Violence Against Women: A Comparative Analysis Between .
Violence Against Women:A Comparative AnalysisBetween Malawi and SouthAfricaNicole Chalira*Researcher, Faculty of Law, Nelson MandelaUniversityLeah A Ndimurwimo**Lecturer, Faculty of Law, Nelson MandelaUniversityAbstractThe United Nations defines violenceagainst women as any act of gender-basedviolence that results in, or is likely to resultin, physical, sexual or psychological harmor suffering. Violence against women isamong the world’s most systematic andubiquitous human rights violations. The useof violence against women, unlike manyother forms of violence, is neither arbitrarynor indiscriminate. On the contrary, violenceagainst women is ingrained in the social,religious and moral fibres of society. InMalawi and South Africa, like many of theircounterparts in Sub-Saharan Africa, womenand girls are subjected to various forms ofviolence, such as sexual violence, domesticviolence, harmful cultural practices andviolence in relation to maternal healthcareand reproductive rights. As a result,Malawi and South Africa through theirconstitutions and various national laws haveadopted measures that aim at preventingand combatting violence against women.Furthermore, Malawi and South Africa areState Parties to a wide range of internationalhuman rights instruments, which aim toprotect and promote women’s rights.These international instruments include butare not limited to the Declaration on theElimination of Violence against Women,the Convention on the Elimination of AllForms of Discrimination against Womenand the Protocol to the African Charter onHuman and Peoples’ Rights on the Rightsof Women in Africa. Despite the existenceof the abovementioned legal mechanisms,however, violence against women remains awidespread occurrence in both Malawi andSouth Africa. Accordingly, this article aimsto discuss various forms of violence againstwomen and their prevalence in Malawi andSouth Africa. The article analyses the currentlegal framework on violence against womenin both Malawi and South Africa in order to***LLB (NMU), LLM (University of Westminster).LLB (OUT), LLM (NMU), LLD (NWU).
Violence Against WomenChalira and Ndimurwimodetermine their effectiveness and make recommendations.1INTRODUCTIONThe United Nations identifies violence against women as a problem that transcends racial,cultural, religious, geographical and economic borders.1 Violence against women is arguablythe most widespread form of abuse known to man. The various forms of violence suffered bywomen in Malawi and South Africa include, but are not limited to, sexual violence, domesticviolence, harmful cultural practices and violence in relation to maternal healthcare andreproductive rights.2In response, many countries including Malawi and South Africa have ratified severalinternational human rights instruments protecting the rights of both women and girls. Inaddition, the two countries have enacted various national laws aimed at combatting violenceagainst women. Nevertheless, the violation of women’s rights in Malawi and South Africacontinues unabated.3This article discusses violence against women as a global occurrence and investigatesthe extent to which the forms of violence suffered by women in Malawi and South Africa areaddressed by constitutional and legislative measures as well as international law. The articleidentifies the strengths and weaknesses in promoting and protecting women’s rights inMalawi and South Africa and concludes with viable recommendations on what can be done toameliorate violence against women.2VIOLENCE AGAINST WOMEN AS AN INTERNATIONAL ISSUEViolence against women is among the world’s most systematic and ubiquitous human rightsviolations.4 The use of violence against women, unlike many other forms of violence, is neitherarbitrary nor indiscriminate. On the contrary, violence against women is ingrained in the social,religious and moral fibres of society.5The United Nations defines violence against women as “any act of gender-based violencethat results in, or is likely to result in, physical, sexual or psychological harm or suffering.”6 Interms of this definition, violence against women includes threats of acts of violence, coercionor arbitrary deprivation of liberty in both public and private life.7 Furthermore, the terms“violence against women” and “gender-based violence” are often used interchangeably.8Malawi and South Africa have both ratified several international human rights instrumentsprotecting the rights of both women and girls. However, this article refers largely to theDeclaration on the Elimination of Violence against Women, the Convention on the Eliminationof All Forms of Discrimination against Women and the Protocol to the African Charter onHuman and Peoples’ Rights on the Rights of Women in Africa (hereinafter referred to as theMaputo Protocol).9In addition to the above stated instruments, Malawi and South Africa have democraticconstitutions and internal laws, which promote women’s rights and acknowledge theirobligations under international law.10 However, in Malawi and South Africa, like many of theircounterparts in the Sub-Saharan Africa, women and girls are subjected to various forms of12345678910United Nations Office on Drugs and Crime “Violence against Women and Children” http://www.unodc.org/southernafrica/en/vaw (accessed 22-09-16).Institute for Security Services “Monograph 41: Violence against Women In Metropolitan South Africa: AStudy On Impact and Service Delivery by Sandra Bollen, Lillian Artz” ry-by-sandra-bollen-lillian-artz (accessed 22-02-16).Decker et al “Sexual Violence among Adolescent Girls and Young Women in Malawi” 2018 BMC PublicHealth 341; IOGT International “South Africa: Violence against Women at Crisis Level” nce-women-crisis-level/ (accessed 02-02-19).UN Women “Defining Violence against Women and Girls” iolence-against-women-and-girls.html (accessed 2017-05-09).Ibid.Convention on the Elimination of All Forms of Discrimination against Women, 1979.Ibid.Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003.Was ratified by Malawi on 20/05/2005 and South Africa on 17/12/2004.See section 39 of the Constitution of the Republic of South Africa, 1996 and section 11 of the Constitution ofthe Republic of Malawi, 1994.107
Chalira and NdimurwimoViolence Against Womenviolence, such as sexual violence, domestic violence, harmful cultural practices and violationsof their maternal healthcare and reproductive rights.11The South African Constitutional Court case of Carmichele v The Minister for Safetyand Security12 provides a clear example of how easily women’s rights can be violated. TheCarmichele case dealt with the brutal attack of a woman by a man with a known history of sexualviolence, whom the police and prosecutor had released without bail, and the ConstitutionalCourt recognised the state’s liability for negligent omissions of such nature by its officials.13In reaching at this decision, the Constitutional Court emphasised the need to protect thefundamental rights of women such as equality, human dignity and freedom.14 Furthermore,in Van Eeden v Minister of Safety and Security15 the court recognised the state’s obligation toprotect women from violent crimes. This duty on states was internationally recognised in thecase of Velasquez Rodriguez v Honduras.16In addition to the aforementioned cases, Malawi and South Africa have attempted tocombat violence against women through various legislative measures. Nevertheless, Malawiand South Africa continue to fall short with respect to the implementation of legislation dueto poor enforcement mechanisms and inadequate reporting standards.17 For example, studiesconducted in South Africa have revealed that one in every four South African women is in anabusive relationship and that every six days a woman is murdered by her husband or partner.18Among the cases that have confirmed the gravity of violence against women in South Africaare S v Pistorius, S v Dewani and Panayiotou v S.In the above cases, which attracted unprecedented publicity in the trial courts, all theaccused persons were found responsible for the brutal killing of their deceased partners. Forexample, the S v Pistorius19 case involved a human tragedy where an Olympian who became aninternational celebrity, began a romantic relationship with a young woman, Reeva Steenkampwho was a law graduate and a successful model. Ironically, on Valentine’s Day 2013, OscarPistorius, shot and brutally killed Reeva at his home in a secured complex alleging that he hadbelieved she was an intruder.20The killing of women by intimate partners as seen in the abovementioned case is alarminglycommon and has even been referred to as “femicide”.21 It has been revealed that in South Africaat least 21 per cent of women over 18 years of age have experienced violence orchestratedby their partners.22 This indicates how urgently the criminal justice system ought to effectivelyaddress the issue of violence against women.111213141516171819202122United Nations Office on Drugs and Crime “Violence against Women and Children” http://www.unodc.org/southernafrica/en/vaw (accessed 22-09-16).Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC) 62.Carmichele v Minister of Safety and Security 62.Ibid.Van Eeden v Minister of Safety and Security 2003 1 SA 389 (SCA) 13.4 Inter Am Ct HR Ser C No 4 1988; The Inter-American Court found that the failure by state officials to protectthe victim from violence amounted to violations of the right to life, the right to human treatment and the rightto liberty (para 194).Mullick, Teffo-Menziwa, Williams and Jina “Women and Sexual Violence: Reflections on the MillenniumDevelopment Goals” 2010 South African Health Review 50; Bisika “Do Social and Cultural Factors PerpetuateGender-based Violence in Malawi?” 2008 Gender and Behaviour 1886.Institute for Security Services “Monograph 41”; see also S v Pistorius (CC113/2013) [2014] ZAGPPHC 793; S vDewani (CC15/2014) [2014] ZAWCHC 18; Panayiotou v S (CA&R 06 /2015) [2015] ZAECGHC 73.S v Pistorius (CC113/2013) [2014] ZAGPPHC 793.Director of Public Prosecutions, Gauteng v Pistorius (96/2015) [2015] ZASCA 204 para 2.Hopkins “Government Action on Femicide Goes Wrong from the Bottom Up” 22 May 2017 action-on-femicide-goes-wrong-from-the-bottom-up (accessed 10-05-18).IOL “Femicide, a South African Curse” 4 May 2018 thafrican-curse-14780746 (accessed 08-05-18).108
Violence Against WomenChalira and NdimurwimoAlthough South Africa has the highest ratio of reported rape cases per 100 000 people inthe world, only nine per cent of the rape cases that take place in South Africa are reported tothe police.23 In March 2015, a similar study was carried out by the United Kingdom’s Departmentfor International Development (DFID), United Nations Children’s Emergency Fund (UNICEF)and the Ministry of Gender, Children, Disability and Social Welfare in Malawi. It was revealedthat one in every five Malawian girls falls victim to sexual abuse before the age of 18.24 Thestudy further revealed that violence against women is considered a social norm in Malawi, with42 per cent of young women believing that it is acceptable for men to beat their wives undercertain circumstances.25 In a study carried out by Together for Girls26 on sexual violence againstchildren and young women in Malawi, it was found that while 61 per cent of girls told someoneabout their experience of sexual violence, only nine per cent received any help or services.27Apart from sexual and domestic violence, women in developing countries such as Malawiand South Africa are subjected to other forms of violence; for instance, pregnancy andreproductive healthcare related violence, which have been perceived as the biggest cause ofdeath among girls aged between 15 and 19.28 Moreover, there are a number of harmful culturalpractices in the two countries such as child marriages, female genital mutilation (FGM) andsexual cleansing, inter alia, which are violent in nature and have resulted in an increase in thevictims’ exposure to HIV/AIDS and maternal mortality rates.293VIOLENCE AGAINST WOMEN WITHIN THE LEGAL CONTEXTIn line with the aim of this article, which is to analyse the law relating to violence againstwomen in Malawi and South Africa, this section highlights the various international humanrights provisions that apply to Malawi and South Africa.Firstly, the 1948 Universal Declaration of Human Rights provides that “everyone is entitledto all the rights and freedoms set forth in the Declaration”. The rights and freedoms includedin the Declaration apply irrespective of race, colour, sex, language, religion, political or otheropinion, national or social origin, property, birth or other status.30Furthermore, the Convention on the Elimination of All Forms of Discrimination againstWomen (CEDAW) defines discrimination against women as gender-based distinctions orexclusions, which “[have] the effect or purpose of impairing or nullifying the recognition,enjoyment or exercise by women of human rights and fundamental freedoms”.31 Moreover,the Convention on the Elimination of All Forms of Discrimination against Women and GeneralRecommendation No 19 on Violence against Women states that, “gender-based violence maybe in breach of specific provisions of the Convention, regardless of whether those provisionsexpressly mention violence.”32 General Recommendation No 19 provides further that “statesmay be responsible for private acts if they fail to act with due diligence to prevent violations ofwomen’s rights or investigate and punish acts of violence”.332324252627282930313233Institute for Security Services “Monograph 41”.UNICEF “Malawi, 24 March 2015: New Study Reveals Violence against Children Widespread” http://www.unicef.org/esaro/5440 mlw2015 new-study.html (accessed 22-02-16); see also Republic v Peter (65 of 2008)[2008] MWHC 168.UNICEF “Malawi, 24 March 2015: New Study Reveals Violence against Children Widespread” http://www.unicef.org/esaro/5440 mlw2015 new-study.html (accessed 22-02-16); see also Republic v Tangwe (38 of 2007)[2007] MWHC 10.Is an international partnership which was established in 2009 with the view of ending violence against children,particularly sexual violence against girls. It brings together governments, United Nations agencies and privateorganisations to prevent and respond to such violence, as a fundamental step to protecting the individual’sfundamental rights, their well-being, gender equality and sustainable development.Together for Girls “Report Violence against Children and Young Women In Malawi Findings from A NationalSurvey 2013” /2017/10/MLW resources violencereportfinal.pdf (accessed 02-02-19).Klugman “Women’s Health and Human Rights: Public Spending on Health and the Military One Decade afterthe African Maputo Protocol” 2014 African Human Rights Law Journal 34.Bisika Gender and Behaviour 1886.Article 2 of the Universal Declaration of Human Rights 1948.Article 1 of the Convention on the Elimination of All Forms of Violence against Women, 1979.CEDAW General Recommendation No. 19: Violence against Women.CEDAW General Recommendation No. 19: Violence against Women.109
Chalira and NdimurwimoViolence Against WomenIn addition, the 1999 Optional Protocol to the Convention on the Elimination of All Formsof Discrimination against Women has made it possible for victims to bring complaints directlyto the Committee, where the Committee is empowered to investigate gross women’s rightsviolations and adjudicate such matters brought before it, as shown in the case of AT v Hungary.34In AT v Hungary, which was the first domestic violence case the Committee heard, awoman, whose partner systematically abused her, received no protection or alternativehousing from the government and was made to wait three years before her matter was heardbefore the Hungarian courts. Accordingly, the Committee held that Hungary had failed tofulfil its obligations and had violated the rights of the victim in terms of Articles 2, 5 and 16of the Convention on the Elimination of All Forms of Discrimination against Women.35 Thiscase has set a precedent for all State Parties to the CEDAW and reaffirmed their obligationto provide protection from violence against women in accordance with international humanrights standards.36 Another noteworthy instrument with regard to violence against women isthe Declaration on the Elimination of Violence against Women.While the Declaration on the Elimination of Violence against Women (DEVAW), asa declaration by the UN General Assembly, does not possess the binding legal force of atreaty or convention, it remains a widespread and important source of principle among theinternational community.37 The DEVAW defines violence against women as any act of genderbased violence that results in, or is likely to result in, physical, sexual or psychological harm orsuffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty,whether occurring in public or private life.38 In addition to the aforementioned internationalhuman rights instruments, several human rights instruments apply to Malawi and South Africaon a regional level, including the Maputo Protocol and the SADC Declaration.The Maputo Protocol defines violence against women as all acts perpetrated againstwomen which cause or could cause them physical, sexual, psychological, and economicharm, including the threat to take such acts. This definition extends to both public and privatespheres, and during both times of peace and times of war.39The Maputo Protocol is imperative in the field of women’s rights in that it is the first humanrights instrument to call explicitly for the eradication of female genital mutilation.40 In addition,the Maputo Protocol has addressed women’s rights within the context of the HIV/AIDSpandemic. Furthermore, the Protocol is the first human rights instrument to make provisionfor the right to have an abortion in cases of rape, incest and where the continued pregnancyposes a danger to the life of the mother.41 In the SADC region, the SADC Declaration requiresState Parties to put in place legal measures, education programmes, and services aimed atpreventing violence against women.424FORMS OF VIOLENCE AGAINST WOMEN: A COMPARATIVE ANALYSISBETWEEN SOUTH AFRICA AND MALAWIAs mentioned above, violence against women takes a variety of forms. However, this article islimited to a discussion of violence against women in the form of sexual violence that include:rape, violence against women in schools and higher education institutions (HEIs), domesticviolence, harmful cultural practices, and violence in relation to maternal healthcare andreproductive rights.It is important to note from the outset that, whilst the above stated forms of violenceagainst women as discussed in this article are subdivided into various sections and subsections343536373839404142CAT/C/22/D/062/1996, UN Committee against Torture (CAT) 11 June 1999 http://www.refworld.org/cases,CAT,3f588eda7.html (accessed 15 June 2017).Banda 2008 African Human Rights LJ 18.Tackling Violence against Women “AT v Hungary” ases/atv-hungary/ (accessed 06-10-16).The Advocates for Human Rights “DEVAW” http://www.stopvaw.org/devaw (accessed 06-10-16).Article 1 of the Declaration on the Elimination of Violence against Women, 1993.Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women inAfrica, 2003.Pambazuka News “The Maputo Protocol: Evaluating Wome
A Comparative Analysis Between Malawi and South Africa Nicole Chalira* Researcher, Faculty of Law, Nelson Mandela University Leah A Ndimurwimo** Lecturer, Faculty of Law, Nelson Mandela University Abstract The United Nations defines violence against women as any act of gend
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Relationships POLICY Introduction 3 1. Statistics Canada (2006). Measuring Violence Against Women: Statistical Trends 2006 . p. 33. 2. Statistics Canada (2006). Measuring Violence Against Women: Statistical Trends 2006 . pp. 16, 55. Setting the Context Dy na m i cs of et V l In domestic violence situations, violence is commonly used by one .
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