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

«(1) any woman procuring or consenting to her own abortion shall be punished with imprisonment from fifteen days to one year or with fine from five thousand to two hundred thousand francs or with both such imprisonment and fine.

(2) Whoever procures the abortion of a woman notwithstanding her consent shall be punished with imprisonment from one hundred thousand to two million francs».

It admits or permits abortion only when such abortion is criminalized and applicable if the mother's life is in danger or if pregnancy is the result of rape. This is really confusing as we are aware that issue of abortion is a complex issue, placing only two circumstances in which abortion should not be punishable is questionable. There are so many reasons why some women will want to commits abortion as it becomes a threat on their status and right. What about the situation where the woman is being abandon by the person who impregnated her and is in the running.

The law has not considered the trauma psychological, emotional, and physical that this woman will go through before setting the ground for criminalizing abortion. The law fails in understanding other circumstances that can affect the woman status or right in cases of abortion. The same law is talking about killing of a fetus to amount to abortion. The question one need to position here is in determining at what period of the pregnancy it will amount to killing the fetus or baby. We are not in any way encouraging the concept of abortion of a woman, for we understand, abortion in its very origin is consider as to be illegal as many considered it a sin. Our worry here is for the legislation or law in understanding that combating violence on a woman is complex issue that needs to be defining beyond all reasonable doubts to be handling. There are some circumstances that the abortion might be caused as a result of the violent done on the spouse by the partner. There should be some modifications of Section 339 of the Penal Code to put more visibility on what is meant by severe danger to the mother's life particularly because the woman health is not only physical. There can be the inclusion of important issues like the severe fetal malformations incompatible with life, incest and the reduction of administrative procedure attached to Section 339 of the Code.

Even the situation of rape is still a problem affecting combatting violence on women. The fact that marital rape or the so called spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent, having sexual intercourse with the spouse without consent will amount to rape. This marital rape in all its implications is considered in most instances as domestic violence and sexual abuse. The common law rule of marital rape exemption is based in the cultural view that marriage makes a woman part of her husband's property, so that forced sexual intercourse is but a husband making use of his property. Taking a good base in the case of Achu vs. Achu inglis J in the Court of Appeal South West Region held that: Customary law does not countenance the sharing of property especially landed property, between husband and wife on divorce. The wife is still regarded as part of the husband's property.

That conception is underscored by the payment of dowry on marriage and on the refund of same on divorce. Looking at the situation from the dictum above, once the marriage price has been paid by the husband; it therefore reduces the wife to a property. If the notion or concept that characterized a human being(wife) to become a property of another, then the notion of bringing an action for marital rape will be futile and unnecessary. The husband will not need as to customarily to be petition for rape when it concerned its property being the woman. Right from the day the day that the marriage is celebrated, the woman has given herself to the husband as a living sacrifice in which she must be available at all time the husbands' desires sexual intercourse, bringing an action for rape is useless. The Penal Code has talk of criminalizing rape in its Section 296 of the Code by punishing any person who by physical or moral violence forces a woman, including an adolescent to have sexual relations with him. We are not saying that rape is a good thing that should not be criminalized, but we are dealing with marital rape or rape in matrimony it is extremely difficult to bring an action against the husband for rape.

The situation becomes provocative as per the provision of Section 297 of the penal Code which prevents prosecution of rape when marriage has been freely consented to both parties, and the assaulted woman was over the age of puberty during the offence. I believe this is discriminatory and encouraging the phenomenon of rape since the perpetrator knows that he can rape the woman and consented to get married to her and criminal proceeding against him will be discontinue. The issue here is that rape is rape, and when the fact or elements of rape once established should be punishable rather than giving instances where the rape will not amount to a criminal act. How then can we experience combatting when the law is encouraging or giving an opportunity to the rapist to be free from criminal responsibilities? How then can we establish consent in this kind of marriage celebrated where we all know that the initial reasons for the celebration of the marriage derives from the rape incident? The bone of contention here is that it will be difficult for the law or law enforcement officials to really have a proper or effective means of combatting when dealing with the offence of sexual violence on the woman. Neglecting certain fundamental aspect of the offence means that combatting will becomes a total fiasco and disaster, and this will render combatting or eradication difficult. The Cameroon Penal Code being the watchdog in handling or criminalizing issues of rape or violence against women is entangled with heaps of infelicities and lacunae's in which relying on it as a tool in combatting or handling issue of violence is questionable. The situation is not only with the penal code; even other areas of the laws has still become questionable in matters relating to domestic violence.

The complexities of the Civil Code

Controversially and inexplicable is an aspect that is defying and affecting our Civil Code from its French inception in matters relating to violence especially on women. It becomes confusing when some basic issues cannot be handled, and overweighing pendulum is exercised on the woman status and right within a given society. A glaring example or illustration here can be examined in the domain of marriage as to parties. The code provides in its Article 52 that the minimum age for marriage is 15 years for the girls and 18 years for the boys. We are knowing that as to the definition provided by the 1989 Convention of the Right of the Child in which Cameroon is not only a signatory but has ratified the said convention, provide in its Article 1 as follow: «any person who is below the age of 18».

This becomes contradictory as per the Civil Code which has already fixed the marriage age of women. Even though the same code provides in its Article 49 that girls under 18 are not required to marriage, parental consent is sufficient. This is not a good ground at all in the country as it has really given birth to early or forceful marriage since the law gives the parents the opportunity in pushing their children to marriage before the prescribed day of the law. The code has to follow the provision as provided by Article 1 of the Convention of the Child which is considered as the ship anchored instrument of children right in the country. The law was not foolish in established the minimum age for girls to get married at the age of 18. The law believes that children at that age are still considered as dole incalpax and lack certain faculties to under the concept of marriage (the situation of sound mind, sound memory and sound understanding is very instrumental for there to be a valid celebration of a marriage. The absent of these three elements in the celebration of a marriage will render the Marriage ceremony null and void) or contract in which she is entering into. This situation of the law has really encouraged early marriage and making it difficult to combat or put an end to these barbaric practices in the country. We find the practices recurrent and practicable in our country like in the Northern part of the country where they believe it is common to give their girl children for marriage at the tender age. The problem here even though a long practice tradition, our laws has also encouraged its practices, making it difficult for there to be its elimination and even suppression.

Even the fact that the law gives the husband the right to choose which matrimonial regimes to applicable in the marriage agreement is a serious problem. According to the Cameroon Civil Code in its Article 70 which entails that if no choice is made as to the regime of marriage, and then the couple is married under common law which allows polygamy and community of marital property. So even the law accepts encouraging polygamy, and then they want to combat violence, difficult. The situation here is that even if the husband is for the monogamous regime, it doesn't stop the husband to be polygamous as we know the general adage that; «all Africans by nature are polygamous.»

The husband is and will always be considered to be the head of the family; he also has the sole right to determine the family domicile and, in the interest of the household and the children, may prevent his wife from taking employment. This situation becomes rebellious and sarcastic, as we all know how it can ridicule the woman to nothing since the husband has absolute authority over their wife by depriving them for some privileges and advantages that she may derived from, he thinks that he is the sole contributor of the family, and the wife is not in any best position to provide for the family depriving her own fundamental right as to the right to work which is established in many international human right and convention that Cameroon has signed and ratified. The code in its entirety and realities gives much power to the husband who can violate her right at any time desired. Even the fact that women are deprived to full use and enjoyment of property is a serious problem, for the husband has the right to administer communal marital property, thereby giving him the right to sell or mortgage the couple's property without his wife's consent. Article 1421 and 1428 is a good example of the Code depriving the women from using the matrimonial property. It continues by saying that only the husband has the right to sell or mortgage the matrimonial property, the wife has no right as to the property of the matrimonial home as she herself is considered as a property, and how can a property own a property. All these provisions are contradictory to our Cameroon constitutions especially in its preamble which provide for equal right to all irrespective of the status, sex, language, nationality in question. Both sexes have the right in enjoying the fundamental human right, and the right to property is not an exception.

It is really shameful in our country that there are no specific laws have been enacted to prohibit violence against women or domestic violence. There are no laws prohibiting traditional harmful practices, and female genital mutilation (FGM) and the practice of breast ironing persist in parts of the North and the South-West of the country.

Although the government report states that Cameroon's body of laws including the Constitution embodies the principle of equality between men and women, there is no legal definition of discrimination provided for by any law. The embodiment of the principle of equality in the preamble of the 1996 Constitution as amended in April 2008 is not sufficient enough to meet with the standards required by CEDAW, because discriminatory laws and practices still prevail. CEDAW is not yet incorporated into national laws. Article 45 of the Constitution states that duly approved or ratified treaties and International Agreements shall, following their promulgation, override national laws. This statement does not confer any rights or redress. Enforcement is therefore weak, since criminal sanctions have to be enacted into law before becoming applicable.

Adjusting and establishing a potential climate for a prospective protection and recognition of women rights

The problem of domestic violence is real and unavoidable with it increase proliferating the polluting the Cameroonian society. The issue here is not just looking as the female pandemic drone damage of democratic and legal society, something needs to be done in remedying this deadly plague that have affected the daily lives of womanhood so as to have a rest and pleasing future for these women undergoing violence in all domains of activities. We know that it will be difficult in eradicating and combatting this violence once and for all, but the question is what should really be done in reducing its rate of existence in the society. We believe there are certain categories of persons in the society who are supposed to be cling as they have those responsibilities in dealing with issue of domestic violence as they are implicated and involved in its increase and constant abuse.

It there becomes the responsibility of the Cameroon government to ensure the promulgation of laws for the recognition of the rights of women, and combating domestic violence should be enforcing with proper measures put in to place to ensure the better promotion and protection of women's rights. This is because most of our laws are not put in practice and the laws combating domestic violence are ineffective. So for the government to enforce and make this laws effective she has to adopt certain measures, mechanisms, and policies that will jettison discriminations against women by implementing awareness programs to segment the population, religions and traditional rulers. It is always the responsibility of the government in ensuring that its citizen's rights and wellbeing should be of prime importance to them, and this can only be done by seeing to that the various measures used in combatting domestic violence should be effective. They have enacted a series of enacted laws I their various national laws disposition, those laws are really credible and outstanding, but that is not the rationale of the law to be a beautiful pendulum, these laws must be implemented to see that violence are taking care of. And the only way this can be done is by putting into place concrete measures for implementation.

Observing at the constitution of Cameroon, many international laws and foreign laws have been ratifying and signs by Cameroon but they are not effectively implemented. This lack of implementation is really a problem that is affecting these women right and status in the society. The problem we are facing increasing the rate of domestic violence in the society, remains level of implementation, we mean effective implementation. There is so much sentiment and emotional attachment when it comes to implementation. There should not be any pity of the law when dealing with issues of domestic violence face by the victim. The law enforcement officers and the judiciary are sometimes rendering less importance to issues related to violence on women especially domestic violence, and that has become a serious pandemic in the eyes of the law making it difficult to combat at this stage. The rampant and increase nature of the violence was due to the negligence of the so called law enforcement officers. Most of them mocked at the women who suffered from this violence considering it as but serious.

The reform of the normative framework aimed at harmonizing domestic laws with international and regional legal instruments ratified by Cameroon is a beautiful scenario for the government of Cameroon. Laws on domestic violence are so dispersed and scatter, and this makes it more difficult. The several names given by the law to these crimes becomes an issue of questioning. There so many instruments on domestic violence in Cameroon, from the constitution, labor code, penal code, civil status registration ordinance, customary laws, and a host of others. It is not having all these laws that will prevent the public to be aware that they are domestic violence. I believe a harmonization of the laws that will even conform to those prescribed by international law and instruments will a laudable initiative on the part of the government. It is shameful and surprising that a state like Cameroon has no law or instrument on domestic violence, making it difficult to combat. There should really be reforms on the part of the laws on domestic violence.

The implementation of the platform for joint intervention in the fight against gender-based violence will equally be appreciated. Issue of violence cannot be realizing by a single stakeholder on domestic violence. All the stakeholders in the country dealing with domestic violence should be able in establishing or creating a platform where discussion of domestic violence will be done by proposing measures and mechanisms that will be used in combatting. We believe this will go a long way in issue related to combatting violence. The enhancement of the dissemination of the national strategy to fight against gender-based violence is great and laudable. The government also engage every ten years an action plan in achieving its goals and activities. This is a great initiative, but there is a problem of enhancement and dissemination. Howe many people in the society are aware of these action plans of the government? I believe majority of the population are not aware of this action plan. Even if they are aware, it is limited to only a given category of persons. Everybody is supposed to be active in the supposed plan of action of domestic violence as it is a common plague and pandemic affecting the society in one way or the other.

Conclusion

The problem of domestic violence is real and unavoidable with it increase proliferating the polluting the Cameroonian society. The issue here is not just looking as the female pandemic drone damage of democratic and legal society, something needs to be done in remedying this deadly plague that have affected the daily lives of womanhood so as to have a rest and pleasing future for these women undergoing violence in all domains of activities. We know that it will be difficult in eradicating and combatting this violence once and for all, but the question is what should really be done in reducing its rate of existence in the society. We believe there are certain categories of persons in the society who are supposed to be clinging as they have those responsibilities in dealing with issue of domestic violence as they are implicated and involved in its increase and constant abuse. Though the state of Cameroon has done so much in eradicating domestic violence against women, some malpractices such as breast ironing, FGM, sexual harassment, physical violence and more still exist. In the cause of carry out their mission of protecting and promoting women's rights, they face a lot of roadblocks ranging from inadequate funds, personnel, unawareness, lack of a service car to carry out their activities and many more. Even though so many laws have been put in place to protect human rights and women's rights in particular, women are still victims of domestic violence. This continues to place threat on the socio-economic situation of the country since the respect of human rights and that of women is indispensable. Therefore, we suggest that credible recommendations should be taken into consideration and acted upon so that a better human rights culture can be implemented. Recommendation like the promulgation of laws for the recognition of the rights of women, and combating domestic violence should be enforce with proper measures put in to place to ensure the better promotion and protection of women's rights, participation of women in certain activities in the country, he creation of more training, professional schools and even inserting programs in school curriculum that will be used to educate the general public on the effects of domestic violence and other legal instruments to protect women and end violence.

The text of the article is published in the author's edition, the author is responsible for its content. The editors may not share the author's point of view

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