequately punished.118
In light of the recommendations by the CEDAW Committee, I assert that Botswana has an
international obligation to criminalise marital rape.
It must be noted that Botswana is a dualist state whereby international instruments are
not self-executing and require domestication to become part of domestic legislation. It is on
this account that Botswana is in the process of domesticating CEDAW. In the absence of
national legislation that domesticate an international treaty, an individual cannot bring a
claim in a domestic court for a breach of Botswana’s international law obligations.119 In this
113
Ibid.
114
Committee on the Elimination of Discrimination against Women: Botswana, 18 January – 5 February 2010,
CEDAW/C/BOT/CO/3 available at http://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-BOT-CO-
3.pdf, accessed on 18 December 2017.
115
Committee on the Elimination of Discrimination against Women op cit (n111) at para 25.
116
Ibid.
117
Committee on the Elimination of Discrimination against Women op cit (n111) at para 26.
118
Ibid.
119
United Nations ‘National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human
Rights Council Resolution 5/1: Botswana’, Working Group on Universal periodic Review (3rd session), 05
32
case, an individual cannot complain in domestic court about Botswana’s international
obligation to protect married women against marital rape. However, Botswana courts in
Botswana have in some instances used their discretionary power under section 24 (1) of the
Interpretation Act120 to give judicial notice to instruments that Botswana has ratified but not
domesticated. This approach to international instruments is illustrated by the case of Attorney
General v Unity Dow 121 where the court held that ‘the courts must interpret domestic
statutory laws in a way as is compatible with the State's responsibility not to be in breach of
international law as laid down by law creating treaties, conventions, agreements and
protocols within the United Nations Organisation and the Organisation of African Unity.’122
The same was stated in the case of Mmusi v Ramantele123 where it was held that
‘international law though not binding, is persuasive and can offer useful guidance on the
nature and scope of existing constitutional rights’.124
(b) African Charter on Human and Peoples’ Rights
Botswana ratified the African Charter on Human and Peoples’ Rights (herein after called
Banjul Charter) on 17 August 1986. The Banjul Charter does not explicitly make provision
for gender-based violence but rather protects the right culture. The Banjul Charter may
however be applied in cases of marital rape because it does not place protection of the right to
culture above other rights, as it provides for the right to equality before the law and equal
protection of the law.125 The formulation of the right to equality before the law and equal
protection of the law has a bearing on marital rape in that it affords married women who are
raped by their husband’s equality before the law. It also affords married women equal
protection of the law in instances where they are raped by their husbands just as unmarried
married women are protected by the law when they are raped by their intimate partners.
Article 4 provides for the right to the respect for one’s life and integrity of such person. It
also states that no one may be indiscriminately deprived of such a right.126 Article 5 on the
other hand states that ‘[e]very individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition of his or her legal status. All forms of
September 2008, at para 26, available at https://documents-dds-

ny.un.org/doc/UNDOC/GEN/G08/155/38/PDF/G0815538.pdf?OpenElement, accessed on 12 September 2017.
120
Interpretation Act (Cap. 01:04).
121
Attorney General v Unity Dow 1992 BLR 119.
122
Attorney General v Unity Dow supra (n121) at 172.
123
Mmusi v Ramantele supra (n80).
124
Mmusi v Ramantele supra (n80) at para 56.
125
Banjul Charter article 3.
126
33
exploitation and degradation of man or woman particularly … torture, cruel, inhuman or
degrading… treatment shall be prohibited.’ Still under the Banjul Charter, member states are
to ensure elimination of all forms of discrimination against women and at the same time
ensure the protection of the woman and the child as stipulated in international declarations
and conventions.127 In terms of the Banjul Charter, Botswana is obliged to afford women
equal protection before the law and again protect women as per the provisions of
international human rights instruments.
(c) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women
in Africa (hereinafter called the AU Women’s Protocol), which became effective in 2005,
defines discrimination against women as:
any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives
or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of
their marital status, of human rights and fundamental freedoms in all spheres of life .128
Botswana is obligated under the AU Women’s Protocol to combat all forms of discrimination
against women through appropriate legislative, institutional and other measures.129 According
to article 1(f) of the AU Women’s Protocol, Botswana has to enact legislation and put in
place other necessary measures to curb all forms of discrimination particularly harmful
practices which endanger the health and general well-being of women.130
Still under the provisions of AU Women’s Protocol, Botswana is obligated under article
3, to protect women from all forms of violence, particularly sexual, by adopting and
implementing appropriate measures to ensure such protection. Article 3 brings about this
obligation by calling on ‘states parties to adopt and implement appropriate measures to
ensure the protection of every woman’s right to respect for her dignity and protection of
women from all forms of violence, particularly sexual and verbal violence.’ Article 1 of the
Protocol extends the violence that women are to be protected of to violence that takes place in
private settings. The article extends violence against women to private settings by defining
violence against women as
127
128
AU Women’s Protocol article 1(f).
129
AU Women’s Protocol article 2.
130
AU Women’s Protocol article 2(b).
34
all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and
economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary
restrictions on or deprivation of fundamental freedoms in private or public life…131
With regard to marriage specifically, the AU Women’s Protocol enjoins the state parties to
ensure that women and men enjoy equal rights and are regarded as equal partners in
marriage.132 Unequal power relations between men and women have been said to manifest in
violence that may include in this case marital rape.133
(d) SADC Gender Protocol on Gender and Development
On 10 May, 2017, Botswana acceded to134 the revised Southern Development Community
Protocol on Gender and Development (hereinafter called the SADC Gender Protocol) that
came into force in 2013. The SADC Gender Protocol provides for the empowerment of
women, elimination of discrimination, and the promotion of gender equality and equity
through gender-responsive legislation, policies, programmes and projects.135 Article 6 of the
SADC Gender Protocol particularly states that state parties shall ‘review amend and repeal all
laws that discriminate on the ground of sex or gender.’ It most importantly enjoins state
parties to abolish minority status of women and to eliminate gender-based violence.
On marriage and family right, the SADC gender Protocol calls for appropriate
legislative and other measures to ensure that women and men enjoy equal rights in marriage
and that they are regarded as equal partners in marriage.136 When addressing gender-based
violence specifically, the SADC Gender Protocol calls for state parties to enact and
implement legislation that proscribe all forms of gender-based violence.137 State parties are
also required to see to it that perpetrators of gender-based violence including domestic
violence and all form of domestic violence are tried by courts with competent jurisdiction.138
My understanding is that the international instruments cited above do not prohibit

violence against women based on how they relate with the perpetrator. This means therefore
131
AU Women’s Protocol article 1 (j), italics added for emphasis.
132
AU Women’s Protocol article 6.
133
134
According to UNICEF ‘Introduction on the Rights of the Child: Definition of Key terms’ available at
https://www.unicef.org/french/crc/files/Definitions.pdf, accessed on 13 March 2019, Signing a treaty Signifies a
country’s willingness to proceed to ratify the Protocol and obligation to refrain in good faith from acts that
would defeat the objects and purpose of the protocol.
135
SADC Gender Protocol article 20 (2).
136
SADC Gender Protocol article 8.
137
SADC Gender Protocol article (20) (1) (a).
138
SADC Gender Protocol article (20) (1) (b).
35
that, rape laws that exclude marital rape are in violation of these international human right
instruments, as none of the documents limit the protections they offer to unmarried women.
3.3 Protection of Married Women’s Human Rights: International Human Rights
Law Perspective
One of the purposes of criminal law is to maintain social order and well-being of individuals
in the society.139 Criminal law also plays a role in maintaining the wellbeing of the entire
society. For instance, rape is a serious offence against the victim and it is equally offensive
against the society that gets outraged when one of its members is sexually violated, as such
violation is against most societies, if not all, moral values.140 Civil remedies lack penal
sanctions that evoke a sense of justice and security in the society. Civil remedies in rape cases
are therefore not sufficient to satisfy the societal need for protection and deterrence.141 Penal
law is viewed by some scholars as a crucial way in which the law’s power may be drawn
upon to prohibit and prevent violations of rights within the society. Put differently,
criminalisation of marital rape requires the removal of the marital rape exemption as well as
the presumption of consent in marital rape.142 The history of marital rape goes back to the
17th century English common law whereby, marital rape was not considered an offence. The
law granted prosecution immunity to husbands who raped their lawful wives.143 The
prosecution immunity was based on the Hale doctrine that was developed by the then Chief
Justice Sir Mathew Hale. According to the Hale doctrine, a ‘husband cannot be guilty of rape
committed by himself upon his lawful wife, for by their mutual matrimonial consent and
contract, the wife hath irrevocably given up herself, sexually, unto her husband’.144
Criminalisation of marital rape is not creation of a new offence, it is rather the removal
of an old legal fiction which is ‘anachronistic and offensive’.145 The same sentiments were
expressed by the House of Lords in R v R,146 where it was held that ‘the idea that a wife by
marriage consents in advance to her husband having sexual intercourse with her whatever her
state of health or however proper her objections is no longer acceptable. It can never have
been other than a fiction, and fiction is a poor basis for the criminal law’.147 The defence in
139
CW Kung’u Criminalisation of Marital Rape in Kenya unpublished LLM thesis (University of Toronto)
(2011) 24.
140
Ibid.
141
Kung’u op cit (n139) 25.
142
143
144
145
146
R v R 1992 1 A.C 599.
147
R v R supra (n146) at 610.
36
this case had rested on Hale’s doctrine that a man cannot rape his wife and as a result, the
husband’s conduct could not be held unlawful.148 Justice Owen, who presided over the case,
rejected Hale’s statement as being made at a time when marriage was indissoluble.149 Even
though this is not a Botswana case, it must be noted that the substratum of criminal law of
Botswana is English law and particularly the judicial decisions of the English courts150 and
thus has persuasive value on cases decided in Botswana. Even the Penal Code of Botswana is
based on English criminal law.151
As pointed out in the previous section, criminalisation of marital rape is also necessary
in that the existing international law requires that states parties criminalise marital rape, as
one of the legal interventions in ensuring protection of women’s human rights.152 Some
scholars suggest that the international law requirement to criminalise marital rape is based on
the findings that indicated marital rape as a violation of a range of fundamental human rights
that are protected by international law.153 Some of the internationally recognised human
rights that are violated by marital rape are the right not to be subjected to torture or to cruel,
inhuman, or degrading treatment or punishment,154 the right to life,155 the right to liberty and
security of the person,156 the right to be free from discrimination,157 the right to equality in the
family158 and the right to health.159
(a) The right not to be subjected to torture or to cruel, inhuman, or degrading

treatment or punishment
The right not to be subjected to torture or to cruel, inhuman, or degrading treatment or
punishment is provided for under the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (herein after referred to as CAT). Botswana became a
state party and legally bound to the terms of CAT through ratification in September 2000.
The right not to be subjected to torture or to cruel, inhuman, or degrading treatment or
148
R v R supra (n146) at 748.
149
Ibid.
150
L Booi ‘Botswana’s legal system and legal research’, October 2015, available at www. Nyulawglobal.
Org/globalex/Botswana, accessed on 17 November 2018.
151
Ibid.
152
153
Idid.
154
CAT article 1.
155
ICCPR article 6.
156
ICCPR, article 9.
157
CEDAW, article 1.
158
CEDAW, article 5.
159
ICESCR, Article 12.
37
punishment includes the right to not be subjected to domestic violence and rape.160 This was
emphasised by the United Nations Committee against Torture which considers gender-based
violence or rape by non-state actors to be a violation of the CAT.161 According to Randal and
Venkatesh, in terms of article 1162 of the CAT, marital rape satisfies the elements of an act of
torture, in that it involves infliction of severe pain and suffering, coercion and intimidation.163
The Committee Against Torture obliges States to make the offence of torture punishable
as an offence under criminal law.164 Since marital rape has been identified as an act of torture,
the Convention compels the states to enact criminal sanctions against marital rape.165
International criminal law has also held rape to constitute torture and cruel and
inhuman treatment even in instances where it is conducted by private actors.166 As an
example, in the case of Prosecutor v Furundžija,167 the International Criminal Tribunal of
Yugoslavia asserted rape an outrage upon personal dignity and physical integrity that must be
criminalised.168
Another example that ties rape to inhuman treatment is the judgment of European
Court of Human Rights that found that premeditated punishment or behavior causing intense
physical and mental suffering is equivalent to inhuman treatment.169 According to Randall
and Venkatesh, sentiments that I associate myself with, marital rape fits into the definition of
inhuman treatment.170
When advocating for criminalisation of torture that may take the form of marital rape, the
Committee Against Torture stated that
160
161
United Nations Committee Against Torture, General Comment No. 2 to the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment on the Implementation of Article 2 by States
Parties, CAT/C/GC/2, 23 November 2007, at paras. 18 and 22, available at
https://www.refworld.org/docid/47ac78ce2.htm, accessed on 6 July 2019.
162
Article 1 provides that ‘the term "torture" means any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.’.
163
164
165
Ibid.
166
Randall and Venkatesh op cit (n20) 180; See also United Nations Committee Against Torture op cit (n153) at
para 18.
167
Prosecutor v Furundžija 1998 IT95-17/1-T, Judgment, 144, 183, 163–89.
168
169
170
Ibid.
38
Naming and defining [torture as a distinct crime] will promote the Convention’s aim, inter alia, by alerting
everyone, including perpetrators, victims, and the public, to the special gravity of the crime of torture.
Codifying the crime of torture will also emphasize the need for a) appropriate punishment that takes into
account the gravity of the offence, b) strengthening the deterrent effect of the prohibition itself and c)
enhancing the ability of responsible officials to track the specific crime of torture and d) enabling and
empowering the public to monitor and, when required, to challenge state action as well as state inaction that
violates the Convention.171
(b) The right to life
Botswana became a state party and legally bound to the terms of the International Covenant
on Civil and Political Rights (hereinafter referred to as ICCPR) through ratification in
September 2000. Article 6. 1 of ICCPR provides that ‘[e]very human being has the inherent
right to life.’ Article 6. 1 further provide that the right shall be protected by law and no one
shall be arbitrarily deprived of his or her life. Marital rape violates Article 6. 1 of ICCPR in
that, according to the World Health Organisation, marital rape has some distinct health
implications that may affect women’s right to life. Such health consequences include
miscarriages, fistulas, bladder infection and possible contraction of sexually transmitted
diseases that include HIV and AIDS that may result in fatalities.172 Generally, violence
against women in domestic relationships, particularly intimate partner violence has been
deemed as the leading cause of death in the world.173
(c) The right to liberty and security of the person
The right to security and liberty of the person is provided for in article 9 of the ICCPR, which
reads inter alia that ‘[e]veryone has the right to liberty and security of person’. The right is
also provided for in article 3 of the Universal Declaration of Human Rights (hereinafter
referred to as UDHR), a non-binding declaration that is generally considered as part of
international customary law.174 UDHR provides that ‘[e]veryone has the right to life, liberty
and security of person.’ As such, since marital rape is a violation of both physical and
psychological security of the victim, including an obstruction to enjoyment of the right to
liberty within the victim’s home, the provisions contained in the UDHR and the ICCPR have
171
Randall and Venkatesh op cit (n20) 182; See also United Nations Committee Against Torture op cit (n153) at
para 11.
172
173
Ibid.
174
Australian Human Rights Commission ‘What is the Universal Declaration of Human Rights’, available at
https://www.humanrights.gov.au/publications/what-universal-declaration-human-rights, accessed on 18
December 2018.
39
been used in some fora to justify why States should enact penal sanctions against it.175 An
example, is in the Report of the Committee on the Elimination of Discrimination Against
Women ( Exceptional Session), the Committee expressed its concern that the Hungarian
Penal Code, as it then was, treated sexual offences as crimes against decency rather than the
UDHR and ICCPR recognised violation of women’s rights to bodily security. 176 The
Committee was particularly concerned that the definition of rape, including within marriage,
was based on the use of force instead of lack of consent.177 Based on these concerns, the
Committee recommended inter alia that Hungary reform its law to define sexual crimes as
crimes involving violations of women’s rights to bodily security.178Another example, that is
closer to Botswana, is found in the South African case of S v Baloyi179 where Sachs J held
that serious threats to security of the person arise from private sources and that the
constitutional provisions protecting the rights to security need to be understood as obliging
the state directly to protect the right of everyone to be free from private or domestic
violence.180
(d) The right to be free from discrimination on the basis of sex

The right to be free from discrimination is established in all the major human rights
treaties.181 For example, the right is provided for in the CEDAW which defines
discrimination against women as ‘any distinction, exclusion or restriction made on the basis
of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment
or exercise by women’.182 Article 9 on the other hand obliges states parties to include
violence perpetrated by any person, organisation or enterprise when addressing violence
against women. To give effect to their obligations under CEDAW, states parties are to make
measures that are geared towards ending discrimination against women through laws, policies
and commitments by state institutions.183 Further, CEDAW compels its states parties to
‘establish legal protection of the rights of women on an equal basis with men and to ensure
through competent national tribunals and other public institutions the effective protection of
175
176
United Nations ‘Report of the Committee on the Elimination of Discrimination Against Women’ A/57/38
(2002) at Para 333.
177
Ibid.
178
United Nations op cit (n179) Para 334.
179
S v Baloyi 1999 CCT 29/99 ZACC.
180
S v Baloyi supra (n179) at para 11.
181
182
CEDAW article 1.
183
Ibid.
40
women against any act of discrimination’.184 In 1992, through General Recommendation 19,
CEDAW acknowledged that gender-based violence is a form of discrimination in that
violence against a woman is based purely on the basis that she is a woman.185
Failure to criminalise marital rape infers discriminatory treatment of women in two
ways. Firstly, a distinction is made between different types of crime, resulting in women
being discriminated against based on violence that is experienced by women and other
general types of violence, such as assault or even murder. Secondly, a distinction is made
between non marital rape and marital rape, resulting in some women being discriminated
against based on their marital status. Put differently, failure to criminalise marital rape makes
a distinction between violence experienced in the public sphere and violence experienced in
the private sphere, resulting in discrimination against women who are raped by their
husbands in comparison to classic rape, as defined in the introductory chapter.186 Failure to
criminalise marital rape can therefore lead to discrimination on the basis of marital status and
result in married women not being afforded the same protection of the law as women who are
victims of classic rape.
When the law in Botswana does not to criminalise marital rape, married women are
denied equality before the law and equal protection of the law, contrary to the already cited
section 3 of the Constitution of Botswana. The discrimination is on the basis of sex. Failure to
criminalise marital rape also denies married women equality with other women on the basis
of how they relate with the perpetrator of gendered violence against them. Sampson is of the
view that when the law fails to deal with marital rape, the result is that men are empowered
and placed in a position where they achieve increased dominance and control over their wives
individually and women collectively.187 Samson is also of the view that the failure of the law
to protect and promote married women‘s equality rights, in the marital rape context,
reinforces the hierarchy of good victims versus bad victims.188 What this means is that good
girls may be understood to be women who comply with the concept of presumed consent
upon marriage and do not reject their husbands sexual demands.189 This is consistent with
Tswana cultural belief that a good wife is the one who submits to her husband and is always
sexually available to her husband. Bad girls on the other hand, are married women who
184
CEDAW article 2 (c).
185
186
Ibid.
187
F Sampson ‘The legal treatment of marital rape in Canada, Ghana, Kenya and Malawi – a barometer of
women’s human rights’ (2010) The African and Canadian Women’s Human Rights Project 15.
188
Ibid.
189
Ibid.
41
refuse their husbands’ sexual advances and assert their sexual autonomy. They particularly
challenge the Tswana traditional norm that demands that women should always be sexually
available to their husbands and do not adhere to the Tswana traditional social construct of the
wife as the ‘legal chattel of her husband, to be used as he wills’190 and whose dignity and
security of the person are not valued and not legally protected. As a result, such women are
considered to be social outcasts who have strayed from Tswana traditional norms regarding
marriage.
My belief is therefore that failure to criminalise marital rape will results in legally
condoned violence that reinforces women’s low ranking position in the social hierarchy and
generally allow for the devaluation of women in law, and allows for the reduction of their
autonomy and independence in society. Failure to criminalise marital rape is treating married
women as some form of property thereby crystallising women’s inequality in society and, in
the case of Botswana, negating the objective of the Abolition of Marital Power Act. 191
In conclusion, failure to criminalise marital rape brings about the undesired
discriminatory effect on women, contrary to the provisions of international human rights law
as contained in major human rights treaties.
(e) The right to equality in the family

The right to equality in the family is provided for in article 5 of the CEDAW. In society or
culture where women are denied the right to give or refuse consent for sex in marriage, there
can never be gender equality.192 Equally, an implied irrevocable consent to sex with a spouse
may amount to treating a married woman as a form of sexual property of the husband
therefore violating her right to equality. What this means is that in countries where marital
rape is condoned or not legally prohibited, married women’s right to equality within the
family are violated.193 In this regard, CEDAW requires its member states to
modify the social and cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices and customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.194
In the case of Botswana, the enactment of the Abolition of Marital Power Act, in 2005, is not
enough to give effect to the just cited CEDAW requirement. Botswana has to put in place
190
J Sitton ‘Old wine in new bottles: the marital rape allowance’ (1993) 72 North Carolina Law Review 261 at
269.
191
Ibid.
192
193
Ibid.
194
CEDAW article 5.
42
effective, proportionate and dissuasive sanctions against all practices or stereotyped roles,
including marital rape, which may hinder the achievement of this CEDAW requirement.
(f) The right to health

In linking marital rape to a violation of the right to health, Randall and Venkatesh observe
that
marital rape represents a violation of the right to the highest standard attainable of physical and mental
health as protected by the UDHR. In addition to the psychological trauma that can lead to anxiety, shock,
intense fear, depression, suicidal ideation, and post-traumatic stress, marital rape can have specific health
consequences such as miscarriages, stillbirths, bladder infections, infertility, and the potential contraction
of sexually transmitted diseases including HIV.195
In Botswana, the GBV Indicators Study Botswana reports that women who experienced
intimate partner violence or rape were more likely to have sexually transmitted infections and
that 20 per cent of Batswana women who experienced sexual intimate partner violence in
their life time were HIV positive.196 Further the study indicated that 8.7 per cent of women
who took part in this study had attempted suicide as a result of the intimate partner violence
that they have suffered.197 In South Africa, when lobbying the government to criminalise
marital rape, women’s groups argued that marital rape undermined efforts to combat the
HIV-AIDS pandemic particularly affecting African women.198
3.4 Limitations of penal sanctions in addressing marital rape

It would be presumptuous of me to not acknowledge the limitations of penal sanctions in
addressing marital rape because one of the main limitations of criminal law in addressing
intimate partner violence is that it does not take into account the complex nature of the
relationship between the victims and their perpetrators.199 There may be some instances
where the victim’s emotional commitment to the perpetrator may dissuade her from taking
legal action that can potentially have him arrested.200 In most cases these women want the
violence to end but they may not necessarily want their husband to be imprisoned specially,
in instances where the abusive husband is the primary breadwinner in the household.201
195
196
197
Ibid.
198
199
200
201
Ibid.
43
Some ongoing debates on the demerits of criminalising marital rape can be traced
back to the broader scepticism about legal processes. As an example, feminists in India are
said to have ‘little or no faith in legal solutions’ to domestic violence.202 Other scholars such
as Charlesworth consider the law to be a patriarchal institution that may not be of any value
in transforming women’s subordinate status.203 In Botswana the scepticism about the legal
processes is evidenced by the prevalence rate of gender-based violence, which has previously
been said to be 24 times higher than the number of cases reported to the Police in the year
2011.204 The Minister of Nationality, Immigration and Gender Affairs attributes this lack of
reporting to ‘crisis of confidence in the justice system.205 Another criticism of criminalising
marital rape is that punitive state interventions are not properly equipped to deal with the
intimate and individualised character of intimate partner violence.206 A suggestion has
therefore been made that legal intervention be invoked only in life threatening cases of
intimate partner violence.207 Other cases that fall beneath this standard should be dealt with
by counselling interventions in Intimate Abuse Circles in order to foster reconciliation.208
The other challenge of providing only criminal sanctions for intimate partner violence
is that they do not address attitudes and behaviours associated with the violence. What this
means therefore is that even if the law is clear in its prohibition of any form of intimate
partner violence including marital rape, as long as the perpetrators do not perceive intimate
partner violence, especially marital rape, to be wrong, the law will not be effective.209
Another practical limitation of penal sanctions in addressing marital rape is what leads to
secondary battering210 due to delays associated with criminal law and the nature of judicial
process.211 A criminal matter brought before the courts of Botswana can take months, or even
years, before it is concluded. This is because the primary role of the courts, within the
criminal justice system is to determine whether based on the evidence adduced, the accused
committed the alleged offence.212 Domestic violence cases, particularly sexual violence
202
J Klugman ‘Gender-based violence and the Law’, (2017) at page 25, available at
https://openknowledge.worldbank.org, accessed on 14 February 2019.
203
Ibid.
204
205
Ibid.
206
Klugman op cit (n202) 25.
207
Ibid.
208
209
210
Double battering in this context means the painful situation whereby the victim if forced to endure the long
criminal law process and have to keep re living the abuse over and over.
211
212
K Frimpong and A McCall Smith The criminal law in Botswana (1992) 2.
44
require an expedited intervention to avoid the victim being re-victimised and also to ensure
that appropriate measures are put into place to protect the victim.213 The importance of
effective criminal justice system is emphasised by the South African Constitutional Court
which recognised, in the case of S v Baloyi that the ‘ineffectiveness of the criminal justice
system in addressing family violence intensifies the subordination and helplessness of the
victims.’214 The Constitutional Court further held that in the event that the criminal justice
system is ineffective, it ‘sends an unmistakable message to the whole society that the daily
trauma of the vast numbers of women count for nothing.’215
With the limitations of the penal sanction on marital rape acknowledged, I still argue
that criminal law is vital in the fight against marital rape. These sentiments are shared by the
U.N. Special Rapporteur on violence against women who is emphatic about the particular
efficacy of penal sanctions, especially in securing a reduction in violence.216 Specifically, the
Special Rapporteur states that –
It is often argued that the human rights approach, with its emphasis on law and punishment, may not be
very productive in fighting violence against women on the ground. Many activists feel that the
emphasis should be placed on education and health strategies that combat attitudes over the long term.
However, history does have examples of how strong and effective laws have eliminated certain
practices within a matter of years….The existence of a criminal sanction ensures that parents have an
excuse to spare their child such a practice. The law allows parents a way to avoid giving in to social
pressure and custom. Without such a law, it is difficult to eradicate a practice in a generation.217
Other scholars such as Kung’u hold the view that using criminal sanctions, can act to prevent
violation of married women’s rights where sexual violence, which is perpetrated by their
spouses, is concerned.218 While criminal sanctions do not correct a wrong what has already
been done, effective, proportionate and dissuasive criminal sanctions may help deter
individuals from repeating or continuing with the criminal offence for which they are
punished.219 The Special Rapporteur Coomaraswamy has also remarked that, without
criminal law, it is difficult to eradicate harmful practices in the society.220 Criminalising
marital rape could therefore, based on the above arguments, serve as deterrent to husbands
who are in the habit of coercing their wives into sexual relations.
213
214
215
Ibid.
216
217
R Coomaraswamy ‘Cultural Practices in the Family that are violent towards Women’ UN Commission on
human rights, Report of the special rapporteur on violence against women (2002), E/CN, 4, 83 at para 112.
218
219
Ibid.
220
Coomaraswamy op cit (n217) para 112.
45
Further, penal legislative provisions on marital rape would provide married women
with the opportunity to seek legal recourse in the event that they find themselves being
violated sexually by their lawful husbands. Put differently, married women will, through
criminalised marital rape, have an option to assert their rights against harms that violate their
rights to equal protection of the law, non-discrimination and also their right to protection
against violence. Recognising marital rape as an offence would also aid in determining the
prevalence of marital rape in Botswana. I say this because it has already been stated in this
dissertation that there are no marital rape statistics in Botswana due to non-existence of a
statutory offence termed marital rape. My firm conviction is that even though government
should not rely on statistics to decide whether or not to criminalise marital rape because
marital rape has severe physical and psychological impact on women, accurate statistics that
indicate the prevailing extent of marital rape would help advocate for and inform policy
change that may result in the criminalisation of marital rape and other measures that would be
geared towards this form of intimate partner violence.
In the case of S v Baloyi the Constitutional Court of South Africa recognised that it is
a constitutional requirement to deal effectively with domestic violence because it is a unique
criminal offence that is hidden, of repetitive character and that it has an immeasurable ripple
effects on the society, particularly on the family.221 According to Sachs J, a well-functioning
judiciary and appropriate legislation to address any form of domestic violence is necessary
according to the provisions of section 12 (1) of the South African Constitution which reads
that ‘[e]veryone has the right to freedom and security of the person, which includes the
right…to be free from all form of violence from either public or private sources.’222 This
provision is at par with section 3 of the Constitution of Botswana which has already been
cited in this dissertation to read ‘every person in Botswana is entitled to the fundamental right
and freedoms of the individual, that is to say, the right, whatever his or her…sex…namely
life, liberty, security of the person and the protection of the law.’223I conclude therefore by
stating that marital rape should be criminalised to direct that sexual violence meted against
women cannot be condoned.
3.5 Conclusion
221
222
Ibid.
223
Section 3 of the Constitution of Botswana.
46
Domestic violence is a ‘pervasive and frequent lethal problem’224 that violates both domestic
and international human rights. At international law, calls have been made for the
criminalisation of marital rape. The provisions of CEDAW, SADC Protocol, ICCPR, and AU
Woman’s Protocol were discussed with an attempt to show their application in Botswana and
how Botswana as part of the international community can apply their provisions to
criminalise marital rape. Prohibition of domestic violence, particularly marital rape, does not
only protect the victims from physical pain but also from mental suffering. Marital rape in
particular has been found to result in physical and psychological harm and injury to the
victims. Criminalisation of marital rape is therefore a way in which the power of the law can
be drawn upon to prohibit or prevent the human rights that are violated by marital rape and
other forms of domestic violence. Criminalisation of marital rape has however been criticised
for not fostering reconciliation within families and subjecting women to legal interventions
that lead to second battering.225 Nonetheless, the prevailing position in this chapter is that the
existence of criminal sanctions against marital rape ensures that women are spared the harm
that they are subjected to as result of marital rape.
224
225
47
CHAPTER 4: HOW THE LAW OF BOTSWANA CAN BE REFORMED TO
CRIMINALISE MARITAL RAPE: LESSONS FROM OTHER JURISDICTIONS
4.1 Introduction
The United Nations reports that two thirds of the countries in the world have laws in place
against domestic violence.226 However, most of these countries do not have laws that
explicitly criminalise marital rape because the United Nations Women Justice Report: Get
Data indicates that as of April 2011, out of 179 countries for which data was available, only
52 countries had either amended their existing legislation or enacted new pieces of legislation
to explicitly render marital rape as an offence.227 African countries that effected this change
include South Africa and Zimbabwe.228 Botswana remains among the countries that have not
explicitly criminalised marital rape.
4.2 Law Reform
The legal position in Botswana, as has been pointed out in the introductory chapter, is not
satisfactory in that the law recognises rape as a criminal offence but is silent on marital rape.
Section 141 of the Penal Code which defines and criminalise rape only makes reference to
marriage where it extends the definition of rape to persons who pretend to be the victim’s
spouse. For the purposes of this dissertation, this provision is worrisome in that the legal
position on marital rape in Botswana seem to suggest that consent to sex in marriage is an
irrevocable part of a marriage contract thereby, giving husbands the licence to rape their
wives with little protection for women. The silence of the Penal Code on marital rape has
resulted in considerable confusion among some Batswana who are not certain whether
marital rape can ever attract criminal responsibility in Botswana.229 The prevailing view
during the 2013 study on Women’s Access to Justice in Botswana: Identifying the obstacles
and Need for Change was that rape in marriage would not constitute a prosecutable offence
given the silence on the matter in the Penal Code.230 The participants were not aware of any
instances in which marital rape had been prosecuted even though they knew that such cases
226
United Nations Women Justice Report: Get Data, 6 July 2011, Available at
https://www.theguardian.com/global-development/poverty-matters/2011/jul/06/un-women-legal-rights-
data#data, accessed on 8 December 2018.
227
Ibid.
228
Ibid.
229
Dingake, Grensens and Kidd op cit (n39) 74.
48
existed and some of them had been victim of marital rape. The view that marital rape is not a
criminal offence is however contrary to the High Court judgement that held that ‘[r]ape is a
most serious, humiliating and invasive assault against a person, whether male or female, and
to suggest that it should be permitted if the perpetrator is a spouse is…totally unacceptable,
and an historic aberration.’231 I note that the case did not involve allegations of marital rape
but as pointed out by Jonas,232the Letsholathebe v The State is a ‘flicker’ of the abolition of
the spousal exemption doctrine.233
The position in this dissertation is clear that marital rape is not proscribed under
Botswana law. But to clear the confusion that some Batswana are reported to have on
whether marital rape can attract criminal responsibility in Botswana, the law, specifically the
Penal Code should at least be amended in the definition of rape to extend to and specifically
include marital rape. The offence should also extend to cases where the husband and wife are
no longer cohabiting, whether there is a court order to that effect or not. A few techniques
that can be used to criminalise marital rape and make it clear that husbands do not enjoy
prosecution immunity for raping their wives include the following: first, replacing language
that can be construed as exclusionary language in the definition of rape with language that
expressly specify that being married to the victim is not a defence in a rape case; and
secondly, enacting additional laws that create criminal penalties for marital rape. The one
piece of legislation that come to mind when discussing additional penal laws or provisions on
marital rape is the DVA Botswana, which could be amended to carry penal sanctions and also
make specific reference to marital rape.
As it has already been stated in this dissertation, a background of the DVA Botswana is
that before its enactment, most domestic gender-based violence offences were dealt with
under the Penal Code which is the general criminal code. The domestic violence offences
provided for under the Penal Code apply generally to every person thus, making them not
specific to offences that result from violence that take place in domestic settings.234 What is
relevant to this dissertation is that the proceedings under the DVA Botswana are civil in
nature and thereby lack punitive sanctions leaving the victim with no choice but to seek
recourse for violence suffered in domestic settings, under the criminal justice system which
231
Letsholathebe v The State 2008 3 BLR 1 HC.
232
O Jonas ‘Letsholathebe vs the State: Towards the Abolition of Spousal Exemption in Botswana?’ (2013). 17
Mediterranean Journal of Human Rights 225.
233
Ibid.
234
As an example section 146 which criminalises indecent assault by providing that ‘[a]ny person who
unlawfully and indecently assaults any person is guilty of an offence…’
49
does not recognise marital rape.235 What is more pertinent for the purpose of this dissertation
is that if the victim is married to the perpetrator she will not receive full recourse under
criminal proceedings, as the law in Botswana has not expressly declared marital rape an
offence.
4.3 Legal Interventions on Marital Rape in South Africa and Zimbabwe
4.3.1 The South African Legal Framework
The prevalence of rape in South Africa was at some point so high that the country held the
title of ‘rape capital of the world’.236 It is was even estimated that a woman in South Africa
was raped every 17 seconds.237 Specifically on marital rape, the attitude of many South
Africans is that ‘it is not rape as long as the perpetrator is one’s husband.’238 A case that
highlights this stereotype is that of S v Modise239 where the Judge Gura made utterances to
the effect that ‘[t]he appellant’s’s desire to make love to his wife must have overwhelmed
him, hence his somewhat violent behaviour. The appellant, however, neither smacked,
punched nor kicked the complainant. Minimum force, so to speak, was resorted to in order to
subdue the complainant’s resistance.’240 The Judge went on further to state that ‘[t]he
relationship, of husband and wife, should never be overlooked by any judicial officer.’241
This Judgment can however not withstand constitutional scrutiny because, it upsets the
equality provision in the South African Bill of Rights. The provision states that the state may
not unfairly discriminate directly or indirectly against anyone on one or more grounds
including among other factors such as marital status.242 .
Even with the attitude among some South Africans that rape is not rape if the
perpetrator is the victim’s husband,243 South Africa is one of the few SADC countries244 that
have made positive strides in protecting women against domestic gender-based violence by
criminalising marital rape as one of the legal interventions.245 The tone for this protection is
235
Section 17 of the Domestic Violence Act (Cap. 28:05) provides that ‘[a]n order under the Act shall not
diminish any other action against the respondent.’.
236
Hancox op cit (n23).
237
Ibid.
238
Ibid.
239
S v Modise 2007 113/06 ZANWHC.
240
S v Modise supra (n239) at para 19; (emphasis added).
241
S v Modise supra (n239) at para 21; (emphasis added).
242
Section 9 (3) of the Constitution of South Africa (1996).
243
244
Besides Zimbabwe, whose legal frame work is being examined in this paper, other countries include Lesotho,
Tanzania, Namibia, and Seychelles.
245
United Nations Women Justice Report: Get Data op cit (n226).
50
set by the Constitution which aim inter alia to create an open and democratic society based
on human dignity, equality and freedom.246 The constitutional provision that is more
profound for the protection of women against violence, including domestic violence is
section 12 (c) which provides that ‘everyone has the right to freedom and security of the
person, which includes the right to be free from violence from either public or private
sources.’ Based on the supremacy of the Constitution, it can be inferred that this provision
gave rise to the South African Prevention of Family Violence Act.247 This Act provided for
rape of wife by her husband by stating that ‘a husband may be convicted of the rape of his
wife.’248 Although the Prevention of Family Violence Act was a notable step towards
protection of women against violence, it had some flaws that rendered the domestic violence
protection offered under the Act inadequate. For instance, a scholar by the name of Fedler is
reported to have criticised the Act for failing to give a legal definition of domestic violence,
not clarifying who, under the Act, qualified for an interdict to prevent family violence and
also giving a vague definition of family violence.249 The shortcomings of the Prevention of
Family Violence Act were also highlighted by Amien who holds the view that the remedies
offered by the Prevention of Family Violence Act were narrow and insufficient, and had
clearly proved to be ineffective.250
The flaw of the Prevention of Family Violence Act, illustrated above, resulted in the
enactment of the Domestic Violence Act (herein after referred to as DVA South Africa),251
which retained the prohibition on marital rape and took a more gender-sensitive approach to
domestic violence.252 The application of the DVA South Africa is also broader than that of
the Prevention of Family Violence Act in that it has inter alia a wide definition of domestic
violence and domestic relationship. For instance, the DVA South Africa has extended the
protection from domestic violence to parties who are or were married to each other according
to any ‘law’, ‘custom’ or ‘religion’ while reference to marriage under the Prevention of
Family Violence Act applied to parties married to each other under any ‘law’ or ‘custom’. By
extending the definition of domestic relationship to parties who are or were married to each
246
Preamble of the Constitution of South Africa (1996).
247
Prevention of Family Violence Act 133 of 1993.
248
Section 5 of the Prevention of Family Violence Act 133 of 1993.
249
S Mathews and N Abrahams ‘Combining Stories and Numbers: An Analysis of the Impact of the Domestic
Violence Act (No.116 of 1998) on Women’ (2011) The Gender Advocacy Programme & The Medical Research
Council (Gender & Health Research Group) 6.
250
WAmien ‘Recent developments in the area of women’s rights in South Africa: focus on domestic violence
and femicide’ (1998) 3 Women, 1 at 5.
251
Domestic Violence Act 116 of 1998.
252
Amien op cit (n250) 5.
51
other according to religion, the DVA South Africa has broadened the spectrum of married
people to whom the Act applies thereby protecting more married victims. The Act has been
hailed by some scholars as recognising the complexity of and providing legal protection to
cohabiting married couples and those that have separated.253 The Act is also commended for
recognising the fact that domestic violence manifests itself in many forms.254
Still in the bid to protect victims of marital rape, South Africa enacted the Criminal
Law (Sentencing) Amendment Act in 2007. One of the purposes of the Act was ‘to provide
that certain circumstances shall not constitute substantial and compelling circumstances
justifying the imposition of a lesser sentence when a sentence must be imposed in respect of
the offence of rape’.255 On this issue, section 3(aA) provides that
[w]hen imposing a sentence in respect of the offence of rape the following shall not constitute
substantial and compelling circumstances justifying the imposition of a lesser sentence: (i) The
complainant's previous sexual history; (ii) an apparent lack of physical injury to the complainant; (iii)
an accused person's cultural or religious beliefs about rape; or (iv) any relationship between the accused
person and the complainant prior to the offence being committed.
Before the enactment of the Criminal Law (Sentencing) Amendment Act, the law on
marital rape was once again improved by the enactment of the Criminal law (Sexual Offences
and Related Matters) Amendment Act.256 The Criminal law (Sexual Offences and Related
Matters) Amendment Act criminalises marital rape and reject marital relationship as a
defence to sexual offences by providing that ‘[w]henever an accused person is charged with
an offence under section 3 which provides for rape, section 4 which provides for compelled
rape, section 5 which provides for sexual assault, section 6 which provides for compelled
sexual assault or section 7 which provides for compelled self-sexual assault, it is not a valid
defence for that accused person to contend that a marital or other relationship exists or
existed between him or her and the complainant.’257
The Constitution of South Africa can also been hailed for the provision that obliges
the courts tribunals or fora to consider international law when interpreting the Bill of Rights
and also interpret legislation in the spirit of the Bill of Rights.258 In comparison to Botswana,
a similar provision on the status of international law is discretionary and is provided for in the
Interpretation Act and not supreme law of the country, as is the case in South Africa
253
254
Amien op cit (n250) 5.
255
Criminal Law (Sentencing) Amendment Act 38 of 2007.
256
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
257
Section 56 (1) of the Criminal law (Sexual Offences and Related Matters) Amendment Act32 of 2007.
258
Section 39 of the Constitution of South Africa (1996).
52
Further, the Constitution of South Africa is decisively egalitarian by providing that
South Africa is a democratic state that is founded on the values of human dignity, the
achievement of equality and the advancement of human rights and freedoms.259 The
Constitution of South Africa contains in it provisions that are paramount for the protection of
women against violence that includes domestic violence. One such provision is section 12
that provides inter alia that ‘everyone has the right to freedom and security of the person,
which includes the right to be free from violence from either public or private sources’260 and
that they also have the right to bodily and psychological integrity which includes the right to
security in and control over their body.261 The latter provision is more relevant for cases of
marital rape where a woman’s bodily integrity is violated.
Scribner and Lambert are of the view that the ‘[e]galitarian constitutional provisions
in South Africa have provided women’s movements with a legal tool to fight gender
discrimination and proactively push for women’s equality’.262 Laws that promote gender
equality are paramount when it comes to empowering women to close the unequal power gap
between men and women thus reducing the prevalence of gender-based violence, particularly
marital rape. When compared to the Constitution of Botswana, the Constitution of Botswana
has already been said not to set the tone for legal interventions where violence against women
is concerned and therefore does not provide enough influence for the legislature to come up
with gender progressive legislation.
4.3.2 The Zimbabwean Legal Framework
Just like in South Africa, many people in Zimbabwe believe that a wife should please her
husband sexually.263 The attitude is reported by Njovana and Watts as stemming from the
traditional norms which specify that upon payment of bride price, a man assumes rights over
his wife’s sexuality and fertility.264
Consequently, Zimbabwe is another African country that has criminalised marital
rape to remove the immunity that husbands enjoyed against prosecution for sexual
violence against their wives. For Zimbabwe, the tone of this removal of marital rape
prosecution immunity for husbands is set by the 2004 Criminal Law (Codification and
259
Section 1 (a) of the Constitution of South Africa (1996).
260
Section 12 (1) (c) of the Constitution of South Africa (1996).
261
Section 12 (2) (b) of the Constitution of South Africa (1996).
262
Scribner and Lambert op cit (n80) 58.
263
E Njovana and C Watts ‘Gender violence in Zimbabwe: A need for collaborative action’ (1996) 4:7
Reproductive Health Matters 46 at 5.
264
Njovana and Watts op cit (n263) 48.
53
Reform) Act which, like the South African Criminal law (Sexual Offences and Related
Matters) Amendment Act, provides that
[i]t shall not be a defence to a charge of rape, aggravated indecent assault or indecent assault that the
female person was the spouse of the accused person at the time of any sexual intercourse or other act
that forms the subject of the charge.265
In the same spirit, the Domestic Violence Act of Zimbabwe (hereinafter referred to as DVA
Zimbabwe) 266 makes provision for the protection and relief of victims of marital rape by
clarifying that a complainant under the Act includes ‘a current, former or estranged spouse of
the respondent’.267 The protection of married women against marital rape is also found in the
definition of domestic violence which is provided for as including sexual abuse among other
forms of violence.268 The DVA Zimbabwe has extended the scope of domestic violence to
any unlawful act, omission or behaviour which results in death or the direct infliction of
physical, sexual or mental injury to any complainant by a respondent and includes abuse
derived from the following cultural or customary rites or practices that discriminate against or
degrade women –
(i) forced virginity testing;
(ii) female genital mutilation;
(iii) pledging of women or girls for purposes of appeasing spirits;
(iv) forced marriage;
(v) child marriage;
(vi) forced wife inheritance; or
(vii) sexual intercourse between fathers-in-law and newly married daughters-in-

law;269
Besides the legal provisions against marital rape, the courts in Zimbabwe have made
pronouncements that confirm that indeed marital rape is an offence. One such pronouncement
was made by Mafusire J in the case of State v Steady Bimha270, where by it was held that ‘in
265
Section 68 (a) of the Criminal (Codification and Reform) Act (Cap. 9:23) Act 23 of 2004.
266
Domestic violence Act (Cap. 5:16) Act 24 of 2006.
267
Section 2 (1) (a) of the Domestic Violence Act (Cap. 5:16) Act 24 of 2006.
268
Section 3 (1) (b) of the Domestic Violence Act. (Cap. 5:16) Act 24 of 2006.
269
Section 3 (1) (l) of the Domestic Violence Act (Cap. 5:16) Act 24 of 2006.
270
S v Steady Bimha 2018 CRB MSVR.
54
terms of section 65 of the Criminal Law (Codification and Reform) Act, rape is sexual
intercourse by a male person with a female person without consent.’271 Mafusire J further
stated that ‘[e]ven wives can be raped’ and that ‘[i]t is not the type of relationship that
determines whether the sex act is rape or not’.272
4.4 Lessons that Botswana Can Learn from the Laws of South Africa and Zimbabwe
with Regard to Marital Rape
Botswana can borrow a leaf from South Africa and Zimbabwe by enacting specific
legislation prohibiting marital rape thus, establishing consequences that punish violations
relating to marital rape. Learning from our neighbouring South Africa and Zimbabwe,
Botswana can include, in the criminal code, provisions that make it clear what the legal
position on marital rape is. An approach like that would be similar to that of the South
African Criminal Law (Sexual Offences and Related Matters) Act where section 56 (1)
provides that ‘it is not a valid defence for that accused person to contend that a marital or
other relationship exists or existed between him or her and the complainant in cases of rape,
compelled rape, sexual assault, compelled sexual assault and compelled self-sexual assault’.
In Zimbabwe the relevant piece of legislation is the previously mentioned section 68 (a) of
the Criminal Law (Codification and Reform) Act. Penal provisions on marital rape, similar to
those in South Africa and Zimbabwe, can be used to punish the social practices and beliefs
that give men sexual entitlement and legitimise sexual abuse in marriages in Botswana. The
GBV Indicators Study Botswana has indicated that sexual violence committed by husbands in
marriages is rooted in the societal norms that promote male sexual entitlement therefore
limiting women’s options to refuse sexual advances.273 Put differently, traditional norms
demand that women be always sexually available for to their husbands.274
Although there is no evidence in both South Africa and Zimbabwe to suggest that
criminal prohibition of marital rape has resulted in the decrease of marital rape prevalence,
the UN Special Rapporteur, Radhika Coomaraswamy has already been cited as suggesting
that there is evidence that penal sanctions are effective in reducing any type of violence.275
Specific to South Africa, Special Rapporteur on violence against women, its causes and
consequences, Ms. Dubravka Simonovic, suggests that the lack of evidence on the prevalence
271
S v Steady Bimha supra (n270) at para 16.
272
Ibid.
273
274
Ibid.
275
55
of domestic violence is due to under reporting or lack thereof by the South African Police
Service.276 Further, violence within a domestic setting is a crime and that it should receive the
same deterrent and protective properties that are provided by the criminal law, as it is the case
with other offences.277
Further, with enactment of laws that specifically proscribe marital rape, the social
service mechanisms would have to be put in place to ensure safety and enhance protection of
marital rape victims. Such social mechanisms could include support services that are
advocated for in the SADC Protocol on Gender and Development.278 South Africa is reported
to have, after the enactment of the Prevention of Family Violence Act, created social service
mechanisms which ensured the safety of marital rape victims.279 These services include the
provision of women’s shelters which accommodate victims of domestic violence so that they
are not forced to continue living with their abusers. The purposes of these services is to offer
social support to the victims of domestic violence. It must be noted that the DVA Botswana
authorises the Botswana Police Service or deputy sheriff to remove the survivors of domestic
violence from the residence in which they have suffered or likely to suffer the abuse but
remains silent on the provision of shelters for victims of domestic violence.280 There is no
legal obligation on the Government to provide shelters for survivors of domestic violence
however, the Botswana Police Service has been cited as saying that withdrawal of some
domestic violence cases is due to lack of shelters that provided safety accommodation and
facilitates for survivors of domestic violence. 281 My argument regarding the lack of provision
of shelters for survivors of domestic violence is that the silence of the DVA Botswana on the
provision of shelters to survivors of domestic violence compromises the very protection it
276
United Nations Special Rapporteur “Violence against women, its causes and consequences: South Africa ’, 4
to 11 December 2015, available at
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16830&LangID=E, accessed on 7
July 2019.
277
Gatang op cit (n35) 414.
278
Article 23 of the SADC Protocol on Gender and Development provides that state parties shall –
(a) provide accessible information on services available to survivors of gender-based violence;
(b) ensure accessible, effective and responsive Police, prosecutorial, health, social welfare and other
services to redress cases of gender-based violence;
(c) provide accessible, affordable and specialised legal services, including legal aid, to survivors of
gender-based violence;
(d) provide specialised facilities, including support mechanisms for survivors of gender-based
violence; and
(e) provide effective rehabilitation and re-integration programmes for perpetrators of gender-based
violence.
279
Meshesha op cit (n95) 54
280
Swartz; Itumeleng; and Danga op cit (n72) 14; see also section 9 (2) (a) of the Domestic Violence Act (Cap.
28: 05).
281
56
seeks to provide as the survivors end up having no place to stay, leaving them with no choice
but to go back to their abusers.
Another lesson that is worth learning from Zimbabwe is recognising that abuse is
derived from cultural or customary rites or practices that discriminate against or degrade
women. Such rites or practices include inter alia forced marriages, sexual intercourse
between father-in-law and newly married daughters -in-law and pledging of women for the
purposes of appeasing sprits.282
From the legal frameworks of both South Africa and Zimbabwe, Botswana can
generally learn that criminalisation of marital rape can at least partially disrupt the
perpetuation of gender inequality by challenging the idea that women are the sexual property
of men in a marriage and by sending a strong signal that marriage is based on equality
between spouses.283 Criminalisation of marital rape helps also in dispelling the attitude that
marital relations are a private matter that should be dealt with at home.284 Further,
criminalising marital rape give women control of their sexuality in marriages therefore
ensuring that states carry out their obligations to legally protect women’s human rights,
which include equality in the family, under international law.
4.5 Conclusion
The legal framework of Botswana on marital rape is as good as non-existent. The silence on
the matter does not do anything for women who suffer sexual abuse at the hands of their
husbands. South Africa and Zimbabwe are therefore setting a good example with regards to
legal frameworks that protect women against marital rape. As pointed out earlier in this
chapter, these two countries are among the few SADC countries that recognised that
criminalising marital rape is one of the ways in which a country could promote gender
equality and that eliminating discriminatory laws can go a long way in ensuring that, as part
of the global world, they fulfil their international law obligations. Some of these obligations,
as has already been mentioned in the previous chapter, are critical to promoting equality of
women in the family and the protection of the right of women to be free from discrimination.
In reforming its laws to criminalise marital rape, Botswana could either amend the
Penal Code to specifically include marital rape in the definition of rape, which is proscribed
under the Penal Code or amend the DVA Botswana to carry penal sanctions as well as make
282
Section 3 (1) (l) of the Domestic Violence Act (Cap. 5:16) Act 24 of 2006.
283
284
57
specific reference to marital rape. To effect the proposed legal reforms, Botswana could
follow in the footsteps of South Africa and Zimbabwe by specifically including a marriage
relationship in the definition of a domestic relationship. Botswana could also amend the Penal
Code to clarify that being married to the complainant is not a defence in sexual offence cases.
By so doing Botswana would be driving home the fact that marital rape is a criminal offence
therefore asserting the country’s legal position on marital rape.
58
Chapter 5: Recommendations
It has already been shown in this dissertation that marital rape is a form of violence against
women, one that is not recognised in Botswana. Some of the injustices that may result from
not recognising marital rape as a crime are violation of married women’s rights to not be
subjected to torture or to cruel, inhuman, or degrading treatment or punish, their right to life,
their right to be free from discrimination, the right to dignity, just to mention a few. These
rights are protected under international, regional and domestics laws. Failure to criminalise
marital rape in Botswana is also a contravention of section 3 of the Constitution of Botswana
which provides that every person in Botswana is entitled to the fundamental rights and
freedoms of the individual. Based on these implications of not criminalising marital rape, the
following actions are recommended:
5.1 Legal reform
The Government of Botswana should do a holistic review of the laws and evaluate the
demarcation between public and private spheres of law with particular reference to matters of
domestic violence and sexual offences, in line with the recommendation made by Emang
Basadi Women’s Association285 in 1998.286 The laws of Botswana, particularly the Penal
Code, should be revised to provide for criminal sanctions for domestic violence including
sexual violence within marriage. The explicit law against sexual violence within marriage
will remove the perceived immunity against the prosecution of married men who rape their
wives, thereby offering married women access to justice.
It is further recommended that the Constitution of Botswana be amended to remove
section 15(4) which allows discriminatory laws far as that law makes provision with respect
to marriage or other matters of personal law. Section 15(4) has been cited as providing that,
section 15 (1), which provides that ‘no law shall make any provision that is discriminatory
either of itself or in its effect, shall not apply to any law so far as that law makes provision
with respect to adoption, marriage, divorce, burial, devolution of property on death or other
matters of personal law. Removal of this provision will also offer married women improved
access to justice as well as guarantee their constitutional right under section 3 (a) of the
constitution which has been said to provide for fundamental rights and freedoms to
individuals regardless of one’s gender or marital status among other things.
285
Emang Basad Women’s Association is a non-governmental women’s human rights organisation.
286
Emang Basad Women’s Association ‘Rape in Botswana: Statistics, profiles, laws and consequences’ (1998)
25.
59
5.2 Political will
Chapter 2 discussed lack of political will to address gender-based violence, particularly,

marital rape, as one of the factors that perpetuate the negative public perception on marital
rape in Botswana. Political leaders hardly ever speak against gender-based violence. When
they had to talk about marital rape, all most of them could say was that they could not begin
to understand how a man could rape his wife. The result of such utterings was the removal of
a provision that prohibited marital rape from the DVA Botswana by Parliament. The lack of
political will to address gender-based violence is also demonstrated by the Government that
does not deem it necessary to enact laws that criminalise marital rape yet it has introduced,
for example, stock theft courts and is currently at an advanced stage of amending the Stock
Theft Act. The Stock Theft is amended to provide for harsher penalties against stock theft.
These developments have come across to me as Government caring more about protecting
property rights than protecting women’s human rights, which means that there is no political
will to protect women against sexual violence in a marital relationship. I say this because
even before the amendment of the Stock Theft Act to increase the penalties, one could be
imprisoned for a term of five years for stealing a goat287 while husbands who rape their wives
are roaming the streets and most probably continuing with the abuse unabated. It is therefore
recommended that Non-Governmental Organisations that advocate for women’s rights must
lobby for and capacitate members of Parliament and members of the House of Chiefs288 to
understand the need to protect women against marital rape. In any case, marital rape has been
termed as a violation of numerous internationally recognised human rights. Political will be
evidenced in legal reform to criminalise marital rape and Government led campaigns to
condemn sexual violence in marital relationships.
5.3 Public education
Violence against women is perpetuated by patriarchal family systems and the subordinate
status of women in society. Other than deterring violent behaviour, the law alone cannot
change attidudes. The emerging consensus is that multicomponent, integrated interventions
such as public education are more effective than single ones in preventing violence against
women.289 To this end, the U.N. Special rapporteur on violence against women has
287
An example is Sebele v The state 2010 2 BLR 473, HC where in the High Court substituted a 4 for year
prison sentence for 5 over a stolen boer goat breeding ram.
288
Section 88(2) of the Constitution of Botswana requires for laws that have a bearing on customary law or the
ascertainment or recording of customary law to be referred to Ntlo ya Dikgosi before it is tabled in Parliament.
289
60
acknowledged that an emphasis on education and health strategies may be helpful in
addressing marital rape.290 For the public education initiative to work though, the intervention
would have to be supported and reinforced from multiple sources that may include media
campaigns that are combined with locally targeted community programmes. It is therefore
recommended that Government and Non-Governmental Organisations collaborate to educate
the public about the negative effects of violence in the bid to change attitudes that perpetuate
violence against women. As a suggestion, Government could embark on a massive anti-
marital rape campaign similar to that which was rolled out to combat the HIV/AIDS
pandemic during the presidency of the former President, Festus Mogae. In order to adopt and
maintain HIV-preventive behaviour, Botswana embarked upon a multi-sectoral approach that
motivated HIV-protective behaviour. To achieve this, a variety of channels such as print,
outdoor and billboard, radio, television and other forms of memorabilia were used to transmit
the message. The campaign has shown to have achieved positive results in reducing the rate
of new infections within relatively short time.291
290
291
According to UNDP Botswana, recent reports show that the incidence of HIV infections has gone
down and prevalence among the 15 to 24 year olds has declined. With access to treatment, HIV -
related mortality has declined from 6% in 2003 to 1 % in 2011 . Available at
http://www.bw.undp.org/content/botswana/en/home/ourwork/hiv_aids/overview.html , accessed on 7
June 2018.
61
CHAPTER 6: CONCLUSION
In this dissertation, I discussed the legal concept of marital rape with the aim of making a
case for the criminalisation of marital rape in Botswana. Chapter 2 put marital rape in
Botswana into context. The chapter also discussed the high prevalence of violence against
women in Botswana. The desk-based research which was used for this dissertation
established that marital rape forms part of violence against women. However, despite
numerous international calls to protect women against all forms of gender-based violence,
including marital rape, Botswana’s legal position on marital rape, sexual violence that has
been described as one of the most serious violations of a woman’s bodily integrity,292 remains
questionable because the legislation in Botswana is silent on marital rape. This section
highlights some of the findings.
Because of the silence, Botswana’s legal framework on marital rape does very little to
negate the general perception that sexual abuse is not rape if the perpetrator is the husband.
The public perception on marital rape is perpetuated by the culturally based patriarchal
practises that render women as inferior to men, especially in marriages. The inferior status of
women in marriages is evidenced by the demand for women to always be sexually available
to their husbands regardless of whether they want to have sexual relations or not. This male
sexual entitlement in marriages is rooted on the societal belief that if a man paid bride price,
he owns his wife and therefore she must not refuse his sexual demands, a belief that has not
been helped by the Abolition of Marital Power Act.
A case was made for criminalisation of marital rape by showing inter alia that failure
to criminalise marital rape is as good as perpetuating it because such failure allows both men
and women to go on thinking that a husband raping a wife is acceptable. The case for
criminalising marital rape was made using international human rights instruments which
perceive marital rape as one of the forms of violence against women. The argument that was
being made in Chapter 3 was that as a member of the international community, Botswana has
constitutional, regional as well as international obligations to protect women against all forms
of gender-based violence.
The legal gaps identified in Botswana’s legal framework where marital rape is
concerned justify the conclusion that there is a need to reform the legal framework on marital
rape in Botswana, to specifically criminalise marital rape and protect women’s human rights.
292
62
The criminalisation of marital rape will not only ensure protection of married women against
sexual violence perpetrated by their husbands but it will also ensure that Botswana meets her
international obligations on protection of women against all forms of gender-based violence,
whether by public or private acts. Chapter 4, which studied the legal frameworks of South
Africa and Zimbabwe was meant to inform Botswana on how to effect changes to its legal
framework in order to criminalise marital rape. As established in chapter 4, the two
jurisdictions are among the 52 countries, as of 2011, that have explicitly rendered marital
rape as a criminal offence.
My concluding remarks are that, the pertinent aspect of protecting women against
sexual assaults in domestic settings does not lie only in subscribing to international set
standards on protection of women against violence, particularly domestic violence, it is also
about adopting appropriate legislative measures that include sanctions, where appropriate, to
prohibit violence against women. It is also pertinent to establish legal protection of the rights
of women on an equal basis with men and to ensure through competent public institutions,
the effective protection of women against violence from both private and public sources.
Both the South African and the Zimbabwean case studies have shown that it is one thing to
be party to international agreements on protection of women against domestic violence and it
is another to have in place legislation that penalise such violence.
I also suggest that the Government of Botswana should heed the words of the former
Secretary-General of the United Nations when he called on the Human Rights Council to
promote human rights without favour, without selectivity and without any undue influence.293
In the same speech, the Secretary-General stated that using cultural practice to justify treating
women’s treatment as second class citizens is merely an excuse that must be spoken out on.
The Government of Botswana should especially heed that human rights are for everyone.294
293
United Nations Secretary General’s remarks to the Human Rights Council, 25 January 2011, available at
https://www.un.org/sg/en/content/sg/statement/2011-01-25/secretary-generals-remarks-human-rights-council,
accessed on 8 July 2019.
294
Ibid.
63
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70

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Thesis Law 2020 Nasha Refilwe M

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Supervisor: Associate Professor Waheeda Amien

Word Count: 23141 (without the Bibilography)

qualification was the completion of a programme of courses.

Refilwe Madonna Nasha

of the non-exclusive license granted to UCT by the author.

Published by the University of Cape Town (UCT) in terms of the non-

STUDENT: REFILWE MADONNA NASHA NSHREF001 1

1.2: Limitations of the Study 11

1.3 Justification of the Study 12

1.4: Dissertation Structure 16

CHAPTER 2: MARITAL RAPE IN BOTSWANA: BACKGROUND AND LEGAL

2.2 Violence against Women in Botswana 18

2.3 Public perception on marital rape 19

2.4 Domestic law on marital rape 22

2.4.1 The Constitution of Botswana 22

2.4.2 Domestic Violence Act 25

2.4.3 Penal Code 25

2.4.4 Abolition of Marital Power Act 26

2.5 Botswana National Vision 2036 27

3.2 International Law Requirement for the Criminalisation of Marital Rape 29

3.3 Protection of Married Women’s Human Rights: International Human Rights

3.4 Limitations of Penal Sanctions in Addressing Marital Rape 43

CHAPTER 4: HOW THE LAW IN BOTSWANA CAN BE REFORMED TO

4.2 Law Reform 48

4.3 Legal Interventions on Marital Rape in South Africa and Zimbabwe 50

4.3.1 The South African legal framework 50

4.3.2 The Zimbabwean legal framework 53

Zimbabwe with Regard to Marital Rape 55

5.1 Legal Reforms 59

5.2 Political Will 60

5.2.3 Public Education 60

Banjul Charter African Charter on Human and People’s Rights

CAT Convention Against Torture and Other Cruel, Inhuman or

CEDAW Convention on the Elimination of all Forms of Violence Against

CESCR Committee on the Economic, Social and Cultural Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

SADC Southern African Development Community

UDHR Universal Declaration of Human Rights

UNDP United Nations Development Programme

UNPF United Nations Population Fund

WHO World Health Organisation

1.2 Limitations of the Study

1.3 Justification of the Study

(a) physical abuse or threat thereof;

1. What is the position of the domestic law of Botswana on marital rape?

1.4 Dissertation Structure

The dissertation will take the following structure:

Chapter 2: Marital Rape in Botswana: Background and Legal Position

This chapter offers recommendations based on the findings.

2.2 Violence against Women in Botswana

2.3 Public Perception on Marital Rape in Botswana

2.4 Domestic law on marital rape

2.4.1. The Constitution of Botswana

2.4.2 Domestic Violence Act

2.4.3 Penal Code

2.5 Botswana National Vision 2036

3.2 International Law Requirement for Criminalisation of Marital Rape

(a) Convention on the Elimination of All Forms of Discrimination Against Women

By acceding to CEDAW, Botswana is obligated under article 2(f) of CEDAW to ‘take

Indirect discrimination against women is envisaged in instances where laws, policies

(b) African Charter on Human and Peoples’ Rights