MZUMBE UNIVERSITY

FACULTY OF LAW
RESEARCH REPORT
RAPE AND THE LAW IN TANZANIA: LESSONS FROM SOUTH AFRICA
BY
MWALYAJE, ANGETILE LUSAJO
REGISTRATION NO.10271/T.09
SUPERVISOR: MS I.WARIOBA
A COMPULSORY RESEARCH PAPER SUBMITTED IN THE PARTIAL
FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE BACHELOR
OF LAWS DEGREE (LL.B) OF THE MZUMBE UNIVERSITY.
JUNE,2012i
DECLARATION
I, MWALYAJE, ANGETILE LUSAJO do hereby declare that this is my own work and it has
not been submitted for a similar or any other degree in any other university.
CANDIDATE:
MWALYAJE, ANGETILE LUSAJO
DATE: 2012 ii
CERTIFICATION
I, the undersigned, certify that I have read and hereby recommend for acceptance by the Mzumbe
University, a report titled RAPE AND THE LAW IN TANZANIA: LESSONS FROM
SOUTH AFRICA, in partial fulfillment of the requirements for an award of the degree of
bachelor in laws of Mzumbe University.
Signature
.....................................................
MS.I.WARIOBA Supervisor iii

All rights reserved, this dissertation may not wholly or in part be reproduced, stored in any
retrieval system or transmitted in any form or by any means electronic, mechanical,
photocopying, recording or otherwise, without the prior written permission of the author or the
Mzumbe University in that behalf. iv
ACKNOWLEDGEMENT
Completion of this work has been possible due to effort and assistance from a number of
persons. Therefore I wish to acknowledge the assistance I got when undertaking this research,
the assistance without which my work would have been impossible.
I wish to thank my parents,Mr.and Mrs Lusajo Mwalyaje for their encouragement and blessings
which they gave to me during my studies especially when conducting my research.
I am greatly indebted to my supervisor Ms I.Warioba for her guidance in the research preparation
and completion of this work. Many stimulating discussions, constructive criticism and comments
from her have contributed to the final shape and content of this work. However, I am solely
responsible for the contents or error in this work.
I am indebted to many friends, colleagues, teachers, librarians and others for their help during
my study. In particular I would like to express my appreciation to Mr. Juhudi Mdonya,
Mr.Makene Mnaku,Mr.Rajabu Mhezi,Mr.Kobas PC and Ms Rachel Daud for their
encouragement when conducting my research.
Finally I owe the greatest debt to thank God, the giver of everything I have. v
DEDICATION
To my beloved mother,Tabia Sakilongo vi
ABBREVIATIONS AND ACRONYMS
Hon. = Honourable
ibid = ibidem
NGOs = Non-Governmental Organizations
No. = Number
P = Page
V = Versus
S = Section
SOSPA = Sexual Offences Special Provision Act
SAMJ = South African Medical Journal
USA = United States of America vii
ABSTRACT
The dissertation examines the position of the law relating to rape in both Tanzania and South
Africa following the enactment of new South Africa Criminal laws particularly the Criminal Law
(Sexual Offences and its Related Matters) Amendment Act of 2007. The study is basically
divided into four main parts as follows;
Chapter one, in this chapter the main discussion bases on the Introduction and Historical
background to the problem. It also covers the objectives of the study, the significance of the
study and the research methodology which was applied during the research.
In chapter two, the discussion is based on the general concept of rape, its historical perspective
under common law,different types of rape and their recognition in Tanzania and South Africa as
well as the extent of legal protection which is offered by the law in in Tanzania and South Africa
in as far as those types of rape are concerned.
Chapter three contains the important selected data from the field which intend to prove
truthfulness or otherwise of the hypothesis of the study that, the law in Tanzania does not
guarantee full protection to victims of rape compared with that of South Africa, the exclusion of
male rape in Tanzania violates the rights of males who are sexually assaulted, the exclusion of
marital rape in Tanzania violates the rights of females who are in marriages, there is little legal
protection to under age spouses against rape in Tanzania due to the conflicting provisions of the
Penal Code and the Law of Marriage Act and that the law regarding rape in Tanzania contradicts
with the Constitutional principle of Equality before the law.
Chapter four contains the conclusion and recommendation, that after the analysis of data
obtained from the field, the researcher will give the conclusion out of the findings and thereafter
the researcher will recommend on what should be done in order to offer more legal protection to
victims of rape in Tanzania. viii
TABLE OF CONTENTS
DECLARALATION...........................................................................................................i
CERTIFICATION..............................................................................................................iiCOPYR
IGHT....................................................................................................................iiiACKNOWLED
GEMENT.................................................................................................ivDEDICATION..............
.....................................................................................................vABBREVIATIONS AND
ACRONYMS.........................................................................vi
ABSTRACT.....................................................................................................................viiTABLE
OF STATUTES..................................................................................................xi
LIST OF CASES.............................................................................................................xii
CHAPTER ONE
INRODUCTION AND BACKGROUND TO THE PROBLEM......................................1
1.1 INTRODUCTION........................................................................................................1
1.2 BACKGROUND TO THE PROBLEM.......................................................................3
1.3 STATEMENT OF THE PROBLEM............................................................................6
1.4 OBJECTIVE OF THE STUDY...................................................................................7
1.4.1 General objective.......................................................................................................7
1.4.2 Specific objectives.....................................................................................................7
1.5 HYPOTHESIS.....7
1.6 SIGNIFICANCE OF THE STUDY.....8
1.7 RESEARCH METHODOLOGY.8
1.7.1 Area of study.....8
1.7.2 Methods of collecting data....9 ix
1.7.2.1 Primary data....9
1.7.2.2 Secondary data.......................................................................................................9
1.7.3 Data analysis and presentation..................................................................................9
1.8 LITERATURE REVIEW..........................................................................................10
CHAPTER TWO
GENERAL CONCEPT OF RAPE, ITS HISTORICAL PERSPECTIVES AND THE
DEVELOPMENT OF RAPE LAWS...................................................14
2.1 GENERAL CONCEPT OF RAPE.....14
2.2 HISTORICAL BACKGROUND OF RAPE UNDER COMMON LAW.14
2.3 EVALUATION OF THE LAW GOVERNING RAPE IN TANZANIA AND SOUTH
AFRICA.........................................................................15
2.4 TYPES OF RAPE...17
2.4.1 Statutory Rape.....17
2.4.2 Gang Rape.......18
2.4.3 Marital Rape/Spousal Rape.....................................................................................19
2.4.4 Acquaintance Rape/Date Rape........20
2.5 LEGAL PROTECTION AGAINST RAPE......21
2.5.1 Legal protection against Rape in Tanzania.............................................................21
2.5.2 Legal protection against Rape in South Africa........................................................23 x
CHAPTER THREE
RESEARCH FINDINGS......25
3.1HINDRANCES TO LEGAL PROTECTION AGAINST RAPE IN
TANZANIA.................................................................................................................25
3.1.1 STATUTORY HINDRANCES..25
3.1.2 CULTURAL HINDRANCES.....27
3.2 WHETHER MALES ARE VICTIMS OF RAPE AND WHETHER WOMEN RAPE
MEN.................................................................................................................................28
3.3 WHETHER THE DEFINITION OF RAPE SHOULD BE GENDER NEUTRAL...30
3.4 WHETHER THERE IS MARITAL RAPE IN TANZANIA....................31
3.5 WHETHER THE LAW REGARDING RAPE IN TANZANIA CONTRADICTS WITH
THE CONSTITUTIONAL PRINCIPLE OF EQUALITY BEFORE THE
LAW.................................................................................................................................32
CHAPTER FOUR
CONCLUSION AND RECOMMENDATIONS...........................................................35
4.1 CONCLUSION..35
4.2 RECOMMENDATIONS...36
BIBLIOGRAPHY............................................................................................................38
APPENDIX..41 xi
LIST OF DOMESTIC LEGISLATIONS
The Constitution of United Republic of Tanzania[CAP.2 R.E 2002]
Law of Marriage Act[CAP.29 R.E 2002]
Penal Code [CAP.16 R.E 2002]
Sexual Offences Special Provisions Act,[CAP.101 R.E 2002]
FOREIGN LEGISLATIONS
Criminal Justice and the Public Order Act,1994
Namibian Combating of Rape Act,No. 8 of 2000
Sexual offences Act,1956
Sexual Offences (Amendment)Act,1976
South African Criminal Law (Sexual Offences and its Related Matters)Amendment Act,No.32 of
2007 xii
LIST OF CASES
S v Masiya,2005 SHG 94/04 (Regional Court for the Regional Division of Mpulanga)
R v R [1992] 1 A.C. 599 1
CHAPTER ONE
INTRODUCTION AND BACKGROUND TO THE PROBLEM
1.1 INTRODUCTION

This research paper is intended to explore the comparison between the law regarding rape in
Both Tanzania and South Africa. But before such comparison, there shall be the look on the
meaning of rape, its historical background and discussion on different types of rape as well as the
development of the law in as far as rape offence is concerned. Thereafter, the researcher will
examine the extent of legal protection of individuals against rape in Both Tanzania and South
Africa as well as the lessons that Tanzania can learn from South Africa in as far as rape is
concerned.
First of all, it should be noted that, there is no universally accepted definition of rape. For
instance the World Health Organization1 defined rape as the physically forced or otherwise
coerced penetration, even if slight, of the vulva or anus, using a penis, other body parts or an
object.
1Quoted from a South African Medical Councils Report,Mental health response for victims of
sexual violence and rape in resources-poor settings,p.1
2 S.2(1) Combating of Rape Act, No. 8 of 2000 ,the Act provides that; any person commits rape
if intentionally and under coercive circumstances commits or continues to commit a sexual act
with another person or causes another person to commit a sexual act with the perpetrator or
with a third person.
As it has been aforesaid, the definition of rape in sexual offences legislations varies depending
on the development of the legal system of the state concerned, but in most cases where
legislation has recently been enacted it has been redefined from the limited common law
definition whereby rape means only sexual intercourse with a woman without her consent.
The model statutory definitions tend to be gender neutral, For instance The Namibian Combating
of Rape Act2, the Act gives the definition of rape which covers both sexes, that both a man and a
woman can commit the offence of rape. 2
In Tanzania, the definition of rape contrasts with the definition of rape in Namibia, in Tanzania
the law recognizes only such kind of rape which is committed by males to females3. Also the
Sexual Offences Special Provisions Act4 provides the same that a male person commits the
offence of rape if he has sexual intercourse with a girl or woman without her consent or even
with consent if such a girl is below eighteen years old.
3 S.130(1) and (2)e of the Penal Code,[CAP.16 R.E 2002]
4 S.5(e) of the Sexual Offences Special Provisions Act,[CAP.101 R.E 2002]
5 2005 SHG 94/04 (Regional Court for the Regional Division of Mpulanga)
6 S.3 of Criminal Law(Sexual Offences and its related matters) Amendment Act,No.32 of 2007
7 ibid,S.1(1)k
With regard to the definition of rape as provided above, in Tanzania rape is limited to sexual
intercourse and it recognises only females to be the victims of rape and that males cannot be
victim of the offence and that rape cannot be committed by females as principal offenders.
But in South Africa, the limited common law definition of rape was criticized by the High Court
in the case of S v Masiya5 in which the court found the common law definition of rape being
discriminative, it stated that, the common law definition of rape illogically and irrationally
discriminates between male and female. In respect of the court decision it was emphasized that
the definition of rape should cover not only non-consented sexual penetration to females but also
non-consented sexual penetration to both males and females.
As such the law in 2007 came to cover such mischief of the law, now in South Africa, the law is
to the effect that any person shall be guilty of offence of rape if commits an act of sexual
penetration to another without the consent of such other person irrespective of gender6.
Furthermore the same Act7 provides that; sexual penetration includes any act which causes
penetration to any extent whatsoever by the genital organs, any other part of the body of one
person or, any object, including any part of the body of an animal, genital 3
organs of an animal, of one person into genital organs, anus, or mouth of another person or
beyond the mouth of another person.
Whereby, genital organs include the whole or part of the male and female genital organs, and
further include surgically constructed or reconstructed genital organs8.
8 S.1(1)I of Criminal Law(Sexual Offences and its related matters) Amendment Act,No.32 of
2007
9 Levinson, B,M.Gender and Law in the Hebrew Bible and the Ancient Near East. p. 203.
10Vikman,E.Sexual violence in warfare, Part I. Anthropology &Medicine,Pp.21-31
11Mike,M.Gay Rights Or Wrongs,A Christian's Guide to Homosexual Issues and
Ministry,p. 22.
12 Sara E,P.The Marriage of Roman Soldiers, law and family in the imperial army,p.268
13 Roesdahl, Pp. 9-22.
From the definitions of different jurisdictions given above, rape can simply be defined as the
non-consensual sexual intercourse irrespective of gander.
1.2 BACKGROUND TO THE PROBLEM

The problem of rape started many years ago, previously rape had accompanied warfare in
virtually every known historical era9. The Greek and Roman armies reportedly engaged in war
rape, which is documented by ancient authors such as Homer, Herodotus, and Livy Ancient
sources held multiple, often contradictory attitudes to sexual violence in warfare10. In the near
East, victorious armies often dealt in homosexual intercourse with the losers11.
Roman military officers often used the young boys of defeated armies for homosexual
intercourse, a Roman Historian, Tacitus, noted this happening during the Revolt of the Batavi12.
During Middle Ages, the Vikings Scandinavians who raided and colonized wide areas of Europe
from the late 8th Century to the early 11th Century13 acquired a reputation for rape and pillage.
Viking settlements in Britain and Ireland are thought to have been primarily male enterprises,
with a lesser role for Viking females. British Isles women are 4
mentioned in old texts on the founding of Iceland, indicating that the Viking explorers had
acquired wives and concubines from Britain and Ireland.
Medieval Islamic military jurisprudence laid down severe penalties for those who committed
rape. The punishment for such crimes was severe, including death, regardless of the political
convictions and religion of the perpetrator.14
14 Abou,E.F.Commentary: Terrorism Is at Odds With Islamic Tradition,P.12
15 Davis, R. Christian Slaves, Muslim Masters: White Slavery in the Mediterranean, the Barbary
Coast and Italy, 1500-1800. (New York: Basic Civitas Books, 1999)
16 Cocker, M.Rivers of blood, rivers of gold: Europe's conflict with tribal peoples,p.308.
17 ibid
Female slavery was also common during the medieval Arab slave trade, where prisoners of war
captured in battle from non-Arab lands often ended up as a concubine slaves (which are
considered free when their master dies) in the Arab World. Most of the slaves came from places
such as Sub-Saharan Africa, the Caucasus, Central Asia , and Central and Eastern Europe.
Robert Davis, a professor of history in Ohio State University, claims that the Barbary pirates also
captured 1.25 million slaves from Western Europe and North America between the 16th and 19th
centuries15.
During European colonial era, In German South-West Africa during Herero and Namaqua
Genocide, German soldiers regularly engaged in gang rapes before killing Herero women or
leaving them in the desert to die16. A number of women from the rebelling Herero tribe were
also forced into prostitution17.
During Indian Rebellion, with the beginnings of the mass media in the 19th century, war rape
was occasionally used as propaganda by European colonialists in order to justify the colonization
of places they had conquered. The most notable example was during the Indian Rebellion of
1857, known as "India's First War of Independence" to the Indians and it was known as the
"Sepoy Mutiny" to the British. Indian sepoys rebelled against the British East India Company's
rule in India. While incidents of rape committed by Indian rebels against English women and
girls were generally uncommon during the 5
rebellion, this was exaggerated to great effect by the British media in order to justify continued
British colonialism in the Indian subcontinent.
At the time, British newspapers had printed various apparently eyewitness accounts of English
women and girls being raped by Indian rebels, but with little physical evidence to support these
accounts. It was later found that most of these accounts were false stories created in order to
paint the native people of India as savages who need to be civilized by British colonialists, a
mission sometimes known as "The White Man's Burden". One such account published by The
Times, regarding an incident where 48 English girls as young as 10-14 had been raped by the
Indian rebels in Delhi, the report was criticized as a false propaganda story by Karl Marx, who
pointed out that the story was written by a clergyman in Bangalore, far from the events of the
rebellion18.
18 Beckman, K, R.Vanishing Women: Magic, Film, and Feminism.Pp.3334.
19Smith and Hogan, Smith and Hogan Criminal law,11st edn,p.614
20 ibid,p.615
21 Sexual offences Act,1956
As it has been seen, the offence of rape begun many years ago and the law also started to respond
to that effect.
Firstly, rape was an offence under the common law of England. That offence became an offence
under the law of other countries as a result of colonization or conquest19.
Under those laws, rape was traditionally described as the act of one party forcing another to have
sexual intercourse with him or her. Common law rape required the utmost physical resistance by
the victim, as well as substantial force by the defendant.
Rape in England remained as common law offence until the 20th century when rape was put
under statutory basis after the enactment of the Sexual offences Act20, section 1(1) of the Act21
provided that, it is an offence for a man to rape a woman. But there was no definition of rape in
the Act. It was in 1976 when there was an introduction of partial 6
definition of rape in the Sexual Offences (Amendment) Act22 and later on the Criminal Justice
and the Public Order Act23 which extended the definition of rape to include anal rape. At this
stage to some extent the law expanded the protection against rape by covering anal rape
22 Sexual Offences (Amendment)Act,1976
23 S.142 of the Criminal Justice and the Public Order Act,1994
24 S.130(1) of the Penal Code, [CAP.16 R.E 2002] and S.5(1)a of the Sexual Offences Special
Provisions Act
25 [CAP.16 R.E 2002]
26 ibid,S.130(2)e
27 [CAP.29 R.E 2002]
1.3 STATEMENT OF THE PROBLEM
There have been provisions in criminal laws of Tanzania24 which cover the problem of rape, but
the definition is very narrow thus there is no provision covering rape committed to males
because the only rape which is recognized is that which is committed by men to women or
girls25, and that there is no provision covering spousal rape in Tanzania. Furthermore the law in
Tanzania does not offer enough protection to under age spouses, for instance in Tanzania a man
cannot be held liable for rape if he has carnal knowledge with a girl below eighteen years if such
a girl is his wife and she is not separated from him. For instance, section 130(2)e of the Penal
Code26 provides that a male person shall be guilty of rape if he has sexual intercourse with a
girl who is below eighteen years regardless as to whether there was the consent or not, but
section 13(1) of the Law of Marriage Act27 allows girls of fifteen years to get married. To cover
the controversy of the two laws, the law does not hold a man liable if he has sexual intercourse
with a girl below eighteen years if she is his wife and she is not separated from him.
From the provision of the law , it is very clear that it is only male persons who can rape a girl or
a woman and that no man or woman can claim that he or she has been raped by 7
her or his spouse if they are not legally separated and no under age spouse can claim that she has
been raped while she is duly married.
Due to this, a spouse is denied the right to claim that he or she has been raped by his or her
spouse because the law does not recognizes marital rape in Tanzania. Under age spouses are not
fully protected from rape and males are also denied their rights from claiming that they have
been raped because the law does not recognize if males can be victims of rape.
1.4 OBJECTIVE OF THE STUDY
1.4.1 General objective
rape in Tanzania and South Africa

1.4.2 Specific objectives


ch Tanzania can learn from South Africa on how to offer more
protection to all categories of victims of rape.

1.5 HYPOTHESIS
(1) That the law in Tanzania does not guarantee full protection to victims of rape if compared
with that of South Africa
(2) That the exclusion of male rape in Tanzania violates the rights of males who are sexually
assaulted.
(3) That the exclusion of marital rape in Tanzania violates the rights of females who are in
marriages. 8
(4) That there is little legal protection to under age spouses against rape in Tanzania due to the
conflicting provisions of the Penal Code and the Law of Marriage Act
(5) That the law regarding rape in Tanzania contradicts with the Constitutional principle of
Equality before the law
1.6 SIGNIFICANCE OF THESTUDY


o the legislators to recognize rape which is committed to males, thus
they can be in a good position to enact the law to cover an offence of rape in a wider sphere.
y are
sexually assaulted by recognizing that males can also be victims of rape.

1.7 RESEARCH METHODOLOGY
1.7.1 Area of study
For the purpose of this study, the researcher conducted a field study in Courts and also the
researcher attended different Governmental institutions dealing with social welfare of the society
in Rukwa Region especially in Sumbawanga Municipal.
Also the researcher visited different Non-Governmental institutions with the aim of obtaining
data which would be of help to the researcher to prove the truthfulness or otherwise of the
phenomenon under study. 9
1.7.2 Methods of collecting data
The researcher used both the primary data and secondary data in the study, for the purpose of this
study, the researcher used both the primary methods of collecting data as well as secondary
methods depending on the type of data which is required.
1.7.2.1 Primary data
This is the first hand data which has not been referred from any other source, for the purpose of
this study the researcher collected these data from the respondents through interviews, and
questionnaires. The researcher used those methods in order to obtain direct and reliable data
from the respondents in order to see whether the society experience the problem under the study.
1.7.2.2 Secondary data
This is the data which is collected by the researcher from the respondents who have referred
them from other sources. For the purpose of this study, the researcher used secondary sources
like books, reports and internet sources.
The researcher used those methods in order to obtain data which have been collected by other
researchers, to see what has been done by other researchers and what have not been done so that
the researcher becomes in a good position to fill such a gap.
1.7.3 Data analysis and presentation
The researcher used the qualitative data analysis methods when analysing data which were in
form of words (non-empirical data). In data analysis the researcher did three things which were
data reduction, data display and conclusion drawing. 10
1.8 LITERATURE REVIEW
Lynn, T28 when reviewing the book of After Silence: Rape and My Journey Back by Nancy
Venable Raine wrote that;
28 Lynn,T. Review of After Silence: Rape and My Journey Back by Nancy Venable
Raine.p.3
29 SAMJ, Reported rapes at a hospital rape centre: demographic and clinical profiles,
vol.100 No.6.P.1
The book is a memoir that is well-written and emotionally charged. In the introduction, the
author says that the police told her that she was lucky not to have been murdered. That is how
horrible it is to be raped; it is a crime so heinous as to be associated with murder. However, the
author did not feel lucky. She felt alone, especially since rape is shrouded in silence, shame, and
stigma.
From the above cited work, the writer shows that rape is the serious crime which normally can
result into murder but the writer has not talked anything as to whether a man can be raped as
well, and that the bad feelings which are experienced by females once they are raped can also be
experienced or can be less than the feelings which are experienced by males once such an
offence is committed upon them.
Kees, L et al29 in their report they wrote that;
Figures for the period 2008/2009 indicate a 10% rise in the number of reported sexual offences
compared with figures for 2007/2008. The increase may be partly attributable to the recent
version of the Act regulating sexual offences, the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, Act 32 of 2007. In this Act, the definition of rape has been broadened
to include the non-consensual vaginal, oral or anal penetration of any person, regardless of
gender, with any object.
Also in their report they indicated that; a total of 1132 confirmed rape cases were identified,
comprising 1013 female and 119 males, 11
Thus from the report cited above, it can be seen that in South Africa males are being raped too
and the law recognizes such offence as rape but in Tanzania it is not the case.
Katy30 in his work wrote that;
30 Katy, Male Rape & Assault: Dispelling the Myths,Pp 2-3
31 Amnesty International, Rape and sexual violence: Human rights law and standards in the
International Criminal Court,Pp.7-8
Whilst the vast majority of post-exposure prophylaxis who abuse males are male themselves, an
estimated 3% are female. Again, rape and sexual assault is not about physical strength but about
power and control.
In addition to this, because many men have never even considered the serious possibility of being
raped or sexually assaulted by women, there is a high likelihood that you may just freeze in the
situation.
It takes many people by surprise that men can infact be assaulted by women, and often a men
may fear that disclosure of the assault may be greeted with disbelief or that it will not be taken
seriously. However, a man can be raped by a woman and the legal authorities are beginning to
take this with the seriousness it deserves.
From the work cited, it shows clearly that a woman can rape a man though many men do not
report it due to the fact that the society cannot appreciate that a man can be raped by a woman.
Amnesty International 31 in its report wrote that;
Sexual violence, including rape, is one of the most significant aspects of discriminatory violence
against women. The realities of rape and sexual abuse in armed conflict and in peacetime have
been documented extensively over many years. The rights to equality, including equality before
the law, are violated by such crimes and the impunity that the perpetrators enjoy in the
overwhelming majority of cases. Men and boys who are raped frequently fear bringing 12
complaints of rape to the attention of the authorities, due to the victims fear of stigma.
From the Amnesty International report it has been clearly shown that both males and females are
victims of rape and that the law regarding rape contradicts with the principle of equality and it is
discriminatory in the sense that it recognizes females as the only victims of rape while even
males are victims of rape.
Chineze J. O32 in his Article wrote that;
32 Chineze J. O.The Interrelationship Between Gender-based Violence and HIV/AIDS in
South Africa,Vol.6.No.1 Pp.34-35
South Africa is said to have the highest statistics of gender-based violence in the world and this
includes rape and domestic violence. For example, the incidences of rape are high. Though it is
estimated that a woman is raped every 26 seconds, the estimate given by the South African police
is that one woman is raped every 36 seconds. The trauma of gender-based violence such as rape
can last a lifetime. Rape survivors often face a myriad of emotional, physical, legal, and medical
issues, resulting in significant repercussions. For example, the aftermath of rape be it marital or
otherwise is compounded by the risk of HIV transmission. Moreover, due to cultural reasons,
most victims and their families usually do not report the matter to the police for fear of
embarrassment.
From the Article cited above, it has been shown clearly that South Africa has a higher rate of
rape cases in the world and that the result of rape is the risk of HIV transmission. Furthermore,
victims of rape do not report the incidents due to the cultural reason that they may be
embarrassed.
As it has been seen from the literatures above, it can be concluded that rape is the serious crime
and it is committed to both males and females irrespective of their age. Rape may results into
HIV transmission. But all the reviewed literatures do not provide anything on the position of the
law in Tanzania, they do not provide the position as to 13
whether there is male rape and marital rape and the extent of legal protection offered by the law
in Tanzania with regards to different types of rape.
Therefore the research will focus on examining the position of the law relating to rape in
Tanzania, to see whether there is marital rape and to see whether males can be victims of rape,
whether females can rape males and whether spouses are victims of rape and analysis of the law
in as far as legal protection which is offered by the law in Tanzania in as far as different types of
rape are concerned and the lessons which Tanzania can learn from South Africa. 14
CHAPTER TWO
GENERAL CONCEPT OF RAPE, ITS HISTORICAL PERSPECTIVES AND THE
DEVELOPMENT OF RAPE LAWS
2.1 GENERAL CONCEPT OF RAPE
The offence of rape started many years ago and it has been defined differently depending on the
nature of development of the legal system of the jurisdiction concerned. As per common law,
rape is the unlawful sexual intercourse committed by man with a woman not his wife through
force and against her will33. But most of the modern states Statutes have broadened the
definition of rape and it includes unlawful sexual intercourse without consent after the
perpetrator substantially impaired his victim by administering without the victims knowledge or
consent, drugs or intoxicants for the purpose of preventing resistance or when the victim was
unconscious34.
33 Blacks law dictionary,8th edn,p.1310
34 Ibid
35 Smith and Hogan, Smith and Hogan Criminal law,11st edn,p.614
36 ibid,p.615
37 Sexual offences Act,1956
2.2 HISTORICAL BACKGROUND OF RAPE UNDER COMMON LAW
Rape was an offence under the common law of England and it came to be an offence under the
law of other countries as a result of colonization or conquest35.
Under those laws, rape was traditionally described as the act of one party forcing another to have
sexual intercourse with him or her. Common law rape required the utmost physical resistance by
the victim, as well as substantial force by the defendant.
Rape in England remained as common law offence until the 20th century when rape was put
under statutory basis after the enactment of the Sexual offences Act36, section 1(1) of the Act37
provided that, it is an offence for a man to rape a woman. But there was no 15
definition of rape in the Act. It was in 1976 when there was an introduction of partial definition
of rape in the Sexual Offences (Amendment) Act38 and latter on the Criminal Justice and the
Public Order Act39 which extended the definition of rape to include anal rape.
38 Sexual Offences (Amendment)Act,1976
39 S.142 of the Criminal Justice and the Public Order Act,1994
40 Act No. 32 of 2007
41ibid,S.3
42 ibid
2.3 EVALUATION OF THE LAW GOVERNING RAPE IN TANZANIA AND SOUTH
AFRICA.
The purpose of this paper is to discuss the position of the law regarding the offence of rape both
in Tanzania and South Africa and in the due course of the discussion there shall be the look on
the extent of legal protection against rape which is guaranteed by the law in both Tanzania and
South Africa.
In South Africa, rape is the statutory offence covered by the Criminal Law (Sexual Offences and
Related Matters) Amendment Act40. This Act has repealed the common law offence of rape and
replaced it with a new expanded statutory offence of rape, applicable to all forms of sexual
penetration without consent, irrespective of gender.
Section 3 of the Criminal law (Sexual offences and related matters) Amendment Act41 provides
that any person ("A") who unlawfully and intentionally commits an act of sexual penetration with
a complainant ("B"), without the consent of B, is guilty of the offence of rape.
And sexual penetration for the purpose of the Act42 means any act which causes penetration to
any extent whatsoever by 16
(a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another
person;
(b) any other part of the body of one person or, any object, including any part of the body of an
animal, into or beyond the genital organs or anus of another person; or
(c) the genital organs of an animal, into or beyond the mouth of another person.
Thus from the definition of rape as provided in the Act, in South Africa rape is non-consensual
sexual penetration committed by one person to another irrespective of gender, this penetration
may be done by using genital organs or by part of the body of one person or, any object,
including any part of the body of an animal, into or beyond the genital organs or anus of another
person.
In Tanzania, rape is also the statutory offence and it is covered under Penal Code43 and the
Sexual Offences Special Provision Act44. Both the Penal Code and SOSPA provides that; it is
an offence for a male person to rape a girl or a woman45.
43 [CAP.16 R.E 2002]
44 [CAP.101 R.E 2002]
45S.130(1) of the Penal Code and S.5 of the Sexual offences Special Provision Act
46 S.130(2)a-e and (3)a-e of the Penal Code which provides that a male person commits the
offence of rape if he has sexual intercourse with a girl or a woman not being his wife, or being
his wife who is separated from him without her consenting to it, with her consent where the
consent has been obtained due to fear of death or of hurt or while she is in unlawful detention,
with her consent when unsound mind or was intoxicated, with her consent due false
representation as her husband, with her consent when she is under eighteen years of age, unless
the woman is his wife who is fifteen or more years of age and is not separated from the man,
being a person in a position of authority, takes advantage of his official position to obtain such
consent, being on the management or on the staff of a remand home or other place of custody,
established by or under law, or of a women's or children's institution, takes advantage of his
position and commits rape on any woman inmate of the remand home, place of custody or
institution, being on the management or staff of a hospital, takes advantage of his position and
commits rape on a girl or woman, being a traditional healer or religious leader takes advantage of
his position and commits rape on a girl or a woman.
As the law provides, rape can simply be defined as the act of a male person to have a carnal
knowledge with a girl or a woman not being his wife or his wife who is separated from him
without her free consent46. 17
From the provision of the law, the requirement of the law is presence of free consent to such
sexual intercourse on the party of a girl or a woman. If the consent was not given freely, the
penetrator shall remain liable for the offence of rape.
2.4 TYPES OF RAPE
There are various kinds of rape like the anger rape, power rape, sadistic rape, date rape, spousal
rape, prison rape, statutory rape, rape by deception and corrective rape but all these types of rape
can be grouped into major four types of rape namely, statutory rape, gang rape, marital rape and
acquaintance rape. Therefore for the purpose of this paper, the discussion will mainly base on the
four major types of rape.
2.4.1 Statutory Rape
Currently, all States have laws that prohibit sexual intercourse with persons under a certain
age47. The laws are commonly referred to as statutory rape laws, however the term statutory
rape is not usually found in criminal statutes48. Statutory rape is a general term used to describe
an offense that takes place when an individual (regardless of age) has consensual sexual relations
with an individual not old enough to legally consent to the behavior.49. It differs from forcible
rape in that overt force or threat need not be present. The laws presume coercion, because a
minor or mentally challenged adult is legally incapable of giving consent to the act and the age
of consent differs from one country to another.
47 American Bar Association Center on Children and the Law,State Legislators Handbook for
Statutory Rape Issues,p.1
48 ibid,p.2
49 U.S. Department of Justice, Statutory rape known to law enforcement,p.2
50 [CAP.16 R.E 2002]
In Tanzania statutory rape is covered under section 130(2)e of the Penal Code50 which provides
that, a male person commits rape if he has carnal knowledge to a girl with or 18
without her consent when she is under eighteen years of age, unless the woman is his wife who is
fifteen or more years of age and is not separated from the man.
In South Africa, Statutory rape is covered under section 15(1) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act51 and it provides that,
51 Act No.32 of 2007
52 ibid,S.1(1)b
53Kristy, Gang rape,p.1
54 [CAP.16 R.E 2002]
any person(A)who commits an act of sexual penetration with a child(B) is, despite the consent
of B of such an act, guilty of the offence of having committed an act of consensual sexual
penetration with a child.
Whereby a child with reference to section 15 of the same Act means a person who is 12 years or
older but under the age of 16 years52.
2.4.2 Gang Rape
The term Gang rape occurs when two or more people participate in the rape of a single victim,
rape involving at least two or more violators53.
In Tanzania, gang rape is covered under section 131A(1) of the Penal Code54 which provides
that,
(1) Where the offence of rape is committed by one or more persons in a group of persons, each
person in the group committing or abetting the commission of the offence is deemed to have
committed gang rape.
(2) Every person who is convicted of gang rape shall be sentenced to imprisonment for life,
regardless of the actual role he played in the rape. 19
The offence is taken with seriousness and its punishment is life imprisonment without regarding
the extent to which each penetrator played during the commission of the crime.
In South Africa, gang rape has not been mentioned in the Statutes but it may be included within
the meaning of section 3 of the Criminal law (Sexual offences and related matters) Amendment
Act55, which provides that any person ("A") who unlawfully and intentionally commits an act of
sexual penetration with a complainant ("B"), without the consent of B, is guilty of the offence of
rape.
55Act No.32 of 2008
56 Bergen, 1996,quoted from Raquel K.B,Dissertation on Marital rape,p.1
57 Hale,M,Pleas of the Crown,1st edn,vol.1.Ch.58 at p.629
58 [1992] 1 A.C. 599
59 [CAP.16 R.E 2002]
2.4.3 Marital Rape/Spousal Rape
Marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral)
obtained by force, threat of force, or when the wife is unable to consent56. Many scholars
rejected this kind of rape, for instance Sir Mathew Hale57 who wrote that the husband cannot be
guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial
consent and contract, the wife hath given herself in kind unto the husband which she cannot
retract.
But in the case of R v R58 the House of Lord of England affirmed that a husband can be guilty
of raping his wife. Some jurisdictions have adopted such notion but for the purpose of this paper
the focus will base on Tanzania position and South African law position
In Tanzania, the law does not provide for spousal rape and this can be evidenced from the
provision of section 130(2)a of the Penal Code59 which provides that,
.a male person commits the offence of rape if he has sexual intercourse with a girl or a
woman, 20
(a)not being his wife, or being his wife who is separated from him without her consenting to it at
the time of the sexual intercourse
From the provision of the law above, it can be seen that in Tanzania a husband cannot be charged
of committing rape to a girl or a woman who is his wife except only where there is legal
separation between the spouses. This is because the law in Tanzania presumes that it is the
conjugal obligation of a husband or of the wife to have sexual intercourse whenever the other
spouse wishes to do so.
In South Africa, the presence of marital relationship between the complainant and the accused is
immaterial in rape cases. This is provided under section 56(1) of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act60which states that,
60 Act No.32 of 2007
61 The Permanente Medical Group, Inc, Health education,P.1
62 ibid
Whenever an accused person is charged with an offence under section 3,4,5,6 or 7 it is not a
valid defence for an accused person to contend that a marital or other relationship exists or
existed between him or her and the complainant.
2.4.4 Acquaintance Rape/Date Rape
Acquaintance or date rape is the kind of rape which happens when someone is forced to have sex
by someone he or she knows61. Acquaintance rape can happen anywhere, anytime, and to
anyone, most often to college students, particularly freshmen62. But in as far as the position of
Tanzania is concerned, this is the kind of rape committed to a girl or woman by a boy or a man
whom she knows. But in South Africa this is the kind of rape committed by a person who is
known to the victim, the victim may be a male or female person. 21
2.5 LEGAL PROTECTION AGAINST RAPE
As it has been seen from the definition of rape as provided in States Statutes, the offence of rape
is taken differently depending on the development of the legal system of the state concerned.
Therefore, the legal protection against rape differs from one country to another depending on the
development of the legal system of the state. For the purpose of this paper, there shall be the look
on legal protection of individuals against rape in Tanzania and South Africa.
2.5.1 Legal protection against rape in Tanzania
In Tanzania the law is gender based, it protects only girls and women against rape, this can be
seen as from the definition of rape itself that, it is an offence for a male person to rape a girl or a
woman63. From the provision of the law, in Tanzania rape is only committed by males as
principal offenders to females and thus females cannot rape as principal offenders but can be
charged of rape as an abettor. Thus in Tanzania the law protects only females against rape
irrespective of their age.
63 S.130(1) of the Penal Code and s.5 of the Sexual offences Special Provision Act
64 [CAP.16 R.E 2002]
The law does not recognize spousal rape, thus in Tanzania spouses are not protected from marital
rape because the law does not provide for it, this can be seen from the provision of section
130(2)a of the Penal Code64 which provides that,
.a male person commits the offence of rape if he has sexual intercourse with a girl or a
woman,
a) not being his wife, or being his wife who is separated from him without her consenting to it at
the time of the sexual intercourse
22
From the provision above, in Tanzania a husband cannot be charged of committing rape to a girl
or a woman who is his wife except only where there is legal separation between the spouses.
Also in Tanzania, it is rape if a male person has a carnal knowledge with a woman while
unsound mind or when she is intoxicated by drugs or alcohol administered to her by the offender
or other person65, but the law is silent as to whether it shall be rape if a female person has carnal
knowledge with a male person who at the time of sexual intercourse was insane or intoxicated by
drugs or alcohol administered him by such woman or some other persons.
65 S.130(2)c of the Penal Code[CAP.16 R.E 2002]
66 ibid,S.154
The law in Tanzania does protect males from rape and it does not recognize if males can be
victims of rape simply because of the belief that male persons cannot be raped by a woman. Also
the law treats sexual penetration between males themselves as unnatural offence and it is covered
under section 154(1) and (2) of the Penal Code66 whereby the law provides that;
(1) Any person who
(a) has carnal knowldge of any person against the order of nature; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature,
commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a
term of not less than thirty years
(2) Where the offence under subsection (1) of this section is committed to a child under the age
of ten years the offender shall be sentenced to life imprisonment. 23
Thus in Tanzania, once a male has been sexually penetrated even without his consent, it does not
amount to rape but rather it amounts to unnatural offence which is punishable by life
imprisonment or for a term not less than thirty years.
2.5.2 Legal protection against Rape in South Africa
In South Africa legal protection against rape is wider; it protects both male and females against
rape. In South Africa rape is committed to both males and females regardless as to whether the
offence was committed between persons of same gender or different genders.
This can be seen as from the preamble of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act67 where it is stated that,
67 Act No.32 of 2007
68 ibid,S.3
69 ibid,S.1(1)
..the Act is to repeal the common law offence of rape and replace it with a new expanded
statutory offence of rape, applicable to all forms of sexual penetration without consent,
irrespective of gender.
Also section 3 of the Act68 provides that,
..any person ("A") who unlawfully and intentionally commits an act of sexual penetration with a
complainant ("B"), without the consent of B, is guilty of the offence of rape.
Whereby sexual penetration for the purpose of the Act69 means any act which causes penetration
to any extent whatsoever by
(a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another
person; 24
(b) any other part of the body of one person or, any object, including any part of the body of an
animal, into or beyond the genital organs or anus of another person; or
(c) the genital organs of an animal, into or beyond the mouth of another person.
Also in the case of S v Masiya 70 the court found the common law definition of rape being
discriminative, it stated that; the common law definition of rape illogically and irrationally
discriminates between male and female. In respect of the court decision it was emphasized that
the definition should cover not only non-consented sexual penetration to females but also non-
consented sexual penetration to both males and females should be regarded as rape
70 2005 SHG 94/04 (Regional Court for the Regional Division of Mpulanga)
71 Act No.32 of 2007
Therefore, in South Africa legal protection against rape is wider, thus it protects both males and
females against rape regardless as to whether the victim was penetrated by a person of same sex
or different sex.
Furthermore, the law in South Africa protects spouses from being raped by criminalizing spousal
rape, this can be seen from the provision of section 56(1) of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act71 which provides that,
Whenever an accused person is charged with an offence under section 3,4,5,6 or 7 it is not a
valid defence for an accused person to contend that a marital or other relationship exists or
existed between him or her and the complainant. 25
CHAPTER THREE
RESEARCH FINDINGS AND ANALYSIS
The study aimed at comparing the law regarding rape in Tanzania and South Africa, legal
protection guaranteed by the law in as far as the offence of rape is concerned both in Tanzania
and South Africa, to see whether there is the need for Tanzanian law regarding rape to be gender
neutral in order to protect both genders as against rape, to see whether there is marital rape in
Tanzania and to point out the lessons which Tanzania can learn from South Africa in as far as
rape offences are concerned. The researcher used methods like reading books, journals and
articles, also the researcher used interviews and questionnaires. The responses are well discussed
hereunder.
3.1 HINDRANCES TO LEGAL PROTECTION AGAINST RAPE IN TANZANIA
Rape is the serious offence both in Tanzania and South Africa, both jurisdictions have enacted
different laws in order to protect the individuals from the offence of rape. But in as far as
Tanzania law is concerned, the legal protection is very minimal if compared with that of South
Africa. The followings are the basic hindrances as to legal protection against rape in Tanzania;
3.1.1 STATUTORY HINDRANCES
In Tanzania there are several provisions of the law which by themselves hinder legal protection
against rape to some groups of people.
The law in Tanzania does not protect spouses from marital rape, this can be seen from the
provision of section 130(2)a of the Penal Code72 whereby the law provides that,
72 [CAP.16 R.E 2002]
.a male person commits the offence of rape if he has carnal knowledge with a woman not being
his wife, or being his wife who is separated from him without her consenting to it at the time of
the sexual intercourse. 26
Thus a woman in marriage cannot go to court and claim that she has been raped by her husband
even if she did not consent to such sexual intercourse simply because it is her conjugal obligation
to have sexual intercourse with her husband. She can do so only if she is separated from her
husband and that during sexual intercourse she did not consent thereto.
In South Africa, the law guarantees full protection against rape to both, those in marriage and
those who are not married by criminalizing marital rape73.
73S.56(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act which
provides that, whenever an accused person is charged with an offence under section 3,4,5,6 or 7
it is not a valid defence for an accused person to contend that a marital or other relationship
exists or existed between him or her and the complainant.
74 [CAP.16 R.E 2002]
75 [CAP.29 R.E 2002]
The law does not guarantee full protection to underage spouses against rape, in Tanzania a man
cannot be held liable for rape if he has carnal knowledge with a girl below eighteen years if such
a girl is his wife and she is not separated from him. For instance, section 130(2)e of the Penal
Code74 provides that a male person shall be guilty of rape if he has sexual intercourse with a girl
who is below eighteen years regardless as to whether there was the consent or not, but section
13(1) of the Law of Marriage Act75 allows girls of fifteen years to get married. To cover the
controversy of the two laws, the law does not hold a man liable if he has sexual intercourse with
a girl below eighteen years if she is his wife and she is not separated from him.
Therefore girls below eighteen years who are in marriages are not protected against rape and
their consent and that of their parents or guardians is valid regardless that they are below
eighteen years old.
The law in Tanzania does not guarantee protection to males, the law does not recognize if males
can be victims of rape simply because of the belief that male persons cannot be raped by a
woman. The law is to the effect that it is rape if a male person has carnal knowledge with a girl is
below eighteen years regardless the presence of consent on her 27
party76 but the law is silent as to whether it is rape if a woman has carnal knowledge with a boy
of below eighteen years old.
76 S.130(2)e of the Penal Code[CAP.16 R.E 2002]
77 ibid,S.154(1) and (2)
The law provides only for sexual penetration between males and it such sexual penetration as
unnatural offence, this is covered under section 154(1) and (2) of the Penal Code77 where it is
provided that;
(1) Any person who
(a) has carnal knowledge of any person against the order of nature; or
(c) permits a male person to have carnal knowledge of him or her against the order of nature,
commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a
term of not less than thirty years.
(2) Where the offence under subsection (1) of this section is committed to a child under the age
of ten years the offender shall be sentenced to life imprisonment.
3.1.2 CULTURAL HINDRANCES
Due to patriarchal nature of most African states, it is believed that females cannot force males to
commit sexual intercourse, and that erection of the penis means consent on the party of the male
even if he said no to such sexual intercourse. Furthermore, it takes people by surprise once a
male person claims that he has been raped by a woman. One 28
Katy78 when addressing the issue of rape said that;
78 Katy, Male Rape & Assault: Dispelling the Myths,p.2-3
Whilst the vast majority of post-exposure prophylaxis, who abuse males are male themselves, an
estimated 3% are female. Again, rape and sexual assault is not about physical strength but about
power and control.
In addition to this, because many men have never even considered the serious possibility of being
raped or sexually assaulted by women, there is a high likelihood that you may just freeze in the
situation.
It takes many people by surprise that men can infact be assaulted by women, and often a men
may fear that disclosure of the assault may be greeted with disbelief or that it will not be taken
seriously. However, a man can be raped by a woman and the legal authorities are beginning to
take this with the seriousness it deserves.
From the writings above, it has been shown clearly that a woman can rape a man though many
men do not report it due to the fact that the society can be taken by surprise that a man has been
raped by a woman.
3.2 WHETHER MALES CAN BE VICTIMS OF RAPE AND WHETHER WOMEN CAN
RAPE MEN
The researcher used interview as one of the methods of collecting data, in the due course of
interviewing the respondents, the researcher was able to receive the responses as follows;
The first respondent was the Hon. E.K Matembele, the Resident Magistrate of Rukwa, who said
that the law regarding rape in Tanzania has some loop holes, the law is not clear especially on
the point of equality before the law. It seems to protect females only but if one looks at practices
he will find that even young males are being raped by 29
females who are older than them but the law is silent. It covers only the sexual assaults to males
who are below 15 years, how about rape? I think there is the need to revisit our criminal laws
especially rape laws.
He furthermore said that, here in courts one cannot find cases of this kind because once an act
has not been criminalized one cannot bring the case of such nature, the law does not recognize if
males are victims of rape and therefore a male person cannot come into the court and claim that
he has been raped by the woman.
The second interviewee was Mr. James Kobas, a PC of Sumbawanga Police Station who after
being asked by the researcher as to whether males can be victims of the offence of rape, he
answered in affirmative that, there are some situations in which males can be victims of rape,
especially when they are drunk or underage. He further said that in families which husbands are
very busy, wives tend to have carnal knowledge with their houseboys as well as young male
relatives of their husbands and normally those males are being threatened by those mothers that
if they refuse or they disclose such act to others they might be chased away from the
homestead. From his words it shows that males are also victims of rape although the law does
not recognize it and the exclusion of which denies the right of males to claim in case they have
been sexually assaulted.
The third interviewee was Mr. Francis Mwasyeba, a resident of Sumbawanga Municipal aging
50 years who after being asked as to whether it is possible for a woman to rape a man said
``nowadays women do rape men as well, there are those females who are being called
sugarmumies, they normally like to have carnal knowledge with very young boys aging sixteen
to twenty years especially those who take alcohol, I do not think if actually these young boys
know what they do with these sugarmumies when they are drunk, there should be a law to
protect these children of ours. 30
Also Kees, L et al79 when discussing the rate of sexual offences in South Africa wrote that;
79 SAMJ, Reported rapes at a hospital rape centre: demographic and clinical profiles,
vol.100 No.6 P.1
Figures for the period 2008/2009 indicate a 10% rise in the number of reported sexual offences
compared with figures for 2007/2008. The increase may be partly attributable to the recent
version of the Act regulating sexual offences, the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, Act 32 of 2007. In this Act, the definition of rape has been broadened
to include the non-consensual vaginal, oral or anal penetration of any person, regardless of
gender, with any object.
Also in their report they indicated that; a total of 1132 confirmed rape cases were identified,
comprising 1013 female and 119 males.
3.3 WHETHER THE DEFINITION OF RAPE SHOULD BE GENDER NEUTRAL
In the due course of interviewing the respondents on the issue as to whether the definition of rape
in Tanzania should be gender neutral, the researcher was able to receive the following responses;
The first respondent was Mr. Robert Kipambe, a teacher at Azimio primary school (Uyui
District), the respondent after being asked by the researcher as to what would be the exhaustive
definition of rape said, rape should be defined as unconsented sexual intercourse. From his
opinion he shows clearly that it whatever non-consesual sexual intercourse regardless as to
whether the victim is the male or female it should be treated as rape.
Furthermore, when the respondent was asked by the researcher as to whether a female person can
rape a male person he answered in affirmative and stated that, it is possible 31
for a female to rape a male, this normally occurs to houseboys in towns as well as lower officials
in private institutions whereby males tend to have carnal knowledge with their superiors due to
the fear that if they refuse they may be dismissed from their employment.
The second respondent was Ms Jemida,PC at Sumbawanga Police Station who said these days
there is the tendency of the so called sugarmumies some of whom their husbands have died of
HIV/AIDS, they know themselves that they are affected, but they go into Bars and use to give
offers to males who when are drunk tend to have carnal knowledge with those women the results
of which they sometimes get infections but the law is silent, bad enough those males never report
these claims because they feel shame to report that they have been raped by a female.
From her response, it shows clearly that some older women intoxicate males in order to obtain
their consent to sexual intercourse and sometimes those males are being infected but the law
does not recognise the problem.
Therefore, from the responses of the interviewees above, it shows clearly that in Tanzania both
males and females are victims of rape and that there is the need of the law to cover the aspect in
a wider sphere in order to protect both males and females from the offence of rape and do away
the belief that males cannot be victims of rape.
3.4 WHETHER THERE IS MARITAL RAPE IN TANZANIA
In the due course of the research the researcher was able to obtain some data which shows that
there is marital rape in Tanzania although many females fear to report on this fact. The report of
the Legal and Human right Centre80 wrote that,
80 Legal and Human right Centre,Tanzania Human Rights Report,at p.11
There are a number of sexual offence provisions in the Penal Code that do not adequately
protect women from sexual violence. One of such provision is the provision relating to rape. The
rape provision only applies to non-consensual sexual intercourse between a man and a girl or
woman, where the girl or woman 32
is not the mans spouse or the mans separated spouse. This provision does not apply to marital
rape. The occurrence of marital rape was alluded to by a survey respondent from Bariadi
district, Shinyanga region, who said:
... wanawake pia tunalazimishwa tendo la ndoa na wanaume zetu, hata kama hatujisikii
vizuri. [...women, we are also forced to have sexual intercourse with our husbands, even if we
do not feel well.]
Therefore marital rape exists in Tanzania and some females who are in marriage are being forced
to engage in sexual intercourse but the law has not criminalized it.
3.5 WHETHER THE LAW REGARDING RAPE IN TANZANIA CONTRADICTS WITH
THE CONSTITUTIONAL PRINCIPLE OF EQUALITY BEFORE THE LAW
The Constitutional principle of equality before the law is to the effect that there should equal
protection by the law81.But the law relating to rape in Tanzania is gender biased and it tends to
protect only females against rape82, this is contrary to constitutional principle of equality before
the law as provided under Constitution of the United Republic of Tanzania which prohibits the
enactment of the discriminative law, whereas the Constitution83 provides as follows,
81 Article 13(1) of the Constitution of the United Republic of Tanzania
82 This is seen under the provision of S.130(1) of the Penal Code which provides that, it is an
offence for a male person to rape a girl or a woman
83 The Constitution of the United Republic of Tanzania,1977
Article 12.
(1) Binadamu wote huzaliwa huru, na wote ni sawa.
(2) Kila mtu anastahili heshima ya kutambuliwa na kuthaminiwa utu wake.
Article 13
(1) Watu wote ni sawa mbele ya sheria na wanayo haki, bila ya ubaguzi wowote, kulindwa na
kupata haki sawa mbele ya sheria. 33
(2) Ni marufuku kwa sheria yoyote iliyotungwa na mamlaka yoyote katika Jamhuri ya Muungano
kuweka sharti lolote ambalo ni la ubaguzi ama wa dhahiri au kwa taathira yake.
(5) Kwa madhumuni ya ufafanuzi wa masharti ya ibara hii neno "kubagua" maana yake ni
kutimiza haja, haki au mahitaji mengineyo kwa watu mbalimbali kwa kuzingatia utaifa wao,
kabila, pahala walipotokea, maoni yao ya kisiasa, rangi, dini, jinsia au hali yao ya maisha kwa
namna ambayo watu wa aina fulani wanafanywa au kuhesabiwa kuwa dhaifu au duni na
kuwekewa vikwazo au masharti ya vipingamizi ambapo watu wa aina nyingine wanatendewa
tofauti au wanapewa fursa au faida iliyoko nje ya masharti au sifa za lazima, isipokuwa kwamba
neno "kubagua" halitafafanuliwa kwa namna ambayo itaizuia Serikali kuchukua hatua za
makusudi zenye lengo la kurekebisha matatizo katika jamii.
Also the Amnesty International84 wrote that, the human right of equality and non-discrimination
in the enjoyment of physical and mental integrity requires that there should be equality in weight
given to the free and full agreement to sexual contact of both or all parties to that contact,
whether or not such sexual contact involves penetration. The use of force or threat of force or
coercion, by the perpetrator makes it impossible for the victim to exercise their right to physical
and mental integrity, and therefore their sexual autonomy.
84 Amnesty International,Rape and sexual Offences, Human Rights Law and Standards in
the International Criminal Court ,at P p.10-11
85 ibid, at p.13
The Amnesty International85 provided further that an individuals sexual autonomy is an aspect
of physical and mental integrity, the core human rights value protected by the criminalization of
sexual violence. Unfortunately, however, sexual autonomy is frequently conflated with narrow
views of consent under domestic criminal law which do not capture the reality of how acts of
rape and sexual violence are committed, and 34
this misunderstanding affects how such acts are treated in criminal investigations, prosecutions
and in criminal judgments.
Therefore, from the findings above, it has been seen clearly that the law governing rape in
Tanzania violates the constitutional principle of equality before the law which emphasizes equal
protection by the law and equal subjection of all individuals to law. 35
CHAPTER FOUR
CONCLUSION AND RECOMENDATIONS
4.1 CONCLUSION
This study has managed to identify the position of the law both in Tanzania and South Africa in
as far as the offence of rape is concerned. The study has further identified that the law in South
Africa is highly developed compared with that of Tanzania in as far as the offence of rape is
concerned. The law in South Africa offers more protection to the victims of rape compared with
that of Tanzania in the sense that in South Africa the law has criminalized marital rape, the age
of consent to carnal knowledge has been clearly provided by the law and that the law in South
Africa recognizes male rape.
The study has also managed to prove that, in Tanzania spouses in marriage can also be victims of
rape although the law does not provide for it, also the study has proved that under age spouses
are not fully protected against rape, this is because of the contradiction between section 130(2)e
of the Penal Code86 and section13(2)a-b of the Law of Marriage Act87 on the exact age of
which the consent of the girl shall be valid.
86 [CAP.16 R.E 2002]
87 [CAP.29 R.E 2002]
88 The Constitution of The United Republic of Tanzania,1977
Furthermore the study has managed to identify that section 130(1) and (2) of the Penal Code
contradicts with the Constitutional principle of equality laid down under Article 12 and 13 of the
Constitution88.
It is also emphasized that equality before the law is part and parcel of rule of law, as rule of law
requires equal subjection of all individuals and equal legal protection by the law.
Therefore, to have rule of law, there must be equal legal protection to both males and females,
those in marriage and those who are not married and that there should be equal criminal
responsibilities to both males and females in as far as rape offences are concerned. 36
To achieve the aforesaid principle of equality and full legal protection to victims of rape, the
followings are recommended:
4.2 RECOMMENDATIONS
(1)That Section 130(1)a of the Penal Code of Tanzania should recognize that rape males can be
victims of rape too as females.
(2)That Section 130(2)a of the Penal Code of Tanzania should be amended in order to
criminalize marital rape in order to protect spouses who are in marriage as it is in South Africa
This is because there are instances in which a woman may not be free to engage in sexual
intercourse by reason that her husband is suffering from veneral disease or her husband is
adulterous.
(3) That there should harmonization between section 13(2)a-b of the Law of Marriage Act89 and
section 130(2)e of the Penal Code90 so that It becomes clear on the exact age of which the
consent of a girl can engage in marriage or sexual intercourse shall be valid. This is to protect
underage spouses who are sexually penetrated by their husbands on the basis of parents consent
to such marriage.
89 [CAP.29 R.E 2002]
90 [CAP.16 R.E 2002]
(4) It is the recommendation of the researcher that the society should to consider male rape as a
crime as that of female rape so that male victims do not fear to report the crime to the
Authorities.
(5)That in order to ensure the Constitutional principle of equality and non-discrimination of
individuals, it is recommended by the researcher that there should be equal protection to both
males and females as against rape as well as equal criminal responsibility to both males and
females in as far as rape offences are concerned. 37
(6) That there should be amendment of section 130(1) and (2) of the Penal Code91 so that it
conforms with the Constitutional principle of equality laid down under Article 12 and 13 of the
Constitution92.
91 [CAP.16 R.E 2002]
92 The Constitution of The United Republic of Tanzania,1977 38
BIBLIOGRAPHY
BOOKS
Bergen, R,K.(1996).Wife rape: understanding the response of survivors and service
providers. Thousand Oaks: Sage Publications.
Cocker, M. (1998). Rivers of blood, rivers of gold: Europe's conflict with tribal peoples.
London: Jonathan Cape
Curzon,L.B (1977).Criminal Law,2nd edn,Great Bungay: The Chaucer Press Ltd
Groth, N,A. (1979).Men Who Rape: The Psychology of the Offender. New York: Plenum
Press.
Michael,B et al.(2000).Male victims of sexual assault.Oxfordshire: Oxford University Press.
Mike,M.(1996).Gay Rights Or Wrongs: A Christian's Guide to Homosexual Issues and
Ministry.College Press.
Paranjape,N.V(2008).Criminology and Penology,13rd edn,Allahabad: Central Law
Publications
Sara, E.P,(2001).The marriage of Roman soldiers (13 B.C.-A.D. 235): law and family in the
imperial army:BRILL
Schulhofer,S,J,(1998).Unwanted Sex: The Culture of Intimidation and the Failure of Law.
Cambridge, Mass: Harvard University Press
Smith and Hogan (2005),Smith and Hogan Criminal law,11st edn, New York:Oxford
University Press 39
Susan,B(1975).Against Our Will,Men,Women and Rape,New York: Simon and Schuster
publication
Tibamanya,M(1988).Crime and Deviance, Introduction to Criminology, Nairobi: Kenya
Literature Bureau
JOURNALS
Kees L et al,(2010) Reported rapes at a hospital rape centre: demographic and clinical
profiles,vol.100 No.6
Lara ,S.(2009).Male Rape and Human Rights,vol.6o. No.605
REPORTS
The Amnesty International,(2011)Rape and sexual Offences, Human Rights Law and
Standards in the International Criminal Court
The Legal and Human Rights Centre,( 2008),Tanzania Human Rights Report
The U.S. Department of Justice,(2005).Statutory rape known to law enforcement
South African Medical Council,(2011)Mental health response for victims of sexual violence
and rape in resources-poor settings
DISSERTATION
Raquel,K,B.(1999).Marital Rape,Phd dissertation Presented at St. Josephs University
Department of Sociology
ARTICLES
Chineze,J.O(2004)The Interrelationship Between Gender-based Violence and HIV/AIDS in
South Africa,Vol.6.No.1 40
WEBSITES
http://www.saflii.org/za/cases/ZACC/(retrived on 27thMay,2012)
http://www.saflii.org/za/legis/num_act/(retrieved on 27thMay,2012) 41
APPENDIX
MZUMBE UNIVERSITY
FACULTY OF LAW
Questionnaires for collection of data in order to prove the truthfulness or otherwise of the legal
phenomenon under study.
Research Topic: Rape and the Law in Tanzania and South Africa: A comparative study
Name of the researcher: Mwalyaje, Angetile Lusajo
Preliminary Instructions to the respondents
A. What is your Name? (Not mandatory)........
B. Age......................
C. Gender.....
D. Your Level of education..
E. Your occupation.......
F. Are you still a student? [A] Yes [B] No
G .Name of the institution of study..
Questions
1. What does the term rape mean? (Use your own words)
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2. Who can commit rape? [A] Males [B] Females [C] Both males and females [D] I dont know
3. Against whom can rape be committed? [A]To Male persons only [B] To Female persons only
[C] To both male and female persons
4. Can a woman rape a man? [A] Yes [B] No
5. If yes, explain how a woman can rape a man
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6. Have you ever heard that a man has been raped? [A]Yes [B] No
7. If yes, by whom? [A] By a fellow man [B] by a female
8. Did the victim report the claim to any legal authority? [B] Yes [B] No
9. If No, then what do you consider to be the reason as to why he did not report the claim?
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Date
Signature