Accra — The Coordinator of the Domestic Violence Coalition (DVC) Adolf Awuku Bekoe has said Clause 1 (b) (ii) of the Domestic Violence Bill currently before Parliament is in conflict with Section 42(g) of the Criminal Code which is still in operation after efforts to repeal it failed.

He said while the provision in the Bill gives some protection to both unmarried and married women who face rape and other forms of sexual abuse, provisions in the criminal code do not give married women the right to accuse their husbands of rape.

What this means is that while unmarried women are fully protected from sexual abuse, married women under the criminal code cannot accuse their husbands of rape.

Speaking to Public Agenda in an interview in Accra last Monday, Bekoe said the situation could lead to conflicts in future and called on government to restore the section 30 that was expunged from the draft Bill.

"The criminal code still contains the archaic English law which justifies the use of force in marriage," Bekoe said adding, "It is a violation of the fundamental human rights of the parties in marriage and goes contrary to the Constitution of Ghana."

Section 42 (g) of the Criminal Code of 1960 (Act 29) says that a husband and wife have consented, by the mere fact of getting married to use force against each other. It goes on to say that that consent to use force against each other cannot be revoked unless there is a divorce or the marriage is annulled.

"That section of the law actually equates a husband and wife to two boxers in a ring," Bekoe said.

On the other hand, Clause 1 (b) (ii) of the Draft Bill on Domestic Violence states that "Sexual abuse, namely the forceful engagement of another person in a sexual contact whether married or not which includes sexual conduct that abuses, humiliates or degrades the other person or otherwise violates another person's sexual integrity whether married or not or by a person aware of being infected with HIV or any other sexual transmitted infection with another person without that other person being given prior information of the infection.."

Section 30 of the proposed Bill that was expunged sought to repeal this section of the criminal code.

Since it takes years for a court to declare a marriage legally ended, the section sought to protect a woman in a situation where for example, she is estranged from her husband or is in the process of divorcing him so that he cannot force her to have sex with him against her will, Bekoe explained.

Bekoe believes the Bill will serve society better if it includes the section 30.

The memorandum accompanying the Bill and signed by the former Attorney -General and Minister of Justice J. Ayikoi Otoo says "The repeal of the provision in the Criminal Code 1960 (Act 29) which prevents a wife from prosecuting her husband for rape in a marriage has been excluded from the Bill in response to public opinion.," and this is where Bekoe does not understand.

According to him, several bills have been passed in spite of the fact that public opinion did not favour them.

A typical example is the Representation of the Peoples Amendment Law (ROPAL) arguing that public opinion is not the basis for legislation.

According to the Memorandum, "It was decided by cabinet that since the purpose of the Bill is to safeguard harmony in the domestic setting, it is best to exclude the repeal which has the potential to create misunderstanding."

A number of women's rights activists in the country say the removal of the purported marital clause from the Domestic Violence Bill is not an indication that it has been abandoned altogether.

They say the Bill is a step towards the attainment of a strong law that can adequately provide protection against sexual abuse in marriages.

In an interview with Public Agenda, recently, a women's rights activist and Lecturer of the School of Communication Studies, University of Ghana Dr. Audrey Gadzekpo said, "It is a shame that the portion that gives clear and stronger protection for women has been expunged. "It gave a stronger protection than the existing law does, its position has been weakened."

However Dr Gadzekpo said the Bill needed to be passed.

"I am in the group of people who think that the law should be passed as we monitor how it protects women in abusive marriages," she said.

According to Dr. Gadzekpo the clause that was interpreted as marital rape by many had dragged the passage of the bill and explained that amendments could be proposed in the near future if the need arises

The issue of marital rape has been a subject of controversy over the past two years stalling the passage of the Domestic Violence Bill.

According to the Afro Barometer survey conducted by the Centre for Democratic Development (CDD) about 45 percent of Ghanaians regard sexual intercourse without consent to be rape even if it is between man and wife.

The Minister for Women and Children's Affairs Hajia Alima Mahama believes that the Bill as it stands now still provides protection to sexually abused women even in marraiges.

"Under the current law, a woman can go for protection orders to restrain a husband if she feels the kind of sex she is having is abusive, injurious or degrading," she sad.

But Bekoe disagrees, to him "although some say we are almost there, we are not yet there."