Challenging domestic violence under national and international law: judging the innumerable legal violations undermining the protection of women's constitutional rights in cameroon

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Challenging domestic violence under national and international law: judging the innumerable legal violations undermining the protection of women's constitutional rights in cameroon

Nana Charles Nguindip,

Senior Lecturer of the Department of English Law, Faculty of Laws and Political Science University of Dschang

Summary

The notion of violence especially on the rights of women has been plagued with lots of plausible euphoria jeopardizing the initial rational and objective of the human rights placement, that of ensuring that everyone should be treated with respect and fundamental dignity. The situation has become appalling and frustrating as women encounter violations on their various status and rights, making them becoming subjects of ridicule. Willing to ensure the recognition and protection of women, Cameroon has adopted a series of international, regional and national laws aiming at ensuring a safe and secured environment for the protection of women rights and status. Regardless of the various measures set by the country, the notion of domestic violence appears to be more of a pandemic than a curable substance as issues of women protection are concerned.

This article is of the opinion that the concept of domestic violence in Cameroon is accelerating as most women are still treated as an object of commodity in the eyes of many. There is a continuous violation of women rights especially in aspects of sexual violence and discriminatory practices meted on women. This situation has become worrisome, as many question the future of women rights in Cameroon as issues of sexual violence escalate, thus affecting tremendously the prestigious status to be occupied by women in the society. In answering the above question and hypothesis, there will be the need to evaluate the domestic violence environment in Cameroon by questioning the complexities in the country on issues related to combatting domestic violence, and examining the way forward.

It is convenient and an established scourge beyond all reasonable doubt that, the singularity of sexual violence continues to be a hard nut to crack notwithstanding all the remarkable efforts put in place by the government of Cameroon in ensuring its fight. we continue to experience aspect of violations and abuses on the women right making those harmful practices meted on the women to be turned an unrealistic atmosphere. To this set, it is advisable that more efforts, mechanisms and methods should be invested by the government of Cameroon to establish a favorable climate and environment in the protection and preservation of women rights and status in the country.

Key words: battling, sexual violence, Cameroonian law, violations, women rights.

БОРОТЬБА З ДОМАШНІМ НАСИЛЬСТВОМ ЗГІДНО З НАЦІОНАЛЬНИМ ТА МІЖНАРОДНИМ ПРАВОМ: РОЗГЛЯД НЕЗЛІЧЕННИХ ЮРИДИЧНИХ ПОРУШЕНЬ, ЯКІ ПОРУШУЮТЬ ЗАХИСТ КОНСТИТУЦІЙНИЙ ПРАВ ЖІНОК У КАМЕРУНІ

The Problem of Harmonizing Domestic Legislation with International Legal Instruments.

There has been complains in the manner in which instruments and laws have been scattered here and there in issues related to combating domestic violence in Cameroon. Others are complaining about the discrepancies in the instruments on Violence on Women in Cameroon. The question we should be asking is regarding the determination of what have been done domestically in handling this pandemic tackling women and children rights in Cameroon. The State of Cameroon has established a series of proliferated laws, legal provisions, and institutions having overlapped mandates in various documents regarding the protection of women and children rights in its territory. Despite the available laws, international instruments have remained the main instruments that should be used by this State in regulating the treatment of women and children within the State. With all these laws, for a long period, women have continued to experience oblivion and obsoleted practices done on their fundamental human right and status.

Women and children in Cameroon continue to experience aspects of violence, discrimination, and illegal practice on their womanhood which has become of questionable character. Blames in it all should not be apportioned on all these laws that the State of Cameroon has enacted and established on issues related to women violence. Our main problem and concern here is establishing whether all these laws from civil, labor, criminal, customarily and otherwise are adopted in a way that complies with those prescribed by international instruments to which Cameroon is a party and signatory. Take for example we have the main law governing children rights on the international scene that is the Convention on the Right of the Child principal instrument on children rights. Having good laws and instruments on our national laws that deal with children right, there is no conformity as to that related to international law.

Cameroon has failed to create a comprehensive legal regime that protects victims and holds perpetrator accountable. The supposed family law that was drafted in 1997 to address issues of domestic violence has not yet been adopted. Even with those laws and instruments that are existing in the country in handling issues of violence done on women are not even harmonized to correspond with prescription stipulated by international law. We see aspects of laws on women rights in different instruments in the country. At a point in time, there is the Penal Code, Labor Code, Matrimonial Causes Act, Civil Status Registration Ordinance, and others that gave their own different interpretation on what will amount to violations on these women rights which in no way corresponds with those on the main instrument dealing with women's rights. We are talking here of the Convention on the Elimination of all forms of Discrimination Against Women being the lone international Instruments dealing with women right in which Cameroon has signed and ratified. This instruments makes provision on the manner its expect State to handle treatment given to women, and even goes further in stipulated the various rights of women in which every State should observe and respect. The situation becomes even precarious and devastating in laws dealing with children rights. Looking at the Convention of the Rights of the child which try in providing a definition on what will amount to child, by stating that anyone below the age of 18 will be considered as a child (Article 1 of the Convention of the Right to a Child defines a child as anyone under the age of 18).

Looking at article 52 of the Civil Code which provides that the minimum age of a girl to get married is 15, and the boys 18 becomes contradictory. Here looking at the convention on the rights of a child provides that any marriage celebrated where the girl is below the age of 18 will be considered as force marriage which needs to be cancelled and considered as violation on the right of a girl child. It becomes worrisome when Cameroon has signed and ratified this Convention on the Rights of the Child and is still unable to draft its laws in conformity with those of the Convention. This is just one of the difficulties encountered which has made the fight difficult. There are lots of other cases and circumstances like that of labor relationship where the Labor Code as obscure and obsolete as it is does complies to the international prescription placed and welcomed by the provisions of the International Labor Organization in which Cameroon equally is a signatory and party to.

There are lots of violations and abuses of female worker's rights in Cameroon because the country has failed in meeting up the standard put in place by international legal instruments on issues related to employment and treatment of workers. We are not saying that the country should totally use the provisions of the international laws and instruments on their domestic maneuver and recognition, but we believe most of these international instruments are like a standard and model that every country that wants to protect and promote human rights should use as a guide and mirror. Combatting is not something we just sit and accomplish without a guide, in which the State of Cameroon has failed in its various commitments when issues of violence against women are concerned. There is a lot a country stands to gain when respecting the provisions of international laws and dispositions in which the same country has signed and ratified. The lack of harmonization of domestic laws to that of international prescription has really been a threat to combatting the crime in question. It will be difficult in combatting violence against women if domestic legislations do not cooperate with those of international law as it is always from laws and instruments that a country will be inspired in forming its own laws and regulations.

The Mixed Application of Legal and Regulatory Provisions by Societal Actors

There is always a mixed or confusing understanding when dealing with legal and monitoring mechanisms used by the so called community or social actors when dealing or treating issues related to violence on women. They failed to understand that the laws are there to establish that there is a need to combat violence done on women. The provision of the law is just a theory that needs implementation on the side of the social actors or community sponsors on women rights. Therefore, it becomes the responsibilities and duties of these social actors by reminding the State that it is their obligation and duty to ensure that provisions of the legal instruments in which they are not only signatory but equally ratified should be respected. What these entire social actors need is to provide for the regulatory provisions which need to be provided. It is really essential that the regulatory provisions cannot exist without those of the legal provisions, but when mixing the two of them it becomes confusing and cumbersome. What we need most especially is the regulatory provision as to what should be done in combatting or handling issues related to violence done on women as a whole. When reference of both concepts is done at the same time it becomes confusing, so it should be independently. The social actors should be more interested in the respect and enforcement of the law by the State rather than talking on both legal and regulatory provisions. The laws are there, and in need of regulatory frameworks for existence. At this point in time, what the actors should rather be talking about is on the regulatory frameworks by ensuring that the provisions stipulated down in the relevant legal instruments stated down by the State of Cameroon should be respected and enforced. Emphasizing on the regulatory provisions of the law is more important than having a look as to legal provisions even though both of them are important when dealing with combatting violence against women. The diversified application and both the legal and regulatory provisions have made combatting this offence or crime to be difficult or hectic.

The Coexistence of Written Law and Custom

The tendency is that violence on women has been stipulated in series of laws ranging from legal to customary. In every given society, there are two laws which are written and customary laws that govern that society. The same situation or scenario exists in Cameroon where there are present written laws (the most important one to emphasis on is the 1996 Constitution which is consider as the highest law of the law which other laws have their inspirations) spelled out in relevant legal documents such as the constitution, labor code, criminal code, civil status registration order and others. The fact that issues of customary laws have been existing for a very long time and the practice has been carried out by the people; the existence of written laws to check elements of customary law becomes questionable. Even though the provision of Section 27 is clear as to these customs that are incompatible with the written laws of the land should be questionable as it is consider as repugnant to natural justice, equity and good conscience. These written laws in the country have been considered by many as a threat to the existing customary practices. It is not really a bad issue of mentioning the laws that deal with violence against women whether these laws are written or customary. But when dealing with aspects of combatting, we believe laws should be used separately. What the State should be doing to these communities who are so indented to these harmful practices is by telling the people about the ills and consequences that the eradication of these harmful practices will have on the status and right of the women rather than talking about the law. The custom or tradition is the bone of contention here and not the law where those combatting should lay emphasis on.

Combatting and suppressing these harmful practices that affect the status and right of the women is a complex and complicated issue that needs lots of precaution in handling. It becomes the responsibility of the State to ensure to fight them even though eradication will be impossible. The existence of the laws on violence should be used diligently in its application and one should be used differently from the other. The law laid down (the positive law or the lex lata) must be separated from the laws as it ought to be (natural law or otherwise known as the lex feranda) when dealing with issue of combatting. There can never be a proper correlation between the written laws and customary laws when issues of combatting are concerned. The mixing up and coexistence of the legal text and customary law will be confusing and demanding sometimes.

The Reluctance of the Judicial Actors

The problem sometimes is not at the level of identifying, discrepancies and complex nature of the laws that deals with domestic violence. The most difficult issue is at the level of those who are supposed to enforce and implement these laws put in place by the legal text. They hesitate and even sometimes are unwilling in ensuring that the laws should be implemented. Most of them do not even see the necessity of intervening on issues related to the family as they believe the family is the most important unit or organ of the society that need maximum protection and safety, and they believe the dispute between the spouses can be resolve amicably rather than pushing the offender of the violence which in most cases is the husband. The issue of rape that is provided in our Penal Code which talks of punishing the rapist for an imprisonment term of five to ten years is a fallacy when dealing with issues related to marital rape. We know that issue of sexual intercourse is one of the duties attached to couples after the solemnity or celebration of the marriage, and under no circumstances should this right be violated and a refusal to consummate the marriage can be consider a valid ground for the granting of a divorce. The family being unique should be protected by everyone including the law enforcement officers. If those who are supposed to ensure that those who commit this crime on women, are the same people who are reluctant in solving or handling the problem, then there is a serious problem and which will automatically have an impact on combatting.

The victims of the rape incident or other related violent will always be affected as the judicial actors become reticent to its combat. The laws have provided room or circumstances in order for those who commit that violence on women to be punishable, and it thus left for the judicial actors like the court, law officials and other enforcement officer in ensuring total application on the legal texts and laws, but every day we see cases of female violations being ignored and even avoided by these officers. This reluctant nature or aspect of domestic violence actions by the judicial actors constitutes a discouraging aspect of most of the women who do not even see the need of reporting cases of violence to these actors as they know that nothing will be done concerning them, and thus continuous violations. We believe the judicial actors should be capable of doing what they are vested by the law when issues of domestic violence are concerned. A criminal is a criminal whether it is the husband or wife. There is the need to impose on them punishment in case of violence on the woman. What about the situation where the actors of the judiciary are men, it makes it difficult for implementation and combatting.

Most men believe that women are property (customary law position of the law as to property rights which sees women as property and according to this law a property like woman cannot own a property), and how can property own a property, and because of this the judicial officer's loos at women as inferior thereby finding it difficult to provide a solution to the existing problem faced by women. The issue of adultery provided for in Section 361 of the Penal Code as Criminal is insignificant when it comes to the law enforcement officials. They still have the conception that man by nature or from the origin are polygamist, and committing adultery on the part of the man or husband is but normal which needs not to over emphasize. The provision itself is problematic as it provides that for the men to be punished for the act of adultery, the act should have been committed in their homes or elsewhere habitually. This is falsified and pushed environment for the supposed law enforcement officers to violate the law. The law says for adultery to be committed elsewhere, it must be habitual as to the men. So when women report cases of adultery to the judicial actors, they are reluctant in the context of this provision and sometimes even ignore the law as they claim that they cannot be proof of adultery since having direct evidence as to adultery is always difficult.

The lack of litigation

The problem of litigation or issue of lawsuit are absent or even lacking when dealing with issues related to domestic violence or violence on women. How many women who are victims of domestic violence will be confident in bringing actions against their husbands sometimes the women who file complains turn to withdraw due to further violence and some even refuse that the case should not be taken to court. Limited file cases and withdraw might cause be as a result of the fear to be mock by other women in the family or other family member or friend. Sometimes pursuing a case is too expensive and the process is too long. This tends to discourage them.

Victims sometimes show the center to be weak and that it can only recommend, does not take effective decision and a means of enriching themselves. For example, overheard a conversation between staff of a withdraw case by the complainer that is a victim file a complaint and later withdraw it due to threat. Since the victims are afraid of been mocked, they prefer to keep quiet thereby leading to an increase in domestic violence since the perpetrator knows the partner cannot file a complained. How will the law even entertain or even show possible actions in handling violence against women cases when there no existence of lawsuit by the victims of the violent. They women are complaining everyday about the abuse done on them or the violation of their rights as a woman by their supposed husband who exerts assault on them, but they lack the courage to prosecute their husband.

They believe that marriage is a sacred institution which needs to protect at all cost, so bringing or taking an action against their husbands will constitute a breach of confidence of upholding this prestigious institution. They prefer to bear and die in silence even when they are aware that they are victims of violence from their husbands. Some even stay and refuse to report abuse cases for the sake of their children as they think it is their responsibility to protect their children against public mockery and insults. There is also the aspect that women in the rural areas have little or no knowledge about the existence of the center and other NGOs that they can complain to. It is very difficult of the center to go into the remote areas to educate the population there about human rights and women's rights in particular. Women who have knowledge about the center are afraid to lay their complaint because of the fear of violating their traditions.

This fear causes them to remain quiet and live in pains. This problem of unawareness is due to the fact that since many communities are inaccessible and no service van to go to such areas makes the people remain ignorant of the fact that domestic violence is a crime against humanity. They continue to live in violence and do not see anything wrong in it since they have no ideal of it been considered as a crime under Cameroonian laws. Combatting violence or domestic violence on women is a difficult and pragmatic unrealities that will be a nightmare on the part of the law to handle as most of the victims of the violence are women who in most cases find it difficult in reporting cases of violence. Most traditions in Cameroon do not consider rape between husband and wife. This is because they believe that the husband has the right to have intercourse with the wife as he wishes. The wife is seen as a property as does not belong to the husband alone but to the whole family. With all this out cade traditions, the center finds it difficult to change the mentality of the people. Women who are victims of domestic violence cannot even file a complained or return to their father's house. Reasoning being that tradition forbids return of bride price and as a taboo. Some of these women are even afraid of being punished by the custodian of their traditions. All this makes things difficult for us to experience complete combatting or suppression of the crimes on them. Those that even disclosed it are still afraid. The fear in them makes them to make a request of not disclosing it to anyone.

We believe the law will not force these women in bringing actions against their husbands' in case of abuse or violence, they women or the supposed victims are those suffering from these plagues or violent on their right, but how many of them have that courage to bring actions against their husbands. They believe that they owe that obligation to be submissive and respect their husband as they consider them as the sole provider of the family, bringing or reporting cases of violence against them will make them to be deprived of the privileges that they acquired. It thus the fundamental human right of the women to be treated humanely as the law gives and maintain their position and status that they occupied, they should be bold enough in bringing or reporting cases when face with abuse or violations of their rights and status by their husbands, they law official are they to help them combat this crime by punishing those who violates or abuses their right and status. But it will difficult in handling this issue of combatting violence if cases of violence or abuses are not reported. It was not by chance the Universal Declaration of Human Right 1948 it its article 2 talks about that it is the responsibility of everyone to respect the dignity of all regardless of their genetic characteristics. Cameroon has recognized this right in its preamble by ensuring that fundamental human right are respected in which those pertaining to women are not an exception. We believe that issue of reporting cases by women should rather be an obligation not that of helping them since the law gives room for this.

The infelicities and inconsistencies surrounding the Cameroon Penal Code

There are lots of infelicities and discrimination when dealing or having a deep inside on the Cameroon Penal Code when analyzing issues related to violence on women, for they are highly discriminatory making difficult in combatting this dangerous pandemic worse than even the corona virus plaguing the world today. When having an understanding of some of the provisions of the code, one becomes confuse and question whether the so called violent against women will ever be at the finishing lane. Glaring examples of these are those referred to adultery and abortion.

Talking about the concept of adultery, there is lots of controversies surrounding its understanding when dealing with women right protection and status. Taking a good look at the provision of the penal Code in its Section 361 which provides that adultery is systematically if committed by a woman, but is only punishable when committed by a man if it is habitual or takes place in the matrimonial home.Taking a good look at this provision it is against punishing the crime of adultery when committed by the husband as emphasis is made as to the circumstances where the sexual intercourse of the husband will amount to adultery. The law has to use the word habitual elsewhere and in sex in the matrimonial home to amount to adultery when they really know that it will be difficult for the husband to admit adultery. It therefore means that if this husband commits adultery just once, it will not be a valid ground for the wife to bring an action against the husband for adultery. The law has provided an exception to what will amount to adultery, meaning that the women will continue suffering violence and threat from the husband whenever issues of adultery are brought up.

The law also emphasize that the adultery case must take place on in the matrimonial home, what about sexual intercourse carried out by the spouse outside the matrimonial home, this mean that it will not amount to adultery? The situation becomes even more complicated in establishing the crime of adultery in case of customary marriages. On what ground can a spouse bring an action against the husband under customary law. There is no evidence that the wife can institute since it will difficult to proof adultery and the fact that customary law allows or encourages the husband to marry as many wives as he think fit. The man or husband will never feel guilty of adultery, unless the sexual intercourse occurred with another man's wife.

There will always be that defense by the husband that his extra marital relationship with a single woman is that he intends to marry her. It will concretely be difficult for the wife to bring an action for adultery against the husband for infidelity only in the case where the husband abandons her. The situation here is even that it is difficult to proof adultery using a direct witness, as it because practically difficult to see the husband and another wife other than his wife on the matrimonial home or elsewhere committing adultery. Most part of the law depends on some circumstances presumed which in its all cannot amount to adultery.

The situation of abortion is also a serious problem preventing and slowing down the aspect of violence of men in the country. The Cameroon Penal Code is complicated and confusing when dealing with the offence of Abortion. As rightly started under Section 337 of the code provide that: