ARUSHA NGO FILES PETITION AGAINST MARITAL RAPEn 130 (2) of the Penal Code

BY GRACE MACHA IN ARUSHA

An Arusha-based non-governmental organization (NGO) has filed a petition to challenge sanctioned marital rape.

The constitutionality of sanctioned marital rape of underage girl children is currently permitted under Section 130(2) (e) of the Penal Code.

Women and Children Welfare Support (WOCWELS) filed the constitutional case before the High Court in Dar es Salaam in Dar es Salaam.

Mary Barnaba Mushi, the executive director and founder of the NGO is the main petitioner of the case filed as the world marked the International Women Day (IWD).

The petition has been admitted to the Court and, according to her, awaits the appointment of a judge who shall hear it.

"We were inspired to file this case after noticing that the Penal Code retains the concept of child marriages outlawed in our jurisdiction", she said.

A recent ruling by the High Court outlawed such marriages and consequent thereto perpetuating sanctioned statutory rape of girls of age 15 to 18 years.

Ms Mushi said a reading of the section of the Penal Code provoked them to challenge sanctioned marital rape of under age girls in Tanzania.

"It indicates that a girl aged 15 to 18 years despite her relative young age, is deemed to have the consent to sexual intercourse with a male person who is her husband", she said.

She added;" We noticed and were appalled to notice that girls of similar age who remain unmarried do not have capacity to consent to sexual intercourse with a male person".

She observed, in petition notice copied to the media that a married girl aged 14 years is protected "and sexual intercourse with her husband is probihited and amounts to statutory rape".

Ms Mushi said she and her organization (WOCWELS) cannot comprehend why a 14 year old child bride was protected from marital rape of the husband.

She went on; "Under our Penal Code, a 15 year old child bride (according to the High Court ruling) was considered old enough to give consent to prohibited sexual intercourse".

Through counsel John Seka  of Seka & Associates Advocates, the NGO is asking the Court to pronounce Section 130(2) (e) of the Penal Code as "unconstitutional,void and of no effect".

"We are also asking the Court to declare that the impugned section is inconsistent with several international treaties and conventions ratified by Tanzania", he stated.

A marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent.

The lack of consent is the essential element and need not necessarily involve physical violence.

Marital rape, which is more widely experienced by women, though not necessarily, is considered a form of domestic violence and sexual abuse.

Most countries criminalized marital rape from the late 20th century onwards. Very few legal systems allowed for the prosecution of rape within marriage before the 1970s