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International Journal of Trend in Scientific Research and Development (IJTSRD) Volume 5 Issue 6, September-October 2021 Available Online: www.ijtsrd.com e-ISSN: 2456 – 6470 @ IJTSRD | Unique Paper ID – IJTSRD46421 | Volume – 5 | Issue – 6 | Sep-Oct 2021 Page 545 Addressing the Complexities of the Cameroonian Penal Code in the Protection of Women's Right: An Overview of Gender Based Discrimination Adna Ebude Enang Lecturer in Law, Faculty of Laws and Political Science, Soa, University of Yaounde II, Yaoundé, Cameroon ABSTRACT This paper examines the complexities of the Cameroonian penal code in the protection of women’s rights, most especially on the crime of domestic violence. The paper equally brings out the gender base discrimination in the protection of women’s right. In this light, the write up focuses on the infelicities and inconsistencies surrounding domestic violence and examines some of the offenses which can be prosecuted under domestic violence. The Penal Code not withstanding has laid down a series of offences that can be considered as domestic violence with the status and rights of the women within the Cameroonian context, though some of those sections are plagued with aspects of gender base discrimination. These crimes are committed through the use of force or intention with its varieties spelled out in the Penal Code considering that the mental element that provoked them may not be the same. The arguments in piece of work are buttressed by the fact that domestic violence is not recognised as a specific crime in Cameroon and there is no specific legislation by which domestic violence can be prosecuted. This work concludes by arguing that the legislation ought to review the Family Code drafted in 1997 to redress issues of domestic violence which has remained on the shelf unadopted and unimplemented. KEYWORDS: Protection, women’s right, gender, discrimination, domestic violence How to cite this paper: Adna Ebude Enang "Addressing the Complexities of the Cameroonian Penal Code in the Protection of Women's Right: An Overview of Gender Based Discrimination" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-5 | Issue-6, October 2021, pp.545-551, URL: www.ijtsrd.com/papers/ijtsrd46421.pdf Copyright © 2021 by author(s) and International Journal of Trend in Scientific Research and Development Journal. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (CC BY 4.0) (http://creativecommons.org/licenses/by/4.0) The Cameroonian Penal Code and the concept of Domestic Violence Domestic violence is not recognized as a specific crime in Cameroon and we don't have a legal definition of domestic violence. Cameroon does not have specific legislation by which domestic violence can be prosecuted. The criminal law is notoriously silent and victims are left to rely on the general law of assault. Thus, acts of domestic violence can be prosecuted using the Cameroonian Penal Code under the following; assault, slight injury, and simple injury. Looking at the Penal Code generally which protects the right to life, its section 278 states that no person is entitled to torture, physical and moral integrity. It also states that serious injury caused by assault,2 Slight Injury,3and Simple Injury4 are punishable except in 2Penal Code, section279. 3 Ibid, (section 281). 4 Ibid, (section 280) cases of self-defense if provided by the law5. The Penal Code also prohibits force marriages and penalizes offenders with imprisonment and a monetary fine. It also punishes sexual harassment from six months to one year imprisonment and a fine of 100,000FRS, sexual assault from 5 - 10 years imprisonment6. According to section 293 (1) of the Penal Code “(a) any person who reduces a person to or maintains a person in slavery, or (b) engages, even occasionally, in trafficking in human beings, shall be punished with imprisonment of from ten to twenty years.” The penal code does not emphasize on the protection of the rights of the women in this article. Moreover, procuring is criminalized under article 294 which provides that; 5 Ibid,section 278 – 281. 6 Ibid, section 365 of the 1981 law. IJTSRD46421 International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD46421 | Volume – 5 | Issue – 6 | Sep-Oct 2021 Page 546 “(1) Any person who causes, aids, or facilitates the prostitution of another individual or who shares, even occasionally, in the proceeds of theprostitution of another individual or receives subsidies from a engaging in prostitution shall be punished with imprisonment of from six months to five years and fine of 20.000frsto 1.000.000 francs. (2) Any person who lives with an individual engaging in prostitution and who cannot provide proof of sufficient resources to enable him to provide for his own needs shall be presumed to be receiving subsidies.” Also prostitution is a punishable offence. Article 343 states; (1) Any person of either sex who habitually engages, for compensation, in sexual acts with others, shall be punished with imprisonment for six months to five years and a fine of 20.000 to 500.000 francs (2) Any person who publicly recruits individuals of either sex through gestures, words, writings or any other means, for purposes of prostitution, or debauchery shall be punished with the same penalties.” Additionally, Article 292 criminalizes forced labour. It states that; “any person, who in order to satisfy his personal interests, imposes onanother person any work or service obligation for which that person has freely applied shall be punished with imprisonment of five to ten and/or a fine of 10.000 to 500.000 francs.” The Cameroon Penal Code in its Section 293 (1) provides that: “(a) Any person who reduces a person to or maintains a person in slavery, or (b) engages, even occasionally, in trafficking in human beings, shall be punished with imprisonment of ten to twenty years.” Moreover, securing is at the level criminalizing which provide under article 294 states that “(1) Any person who causes, aids, or facilitates the prostitution of another individual or who shares, even occasionally, in the proceeds of the prostitution of another individual or receives subsidies from a person engaging in prostitution shall be punished with imprisonment of six months to five years and fine of 20.000fr to 1.000.000 francs. (2) Any person who lives with an individual engaging in prostitution and who cannot provide proof of sufficient resources to enable him to provide for his own needs shall be presumed to be receiving subsidies.” Understanding the Placement of Prostitution in Gender Based Discrimination The notion of prostitution has not been left out, it is considered as a punishable offence under the Cameroon Penal Code. Article 343 states, “(1) Any person of either sex who habitually engages, for compensation, in sexual acts with others, shall be punished with imprisonment for six months to five years and a fine of 20.000francs to 500.000 francs (2) Any person who publicly recruits individuals of either sex through gestures, words, writings or any other means, for purposes of prostitution or debauchery shall be punished with the same penalties.” The situation of forced labour has not been exempted under the Code. Article 292 states that “any person, who in order to satisfy his personal interests, imposes on another person any work or service obligation for which that person has not freely applied shall be punished with imprisonment of five to ten years and/or a fine of 10.000francs to 500.000francs.” Cameroon has ratified the ILO Convention on the Abolition of Forced Labour and the UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery. Cameroon signed the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, adopted by resolution A/Res/55/25, on 13 December 2000, but as of 09 October, 2003 had not ratified it. OMCT notes with concern that it is the prostitute who is punished rather than the client who goes free. As many prostitutes do not prostitute themselves of their free will, they are doubly victimised through these punishments. Examination of Some of the Offences of Violence on Women Under the Cameroon Penal Code The Cameroon Penal code has given room for a series of offences that can be considered as domestic violence which affects the status and rights of women within a given society. The offences are grouped in a particular order because they have common elements. These crimes are committed through the use of force or intentionally on someone even though with its varieties spelled out in the Penal Code, the mental elements that provoked them may not be the same. The Situation of Assault Occasioning Death This offence under the Cameroonian criminal law system is considered as an involuntary homicide which is punishable under Section 278 of the Cameroon Penal Code which provides that: “(1) whoever by force or interference unintentionally homicide another’s death shall be punished with imprisonment for from six to twenty years. International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD46421 | Volume – 5 | Issue – 6 | Sep-Oct 2021 Page 547 (2) Where the force or interference is used in the course of any act of witchcraft, magic or divination, the punishment shall be imprisonment for life.”7 Looking at the above offence prescribed, one can say that for someone to claim that violence was used on him or her, there must be the use of force or the aspect of interference. The perpetrator has committed a physical act as the act cannot be done on the victim by mere omission. The perpetrator must have used any part of his body or even an object to hit the spouse who is complaining of violence, and such spouse must have felt the physical impact of the act. What we really need to note here is that, the act must have resulted in the death of the spouse. There must be a direct causal connection between the act of the husband and his spouse which is necessary to proof that the offence was committed. Let’s take a hypothetical example, there was a fight between a husband and a wife, the husband slaps the wife who suddenly collapses and is rushed to the hospital where she finally dies. The husband will be held criminally responsible for the wife’s death even though his intention was not to see his wife dying. Let us even say the act was not committed, because it is the role of the wife or spouse to prove that there was violence used on her by the husband. This can only be done with the presence of the intention which must be proven by the wife for it to amount to assault occasioning death. The observation of Lord Kenyon C.J in Fowler v. Padget8 where he believes that in common parlance, it is a principle that must be proven by the wife that there was violence or assault on her by not only talking about the use of force that lead to the death of the wife, but there must equally be the proof of the intention. The defendant needs not have intended the death of his spouse, so the presence of intention must be established. The provision of Section 74(2) of the Penal Code is clear when dealing with assault occasioning death by providing that: “Criminal responsibility shall lie on him who intentionally commits each of the ingredient acts or omission of the offence with the intention of causing the result which completes it”. 9 An observation under section 278 of the code is clear where it opines that the use of force or interference intentionally on the body of a spouse will amount to assault occasioning death, making the husband or defendant criminally liable and responsible for the act. 7Penal Code,section 278 8 (1798) 7 T.R. 509. 9 Section 74(2) of the Penal Code deals with the intention or the mens rea in a crime Assault Occasioning Grievous Harm The Penal Code inits Section 279 provided that: “(1) whoever by force or interference unintentionally causes to another the injuries described in Section 277 of this code shall be punished with imprisonment for from five to ten years and in a fit case with fine of from five thousand to five hundred thousand. (2) Where use is made of a weapon of any explosive, corrosive or toxic substance, of poison or any other act of witchcraft, magic or divination, the imprisonment shall be from six to fifteen years”.10 It can be examined in this offence that, for there to be assault occasioning grievous harm the presupposes use of force or interference on the body of a spouse with the intention of depriving the spouse of the use of her whole or part of any member organ or sense will be enough. For an action to be brought against the husband for assault, the wife must proof that the husband force or interference resulted to the wife permanent loss of the use of her whole or any part of any member organ or sense. When we talk about member organs here we are talking that the assault affected the wife organs like limb, leg or arm; that is those organs of the wife body that carries out special function like the kidney, pancreas, liver or even the lung. As to the senses here, we are talking about the five sense or faculties of sight, smell, hear taste or touch each other enabling the wife to respond to stimuli. There must be serious harm or hurt on the person which affects or interferes with woman health or comfort.11 The Situation of Simple and Slight Harm Caused on the Woman This is provided by Section 280 of the Penal Code which provides that: “Whoever by use of force or interference causes intentionally or unintentionally to another any sickness or inability to work lasting more than thirtydays shall be punished with imprisonment for from six months to five years or with fine of from five thousand to two hundred thousand francs, or with both such imprisonment and fine.”12 For there to be proof of simple harm that is done on the wife, or spouse, the person must be able to establish that there was a force or interference that was caused on her by the husband and this resulted to sickness or inability to work which lasted for more than thirty days. There was the lack of skill, 10Penal Code, Section 279. 11 Curzon L.B, Criminal Law, 2nd edition, M& C Handbooks, pp.11 12Penal Code, section 278. International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD46421 | Volume – 5 | Issue – 6 | Sep-Oct 2021 Page 548 carelessness, rashness or even disregard of regulations which caused the wife harm, sickness or incapacity to work. Regarding that of slight harm, the offence is punishable under Section 281 by providing that: “whoever by force or interference causes intentionally or unintentionally to another any sickness or inability to work lasting for more than eight days and up to thirty days shall be punished with imprisonment for six days to two years or with fine of from five thousand to fifty thousand francs or with both such imprisonment and fine” 13 Looking at the two offences, that is simple and slight harm, they are similar as the defendant must have used force or interference on the spouse which must have caused the spouse some sickness or inability to work for a number of days. Assault on Woman with Child This offence has been handled in Section 338 of the Penal Code which provides that: “Whoever by force used against a woman with child or against a child being born causes intentionally or unintentionally the death or permanent incapacity of the child shall be punished with imprisonment for from five to ten years and with a fine of from one hundred thousand to two million francs”.14 From the position established above, one can say that there must be the presupposed use of physical violence against a pregnant woman or even against a child being born. The physical violence used must produce a result which can either cause the death of the spouse, or cause the spouse child permanently incapacitated. Here, we are talking about the health of the child. The child can be born strong and healthy, but because of the physical violence that was done on the mother when pregnant, she continues to suffer from serious injuries resulting from the violent act of the husband. The husband cannot in any way deny this act as it is establish that the physical force used by the husband produces the required result that the wife is suffering. The Cameroon Penal Code has offered great and special protection to a pregnant woman. Reference of this can be demonstrated in Section 22(3) of the Code which provides that: “No Woman with child may be executed until after her delivery”. This offence in question can lead or related to the offence of abortion of a woman with a child as it can be committed anytime from the conception of the 13 Ibid, section 281. 14Penal Code, section 338 of the baby to its delivery when it becomes an independent human being distinct from its mother. Section 337(2) of the Code reads: “whoever procures the abortion of a woman, notwithstanding her consent, shall be punished with imprisonment for from one to five years and with fine of from one hundred thousand to two million francs.” It is therefore possible that the use of force on a pregnant woman with a baby can leads to abortion as specified in the case of assault on a woman with a baby. All these offences illustrated are just to show how our criminal code handles issues of violence on a woman. Infelicities and Inconsistencies Surrounding the Cameroon Penal Code There are lots of infelicities and discrimination when dealing or having a deep inside on the Cameroon Penal Code when analysing issues related to violence on women, for they are highly discriminatory making it difficult to combat this dangerous pandemic which is worse than corona virus plaguing the world today. When having an understanding of some of the provisions of the code, one becomes confused and questions whether violence against women will ever be at the finishing lane. A Glaring example is the offense of adultery and abortion. Expanding on an inexplicable notion of adultery Talking about the concept of adultery, there is lots of controversies surrounding its understanding when dealing with women's right protection and status. Taking a look at the provisions of the penal Code in its Section 361, which provides thata woman who being married, has sexual intercourse with a man other than her husband shall be punished with imprisonment and fine.15 It also states that a husband who has sexual intercourse with a woman rather than his wife or wives shall be punished as provided above.16 However the burden of proof of existence of a polygamous union shall lie with the husband. Taking a good look at this provision, it punishes the crime of adultery when committed by the husband as emphasis is made as to the circumstances where the sexual intercourse of the husband will amount to adultery. The law has to use the word habitual and sex in the matrimonial home to amount to adultery when they really know that it will be difficult for the husband to admit adultery. It therefore means that if this husband commits adultery just once, it will not be a valid ground for the wife to bring an action against the husband for adultery. The law has provided an exception to what will amount to adultery, meaning 15Penal Code, section 361 (1). 16 Ibid, section 362 (2). International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD46421 | Volume – 5 | Issue – 6 | Sep-Oct 2021 Page 549 that the woman will continue suffering violence and threat from the husband whenever issues of adultery are brought up. The law also emphasises that the adultery case must take place in the matrimonial home. What about sexual intercourse carried out by the spouse outside the matrimonial home? Does this mean it will not amount to adultery?17 The situation becomes even more complicated when establishing the crime of adultery in case of customary marriages. On what ground can a spouse bring an action against the husband under customary law. There is no evidence that the wife can institute since it will be difficult to proof adultery and the fact that customary law allows or encourages the husband to marry as many wives as he thinks fit. The man or husband will never feel guilty of adultery, unless the sexual intercourse occurred with another man’s wife. There will always be that defence by the husband that his extra marital relationship with a single woman is that he intends to marry her. It will concretely be difficult for the wife to bring an action for adultery against the husband for infidelity only in the case where the husband abandons her. The situation here is that it is difficult to proof adultery using a direct witness, as it becomes practically difficult to see the husband and another wife other than his wife in the matrimonial home or elsewhere committing adultery. Most part of the law depends on some circumstances presumed which in all cannot amount to adultery. The Procrastination complexities of abortion Abortion is forbidden in Cameroon. There are two exceptions to this rule laid down under article 339 of the Penal Code: when a woman becomes pregnant after rape or when the woman’s health is in great 17 The new Penal Code law of 2016 amending the provision of the 1967 law on adultery. Unlike the 1967 penal code which punished women simply for having sex with individuals other than their spouses, but equally punished men only if they had sex at home or habitually elsewhere with someone other than their wives, the new law punishes both men and women equally for sex with third party irrespective of where or how often. According to Section 361 of the new Code provide that: (1) A woman who, being married, has sexual intercourse with a man other than her husband shall be punished with imprisonment for from two to six months or with a fine from 25000frs to 100,000frs (2) A husband who has sexual intercourse with a woman other than his wife or wives shall be punished as provided by subsection 1 above. However, the burden of proof of the existence of polygamous union shall lie with the husband (3) No prosecution may be commenced without the complaint of the wronged spouse. Consent by wronged spouse to resume cohabitation shall put an end to the effects of conviction. danger because of the pregnancy. Anyone performing an illegal abortion is subject to one to five years’ imprisonment and a fine of 100,000 to 2 million CFA francs. A woman who procures or consents to her own abortion is subject to imprisonment for fifteen days to one year and/or a fine of 5,000 to 200,000 CFA francs. Penalties applied to medical professionals who perform illegal abortions shall be doubled and they may be prohibited from carrying out their obligations or be subject to having their professional premises closed. The UN Human Rights Committee stated in 1999, in its concluding observations concerning the human rights situation in Cameroon, that: Domestic Violence is not Prosecuted Under the Cameroon Criminal Law Domestic violence in Cameroon is a pervasive problem. A 2004 study found that, of 2,570 women, 995 (38.7%) reported physical violence and 381 (14.8%) reported sexual violence.18These data match more recent statistics, including a study from Douala- based La Maison des Droits de l’Homme that approximately 39 per cent of Cameroonian women suffered from physical violence in 2008.19These numbers indicate that little has been done to stem the epidemic of domestic violence in Cameroon in recent years. The vast majority of victims are female: 92% of domestic violence victims in Cameroon are women. Cameroon’s Penal Code does not specifically criminalize domestic violence. Victims are thus left to rely on the general assault provisions in the Penal Code, which address murder (Articles 275 and 276), grievous harm (Article 277), assault causing death (Article 278), assault causing grievous harm (Article 279), simple harm (Article 280), failure to assist women abandoned by their husbands (Article 282), and assault of a pregnant woman (Article 338).20 In its National Report, the Cameroon Government asserts that domestic violence and spousal abuse will be “better expressed in the penal 18Alio, Amina P., et al, “Association between intimate partner violence and induced abortion in Cameroon,” 112 International Journal of Gynecology& Obstetrics 2 (Feb. 2011). 19 NGO Report On the implementation of the ICCPR (Replies to the List of Issues, available at CCPR/C/CMR/Q4)http://www2.ohchr.org/english/bodies/ hrc/docs/ngos/GeED_Cameroon_HRC99.pdf (last visited August 20, 2020 20 Immigration and Refugee Board of Canada, Cameroon: Domestic violence, including legislation, availability of state protection and support services for victims, 2 December 2010, CMR103371, available at: http://www.refworld.org/docid/4db7b9d92.html (last accessed 23 August 2013). International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD46421 | Volume – 5 | Issue – 6 | Sep-Oct 2021 Page 550 code currently under revision” and in the meantime, such crimes can be punished through “various classifications of injuries” under the existing legal framework, described above. But the process to prosecute these “injuries” under the current code is anything but clear in the context of domestic abuse. Cameroon asserted in its National Report that: “…with regard to punishment for spousal rape, ‘any man who uses physical or moral violence to have sexual relations with a woman shall be punished by imprisonment for a term of five to 10 years21’. However, the United States State Department and reputable human rights organizations refute that statement, arguing that Article 296 of the Penal Code does not apply to spousal rape. In its National Report, Cameroon also indicated that: “A husband who uses violence to force his wife to have sexual relations with him may be prosecuted for causing intentional injury, depending on the severity of the violence; all of this is a question of fact left to the discretion of the judge hearing the case of the victimized wife.” Further, rather than focusing on the lack of consent, criminal justice hinges on the presence of injury which may not be visible, present, documented, or difficult to prove. Based on these (potentially conflicting) statements, it is unclear as to what exactly the legal system provides in terms of enforcement against spousal rape and, more generally, domestic violence. Moreover, victims of domestic abuse have little recourse for protection. There is no domestic violence law in Cameroon that provides women with an order for protection against abusers. The Family Code, drafted in 1997 to address issues of domestic violence, has remained on the shelf, un-adopted and unimplemented. Stakeholders see this failure to adopt the law as a lack of political will to address domestic violence. Women seeking to escape the violence through divorce are further hindered by the fact that spousal abuse is not a legal ground for divorce.22 The situation of abortion is also a serious problem preventing and slowing down the aspect of violence of men in the country. The Cameroon Penal Code is complicated and confusing when dealing with the offence of Abortion. As rightly stated under Section 337 of the Penal Code; “(1) any woman procuring or consenting to her own abortion shall be punished with imprisonment from fifteen days to one year or with fine from five 21Penal Code, section 296. 22 Country Reports on Human Rights Practices for 2012: Cameroon, U.S. Department of State (2012), at 27. thousand to two hundred thousand francs or with both such imprisonment and fine. (2) Whoever procures the abortion of a woman notwithstanding her consent shall be punished with imprisonment from one hundred thousand to two million francs”.23 It admits or permits abortion only when such abortion is criminalized and applicable if the mother’s life is in danger or if pregnancy is the result of rape.24 This is really confusing as we are aware that the issue of abortion is a complex one, placing only two circumstances in which abortion should not be punishable is questionable. There are so many reasons why some women will want to commit abortion as it becomes a threat on their status and right. What about the situation where the woman is being abandoned by the person who impregnated her and is in the run. The law has not considered the trauma,be it psychological, emotional or physical that this woman might go through before setting the ground for criminalising abortion. The law fails in understanding other circumstances that can affect the woman's status or right in cases of abortion. The same law talks about killing of a foetus to amount to abortion. The question one needs to position here is in determining at what period of the pregnancy it will amount to killing the foetus or baby. We are not in any way encouraging the concept of abortion, for we understand, abortion in its very origin is considered illegal as many consider it a sin. Our worry here is for the legislation or lawmakersto understand that combating violence on a woman is a complex issue which on its own needsto be defined beyond all reasonable doubts. There are some circumstances that abortion might be caused as a result of the violence done on the spouse by the partner. There should be some modifications of Section 339 of the Penal Code to put more visibility on what is meant by severe danger to the mother’s life particularly because the woman's health is not only physical. There can be the inclusion of important issues like the severe foetal malformations incompatible with life, incest and the reduction of administrative procedure attached to Section 339 of the Code. The Situation of Matrimonial Rape Even the situation of rape is still a problem affecting combatting violence on women. The fact that marital rape or the so called spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent, having sexual intercourse with the spouse 23Penal Code, section 337(1) and (2). 24 Section 339 of the Penal Code talks on the exception of legalising abortion, or where abortion will be acceptable. International Journal of Trend in Scientific Research and Development @ www.ijtsrd.com eISSN: 2456-6470 @ IJTSRD | Unique Paper ID – IJTSRD46421 | Volume – 5 | Issue – 6 | Sep-Oct 2021 Page 551 without consent will amount to rape. This marital rape in all its implications is considered in most instances as domestic violence and sexual abuse. The common law rule of marital rape exemption is based in the cultural view that marriage makes a woman part of her husband’s property, so that forced sexual intercourse is but a husband making use of his property. Taking a good base in the case of Achu vs. Achu 25Inglis J in the Court of Appeal South West Region held that: Customary law does not countenance the sharing of property especially landed property, between husband and wife on divorce. The wife is still regarded as part of the husband’s property. That conception is underscored by the payment of dowry on marriage and on the refund of same on divorce. Looking at the situation from the dictum above, once the marriage price has been paid by the husband; it therefore reduces the wife to a property. If the notion or concept is that which characterisesa human being(wife) to become a property of another, then the notion of bringing an action for marital rape will be futile and unnecessary. The husband will not need as regards to custom, to be petitioned for rape when it concernshis property being the woman. Right from the day the marriage is celebrated, the woman has given herself to the husband as a living sacrifice in which she must be available at all time the husband desires sexual intercourse. Bringing an action for rape is useless. The Penal Code criminalises rape in its Section 296 of the Code by punishing any person who by physical or moral violence forces a woman, including an adolescent to have sexual relations with him. We are not saying that rape is a good thing that should not be criminalised, but we are dealing with marital rape or rape in matrimony and it is extremely difficult to bring an action against the husband for rape. The situation becomes provocative as per the provision of Section 297 of the penal Code which prevents prosecution of rape when marriage has been freely consented to both parties, and where the assaulted woman is over the age of puberty during the offence. I believe this is discriminatory and encouraging the phenomenon of rape since the perpetrator knows that he can rape the woman and later consent to get married to her and criminal proceeding against him will be discontinue. The issue here is that rape is rape, and when the facts or elements of rape are established, they should be punishable rather than giving instances where the rape will not amount to a criminal act. How then can 25Appeal No BCA /62/ 86 F (unreported) we experience combatting when the law encourages or gives an opportunity to the rapist to be free from criminal responsibilities? How then can we establish consent in this kind of marriage celebrated where we all know that the initial reasons for the celebration of the marriage derives from the rape incident? The bone of contention here is that it will be difficult for the law or law enforcement officials to really have a proper or effective means of combatting when dealing with the offence of sexual violence on the woman. Neglecting certain fundamental aspect of the offence means that combatting will become a total fiasco and disaster which will render combatting or eradication difficult. The Cameroon Penal Code being the watchdog in handling or criminalising issues of rape or violence against women is entangled with heaps of infelicities and lacunas, which relying on as a tool in combatting or handling issues of violence is questionable. The situation is not only with the penal code, even other areas of the lawhave become questionable in matters relating to domestic violence. Conclusion From this strand of reasoning its can be concluded that as far as the rights of women’s concerned much has been achieved and little more is desired to attain relative equality between the sexes. It could equally be said that, although the Penal Code through a vast majority of sections do protect women against domestic violence, the law still remains silent concerning certain aspects. Thus theFamily Code drafted in 1997 to redress issues of domestic violence could be complimentary. In that, domestic violence still needs to be recognised as a specific crime in the Cameroonian penal code.
