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Introduction
Domestic Violence has been recognized by the Declaration on the Elimination of Violence against Women to mean physical, sexual and psychological violence occurring in the family and includes marital rape. The COVID-19 pandemic has exposed women to an array of challenges such as being exposed to Domestic Violence within the households of Sudan, where women have not traditionally been accorded the same status as men. Although the Criminal Law of Sudan contains provisions on offences on human body, it does not provide for a framework of crimes and punishments for Domestic Violence and marital rape. The same has not been rectified even by the Amendment of the Criminal Law.
Sudan currently stands at a juncture of progressive political and legal developments as the state is transitioning to have a democratic form of government and undertaking measures such as criminalisation of the practice of Female Genital Mutilation/Cutting. Given Sudan’s willingness to bring favourable changes in its laws for women, it becomes particularly important to highlight aspects which require attention of the lawmakers of Sudan to comply with its human rights obligations.
This article will spotlight the lack of legal measures in Sudan protecting women against domestic violence, and analyse these against the non-discrimination obligation included under international instruments.
Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”)
As a traditional Islamic society, a majority of Civil and Criminal law in Sudan is in alignment with the Sharia. The state has only recently made progressive developments by taking measures such as amending its Criminal law to clarify and increase the ambit of the definition of rape. Even though this amendment lacks complete clarity on the relation of the crime of rape with zina (or adultery) owing to the component of “consent”, the state can be seen to make efforts towards recognising ambiguity in its laws.
The Council of Ministers of Sudan is also planning to ratify CEDAW, but not without making reservations to articles 2 and 16. However, the exact wording of the reservation which the Council of Ministers is going to forward is not known.
Article 1 of CEDAW bars any form of discrimination against women which has the effect or purpose of impairing the enjoyment or exercise of human rights by women. In accordance with this, its article 2 mandates States Parties to pursue a policy of eliminating discrimination by, inter alia, embodying such principles in their laws, adopting appropriate legislative measures such as sanctions and providing a redressal mechanism to women. Sudan currently has no law in force to define or counter domestic violence and resultantly provide a redressal mechanism to protect women from it.
Furthermore, article 16 mandates the States Parties to take measures to keep a husband and a wife on an equal footing and to eliminate discrimination against women in all matters related to marriage and family relations. Although, the particulars provided under section 16 do not mention domestic violence, a plausible extension of the meaning of this provision to include domestic violence as a discriminatory practice in family relations may be restricted by a ratification to this provision.
Domestic Violence, which emanates from the idea of subordination of women, clearly lies against the non-discriminatory obligations enshrined in CEDAW. General Recommendation 35 to CEDAW also recognizes Domestic Violence as a gender-based violence against women. Since Sudanese law has no provision to protect women against Domestic Violence and Sudan is not taking any active measure to punish men involved in Domestic Violence, Sudan lies in contravention to the non-discriminatory nature of CEDAW.
Saudi Arabia, which also follows the Sharia, has ratified CEDAW and has also complied with its article 2 by establishing helpline numbers for victims of domestic violence and providing a redressal mechanism to them. Thus, similar to Saudi Arabia, Sudan should also choose not to take the defence of culture or cultural sensitivities for its human rights violations. That culture should not absolve a state from its human rights obligations is also supported by the United Nations Special Rapporteur in the field of Cultural Rights in the 73rd session while discussing situations in Myanmar and Democratic People’s Republic of Korea.
It can also be debated that the reservation to CEDAW would be bad in law since it violates article 19 paragraph (c) of the Vienna Convention for the Law of Treaties, which bars a state from formulating a reservation if it is incompatible with the object and purpose of the treaty. However, even if it is subsequently found that the reservations furthered by Sudan do not lie against the spirit of CEDAW, it cannot be denied that not including the provisions for equal rights of a man and woman regardless of their marital status seriously impinges upon the human rights of women of Sudan and goes against the moral obligation of the state to protect all its citizens equally. CEDAW reflects the ethical and moral duties of the international community to maintain equality between men and women, and the status of ratification to this treaty becomes immaterial in showing the digression from the moral duty of a state if the state discriminates between men and women.
Thus, if Sudan is permitted to ratify CEDAW with formulating reservations in the aforesaid provisions, the same will be detrimental to the victims of Domestic Violence since they will be left with no remedies which CEDAW and its Committee through the General Recommendations provide.
Universal Declaration of Human Rights (“UDHR”) and International Covenant on Civil and Political Rights (“ICCPR”)
Sudan is a member state of the United Nations and is thus expected to abide by UDHR. It is also bound by ICCPRsince it has ratified the same. By not protecting married women from violence, Sudan also contravenes the UDHR and the ICCPR.
The principle of non-discrimination against women is enshrined in article 7 of UDHR, which provides that all are equal before the law and are entitled to equal protection of law without any discrimination. Furthermore, article 8 provides that everyone has a right to an effective remedy by national tribunals for acts violating the fundamental rights guaranteed by the Constitution. With reference to this, article 48 of the Constitution of Sudan provides that all people have the right to protection of law without discrimination on the basis of gender. Although Sudan recognizes equality between men and women in its Constitution, by depriving women from the right to be protected against Domestic Violence and not providing them any redress to a national tribunal, Sudan violates article 8 of UDHR.
Lastly, article 28 of UDHR mandates a favourable social and international order in which the rights mentioned in the Declaration can be fully realized. For achieving this, Sudan will have to take measures like ratifying CEDAW without reservations.
The ICCPR in its article 26 also mandates equality before law and equal protection of law without any discrimination, and provides that the law shall guarantee to all persons an equal and effective protection against discrimination even on the ground of sex. Thus, Sudan is bound to effectuate this obligation of non-discrimination by adopting such laws or other measures as may be necessary, according to article 2 of ICCPR.
A plausible ramification of not abiding by this principle of ICCPR is that Sudan may have to give an explanation to another state party who has communicated the matter to the Human Rights Committee. This matter may also be referred to the Committee if the communications do not satisfy both Sudan and the other state party, according to article 41 of ICCPR.
African Charter of Human and Peoples’ Rights (“Banjul Charter”) and Protocol on the Rights of Women in Africa (“Maputo Protocol”)
The actions of Sudan also lie against the Banjul Charter, which Sudan has ratified and is thus bound by it. Article 18 paragraph 3 of the Banjul Charter provides that the state shall ensure the elimination of every discrimination against women and also ensure the protection of rights of women as stipulated in international declarations and conventions. This provision does not mention that for this purpose, the state party has to ratify such international conventions. This implies that the states are expected to generally abide by those conventions which protect the rights of women.
The other paragraphs of article 18 make a reference to the unit of family, which further implies that curbing Domestic Violence within a household was envisioned by the drafters so as to particularly include a paragraph on discrimination against women here.
The ramification of violating the Banjul Charter is similar to that of violating the ICCPR, in that the matter may be submitted to the African Commission on Human and People’s Rights, according to its article 48. However, the procedure under the Banjul Charter may be made more expedient by directly referring the matter to the Commission under article 49, something which is not available under ICCPR.
Alongside CEDAW, Sudan’s Cabinet has also voted to ratify the Maputo Protocol to the Banjul Charter. Article 2 of the Maputo Protocol requires that state parties combat discrimination against women through legislative and institutional measures, and its article 3 provides that every woman’s human rights shall be protected. The ambit of article 4 of the Maputo Protocol is also wide enough to include marital rape and make the state parties responsible to enforce favourable legislations in that regard.
If Sudan does not formulate any reservation against article 25 of the Maputo Protocol, it will also be liable to provide appropriate remedies to any woman whose rights have been violated under the instrument.
Conclusion
It appears as though Sudan has made long strides by taking measures such as criminalizing Female Genital Mutilation/Cutting, but it is unclear whether the same is actually reflected in the practice of people. This may be because of the fear in women to approach redressal mechanisms, possibly owing to the deep-seated stigmas in the society or the belief that the state is not actually open to protecting women’s rights. For assuring its citizens about the latter, the state should take active measures such as protecting women against Domestic Violence by ratifying CEDAW and the Maputo Protocol without reservations.
Even the 2030 Agenda recognizes that ending discrimination against women is a means of transforming deeply embedded civil, political, social, economic and cultural structures which impede the equality between men and women. Furthermore, many other African nations are also taking a leap forward in ensuring women’s equality.
As Sudan is moving towards creating better laws for women, it is more important than ever that some key issues coming in the way of development of women not be ignored. Sudan should thus formulate a law protecting women from Domestic Violence and ensure that the same conforms to the International Human Rights Law standards highlighted in this article.
Vaibhavi Patel is an undergraduate student of Law at the Gujarat National Law University