Marital rape and child marriages considered legal in some African countries - family law study

Published May 17, 2024


Progress has been made to try to end marital rape, but shortfalls still remain. This is according to research from the Gender Inequality in Family Laws in Africa: An Overview of Key Trends in Select Countries.

Côte d’Ivoire, the Democratic Republic of the Congo, Egypt, the Gambia, Kenya, Malawi, and Mozambique all have absolute bans on marriage for people under the age of 18.

However, the prevalence of child marriage in some communities highlights the need for a multi-sectoral approach that includes education about the legal ramifications and disadvantages of child marriage.

According to the research, regulations in Cameroon, Nigeria, Senegal, South Sudan, Sudan, and Tanzania continue to allow child marriage. In contrast, the legal marriage age is 18 in Algeria, Angola, Botswana, Burundi, Ethiopia, South Africa, and Tunisia, though exceptions exist.

Marital rape

Countries must strengthen protections against gender-based violence, particularly intimate partner abuse.

Marital rape is not illegal in Algeria, Kenya, Sudan, or The Gambia, while Northern Nigeria's Penal Code permits marital rape and “corrective” assault inside marriage.

The data showed that marital rape is only criminalised after separation in Tanzania. In Burundi, the penalty is less than 30 days in prison or a fine.

Tunisia’s law requires wives to complete their obligations in accordance with ‘usages and customs,’ putting women at risk of marital rape because a wife’s traditional role includes sexually gratifying her husband.

In 2018, Tunisia repealed the ‘marry-your-rapist’ law which dismissed the rape charge if the victim and perpetrator got married.

“In a major step toward reforming Tunisia’s family law, legislators removed a clause from the Code of Personal Status (CPS), the national body of legislation on family law initially promulgated in 1956 at the end of colonial rule and intermittently amended since then.

“The clause, part of article 227, erased the rape conviction or allowed the offender to leave prison if he married the victim. In practise, the victim’s family often arranged marriage with the rapist in order to protect the family’s honour and avoid shame,” the Baker Institute said.

Malawian courts have ruled that rape does not extend to marriage. Customary law presumes continuous agreement to sex inside marriage, and Malawi’s civil law appears to reinforce this by allowing a wife to deny her husband sex in restricted circumstances, such as bad health or formal separation.

Countries like Côte d’Ivoire, Mozambique, and South Africa can be commended for explicitly criminalising marital rape.

South African law firm, Harrington Johnson Wands Attorneys and Conveyancers said, “On the face of it, rape and sexual abuse between married couples may be considered by many as being improbable, if not impossible.

“However, the criminal law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007, which came into effect on December, 14 2007 provides that any type of sexual activity conducted without the consent of one or more parties is tantamount to an offence.”