lecture Notes on Gender, violence and the law

GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA PAN AFRICAN INSTITUTE FOR DEVELOPMENT WEST AFRICA (PAID-WA) LECTURE NOTES FOR GENDER, VIOLENCE AND THE LAW COURSE TITLE: GENDER, VIOLENCE AND THE COURSE TITLE: GENDER, VIOLENCE AND THE LAW LAW COURSE CODE: GEPM 514 TOTAL CREDITS: 6 Mgt. PEFELA Gildas NYUGHA, PhD Email: [email protected] 2023/2024 1 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA CHAPTER 1: INTRODUCTION The phenomenon of gender-based violence is pervasive around the world, experienced by some one in three women in their lifetimes. The elimination of such violence has been increasingly recognized as a priority for the international community. The Sustainable Development Goals include a specific target to ―eliminate all forms of violence against all women and girls in the public and private spheres.‖ 2 A recent special series of The Lancet on addressing violence against women provides an excellent overview of the current evidence, and highlights that while growing international recognition creates opportunities for renewed government commitment, solutions will not be quick or easy. Legislation that criminalises violence against women codifies the rights of women to live free of violence. Laws can play an important symbolic role, by indicating that such behavior is socially unacceptable. The associated sanctions may serve a deterrence function. Either or both levers may work in practice to reduce the incidence of violence. It is of course difficult to observe which is more effective, though we do have indirect evidence on both fronts. Legislation can also be responsive to victims, by providing for protection and access to support services. This course investigates the potential and shortcomings of legislative action – and how international and national laws can interact with norms in ways that can be conducive to the reduction of the risk of violence. It is argued that there has been major progress in establishing the right of women to live free of violence in both international and national law, especially over the past decade or so, with civil society movements at the local and global levels playing a pivotal role. At the same time, there is some way to go to address the underlying norms and behaviors associated with violence. 2 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA 1. CONCEPTUAL ANALYSIS OF GENDER, VIOLENCE AND LAW A. Principles of law The term ―Law‘ denotes different kinds of rules and Principles. Law is an instrument which regulates human conduct/behavior. Law means Justice, Morality, Reason, Order, and Righteous from the view point of the society. Law means Statutes, Acts, Rules, Regulations, Orders, and Ordinances from point of view of legislature. Law means Rules of court, Decrees, Judgment, Orders of courts, and Injunctions from the point of view of Judges. Therefore, Law is a broader term which includes Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc. Generally the term law is used to mean three things: First it is used to mean ―legal order‖. It represents the regime of adjusting relations, and ordering conduct by the systematic application of the force of organized political society. Secondly, law means the whole body of legal Percepts which exists in a politically organized society. Thirdly, law is used to mean all official control in a politically organized society. This lead to actual administration of Justice as contrasted with the authoritive material for the Guidance of Judicial action. Law in its narrowest or strict sense is the civil law or the law of the land. It is very difficult to define the term law. Many Jurists attempted to define the term law. For the Purpose of clarity, some of the definitions given by Jurists in different Periods are categorized as follows. Salmond: - According to salmond ―the law may be defined as the body of principles recognized and applied by the state in the administration of Justice. According to John chipman Gray, ―the Law of the State or of any organized body of men is composed of the rules which the courts, that is the judicial organ of the body lays down for the determination of legal rights and duties. 3 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA John Austin (1790-1859) An English Jurists expounded the concept of analytical positivism, making law as a command of sovereign backed by sanction. He developed logically, a structure of legal system in which he gave no Place to values, morality, idealism and Justice. Thomas Erskine Holland, a reputed Jurist, who followed the Austin‘s concept and nature of law attempted to define law as law is a General rule of external human action enforced by a political sovereign. Holland also measures or defines law with preference to sovereign devoid of moral, ethical or ideal elements which are foreign to law and Jurisprudence. To John Erskine law is the command of a sovereign, containing a common rule of life for his subjects and obliging them to obedience. According to Hans Kelsan legal order is the hierarchy of the norms, every norm derive its validity from the superior norm and finally there is highest norm known as grundnorm. According to H.L.A.Hart Law is the combination of primary rules of obligations and secondary rules of recognition. B. What are the 4 main sources of law in Cameroon? The main sources of Cameroonian law are the Constitution1, legislation, judicial precedents and customary law. Section 27(1) of the Southern Cameroon's High Court Law, 1955 gives judicial backing to the continuous application of customary law rules as well as its applicable quantum. C. What are the two systems of law in Cameroon? Cameroon is a bijural system with the English Common Law operating in the two Anglophone regions of North West and South West and the French Civil Law 1 Cameroon, Constitution of the Republic of Cameroon - Law No. 96–06 of 18 January 1996 to amend the Constitution of 2 June 1972. 4 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA operating in the eight francophone regions of Adamaoua, Centre, East, Far North, Littoral, North, West and South. Part XII (Articles 65 and 66) names the preamble "part and parcel of this Constitution" and requires all government officials to "declare their assets and property at the beginning and at the end of their tenure of office." D. What is gender? Gender refers to the characteristics of women, men, girls and boys that are socially constructed. This includes norms, behaviours and roles associated with being a woman, man, girl or boy, as well as relationships with each other. People often use the terms ―sex‖ and ―gender‖ interchangeably, but this is incorrect. Sex refers to biological physical differences, while gender is how people identify. ―Sex‖ refers to the physical differences between people who are male, female, or intersex. A person typically has their sex assigned at birth based on physiological characteristics, including their genitalia and chromosome composition. This assigned sex is called a person‘s ―natal sex.‖ Gender, on the other hand, involves how a person identifies. People may identify with genders that are different from their natal sex or with none at all. These identities may include transgender, nonbinary, or gender-neutral. There are many other ways in which a person may define their own gender. Gender also exists as social constructs — as gender ―roles‖ or ―norms.‖ These are defined Trusted Source as the socially constructed roles, behaviors, and attributes that a society considers appropriate for men and women. Gender inequality and discrimination faced by women and girls puts their health and well-being at risk. Women and girls often face greater barriers than men and boys to accessing health information and services. These barriers include restrictions on mobility; lack of access to decision-making power; lower literacy rates; discriminatory attitudes of communities and healthcare providers; and lack of training and awareness 5 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA amongst healthcare providers and health systems of the specific health needs and challenges of women and girls. Consequently, women and girls face greater risks of unintended pregnancies, sexually transmitted infections including HIV, cervical cancer, malnutrition, lower vision, respiratory infections, malnutrition and elder abuse, amongst others. Women and girls also face unacceptably high levels of violence rooted in gender inequality and are at grave risk of harmful practices such as female genital mutilation, and child, early and forced marriage. WHO figures show that about 1 in 3 women worldwide have experienced either physical and/or sexual intimate partner violence or nonpartner sexual violence in their lifetime. Harmful gender norms – especially those related to rigid notions of masculinity – can also affect boys and men‘s health and wellbeing negatively. For example, specific notions of masculinity may encourage boys and men to smoke, take sexual and other health risks, misuse alcohol and not seek help or health care. Such gender norms also contribute to boys and men perpetrating violence – as well as being subjected to violence themselves. They can also have grave implications for their mental health. Rigid gender norms also negatively affect people with diverse gender identities, who often face violence, stigma and discrimination as a result, including in healthcare settings. Consequently, they are at higher risk of HIV and mental health problems, including suicide. E. What is violence? Violence is an act of physical force that causes or is intended to cause harm. The damage inflicted by violence may be physical, psychological, or both. Violence may be distinguished from aggression, a more general type of hostile behaviour that may be physical, verbal, or passive in nature. Violence is a relatively common type of human behaviour that occurs throughout the world. People of any age may be violent, although 6 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA older adolescents and young adults are most likely to engage in violent behaviour. Violence has a number of negative effects on those who witness or experience it, and children are especially susceptible to its harm. Fortunately, various programs have been successful at preventing and reducing violence. F. Types of violence Violence can be categorized in a number of ways. Violent crimes are typically divided into four main categories, based on the nature of the behaviour: homicide (the killing of one human being by another, sometimes for legally justifiable reasons), assault (physically attacking another person with the intent to cause harm), robbery (forcibly taking something from another person), and rape (forcible sexual intercourse with another person). Other forms of violence overlap with these categories, such as child sexual abuse (engaging in sexual acts with a child) and domestic violence (violent behaviour between relatives, usually spouses). Violence can also be categorized according to its motivation. Reactive, or emotional, violence typically involves the expression of anger—a hostile desire to hurt someone—that arises in response to a perceived provocation. Proactive, or instrumental, violence is more calculated and is often performed in anticipation of some reward. The American psychologist Kenneth Dodge found that those two types of violence involve distinct physiological states: a person engaging in reactive violence experiences increased autonomic nervous system arousal (i.e., increased heart rate and breathing, sweating), whereas a person committing an act of proactive aggression experiences low autonomic arousal. Another method of categorizing violent behaviour involves distinguishing between predatory and affective violence. Predatory violence involves planned acts of hostile force. Affective violence is more impulsive and unplanned. Other types of violence have been suggested, 7 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA including irritable violence (motivated by frustration) and territorial violence (motivated by intrusion into one‘s perceived territory or space). G. Causes of violence One point that all researchers seem to agree on is that violence is multicausal, meaning that no single factor is responsible for violent behaviour. Instead, violence results from a combination of factors, including those originating in the violent person‘s social or cultural environment and those representing immediate situational forces. Researchers have examined multiple factors within a person that may contribute to violence, including genetic predisposition, neurochemical abnormalities (e.g., high testosterone levels), personality characteristics (e.g., lack of empathy for others), information-processing deficits (e.g., the tendency to view others‘ actions as hostile), and the experience of abuse or neglect as a child. H. Effects of violence Regardless of its cause, violence has a negative impact on those who experience or witness it. Violence can cause physical injury as well as psychological harm. Several psychological disorders, including post-traumatic stress disorder, dissociative identity disorder, and borderline personality disorder, are associated with experiencing or witnessing violence. Other psychological symptoms, such as depression, anxiety, and mood swings (see bipolar disorder), are common in victims of violence. Children seem to be particularly susceptible to the negative effects of violence. Those who experience or witness violence may develop a variety of problems, including anxiety, depression, insecurity, anger, poor anger management, poor social skills, pathological lying, manipulative behaviour, impulsiveness, and lack of empathy. As such examples show, some children may respond to violence in ―internalizing‖ ways, such as by developing feelings of insecurity, anxiety, and 8 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA depression, whereas others may react in ―externalizing‖ ways, such as by feeling angry and behaving in an antisocial manner. Although some of the effects of violence may manifest themselves during childhood, others may not appear until adulthood. For example, abused girls are more likely than nonabused girls to have substance-abuse problems as adults. Moreover, exposure to violence can increase violent behaviour in children. The American psychologist Albert Bandura showed that children often imitate violent behaviours, especially if those acts are committed by trusted adults (e.g., parents). Children also imitate violence shown on television and in other forms of media. Those exposed to greater amounts of media violence are more likely than other children to become violent adults. This is particularly true if the child identifies with the violent characters and if the child believes that media violence represents reality. I. Prevention of violence Because the tendency to behave violently develops during childhood, most prevention programs target young people. Many such programs are school-based, although some involve the family or the community. The most-successful violenceprevention programs are those that target all children, not just those who are considered to be at risk for violence. In addition, the most success has been found in school-based programs with committed and involved teachers and programs that include parent training. A variety of programs have been developed to reduce or prevent violence in individuals who have already shown a tendency toward violence. For example, a number of prison-based programs attempt to reduce the likelihood of reoffending among violent and nonviolent criminals. Such programs often involve a variety of components. Violent offenders may receive training to improve parenting and other relationship skills. A mental-health component, such as substance abuse treatment, may be included. Overall, the most-successful programs for preventing violence are those that effect behavioural changes. 9 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA CHAPTER 2: GENDER-BASED VIOLENCE (GBV) Gender-based violence is violence directed against a person because of that person's gender or violence that affects persons of a particular gender disproportionately. The United Nations defines violence against women as "any act of genderbased violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life." A. TYPES OF GBV  Physical violence.  Verbal violence.  Psychological violence.  Sexual violence.  Socio-economic violence.  Domestic violence or in intimate relationships.  Harassment and sexual harass 1. Physical violence Any act which causes physical harm as a result of unlawful physical force. Physical violence can take the form of, among others, serious and minor assault, deprivation of liberty and manslaughter. 2. Sexual violence Any sexual act perfomed on an individual without their consent. Sexual violence can take the form of rape or sexual assault. 10 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA 3. Psychological violence Any act which causes psychological harm to an individual. Psychological violence can take the form of, for example, coercion, defamation, verbal insult or harassment. 4. Economic violence Any act or behaviour which causes economic harm to an individual. Economic violence can take the form of, for example, property damage, restricting access to financial resources, education or the labour market, or not complying with economic responsibilities, such as alimony. It is also important to recognise that gender-based violence may be normalised and reproduced due to structural inequalities, such as societal norms, attitudes and stereotypes around gender generally and violence against women specifically. Therefore it is important to acknowledge structural or institutional violence, which can be defined as the subordination of women in economic, social and political life, when attempting to explain the prevalence of violence against women within our societies. B. Identification of GBV (Forms of GBV) One out of every three women will experience at least one type of gender-based violence (GBV) in her lifetime, though these acts of violence are not always explicit — even to the women and girls experiencing them. Below are 12 common forms of GBV that we have seen time and again. They don‘t tell the whole story of GBV, but they do illustrate how pervasive and multi-faceted the issue is for millions of women and girls around the world. 1. Intimate partner violence We know about domestic violence, which can be perpetrated by any family member and often targets women and girls. Intimate partner violence is linked to domestic abuse, and is even more prevalent for women. In 2021, the World Health 11 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA Organisation reported that 27% of women ages 15-49 had experienced some form of physical and/or sexual violence by their romantic partner or ex-partner. The WHO also notes that 38% of all murders of women are committed by intimate partners or expartners. 2. Sexual harassment Sexual harassment is any unwelcome sexual advance, verbal or physical, that leaves its target feeling offended, shamed, or embarrassed after the encounter. In some cases, the intent is not to cause these effects, but the impact remains the same. GBV are often rooted in harmful cultural and societal gender norms. 3. Sexual violence and assault The UN defines sexual violence as “any sexual act committed against the will of another person, either when this person does not give consent or when consent cannot be given because the person is a child, has a mental disability, or is severely intoxicated or unconscious as a result of alcohol or drugs.” We‘ll get into more detail with some of these forms of violence below, but a key thing to note are the many acts of sexual violence and assault that fall into ―grey‖ areas, including unwanted touching or fondling, and specific forms of assault, like the assault of a child. The risk for these forms of violence increase during a humanitarian emergency, especially one that forces families to flee their homes for temporary or long-term shelter elsewhere. 4. Psychological and emotional abuse Not all abuse is physical. Verbal abuse, threats of harm, manipulation and mind games, and isolating a woman or girl from family, friends, school, or work are all forms of psychological and emotional abuse. Like many of these forms of violence, these are two types of abuse that can be experienced by all genders, but are especially common to the experience of women and girls. One study finds that, in the EU, nearly one out of every two women has experienced some form of psychological violence from a partner. 12 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA Psychological and emotional violence can often be precursors or happen in tandem with other forms of violence, and can lead survivors to experience depression, anxiety, or post-traumatic stress disorder (PTSD) long after the abuse has ended. One out of every three women will experience at least one type of gender-based violence (GBV) in her lifetime 5. Financial or economic abuse Economic or financial abuse happens when a person is made to be financially dependent on another. The abuser controls the victim‘s financial and other economic resources and withholds access to their money. Usually, the target of economic abuse is also prohibited from getting a job or going to school. This is an especially common issue in many of the countries where Concern works, where women are still seen as property: first of their father, then of their husband. 6. Online or digital violence Also known as online gender-based violence or OGBV, this relatively new form of abuse is prevalent among women even in countries with statistically-lower internet usage. The Council of Europe identifies four categories of OGBV: 1. Harassment, violence, and abuse facilitated by technology (e.g., installing spyware onto an intimate partner‘s devices to track them) 2. Abuse that takes place or is amplified online (such as non-consensual sharing of intimate photos, aka ―revenge porn‖) 3. Enabling violence via the internet (such as cyberbullying or doxxing a woman on social media) 4. An evolving form of OGBV: Using AI and other technology to abuse others (via tactics like deepfake pornography) 7. Rape Any form of sex that is forced and non-consensual. As we note in our genderbased violence explainer, many countries still hold beliefs and laws built around the myth that forced sex within a marriage is acceptable. But rape is defined by an action, 13 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA not just the identity of the perpetrator or survivor. In Malawi, for example, the most prevalent form of sexual violence is marital rape. 8. Female genital mutilation (FGM) or circumcision There are several methods used to perform FGM, and various reasons for doing so, though many communities regard the practice as a tradition passed down from one generation to the next. Often, traditional healers rather than healthcare professionals carry out the procedure, adding to further complications. While this may be upheld as a tradition (so much so that over 99% of teenage girls in Somalia still undergo FGM), it is a harmful one. The WHO is clear in its position on FGM, stating that it “has no health benefits for girls and women” and is “a violation of [their] human rights.” In fact, FGM can lead to lifelong problems, including severe bleeding, cysts, infections, complications during pregnancy, and infant mortality. 9. School-related gender-based violence (SRGBV) Harmful gender norms are often enforced at an early age through violence in schools. School-related gender-based violence (SRGBV) is an issue that Concern has been actively addressing over the last decade, and comprises acts of violence both explicit (physical, verbal, emotional, psychological and sexual violence) and implicit (especially in the texts that are used as part of school curriculums that legitimate gender imbalance). Research has shown that these forms of violence, whether perpetrated by teachers, community members, or other students, form a major barrier to education as well as to the achievement of gender equality. 10. Early, forced, or child marriage Child marriage is also a threat to education, as well as a threat to the rights and well-being of the young people forced into such a situation. At times, this can apply to both boys and girls — in the early years of the Syrian conflict, many young couples, often strangers to one another, were forced into marriage by their parents in hopes that daughters would be cared for and sons would avoid forced conscription. 14 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA Also pervasive, however, are situations that place young girls into forced marriages with older men, particularly if a family cannot afford to care for all of its children. This often leads to marital rape and other forms of abuse, and can create a lifetime of physical and psychological health issues for girls and women. 11. Human trafficking At the launch of a 2009 report on human trafficking, then-executive director of the UN Office on Drugs and Crime Antonio Maria Costa said that ―many governments are still in denial‖ with regards to human trafficking. That same report notes that the term ―trafficking‖ is misleading, placing emphasis on the transaction rather than the people most affected. It is ―a crime that is more accurately described as enslavement,‖ the report concludes. ―Exploitation of people, day after day. For years on end.‖ Women and girls are again especially vulnerable to trafficking, especially those who are seeking asylum or are otherwise forcibly displaced from home. Willfully hiring a smuggler to get them to safety as a last-resort effort may lead to them being held against their will and exploited until they have paid their ―debt.‖ Sexual exploitation is the most common form of human trafficking, though forced labour is also a common tactic. The term trafficking in persons can be misleading: it places emphasis on the transaction aspects of a crime that is more accurately described as enslavement. Exploitation of people, day after day. For years on end. 12. Honour killings and dowry deaths Ultimately, and heartbreakingly, GBV can become fatal in more ways than one. A 2022 study showed an increased likelihood of suicidal behaviour among victims of intimate partner violence. A UNODC study recorded over 81,000 women and girls killed intentionally in 2021, a number that has gone largely unchanged over the last decade. UNODC estimates that most of these killings were gender-related, and that, on average, more than five women or girls are killed by someone in their own family every hour. 15 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA So-called ―honour killings‖ are one form of femicide that happens, usually at the hands of a family member, when a woman or girl has ―shamed‖ their family. Circumstances often revolve around traditional beliefs in sexual ―purity.‖ The UN estimates that there are at least 5,000 honour killings each year. Dowry deaths are a similar form of femicide that are most common in Southeast Asia, including Bangladesh and Pakistan (with dowry-related violence affecting several thousand women in both countries each year). These acts usually involve a husband killing his wife — or driving her to kill herself — due to dowryrelated issues. C. Gender-based violence: Concern’s response No one should suffer because of their gender. Concern integrates a gendertransformative framework into each of its programmes, regardless of that programme‘s main focus. Our task is to help communities build resilience and economic empowerment while also recognizing that harmful gender practices, including implicit and explicit forms of gender-based violence, hinder sustainable progress. Additionally, many of our emergency responses include some form of psychosocial support, with a particular sensitivity to the experiences and needs of women and girls in these situations. Learn more about our work to end GBV below. D. Gender Based Violence Area of Responsibility Gender-based violence is a life-threatening, global health and human rights issue that violates international human rights law and principles of gender equality. It is also a threat to lasting peace and an affront to our common humanity. All humanitarian actors must be aware of the risks of GBV and acting collectively to ensure a comprehensive response to prevent and mitigate these risks as quickly as possible within their areas of operation. 16 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA Failure to take action against GBV represents a failure by humanitarian actors to meet their most basic responsibilities for promoting and protecting the rights of affected populations. The GBV Working Group ensures coordinated actions in prevention and mitigation of GBV and accountability to beneficiaries. 17 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA CHAPTER 3: LEGAL FRAMEWORK (NATIONAL LEGISLATION AND INTERNATIONAL INSTRUMENTS) AND IMPLEMENTATION Cameroon ratified the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (the so-called Maputo Protocol) in 2012.2 The Constitution of the Republic of Cameroon (1996), as amended in 2008, does not explicitly refer to violence against women, harmful practices or FGM. The Preamble states, however, that ‗every person has a right to life, to physical and moral integrity and to humane treatment in all circumstances. Under no circumstances shall any person be subjected to torture, to cruel, inhumane or degrading treatment‘.3 There is no national legislation in Cameroon comprehensively addressing violence against women. However, the country has passed some laws addressing different forms of violence against women, such as rape, sexual harassment, and genital mutilation. In 2012, the government drafted a National Strategy to Combat Violence against Women, established a hotline for victim support and reporting cases, and implemented awareness-raising activities at the national and local levels.4 In practice, violence against women is highly prevalent throughout the country, in large part due to lack of adequate legislation and systematic action to eradicate stereotypes and harmful practices against women. 3.1. Sexual and Domestic violence Rape is prohibited under the Penal Code and punishable by 5 to 10 years of imprisonment.5 There is no legislation that prohibits domestic violence in Cameroon, nor is spousal rape specifically addressed in the Penal Code. 2 ACHPR, Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa Legal Instruments, 11 July 2003. 3 Cameroon, Constitution of the Republic of Cameroon - Law No. 96–06 of 18 January 1996 to amend the Constitution of 2 June 1972. 4 OECD Social Institutions and Gender Index, Country Profile: Cameroon, 2019. 18 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA The 2016 amended Penal Code introduced sections providing that a rapist cannot be exonerated by marrying his victim, criminalising sexual harassment with imprisonment where the victim is a minor and considering as an aggravating factor where the perpetrator has educational authority over the victim.6 In practice, the law is not effectively enforced, as cases of rape are often not investigated and incidents rarely reported.7 The UN Committee on the Rights of the Child (CRC) concluded that legislation ‗does not provide full protection for all victims of violence, including sexual violence, or guarantee their compensation or rehabilitation‘.8 As a result, a high prevalence of domestic violence, sexual assault and rape, as well as a culture of impunity persist across all regions in the country. 9 3.2. Trafficking In 2011, Cameroon enacted an anti-trafficking law criminalising all forms of labor trafficking and some forms of sex trafficking. The 2018 USDOS observed that the law is, however, inconsistent with international legal standards. It requires demonstration of threat, fraud, deception, force, or other forms of coercion to constitute a child sex trafficking offense, and therefore did not criminalise all forms of child sex trafficking. A legislation drafted in 2012 aimed at correcting inconsistencies with international law has yet to be approved.10 Despite increasing efforts by the government to eradicate trafficking, Cameroon does not fully meet the minimum standards for the elimination of trafficking. 5 Cameroon, Penal Code - n° 67/LF/1, 12 June 1967, Amended 12 July 2016; USDOS, Cameroon 2018 Human Rights Report, 13 March 2019. 6 Cameroon, Penal Code - n° 67/LF/1, 12 June 1967, Amended 12 July 2016; USDOS, Cameroon 2018 Human Rights Report, 13 March 2019; UN Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Cameroon CRC/C/CMR/CO/3-5, 06 July 2017. 7 USDOS, Cameroon 2018 Human Rights Report, 13 March 2019, p. 29. 8 UN Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Cameroon CRC/C/CMR/CO/3-5, 06 July 2017. 9 Advocates for Human Rights, Cameroon: Committee on the Elimination of Discrimination Against Women 57th Session, 24 January 2014; Canada: IRB, Cameroon: Domestic violence, including legislation; protection provided by the state and support services available to victims (2014-2016), 21 April 2016; OECD Social Institutions and Gender Index, Country Profile: Cameroon, 2019. 10 USDOS, 2018 Trafficking in Persons Report, 28 June 2018, pp. 128-129. 19 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA 3.3. Traditional harmful practices The Cameroonian law does not explicitly criminalise the practice of breast ironing.11 Law No. 2016/007 of 12 July 2016, commonly known as the ‗Penal Code‘ of the Republic of Cameroon, contains a section specifically referring to the criminalisation and prohibition of ‗genital mutilation‘.12 However, the law lacks a clear definition of FGM and it does not criminalise aiding and abetting FGM nor failure to report the practice. 3.4. State actors of protection a) Sexual and Domestic violence Various sources stated that a culture of impunity persist across the country towards violence against women. The 2018 USDOS report informed that police and judges rarely investigated or prosecuted rape cases, and victims often did not report them.13 It is reported that some judges see domestic violence as a form of a husband's 'disciplinary rights' over their wives.48 Women who are victims of domestic violence in most cases resort to counselling and mediation, therefore the offender is often not held accountable and the practice continue. Interviewed by the Immigration and Refugee Board of Canada (IRB), a representative of the Ministry of Women's Empowerment and the Family (Ministère de la Promotion de la femme et de la famille, MINPROFF) stated that in the case of ‗legislative gaps‘ judges are tempted to apply customary rules that discriminate against women.14 Concerning domestic violence, the MINPROFF representative added that, in her opinion, the police consider cases of domestic violence to be ‗a waste of time‘ and treat them with ‗bias and laxity‘. 11 UN Committee on the Rights of the Child, Concluding observations on the combined third to fifth periodic reports of Cameroon CRC/C/CMR/CO/3-5, 06 July 2017, p. 7. 12 Cameroon, Law No. 2016/007 of 12 Juil 2016 relating to the Penal Code (2016). 13 USDOS, Cameroon 2018 Human Rights Report, 13 March 2019, p. 29 14 Canada: IRB, Cameroon: Domestic violence, including legislation; protection provided by the state and support services available to victims (2014-2016), 21 April 2016. 20 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA In the Anglophone regions, there have been reports of rape and sexual abuses by persons linked to the government and separatist groups. UN Women assisting survivors of SGBV in the Far-North informed that most of the cases of sexual assault are often not raised and those reported are rarely punished because they are committed by soldiers and important men in the community.15 b) Trafficking The implementation of the national victim identification and national referral system (NRS) and standard operating procedures (SOPs) was limited. As a result, many officials have yet to be trained and some victims may have remained unidentified. The government did not report providing counseling, legal support, or any other assistance to victims who testified during court proceedings. NGOs reported the case of one victim who participated in the proceeding against her suspected trafficker, travelling long distances each time to appear at trial and not receiving any assistance or protection by the government, despite threats made against her by the suspected trafficker's relatives.16 The 2018 USDOS report stated that the Ministry of Health and Ministry of Social Affairs, in partnership with international organisations, repatriate more than 559 Cameroonians from Libya and Niger, including potential trafficking victims. Upon their arrival, the government provided temporary shelter, medical care, and counseling to assist these individuals.54 In the North-West and South-West regions, judicial inefficiencies have been exacerbated by lawyer strikes in Buea and Bamenda, where most of the trafficking cases were referred. Some regional courts and NGOs encouraged victims to settle trafficking cases outside of court. c) Traditional harmful practices Advocates for Human Rights stated that Cameroon has made little efforts to prevent the continuation of FGM and breast ironing, hold perpetrators accountable, or 15 UN Women, UN Women facilitating reintegration of GBV survivors in the Far North Region of Cameroon, 06 November 2018. 16 USDOS, 2018 Trafficking in Persons Report, 28 June 2018, pp. 128-129. 21 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA provide services for victims.17 In 2016, the UN stated that, although the Cameroon government has yet to conclude the legislative reform project, combating female genital mutilation is at the core of its political agenda. According to the organisation 28TooMany, so far, the government has mostly focused its efforts on raising awareness on the need to stop FGM rather than enforcing the Penal Code.18 3.5. Social perception and non-state actors of protection Women who do not undergo FGM may be cast out by the community, reason why women themselves support the practice.19 Family members often perpetrate or condone the practice of breast ironing, as it is considered a way to protect girls from sexual abuse, early marriage and pregnancy. Due to the stigmatisation of rape and pressure from the family and the community, many victims do not report incidents or resort to marrying their rapists, exonerating the perpetrators from any crime. UN Women assisting survivors of SGBV in the Far-North Region stated that many women are afraid to denounce sexual assault or file a judicial complaint for rape and sexual assault because of fear of persecution from the society, death threats and abuse of authority by the military officers. Victims who report sexual assault suffer humiliation, stigmatisation and isolation from society, while military commanders do not take any punitive sanctions against soldiers who commit the crime. Therefore, many cases of sexual abuse go unreported.20 As part of their humanitarian response plan to the violence outbreak in the North-West and South- West Regions, in January 2019, UN OCHA launched the GBV Sub-Cluster, which coordinates some 30- member organisations committed to provide medical care and psychosocial support to vulnerable women and girls. 17 Advocates for Human Rights, Cameroon: Committee on the Elimination of Discrimination Against Women 57th Session, 24 January 2014. 18 28 Too Many, Cameroon: The Law and FGM, July 2018. 19 UN Economic Commission for Africa African Centre for Gender and Social Development (ACGSD), Violence against Women in Africa: A Situational Analysis, 2010, p. 28. 20 UN Women, UN Women facilitating reintegration of GBV survivors in the Far North Region of Cameroon, 06 November 2018. 22 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA 3.6. Some key questions to analyses regarding GBV in Cameroon For us to better under the legal provisions and its applicability relating to GBV in Cameroon, some salient questions will be examined. 1. What are the relevant statutes and codes? Victims of domestic abuse have little recourse for protection in Cameroon since there is no domestic violence law providing women with an order for protection against abusers. However, several international codes and conventions are intended to give some scope of protection to the victims and certain articles of the Cameroonian Penal Code can be applied to domestic violence. a. International level  Universal Declaration of Human Rights of 1948  The Convention on the Elimination of all Forms of Violence and Discrimination Against Woman adopted by the United Nations in 1979  Vienna Declaration and Programme of Action of the World Conference on Human Rights of June 1993 (A/Conf.157/25) and the Declaration on the Elimination of Violence Against Women adopted by the General Assembly of the United Nations in Resolution 48/104 of 20 December 1993  Fourth World Conference on Women (Beijing, 1995)  African Charter on Human and Peoples' Rights with special emphasis on the rights of women adopted in Maputo in 2003 b. National level  Ministry for the Protection of the Family and the Woman, created in 2004  Cameroonian Penal Code of 2016.  a family code was drafted in 1997 to address issues of domestic violence but it has still not been adopted 23 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA  Cameroon Criminal Procedure Code of 2005. 2. What is the controlling case law? There is no available case law in Cameroon regarding domestic violence. However, the codes and conventions and the Ministry for the Protection of the Family and the Woman ensure that "all acts of violence and discrimination against women are reported and that the police force receives support in caring for and assisting in the reintegration of women victims of violence into society and their families." The reality is that domestic violence in Cameroon is still considered a private matter and the law enforcement officers do not consider it a serious issue; therefore, victims are reluctant to report abuse. Furthermore, the Cameroonian judicial system usually applies customary rules that discriminate against women (it is considered that a man has "disciplinary rights" over his wife) and judges are usually reluctant to apply international legal instruments ratified by Cameroon. 3. What are the specific parts of the court system that address domestic violence? As there is no special law regulating domestic violence, victims may file a complaint under the assault provisions of the Cameroonian Penal Code. Therefore, the criminal courts will judge this type of violence. 4. What are potential causes of action? As previously mentioned, domestic violence issues will be treated as criminal proceedings. 5. Framework Guiding Domestic Violence Law a. Are there civil and criminal legal remedies for domestic violence victims? Only criminal legal remedies are available for domestic violence victims. 24 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA b. Is domestic violence identified in national law as a human right (noting that at a European level protection from domestic violence has not been explicitly identified as a human right but is indirectly captured by the other provisions)? No, domestic violence is not expressly regulated in the national law of Cameroon. The only national law that can be applicable in cases of domestic violence is the Cameroonian Penal Code, which regulates sexual offenses such as rape, assaults, forced marriage and moral dangers, but none is treated as a violation of human rights. c. Has your country signed and ratified the Council of Europe's Istanbul Convention (2011) preventing and combating violence against women and domestic violence (CETS No. 210)? No. d. If it has ratified the Istanbul Convention, how has this convention been implemented into national law? There is no provision for ratification. e. If it has not ratified or signed the Istanbul Convention, is it envisaged that your country will do so? There is no provision for ratification. f. If it has ratified the 1979 Convention, how has the recommendations part of General Comment No. 35 been implemented into national law? Yes, Cameroon ratified the 1979 Convention on the Elimination of All Forms of Discrimination Against Women on 23 August 1994, but Cameroon has not ratified the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women. In Cameroon, human rights instruments are generally incorporated into national law simply by means of ratification. Article 45 of the Constitution of Cameroon states that duly approved or ratified treaties and international agreements have priority over 25 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA national law. Nonetheless, in practice, as previously mentioned, judges are reluctant to apply international legal instruments and they usually invoke national or customary laws. 6. Protection for domestic violence victims and relief granted a. Are there civil protection orders available to victims of domestic abuse? No. Civil protection orders are not available to victims of domestic abuse in Cameroon. Domestic abuse/violence is not recognized as a specific crime in Cameroon and protective/safety orders are not available to victims. Victims would have to file a complaint against the abuser under the assault provisions of the Cameroonian Penal Code: Article 277 (grievous harm); Article 279 (assault occasioning grievous harm); Article 280 (simple harm); Article 281 (slight harm); Article 338 (assault on a woman with a child); or Article 350 (assault on children). Rape (Article 296), forced marriage (Article 356) and abuse in respect of a "bride price" (Article 357) are also offenses under the Cameroonian Penal Code. Domestic abuse is seen as a private matter by law enforcement agencies in Cameroon. Even if a case proceeds to court (it is reported that few cases reach this stage), judges generally accept that a man has "disciplinary rights" over his wife. It is also reported that while the state operates helplines for victims, no shelters are available for victims. b. Who can petition for civil protection orders? N/A (see section a above). c. Are there temporary custody of a child or child support orders? No. Civil protection orders are not available. 26 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA d. Is there a provision to order the abuser to move out or stay away from places that the victims frequent? No. Civil protection orders are not available. e. Are there any other types of emergency, preventive and civil protection orders? No. Civil protection orders are not available. f. Can these orders be requested by direct or indirect victims or legal representatives in children's cases? N/A (see section ―a‖ above). g. Are there different types of civil protection orders, e.g., for a short- term period? No. Civil protection orders are not available. h. Are ex parte orders permitted without the aggressor being present? No. Civil protection orders are not available. i. Do emergency orders also extend protection for abuse and intimidation to family members of the victim? N/A. Civil protection orders are not available. j. How long do the orders last? N/A. Civil protection orders are not available. k. Data or hyperlinks to government or NGO websites that include information on how often civil protection orders are issued, and any relevant demographics information, e.g., police reports, convictions, etc. Between 2006 and 2008, 3,680 cases of physical violence against women (including domestic violence) and 2,500 cases of psychological violence were 27 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA recorded by the government's services. There are no statistics on how many of those cases resulted in prosecution or conviction. 7. Prosecutorial considerations a) When do the police get involved in domestic disputes or legal actions? While there is no specific legislation on this, it appears that the police rarely intervene in domestic violence disputes as they see them as "private matters." The victim can be seen by the police to be responsible for the violence and they may be sent back to the abuser. The Ministry for the Protection of the Family and the Woman apparently views domestic violence as a waste of time. b) What circumstances effect law firm involvement? Pursuant to the previous point, there is little involvement of law firms in Cameroon for domestic violence cases. They might be involved in cases of mediation, a tool sometimes used to solve domestic violence cases. 8. Standard of proof a. Is proof required by any legal means? Article 308(a) of the Cameroonian Penal Procedure Code states, "Except where otherwise provided by law, an offence may be established by means of proof." There does not seem to be exceptions for offenses that may be assimilated into domestic violence (as there is no specific offense for domestic violence). b. Are there any requirements regarding evidence and documents? There are specific requirements for types of evidence. Article 308(c) states, "Proof by means of wire tapping, electronic listening devices or other instruments of surveillance is admissible under the conditions laid down in Articles 92 and 245," which are specific provisions that authorize or order such means. 28 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA Moreover, Articles 313 and 314 of the Cameroonian Penal Procedure Code establish that the content of documents can only be proved with the primary evidence, meaning the original document (or documents if several copies are made with a mechanical process), except in certain situations in which secondary evidence is accepted (a copy of the original document certified by a competent authority). Secondary evidence is only admitted in the following cases:  when it is established before the court that the original is in the possession of the adverse party or a third party that refuses to produce the document after a notice is served  when the existence and the contents of the original are not disputed by the adverse party  when it is established that the original has been destroyed or lost  when the original cannot be easily moved c. Is proof "beyond a reasonable doubt" required? Yes. Article 395 of the Cameroonian Penal Procedure Code states that in case of doubt, the accused will be acquitted. A reference to the benefit of doubt will be made in the judgment. d. Is the standard of proof different for ex parte orders? No. 9. Affirmative defenses a. Are affirmative defenses available to the accused? Yes. See Part 3, Chapter II of the Cameroonian Penal Procedure Code, which lists the following affirmative defenses:  insanity  intoxication 29 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA  infancy  threats  compulsion  obedience to a lawful authority  lawful defense  provocation if the answer to the provocation is proportionate  state of necessity  effect of diminished responsibility b. Is willful intent required? Yes, as a principle (Article 74 of the Cameroonian Penal Procedure Code), unless the law states otherwise, which is the case for some crimes falling under the qualification of domestic violence, such as assault occasioning death, assault occasioning grievous harm, simple harm and slight harm (Articles 278-281 of the Cameroonian Penal Code). c. Are false accusations punishable for the victim? Yes, as regulated in Article 260 of the Cameroonian Penal Procedure Code. A defendant in whose favor a no-case ruling is made and that has become final may institute an action for false reporting. They may also sue for damages before the competent trial court. In case of a conviction, the costs will be borne by the civil party. d. How is consent discussed in the law? There is no strict definition of consent, but Article 296 of the Cameroonian Penal Code defines "rape" as "sexual intercourse to which a person is compelled, by force or by moral ascendency." e. Is self-defense or insanity a defense? Yes, as regulated in Articles 78 and 84 of the Cameroonian Penal Code. For self-defense, the means of defense need to be proportionate to the seriousness of the infringement threatened. Intentional killing is always considered proportionate to an 30 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA attack causing a reasonable apprehension of death, of grievous harm, of rape or of sodomy. 10. Witness status a) What is a witness's duty to testify honestly and completely? As regulated in Article 183 of the Cameroonian Penal Procedure Code, a witness has to take an oath ("I swear to say the truth, all the truth and only the truth"). If this oath is broken, they may be sentenced to between one and five years of prison. b) Who may abstain from testifying in certain situations? There are no specific exceptions for domestic violence victims. The only applicable general exception is to receive a testimony outside of court due to severe health issues. c) What potential "excuses" can a witness raise to refuse to testify in a domestic violence action? There is none. d) What is the impact of domestic violence on witnesses who are children? No. e) Can children be called upon to testify? Anyone who is 14 years old or older can testify. Nonetheless, if the minor is the victim, they can be heard as a witness, whatever their age. Defendants can be heard at any stage of the prosecution. f) What is the effect of a child victim on the charges against the offender? It depends on the charge, but it appears that there are some applicable alternatives depending on each case. The penalty can be doubled or it can become a 31 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA life sentence, or even the death penalty may apply. For example, Article 350 of the Cameroonian Penal Code provides that for murder, capital murder and assault occasioning death, the penalty when the victim is a child is either a life sentence or the death penalty. In the case of assault occasioning grievous harm, simple harm and slight harm committed on children, the charges will be doubled. g) Can lawyers present evidence of battered woman syndrome or other domestic abuse as an affirmative defense to crimes that the battered woman has committed? (Note: Battered Woman Syndrome is accepted by courts in certain jurisdictions to show that battered women can use force to defend themselves and sometimes kill their abusers due to abusive and lifethreatening situations.) There is no specific regulation in this regard and, for the most part, domestic violence cases are not reported. Considering that most judges consider domestic violence a private matter and that men have disciplinary rights over their spouses, no evidence of battered woman syndrome is used by lawyers. 32 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA CHAPTER 4: A SITUATIONAL ANALYSIS OF GENDER-BASED VIOLENCE IN CAMEROON21 As discussed in chapter one, Gender Based Violence (GBV) refers to any act committed against the will of a human being on the bases of sex differences. Violence against Women (VAW) refers to any violence perpetrated on women and young girls simply because they are female. Article 1 of the UN Declaration on the Elimination of Violence against Women refers to it as: ―any act of gender based violence that results in or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life‖. Violence against women is thus presented as a form of discrimination directed against persons of the female sex. The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) considers it as such in its Article 1: ―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, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field‖. This definition is taken up by the Additional Protocol to the African Charter on Human and Peoples’ Rights of Women in Africa in these terms: ―all acts perpetrated against women, which can cause them harm or physical, sexual, psychological, and economic suffering, including the threats to take such actions, the imposition of restrictions or arbitrary deprivation of fundamental freedom, whether in private life or public life, in peacetime, in complicit or war‖. 21 See generally Mildred Ayafor. ( Leadership Intern at the Nkafu Policy Institute). 33 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA Defined as such, Gender Based Violence targets men, women, young boys and young girls. However women and young girls are the most targeted because of their vulnerability. Thus, when we speak of gender based violence, we refer to violence against women and young girls. There is a great variety of gender based violence. Article 2 of the UN Declaration on the Elimination of Violence against Women distinguishes: – Physical, sexual, psychological violence, occurring within the family (battery, sexual abuse of girls, dowry abuse, rape, female genital mutilation and other harmful traditional practices, exploitation). – Physical, sexual, psychological violence, occurring within the community (rape, abuse, harassment, intimidation in the work place, forced prostitution, pimping). The Cameroonian woman is exposed to all these forms of violence, because her decision-making power is quite minimal and she has limited bargaining power because of the patriarchal society in which violence against women and children fits as a tolerated cultural practice. Despite considerable improvement in the perception of women resulting in a greater respect for their rights, the Cameroonian society still considers her a family asset and an object of pleasure and procreation. A. Causes of Gender Based Violence in Cameroon Studies on violence combine demographic, behavioral and socio-economic factors with the general attitude of the society towards gender based violence. The study on the situation of gender based violence in Cameroon dwells on socio-cultural norms, lack of awareness by women of their rights and available remedies for poverty. Politically, GBV may be caused among other things by sexist prejudices and stereotypes, bringing about the idea of inferiority and/or inability of women. This is what justifies discrimination against women and their low representation in decision making positions at both national and international levels. From an economic perspective, the low access to resources and their control, the economic dependence of women vis-à-vis the men are favorable factors to the exercise 34 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA of all forms of violence and exploitation against women. Our habits and customs tolerate some violence specific to women as it the case with the husband‘s right of correction, the practice of FGM (Female Genital Mutilation), early marriage and levirate. Violence is thus explained by age, educational level, difference in perception of man and woman, differences in societal expectations regarding men and women, different perceptions of life, love, relationship intimacy and marital life, a single ended and complementary communication, the low representation of women in spheres of decisions. Violence can also be explained by the tolerance it receives from men and women themselves. Although there are no recent statistics on all the forms of violence against women, the results of the Demographic and Health Survey (DHS 2022) show that in Cameroon, more than half of women have suffered physical abuse, (55%) as from the age of 15. Mainly perpetrated by their current or most recent husbands/partners, but also by their father‘s wife or mother‘s husband and/or their sister/brother. Among women who have experienced marital violence, 43% have had injuries as a result of this violence. Among women who have already had sexual intercourse, 20% did so for the first time against their will, especially those who had the intercourse prior to the age of 15 (30%). Globally, 34% of women aged 15 to 49 have experienced physical violence, 8% have experienced sexual violence and 21% have experienced both physical and sexual violence. Among women who have already been in a union, 60% have experienced physical, sexual or emotional violence from their current or most recent husband. As concerns marital status, women in cohabitation are the most victim of violence (53%) as compared to singles (19%). With regards to the place of residence, women living in the political and economic capital are more victims of violence (64%) than those in the Southern Regions (59%), Central Region (58%) and Southwest (54%). 35 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA Women are victims of violence in all regions of Cameroon. However, some forms of violence are recurring in specific regions where they are maintained by ritual based on mythical and religious principles and perceived as the essence of community life in these Regions. We can site for example: FGM which is practiced in the Far North and the South-West, early marriages in the Adamawa, North, Far North and the East, North-west and South-west, forced prostitution in forest, mining, and industrial exploitation areas and major project areas. There is no practice site specific to GBV. However, we can notice that is practiced most often in home, in family, school, professional circle, and even in the street. It is perpetrated by spouses, partners, family members, employers, teachers, aggressor, medical practitioners, forces of law and order. Gender based violence involves denial of persons‘ rights and has physical, psychological, economic, and sexual manifestation. It brings about pain and suffering that can affect both the life and activities of the victim and his\her family, the author and his\her family, and the entire community in a punctual or permanent manner, regardless of the perspective from which it is placed (stage of life, psychodynamic, humanistic and existentialists). It affects the physical and psychological human being and acts on his\her relations with the environment. B. Consequences of Gender Base Violence Ultimately, the economic and social development of the country bears the impact. The Consequences of gender based violence can thus be measured in a double context, personal and social context. At the individual level, the victim may have physical and brain injury and paralysis, impaired health, poor mental performance, risk behavior (addiction, isolation, self-depreciation, impairment of life, resignation). It is observed at this level that the victim may develop an aversion to the opposite sex and that girls take up early parenthood which they never desired. 36 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA At the social level, violence can cause or exacerbate dysfunction within the family and community, depriving children of parental love, increasing family expenses and impoverishing the family. It can also cause neglect of vulnerable people (the elderly, disabled, orphans, abandoned children), promote early parenthood among children, breed the phenomenon of street children, and thus contribute to the increase in crime and delinquency. Gender based violence deprives the community and the state of usual work force for development and at the same time engages them in extra costs in terms of services and resources. It minimizes the socio-economic impact of development initiatives and undermines the building of a harmonious society. To reinforce the fight against GBV, the government, civil society organization, need to elaborate and implement effective strategies such as: 1. Ensuring the development of women and girls through:  Capacity building for women and girls at all levels and in all domains to enable them operate judicious and relevant choices (education, health, training and information);  Reorganization of the socio-cultural environment;  Promotion of positive actions in institutional processes and practices. 2. Develop an institutional mechanism for the management of victims and perpetrators by:  Creating and multiplying shelters for victims and perpetrators;  Setting up reference and training system for social workers on the management of the shelters;  Building the technical capacities of staff charged with the psycho-social and legal assistance to victims;  Developing a social reintegration mechanism for victims. 37 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA 3. Encourage the reorganization of legal framework for the protection of women’s rights:  Updating legal instruments taking in to account international and regional provisions as well as Cameroon‘s political commitments;  Drafting and adopting specific laws to promote preventive and reconstructive justice;  Sensitize judicial actors to effectively implement the texts.  The development of local strategies to fight against GBV in partnership with associations and service of the judiciary police. This situational analysis of violence against women and girls reveals that the situation of these two social groups in Cameroon is yet to reach the expected level. As a matter of fact, the problem of violence against women and young girls is most present in an environment of poverty. Violence against women is perhaps the most widespread and socially tolerated of human rights violations, cutting across borders, race, class, ethnicity and religion. The impact of gender-based violence (GBV) is devastating. Thus, there is an absolute need to curb this social ill that is causing so much pain not only to the victims but also the society at large. Everybody is concerned and should be involved in the fight against GBV which is one of the priority of the United Nations‘ Secretary General, as in his world campaign; UNiTE to End Violence against Women managed by UN Women. 38 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA CHAPTER 5: MOST COMMON FORMS OF SEXUAL AND GENDER-BASED VIOLENCE (SGBV), IN PARTICULAR: SEXUAL VIOLENCE, DOMESTIC VIOLENCE, TRAFFICKING, TRADITIONAL HARMFUL PRACTICES Violence against women, including rape, domestic violence and harmful practices – such as breast ironing and female genital mutilation - has been a widespread issue in Cameroon. 5.1. Sexual and domestic violence The UN Committee on the Rights of the Child (CRC) expressed serious concern over the prevalence of sexual violence in the country, including against very young children. The same source reported that over 22% of girls aged 15-19 have experienced sexual violence, particularly within the context of child marriage. Marital rape is one of the most prevalent forms of domestic violence in Cameroon. An article by Reuters, in March 2019, informed about the existence of a television show that demonstrates how to physically abuse wives. The article reported that some civil society groups have voiced their indignation, calling for an end to impunity over violence against women. In the Anglophone North-West and South-West Regions, populations affected by the armed conflict, especially women and girls, have experienced sexual violence and rape and are in need of urgent medical and psycho-social assistance.22 In these regions, persons linked to both the government and separatists have reportedly perpetrated rape and sexual abuses. The UN also stated that SGBV victims in the North-West and South-West Regions, especially those in the remote areas, do not have access to any form of GBV 22 UN OCHA, Cameroon: North-West and South-West Situation Report No. 4, 28 February 2019. 39 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA services and are at risk of HIV, STIs, mental health issues as well as unwanted pregnancies and unsafe abortions. In the Far North Cameroon, human rights abuses by Boko Haram and its ISILadhering faction, IS in West Africa (IS-WA), include violence against civilians, particularly women and children, abductions, child, early and forced marriage, rape, sexual slavery and other sexual and gender-based violence.23 5.2. Trafficking Cameroon is a source, transit, and destination country for women and children subjected to forced labor and sex trafficking. The 2018 USDOS report explained that Cameroonian women fall victim to sex trafficking or domestic servitude by applying for jobs as domestic workers in the Middle East through fraudulent labor brokers. The trafficking networks usually consist of local community members, including religious leaders and former trafficking victims. The same source informed that these networks advertise jobs on the internet and other media, recruit and sell Cameroonians directly to families as domestic servants.24 5.3. Traditional harmful practices The 2014 report by the Advocates for Human Rights stated that harmful practices, including breast ironing and female genital mutilation (FGM), occur almost in all provinces and across ethnic and religious groups. The practice of breast ironing or also ‗flattening‘ consists in using an object ‗to massage, pound, or press the breasts flat.‘23 A report published in 2011 by Gender Empowerment and Development (GeED) noted that such practice in Cameroon had been silenced for long time. According to the same source, 24 % of women as young as the age of nine are affected by this practice in all 10 of Cameroon‘s provinces, regardless of location, religion, or ethnicity. Breast ironing was originally done by women in the belief that 23 UN Security Council, Security Council resolution 2349 (2017) on the situation in the Lake Chad Basin region S/RES/2349, 31 March 2017. 24 USDOS, 2018 Trafficking in Persons Report, 28 June 2018, pp. 128-129. 40 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA this will improve a mother‘s breast milk. However, it has eventually become a practice performed on girls who show signs of puberty in an attempt to protect them from sexual harassment and rape, prevent early pregnancy, or to allow girls to continue education rather than being forced into early marriage.25 In 2014, the UN stated that the practice of breast ironing is ‗declining to the point of disappearing entirely‘ thanks to awareness-raising, training and information activities. Nonetheless, articles in the media have exposed the persistence of this dangerous practice in Cameroon, as well as in other West African countries. In March 2019, The Guardian highlighted the challenges of eradicating the harmful practice of breast ironing in West Africa, deemed as ‗extremely secretive‘, noting that there is no official data on how widespread it is. The same source mentioned the testimony of a senior Cameroonian gynaecologist who told to have dealt with a case in which a 12year-old girl died after being subject to breast ironing with a stone.26 The prevalence of FGM in Cameroon is very low across all regions and population groups. The latest available data on the prevalence of FGM dates back to 2004 and suggests that the practice occurs at a small scale (1.4%), with the highest prevalence in the Far North (5.4%) and among the Arabe- Choa/Peulh/Maoussa/Kanuri ethnic groups (12.7%). FGM is more prevalent among women who practice Islam (5.8%) than among women of other religions, and among women who live in rural areas (2.1%) than among those who live in urban areas (0.9%).29 According to the UN, a series of measures adopted by the government and aimed at eradicating FGM have contributed to a reduction of this practice in Cameroon.27 25 Advocates for Human Rights, Cameroon: Committee on the Elimination of Discrimination Against Women 57th Session, 24 January 2014. 26 Guardian, Breast-ironing: victims urge stronger action to root out dangerous custom, 04 March 2019, ; Global Citizen, The Sad Reason Mothers in Cameroon Are 'Ironing' Their Daughters' Breasts, 6 April 2018. 27 UN Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention pursuant to the optional reporting procedure, Fifth periodic reports of States parties due in 2014 : Cameroon, CAT/C/CMR/5, 03 November 2016. 41 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA CONCLUSION Cameroon’s International Legal Obligations As a recap, The Republic of Cameroon acceded to the Convention against Torture and Other Cruel or Degrading Treatment or Punishment on 19 December 1986. On 12 October 2020, Cameroon declared with regard to article 21 of the Convention against Torture that it recognizes the competence of the Committee against Torture to receive and consider communications from a State Party claiming that the Republic of Cameroon is not fulfilling its obligations under the Convention. However, such communications will not be receivable unless they refer to situations and facts subsequent to this declaration and emanate from a State Party, which has made a similar declaration indicating its reciprocal acceptance of the competence of the Committee with regard to itself at least twelve (12) months before submitting its communication. With regard to article 22 of the Convention, Cameroon also declared on 12 October 2000, that it recognizes, in the case of situations and facts subsequent to this declaration, the competence of the Committee against Torture to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. Cameroon ratified the Convention on the Elimination of All Forms of Discrimination against Women on 23 August 1994. In 1992, the Committee on the Elimination of Discrimination against Women (CEDAW) adopted General Recommendation 19 in which it confirmed that violence against women constitutes a violation of human rights. However, OMCT notes that Cameroon has not ratified the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Cameroon acceded to the International Covenant on Civil and Political Rights (ICCPR) on 27 June 1984. In March 2000, the Human Rights Committee adopted a new General Comment on article 3 of the ICCPR which deals with the equal right of men and women to enjoy all rights set forth in that Covenant. This General Comment 42 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA 28 states that, in order to assess compliance with article 7 of the Covenant, which deals with torture, the Committee must receive information on national laws and practice with regard to domestic and other types of violence against women, including rape, on access to safe abortion for women who have become pregnant as a result of rape, and on measures to prevent forced abortion or forced sterilization. Cameroon has ratified the First but not the Second Optional to the ICCPR. Furthermore, Cameroon acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR) on 27 June 1984, and ratified the International Convention on the Elimination of All Forms of Racial Discrimination on 24 June 1971. Cameroon has also been a State Party to the Convention on the Rights of the Child since 11 January 1993. Cameroon has only signed, but has not ratified, the two optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography on 5 October 2001. Further it ratified the Treaty of Rome establishing the International Criminal Court. Cameroon has neither signed nor ratified the Convention on Protection of Rights of Migrant Workers, which entered into force on 1 July 2003. At the regional level, Cameroon is a State Party to the African Charter on Human and People‘s Rights. This Charter, mirroring other international human rights instruments, protects all individuals against violence including torture or cruel, inhuman or degrading treatments and provides for the promotion of gender equality. Thus, article 2 of the Charter states that “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as … sex, …”. Article 3 guarantees that all are ―equal before the law‖ and that everyone is ―entitled to equal protection of the law‖. Article 4 protects each human being‘s right to life and to physical and moral integrity followed by article 5 which forbids physical or psychological torture and cruel, inhuman or degrading treatment or punishment. 43 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA Article 18(3) provides that States Parties shall ensure the elimination of all forms of discrimination against women as well as protection for the rights of women ―as stipulated in international declarations and conventions.‖ On 11 July 2003, the Protocol to the African Charter on Human and Peoples‘ Rights on the Rights of Women in Africa was adopted by the Assembly of the African Union second summit in Maputo Mozambique. The Protocol enter into force thirty (30) days after the deposit of the fifteenth (15) instrument of ratification. The Protocol will complement the African Charter in ensuring the promotion and protection of the human rights of women in Africa. Its provisions include the right to life, integrity and security of person, right to participation in the political and decision making process, right to inheritance, right to food security and adequate housing, protection of women against harmful traditional practices and protection of women in armed conflict. Others include access of women to justice and equal protection before the law. In Cameroon, human rights instruments are generally incorporated into national law simply by means of ratification. OMCT notes that article 45 of the Constitution of Cameroon states that duly approved or ratified treaties and international agreements have priority over national law. Nonetheless, the Committee against Torture argued, when it examined the implementation of the Convention against Torture by Cameroon in the year 2020, for greater protection of the of Cameroon‘s international commitments in its domestic law, so as to be more easily accessible to judges and lawyers. Also the Committee on the Economic, Social and Cultural Rights expressed its concern about the exact legal status of the Covenant in the Cameroonian legal system and whether it can be invoked in national courts of law.28 See Charlotte Bunch, The Global Campaign for Women’s Human Rights: Where Next After Vienna, 69 ST. JOHN’S L. REV. 171, 172 (1995) (noting the Declaration’s attempt to promote women’s human rights through the Global Campaign). 28 44 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA BIBLIOGRAPHY 1) 28 Too Many, Cameroon: FGM Key Findings, n.d., https://www.28toomany.org/country/cameroon/, accessed 29 April 2019. 2) See Charlotte Bunch, The Global Campaign for Women’s Human Rights: Where Next After Vienna, 69 ST. JOHN‘S L. REV. 171, 172 (1995) (noting the Declaration‘s attempt to promote women‘s human rights through the Global Campaign). 3) Advocates for Human Rights, Cameroon: Committee on the Elimination of Discrimination Against. 4) African Commission on Human and People‘s Rights, Protocol to the African Charter on Human and Peoples‘ Rights on the Rights of Women in Africa Legal Instruments, 11 July 2003, http://www.achpr.org/instruments/women-protocol/, accessed 10 April 2019 5) Cameroon, Constitution of the Republic of Cameroon - Law No. 96–06 of 18 January 1996 to amend the Constitution of 2 June 1972, http://confinder.richmond.edu/admin/docs/Cameroon.pdf, accessed 29 April 2019. 6) Canada: Immigration and Refugee Board, Cameroon: Domestic violence, including legislation; protection provided by the state and support services available to victims (2014-2016), 21 April 2016, https://irbcisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=456489, accessed 9 April 2019. 7) EASO, Country of Origin Information Report Nigeria: Security Situation, November 2018, https://www.easo.europa.eu/sites/default/files/publications/2018-EASO-COINigeria-SecuritySituation.pdf, accessed 29 April 2019. 8) EASO COI Query Response, Cameroon: Information on the Anglophone crisis, 30 January 2018, https://coi.easo.europa.eu/administration/easo/PLib/53_Q_CAMEROON_AN LOPHONES_BAMENDA_STATE_PROTECTION_53.pdf, accessed 10 April 2019. 9) ECHO (European Civil Protection and Humanitarian Aid Operations), Cameroon Factsheet, 25 January 2019, https://ec.europa.eu/echo/where/africa/cameroon_en, accessed 10 April 2019. 10) Feinstein International Center, Understanding Breast Flattening - A Field Study in Bafut, Cameroon, 14 May 2012, https://fic.tufts.edu/assets/Understanding-breast-flattening.pdf, accessed 29 April 2019 11) Gender Empowerment and Development, Breast Ironing as a harmful traditional practice in Cameroon, 24 August 2011, https://www.ohchr.org/Documents/HRBodies/CEDAW/HarmfulPractices/Gend erEmpowermentand Development.pdf, accessed 29 April 2019. 45 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA 12) Global Citizen, The Sad Reason Mothers in Cameroon Are ‗Ironing‘ Their Daughters‘ Breasts, 6 April 2018, https://www.globalcitizen.org/en/content/breast-ironing-cameroon-harmfulpractice-girls/, accessed 4 June 2019. 13) Guardian (The), Breast-ironing: victims urge stronger action to root out dangerous custom, 04 March 2019, https://www.theguardian.com/globaldevelopment/2019/mar/04/breast-ironing-victimsurge- stronger-action-to-rootout-dangerous-custom, accessed 29 April 2019. 14) Institut National de la Statistique (INS) et ORC Macro, Cameroun Enquête Démographique et de Santé 2004, 2004, https://dhsprogram.com/pubs/pdf/FR163/FR163-CM04.pdf, accessed 29 April 2019. 15) OECD Social Institutions and Gender Index, Country Profile: Cameroon, 2019, https://www.genderindex.org/wpcontent/uploads/files/datasheets/2019/CM.pdf, accessed 8 April 2019. 16) Reuters, ‗Grab her by the neck‘ - 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n° 67/LF/1, 12 June 1967, Amended 12 July 2016, https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/ilo_aids/documents/legaldocument/wcms_532449.pdf, accessed 8 April 2019 31) Women 57th Session, 24 January 2014, http://www.theadvocatesforhumanrights.org/uploads/cameroon_cedaw_vaw_fe bruary_2014.pdf, accessed 8 April 2019 32) Cameroon, Law No. 2016/007 of 12 July 2016 relating to the Penal Code (2016), https://fakoamerica.typepad.com/files/law-relating-to-the-penalcode.pdf, accessed 29 April 2019 47 GENDER, VIOLENCE AND THE LAW BY PEFELA GILDAS NYUGHA 33) 28 Too Many, Cameroon: The Law and FGM, July 2018, https://www.28toomany.org/static/media/uploads/LawReports/cameroon_law_r eport_v1_(july_2018).pdf, accessed 29 April 2019. THE END GOOD LUCK @2023/2024 48