sexual health and human rights in the african region - The ICHRP

and if accepted concludes the matter. While the breaches of the human rights of
the person who is abducted and the implausibility of contracting a marriage
freely on the part of the victim are all too apparent, nonetheless, the Penal Code
of Ethiopia used to give legal validity to such a customary practice by granting
the perpetrator immunity against prosecution. 594 But the Ethiopian Penal Code
was reformed in 2004, to inter alia, remove the immunity. Among the sampled
countries, Eritrea is the only jurisdiction where such immunity still obtains.
Article 599 of the Eritrean Penal Code says:
Where the victim of rape, indecent assault and seduction or abuse of her state of distress and
dependence upon another freely contracts a marriage with the offender, and where such
marriage is not declared null and void, no prosecution shall follow.
Where proceedings have already taken place and have resulted in a conviction, the sentence shall
terminate forthwith.
5.6 Rape: Evidentiary Requirements
[36] The historical judicial practice in many African countries when hearing a case in
which male is facing charges of sexual violence against female, has been to warn
about the dangers of convicting on the testimony of the female alone where the
evidence is not corroborated. Nigeria law requires corroboration. In Upahar v
State 595 it was held by the Court of Appeal that to prove the offence of rape, the
prosecution must establish corroborating evidence.
[37] In S v J, 596 the Supreme Court of Appeal of South Africa discarded the
requirement of corroboration in a case where a defendant was charged and
eventually convicted of attempted rape. The Court observed that the rule was
based on an ancient assumption that women are habitually inclined to lie about
being raped. Rejecting the cautionary rule as a rule of law, Justice Olivier said:
In my view, the cautionary rule in sexual assault cases is based on an irrational and out-dated
perception. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women)
as particularly unreliable. In our system of law, the burden is on the State to prove the guilt of an
accused beyond reasonable doubt – no more and no less. The evidence in a particular case may
call for a cautionary approach, but that is a far cry from the application of a general cautionary
rule.
A similar approach was adopted by the Court of Appeal of Kenya in Mukungu v
Republic. 597 The Court held the requirement for corroboration in sexual offences
affecting adult women and girls as was unconstitutional to the extent that it
594 Sections 558 and 599 of the old Penal Code of Ethiopia.
595 Upahar v State (2003) FWLR 1513 (Court of Appeal of Nigeria, Jos Division)
596 S v J 1998 (4) BCLR 424 (Supreme Court of Appeal of South Africa)
597 Mukungu v Republic (2003) 2 EA
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