Rape is common across Africa yet inadequate laws, weak implementation and cultural barriers mean that many perpetrators go unpunished, according to new research by Equality Now.

“After examining rape laws across Africa, it is clear that to end impunity for perpetrators, governments urgently need to carry out comprehensive legal reform of rape laws, strengthen enforcement mechanisms, and improve access to justice and support for survivors,” said Jean Paul Murunga, a human rights lawyer and the report’s lead author. 

The report looked at rape laws and their enforcement in 47 African countries with an in-depth analysis of nine of these: Cameroon,  Democratic Republic of Congo, Madagascar, Rwanda, Senegal, Sierra Leone, South Africa, South Sudan, and Zambia.

Equality Now Africa Director Faiza Jama Mohamed says that the report identifies “key gaps in rape law that result in routine denial of justice to survivors of sexual violence”. 

“The gaps include laws allowing the perpetrator to walk free on reaching some form of ‘settlement’, including marrying the victim; laws framed in terms of morality rather than bodily integrity, thereby perpetuating a cycle of violence and discrimination; laws that explicitly permit rape in marriage, even of children,” notes Mohamed, writing in the foreword of the report.

Narrow definition of rape

Approximately 33% of women in Africa have experienced intimate partner violence or sexual violence in their lifetime, while in West, East, Central, and Southern Africa, the rate 44%, according to UN Women.

The African Development Bank’s Gender Data Index 2019 reported that intimate partner sexual or physical violence ranges from 10% to 40% across the continen

“It is critical for its definitions in the various jurisdictions within Africa, both in the context of conflict and peace, to be clear and based on human rights standards,” adds the report.

Rape is when a person has not given voluntary, genuine, and willing consent for sexual interaction – and that this consent can be withdrawn anytime during the interaction.

“True consent is impossible in situations of dependency or extreme vulnerability, for example, in educational settings, correctional facilities, or when a victim is incapacitated, such as being intoxicated or infirm,” according to the report.

Several countries’ definitions of rape or legal frameworks fail to recognise all forms of unwanted sexual penetration (anal, oral, or vaginal by use of any body part or object) as rape .

Some 25 African countries have penal codes that are “incomplete or ambiguous and do not meet international standards” by, for example, confining the definition to acts of violence and failing to recognise rape involving intimidation, coercion, fraud, and unequal power dynamics. 

Marital rape not recognised

Cote D’Ivoire, Gambia, Seychelles, Equatorial Guinea, Ethiopia and South Sudan do not criminalise marital rape. South Sudan explicitly notes that non-consensual sexual intercourse within marriage does not constitute rape. 

The Penal Code of Côte d’Ivoire provides for the presumption of married couples’ consent to the sexual act unless proven otherwise. 

Eritrea only criminalize marital rape when spouses are not living together, while Tanzania criminalizes it if the couple is not living together. Lesotho recognises marital rape under certain conditions.

In Gabon, where child marriage is legal, if an abductor has married an abducted minor, he can only be prosecuted after the marriage is annulled.

“International human rights standards require states to criminalise all forms of rape, irrespective of the relationship between the perpetrator and their victim,” says Murunga. 

“Failing to specifically criminalise marital rape ignores how consent must be ongoing and freely given, regardless of marital status. Legal recognition provides clarity to law enforcement, prosecutors, and judges that marital rape must be treated as a serious crime and prosecuted accordingly.”

Harmful traditional beliefs

Although 20 African countries have consent-based definitions of rape, rapists are often shielded by traditional beliefs and societal attitudes towards sex. 

“Rape survivors and their families frequently face stigma, victim-blaming, and threats. This is commonly accompanied by pressure to remain silent, withdraw criminal complaints, and settle cases out-of-court through informal community mediation,” according to the report.

In Equatorial Guinea, for example, out-of-court settlements are legally permitted when a rape victim explicitly or tacitly forgives the perpetrator. 

This often results in rape survivors being pressurised to agree to this route.

In several countries, officials opt not to investigate, prosecute, or convict rape cases unless there is physical evidence, especially which indicates a victim fought back. 

“Many jurisdictions emphasize force, morality, or circumstances and apply gender-discriminatory concepts such as ‘honour’ and ‘modesty’. This prejudices judgments over victims’ behavior and “chastity” and whether they are perceived as deserving justice for having been raped,” the report notes.

Rape survivors and their families frequently face stigma, victim-blaming, and threats. This is commonly accompanied by pressure to remain silent, withdraw criminal complaints, and settle cases out-of-court through informal community mediation. 

Inadequate punishment

The African Commission on Human and People’s Rights recommends 16 years imprisonment for rape, but many countries have thresholds well below this. 

In Equatorial Guinea, Article 429 of the Criminal Code states that “rape of a woman shall be punished with minor confinement.

Guinea Bissau includes an exemption where ‘the behavior of the victim has considerably contributed” to the rape.

Even where not elaborated in the law, settlements with respect to rape are reportedly common in Benin, Cameroon, Chad, Côte d’Ivoire, The Gambia, Ghana, Guinea, Liberia, Nigeria and South Sudan.

In South Africa, there is a serious backlog of rape cases and insufficient funding for the justice delivery system. In May 2022, the Minister of Justice announced that only 19% of reported cases were going through the courts.

With the breakdown of the rule of law and security in conflicts, women and girls are rmore vulerable. In addition, rape is still being used as “a weapon of war to denigrate, disempower, demoralize and destroy communities”, the report notes. 

During conflict, reporting cases, collecting evidence and prosecution are often huge challenges.

Providing justice to survivors of sexual violence and ensuring perpetrators do not enjoy impunity is critical in preventing and addressing rape

With so many legal, procedural, and societal obstacles to addressing rape, very few cases make it to court, and even fewer result in conviction.

Urgent reform 

Urgent reform is needed to ensure legal definitions of rape encompass all acts of non-consensual sexual penetration, with no exceptions for marital rape, according to the report.

It also calls for adequate training of government officials to ensure laws are implemented and other measures including a register of sex offenders. 

“Effective legal implementation is equally crucial, requiring robust mechanisms to enforce justice and hold perpetrators accountable. Transparency and accountability are essential to building trust and ensuring fairness in how cases are handled,” the report notes.

It advocates for supportive systems for rape survivors that” facilitate healing and enable them to pursue justice if they choose”

Rwanda is highlighted as a positive example for promoting a “victim-centered approach to investigating and prosecuting sexual violence cases” that includes .gender-based violence recovery centers in numerous districts, providing survivors with witness protection, medical and psychosocial support, and legal aid.

Image Credits: CC, Mohamed Zakaria/ UNICEF.