1990 phụ nữ và hiếp dâm ở zimbabwe

Women and Rape in
Zimbabwe

A. Armstrong

( Human & People’s Rights Project
Monograph No.10

(h

Institute of Southern African Studies
' ^ ij^Nationol University of Lesotho
vC ..— 0 q Roma 180 Lesotho


Women and Rape in
Zimbabwe

By

A. Armstrong

Human & People’s Rights Project
Monograph No.10

Institute of Southern African Studies
National University of Lesotho


The ISAS Human and People’s Rights Project is
supported by the Ford Foundation. It is a regional

research project drawing on Academic resources
in the Southern African Region. The series has
been edited by NUL/ISAS staff members.

First published in the Kingdom of Lesotho, through the National
University o f L e so th o ’s Institute of Southern African Studies, 1990.
The publication is set in 10 point Times. Pre-press proofs were p re ­
pared using DTP technology.

© Copyright Reserved by
ISAS/NUL 1990

The views expressed herein are attributable
to the Author. Neither ISAS nor NUL hold
responsibility for them.

Typesetting By Epic Printers,
Maseru, Lesotho


Table of Contents
I.

Introduction and Methodology

1

II.

Rape Under International Human

Rights Conventions

2

III. Background: The Official Story

3

IV. The Unofficial Story: Attitudes
and Custom

8

Notes

30


Preface
The right of a woman to have sexual intercourse only w hen she c o n ­
sents is a fundamental human right. To be forced to subm it to sexual
intercourse without consent is perhaps the greatest infringem ent of
bodily integrity, privacy and dignity which is possible. This in frin g e ­
ment is called rape. It has been said that rape is a way that all men
keep all w om en in a state o f fear.1 It is also a way that men express
their power over women, a power that stems ultimately from the un ­
equal social and econom ic status of men and women. States com m itted
to equality therefore have a duty to protect their w om en from the
crime o f rape, and to punish the crime adequately when it occurs. In
addition, a study of rape in its social context will yield inform ation

about the power relations between men and w om en in the society, an
issue w hich goes to the very root of the quest for the equality of
women.


Women and Rape in Zimbabwe

1

I. Introduction and Methodology
This study of rape in Zim babwe included a review o f case law on rape,
a study of secondary sources of custom ary law, and over one hundred
open-ended interview s by nine students over a period of two months
throughout the country. The interviews were conducted over a broad
geographical range including Harare, Bulawayo, Chipinge, Chiredzi,
Zaka, G w anda and many other small com m unities. There was no a t­
tempt to devise a statistically random sample, other than to spread the
students around the country. Therefore, this information cannot be
taken as a statistically accurate portrayal of the attitudes of Z im bab­
weans. Rather, we attem pted to get a feel for attitudes towards rape in
the country.
The study attem pted to investigate both the official and the unofficial
story behind rape in Zim babwe - both the way it is perceived officially
by the criminal justice system and the way it is perceived unofficially
by society. The first will be dealt with briefly as a background, while
the second, m uch more interesting aspect will be dealt with at length.
Since a m assive am ount of data was collected in the form o f interviews,
I have attem pted to recognize and system atize the results by choosing
issues most c onsistently pointed out by our informants to be relevant
to the crim e o f rape.

2 ISAS Human Rights Series No.10

II. Rape Under International Human
Rights Conventions
The protection of a p e rso n ’s bodily integrity and the right to dignity
of a human being are human rights clearly enshrined to international
human rights documents. The African Charter on Human and P e o p le ’s
Rights provides for these rights with crystal clarity. Article 4 reads:
“ Human beings are inviolable. Every human being shall be entitled to
respect for his life and the integrity of his person. No one may be a r­
bitrarily deprived o f this rig ht.” Article 5 reads: “ Every individual
shall have the right to the respect of the dignity inherent in a human
being and to the recognition of his legal status....” Therefore a woman,
as a human being, is entitled to respect for the dignity of her body and
protection of the integrity o f her body.
Under these provisions, and similar ones in other human rights d o ­
cuments, women have a right to be protected from the physical assault
to bodily integrity, the humiliation, the indignity, and the invasion of
privacy involved in the crime of rape. Since Zimbabwe, like all States,
has laws making rape a criminal offense, the question is w heth er these
laws are adequate to protect women from this violent infringem ent of
their human rights. The state is involved in the infringem ent of a
w o m a n ’s human rights if it does not adequately protect her, or if it
fails to sufficiently punish persons who infringe those rights.
Hum an rights instruments go further, to provide specifically that
w om en are entitled to equal rights and protection. Under A rticle2 of
the A frican Charter on Human and P e o p le ’s Rights all rights contained
in the Charter are guaranteed without distinction based on sex. Under

Article 18 it is specifically provided in subsection 3 that “ The State
shall ensure the elim ination of every discrim ination against w om en
and also ensure the protection o f the rights of the woman and child as
stipulated in international declarations and conventions.” Since the
crime o f rape reflects the power im balance between men and w om en
in society, a study of the crime will provide important inform ation on
progress tow ards e qua lity for women, and therefore w hether the
human right to equality is being protected.


Women and Rape in Zimbabwe 3

III. Background: The Official Story
The criminal law in Zimbabwe is governed by the Roman-Dutch law.
The custom ary law of crime docs not apply. The law of rape presents
both substantive and procedural problems for women. The substantive
problem lies with the definition of rape. The procedural problems re­
late to evidence admitted in a rape trial and publicity surrounding that
trial. Finally, sentencing of convicted rapists presents a problem.
O ther problems with regard to rape are not strictly legal ones, but re­
late to the treatm ent of rape victims by the criminal justice system and
by society.

Substantive Problems
Rape is defined as unlawful, intentional sexual intercourse by a man
with a w om an w ithout her c on sent.2 The definition of sexual inter­
course presents the first problem. To be sexual intercourse there must
be partial or total penetration by the male sex organ of the female sex
organ. If sexual intercourse is not proved, the accused may still be
found guilty o f indecent assault or attempted rape,3 but these crimes

are less serious than rape and involve lesser penalties. It is clear that
there are many sexual acts which are just as degrading and violent as
the act of sexual intercourse. For instance, the insertion of a foreign
object, such as a coke bottle, into the fem ale’s vagina or the insertion
of a m a n ’s penis into the fe m a le ’s mouth may be even more hum ilia­
ting than sexual intercourse. Persons who force such acts on unconsenting victim s should be guilty of rape.
The definition o f consent presents the second problem. Areas for
concern are the proof of consent and the significance of violence, the
concept of non-violent threats and particularly the exercise of a u th ­
ority, the question o f the m e n ’s area of the accused, and rape of a m ar­
ried woman.
The essence o f the crime of rape is the element o f lack of consent.
Although historically rape was defined as forced sexual intercourse,
force is no longer an elem ent of the crime. Therefore, if a woman su b ­
mits to the will of a man because of fear or the knowledge that to re ­
sist w ould be useless, even if actual force is not applied, it is rape. In
R. v. D om bo 4 where the accused induced fear in the mind of his vie-


4 ISAS Human Rights Series No.10
tim w hich disabled her from exercising a free choice, he was held to
be guilty of rape even though there were parts in the evidence “ which
suggest that the complainant did not put up a spirited resistance.”
N otw ithstanding the law, it is difficult for a woman to prove that she
did not consent if no force was used, particularly if she has no overt
signs of injury. Part o f the reason for this is our own deeply e n tre n ­
ched attitudes about how a woman should behave if she is raped: that
she should scream and kick and cry and fight back. However, recent
research from abroad indicates that rape victims are more likely to
react not by struggling, but by submitting in order to protect their

lives, with behaviour which is “ terror-induced, pseudo-calm and d e ­
tached .”5
Threats which are not threats of violence do not vitiate co nsent.6
Therefore what amounts to ‘sexual b la c k m a il’ is not rape. For in­
stance, if an em ployer threatens to sack a woman unless she sleeps
with him, or a policeman threatens to arrest a w om an unless she sleeps
with him, or a landlord threatens to evict a tenant unless she sleeps
with him, it is not rape. In this way the law fails to recognise the power
that men in authority have over women under their authority. Some
jurisdictions have enacted special legislation to deal with sexual in­
tercourse by a man in authority over a wom an and with sexual inter­
course with vulnerable persons such as step- daughters, em ployees,
prisoners, e tc .7 To fully protect women, sexual blackmail should be
treated as an offense. Introduction of such an offense w ould require
legislative intervention.
In order to be guilty of rape, the accused must know that the victim
is not consenting or act recklessly with regard to w hether or not she
consents. 8 The court does not consider w hether the a c c u s e d ’s belief
was reasonable. Guilt depends on what this particular accused b e ­
lieved, not what a reasonable man would have believed. This rule, a l­
th o u g h b ased on the im p o rta n t legal prin c ip le that in te n tio n is
necessary and is assessed subjectively, can cause problems with re­
gard to rape. It leaves it open to a man to argue that although any rea­
s o n a b le m an w o u ld h a v e b e e n a w a r e th a t the v ic tim w a s not
consenting, he subjectively believed that she was. A recent South A f­
rican case gave an exam ple o f this: the accused said that he thought
the w o m a n ’s scream s, struggle and threats to call the police were
merely an attempt to prolong foreplay.9 The law should be reform ed
to punish those who force a woman to submit to sexual intercourse in

Women and Rape in Zimbabwe 5
circum stances where a reasonable man would have realised that the
w om an was not consenting.
It is usually said that a man cannot rape his wife. This rule is not a c ­
tually supported by Zim babw ean cases, but may be followed in Z im ­
babw e because of its support in English and South African law.
H owever, recent South A frican case law has doubted the validity of
the rule and its moral support in view o f the “bodily integrity of
w o m a n ....” 10 It is also not supported by Roman Dutch authority. If a
man forces sexual intercourse on his unconsenting wife, he may be
guilty o f assault with regard to the force he uses. If a couple are legally
separated, the husband may be convicted of rape perpetrated upon his
wife. The rule that a man cannot rape his wife, if it does apply in Z im ­
babwe, is outm oded and not in keeping with Z im b a b w e’s progressive
attitude towards w om en and the desire to protect the bodily integrity
of women.

Procedural Problems
The procedural problem s with regard to rape trials include the a d ­
m ission of evidence of prior sexual conduct, the application of the im ­
mediate com plaint rule, and publicity surrounding trials.
The Crim inal Procedure and Evidence Act (Cap. 59) does not exp li­
citly deal with evidence of prior sexual experience of the rape c o m ­
p la in a n t. In term s o f Sec. 238 irre le v a n t e v id e n c e is e x cluded.
Evidence o f prior sexual experience should certainly be ruled to be ir­
relevant, yet it is clear that such evidence is being admitted at rape
trials. Therefore, specific legislative guidance is necessary to clarify
the issue. A recent High Court case explicitly rejected the argument
that rape o f a s exually e x perienced w om an should attract a lesser p un­

ishm ent than rape o f an inexperienced w om an. In the State v. Adam
B w a n a si11 the court held on review that:
“ ...it is d iscrim inatory and therefore wrong to c o n ­
clude that a w om an who frequents and drinks in
bars, beer-halls and hotels w hether alone or in the
com pany o f others has questionable morals with-'
out necessarily draw ing the same conclusion in
connection with a man...even if it could be a c ­
cepted that the com plainant is o f questionable m o ­
rals there is no reason why in this case this factor


6 ISAS Human Rights Series No.10
should be taken into ac c o u n t.”
The doctrine o f immediate complaint provides that an out-of-court
statem ent w hich would otherwise be inadmissible due to the hearsay
rule is adm issible if it is the statement of a woman who has just been
raped c om plaining about the rape. The com plaint must be made at the
earliest opportunity and to the first person to whom she could rea so n ­
ably make it, and is admitted not as corroboration of her story but only
to show consistency with her claim that she did not consent to the in­
tercourse. This rule as it stands does not present a problem. However,
the rule is often interpreted by the courts to mean that if there is not
immediate com plaint then the woman must be making a false c o m ­
plaint. This interpretation ignores recent evidence (and, indeed, c o m ­
mon sense) which says that women react differently to rape. Some
express them selves immediately, while others have a controlled reac­
tion in w hich they hold in their e m o tio n s.12
T here is no explicit provision for the hearing of rape trials in cam era
at the instance of the com plainant. The Criminal Procedure Act pro­

vides that a trial may be heard in cam era, but only at the instance of
the a c c u se d .13 A rape trial is very difficult for a com plainant. She must
describe intimate details in front of a magistrate, the prosecutor, a
translator, the accused, and the public. Many w om en fail to report or
prosecute the crime of rape because of their reluctance to appear in
public to give evidence. In spite o f lack of clear legislative authority,
the practice in the M a g istra te’s courts in Zimbabwe appears to be for
the M agistrate at his or her own initiative to exclude the public from
rape trials, particularly of young girls. However, clear legislative
authority is needed to bring the law in line with practice. The same
applies to the publication of names of rape victims. The practice of
the media is to exclude names and other identifying facts, but this
practice should be made a legal requirement.

Sentencing
There has been little research on sentencing in rape cases. T echni­
cally, the death penalty can be imposed for rape, but this has not o c ­
curred for many years. The courts have been warned to take a serious
view o f this type of crime. An accused was convicted of having had
unlawful carnal knowledge of a girl of 12 and sentenced to a fine of
$120 or to 2 months im prisonment. The sentence was wholly in ad equ ­
ate in view of the fact that the accused was an adult and the victim


Women and Rape in Zimbabwe 7
just above the statutory age of consent, there was no indication that
the victim was a willing participant, the accused transmitted a sexual
disease to her and ruptured her h ym en.14 In another instance a 45 year
old man had carnal know ledge of a 13 year old girl and received a se n ­
tence o f 8 months im prisonm ent of which 4 were suspended. The s e n ­

tence was held on review to be shockingly lenient in view of the youth
of the com plainant and the fact that she was made pregnant, thereby
effectively destroying her life both as a scholar and future mother,
there were indications that she was going to have trouble in labour.
One problem which arises in these cases is that the police and/or pros­
ecution prefer a charge under the act even when the young girl did not
consent to the intercourse. The proper charge where the girl does not
consent would be a charge of rape, or, if penetration is not effected,
attem pted ra p e .16


8 ISAS Human Rights Series No.10

IV. The Unofficial Story:
Attitudes and Custom
“Yes, I rem em ber one rape in this area recently. It
was the case of a young boy and girl who raped
each other. The fathers of the two children were
good friends, so they settled the matter quietly b e ­
tween th em .” - An old man in the Chim anim ani
area (paraphrased from Shona).
It was statements such as this one that began my investigation into
rape in Zimbabwe. Although rape is defined as sexual intercourse
w ithout the w o m a n ’s consent, and therefore C O N SE N T is the key fea­
ture, it is clear that this is not they way rape is seen by the public. The
distinction betw een rape and unlawful consensual sexual intercourse
has become blurred. This has three results. First, som etim es w hen a
man and a woman have consensual sexual intercourse, the public calls
it rape. Second, som etim es when a man forces sexual intercourse on
a w om an w ithout her consent, the public does not recognise the act as

rape. Third, many, (perhaps most) cases of rape and illicit intercourse
are handled outside the criminal justice system. This section will d is­
cuss historical circum stances, attitudes, and customs w hich influence
the blurring o f the meaning o f consent for sexual offenses.

Customary Law
Rape, seduction and adultery were all sexual offenses under the c u s­
tomary law o f the Mashona and the Matebele. All three were punished
by the paym ent o f com pensation, in the case of an unm arried w om an
(for rape or seduction) to her father, and in the case of a married
wom an (for rape or adultery) to her husband. The distinction betw een
rape (sexual intercourse without consent) on the one hand, and se d u c ­
tion and adultery (sexual intercourse with consent) on the other, is
therefore blurred. C on sen t is not the central issue. D am ages are
awarded as com pensation for unlawful sexual intercourse, w hether or
not that intercourse is with the w o m a n ’s content. As Goldin and Gelfand state, “ In either event, there has been what is considered to be a
wrongful invasion o f the rights or dignity o f the husband and a w ro n g ­
ful act in itself.” 17


Women and Rape in Zimbabwe 9
Goldin and G elfand report 18 that rape was not punished as a crime
in custom ary law unless com m itted on the wife o f a chief. “ Rape was
regarded merely as a more serious form o f seduction, adultery or u n­
lawful sexual intercourse. No fine was payable to the c h ief.” They cite
as their authority W h itfie ld ,19 whose statem ent on rape am ong the Mashona deserves to be quoted in full:
The crime o f rape in our law is regarded so s e ri­
ously that, by statutory provision, we have made
its attem pt punishable by death. It was not so re­
garded by the M ashona, unless com m itted on the

wife of a chief. It was not thought to be an act
against the course of Nature: the possible result
might indeed be a healthy child, adding to the
strength of the clan. Unless accom panied by ph ysi­
cal injury, therefore, rape was regarded merely as
a more serious form of adultery or seduction, as
the case may be; and a higher com pensation was
dem andable by the ow ner of the woman. No fine
was payable to the chief, so that rape was not
classed as a crime. The general attitude o f M asho ­
na w om en is to be noted in allegations of rape - so
easily made and so difficult to refute. Their m en­
tality might lead them to say, in effect: “ Since you
insist, have your will. But the responsibility is
y ou rs.” T hereafter there may be no wish to conceal
w hat has occurred, such as there would be in the
case of an accepted lover; and possibly, there may
be a thought o f hoped-for com pensation, mingled
with such ideas o f justice or retribution as they
may have, (my em phasis)
20

On the other hand, G oldin and Gelfand report
that under cu sto m ­
ary law the man who rapes a w om an is liable for dam ages on a higher
scale than in a case o f seduction or adultery. The act of having inter­
course w ithout the w o m a n ’s consent is thus a factor w hich justifies
the aw ard o f com pensation. They go on to say:
A m an who raped an unmarried w om an was tradi­
tionally com p elled to acquire her as a wife by the

p a y m e n t o f lob o la . C o m p e n sa tio n for raping a
grow n-up unm arried person is two m om be*. If she


10 ISAS Human Rights Series No.10
is a married woman, it can be five or six m om be.
If the raped person dies the award usually is from
te n to tw e lv e h ead of c a ttle . T r a d i t i o n a l l y a
daughter from the guilty family was also given to
the family of the victim. This daughter when she
grew up,-was given to one of the men and, after
producing a child for the family, she was allowed
to return to her own family.
*cattle.
Several im portant observations can be made about these passages.
First, is, o f course, the racist and sexist attitude of W hitfield. He im ­
parts his ow n concepts of the way that w om en behave and doubts the
sense o f justice of the ‘na tiv e s .’ He speculates that w om en must allow
them selves to be raped in order to be com pensated. This is an exam ple
o f the problem presented by relying on written sources of custom ary
law. His interpretation is coloured by the fact that he is both a male
and a European.
The second observation to note is the fact that the man who rapes a
w om an can be com pelled to marry her. This is a concept com pletely
foreign to western legal systems. The idea that a wom an who is raped
might w ant to marry her rapist appears at first to be absurd. However,
custom ary law developed in a small, rural, close-knit society. It is u n­
likely that many rapes were perpetrated by strangers, unless in time
o f war. The girl who had been raped probably lost her chance of a good
marriage, being ‘d e file d ’, and an unmarried woman had no status or

means of econom ic support. Socially and econom ically, her only
chance of survival may have been to marry the man, who because of
his misconduct, could be forced to marry her. Here, the treatm ent of
the man who rapes is not much different from the treatm ent o f the man
who seduces a w om an. Either can be forced to marry the woman.
Again, the question of w hether the woman has consented to the inter­
course appears to lose its significance.
Third, rape which results in a child is tolerated since the addition of
a child into any family is welcomed. A child means more labour pow er
on the family lands. If it is a girl there will be lobola or brideprice
w hen she reaches m arriageable age, and if it is a boy he will marry
and produce more children for the family. Again, the question of
w hether the w om an consented to the production o f this child appears
to be irrelevant. What is important is that there is a new life.


Women and Rape in Zimbabwe 11
Fourth, is the question of injury. If a raped wom an is injured the man
owes greater com pensation and if she dies even greater. Clearly, a l­
though the consent of the woman may be brushed aside in some cases,
any physical injury is relevant. This attitude seems to parallel w e st­
ern legal systems, where a rape is often not considered rape by the
crim inal justice system unless there are physical injuries.21
Fifth, dam ages are not payable to the woman herself but to her g uard­
ian - her husband if she is married and her father if she is not. The in­
jury, therefore, was not perceived in terms o f injury to the woman, but
in terms of injury to the family. This concept, however, is in keeping
with o ther custom ary law principles which regard the family as unit
both w hen there is c om pensation for the infringem ent of rights and
when there is liability for actions of individual family members.

Finally, the question of consent does appear to have been relevant to
the de term ination of the am ount o f damages for sexual offenses. A l­
though dam ages were aw arded for all sexual offenses, regardless of
w hether the w om an consented, higher damages were aw arded when
she did not consent.
At custom ary law, adultery was an offense against the husband o f the
married woman. For this offense he was entitled to an award o f d a m ­
ages from the man who com m itted adultery with his wife. Adultery
was seldom a ground for divorce, since the husband received his sat­
isfaction through the award o f d am ages.22 Whitfield reports:
Adultery, in the unwritten code of Mashona law,
was a crim e, when comm itted with the wife o f a
chief, punishable by death, or by such mutilation
as the a m putation o f both hands. Am ong the su b ­
jects o f the chief, adultery was a delict, giving rise
only to an action for dam ages against the para­
mour; but, when the adulterer was caught in fla­
grante delicto, the w ronged husband in his wrath
m ig h t kill him and in c u r only the liability o f
paying the blood fine to the chief. In civil actions
for this w rong the damages awarded varied from
one to several head of cattle, according to circ u m ­
stances. It was considered that the tort was great­
ly a g g ra v a te d , w h e n it was c o m m itte d w ith a
w om an who had a settled status as a wife and was


12 ISAS Human Rights Series No.10
the m other of a family.

23

Seduction is sexual intercourse with an unmarried girl, usually on
promise of marriage. Seduction was an actionable wrong, and the o f­
fender was required to pay damages in com pensation or to pay lo b o ­
la for the girl. The seducer does not have a right to marry the girl,
but may do so only if her guardian agrees. If the guardian does not
agree, the seducer still must pay damages. Unlike with some other
southern African ethnic groups, such as the Swazi, 25 seduction was
an actionable wrong whether or not it resulted in pregnancy.
Only the guardian of the girl was entitled to dam ages for her sed u c ­
tion, not the girl herself.26 The action lies w hether or not the girl was
a virgin, although the amount o f damages is lower. 27 C ircum stances
such as the g i r l’s age, the social standing o f her guardian, the number
of times intercourse took place, the character o f the girl, and w hether
28
pregnancy resulted are considered in determ ining damages.
The rationale behind the aw arding of damages in cases o f seduction
is the fact that the amount of lobola payment which the family will re­
ceive when she marries is reduced. Therefore, the paym ent o f s e d u c ­
tion dam ages is closely related to the payment o f lobola. The whole
family is injured, because the lobola payment they were expecting was
reduced. In modern times the am ount o f damages has also been linked
to the am ount of expenses that the father o f the girl has incurred in
raising and educating her, if she is pregnant, the lying-in expenses
which will be incurred when she delivers the baby and her loss o f earn29
ings if she is employed.
As has been shown above, sexual offenses under custom ary law were
treated similarly, w hether or not the woman consented. In the case of
rape or adultery of the wife of a chief, the offen der was punished by

death. In the case o f rape or adultery of a commoner, the offen der was
required to pay dam ages to the husband. In the case of rape or se d u c ­
tion, the offender was required either to pay dam ages or to marry the
girl. In all case it was not the woman herself but her guardian who re­
ceived com pensation.
The result o f this is that the issue of w hether the w om an consented
to sexual intercourse was not the most important issue. Dam ages were
awarded w hether or not she consented. A lthough her lack o f consent
might have increased the am ount of damages, it was unlikely to do so
unless she had overt signs o f injury. This was because the econom ic


Women and Rape in Zimbabwe

13

injury to the family was the same w hether or not the w om an c o n ­
sented.

Dual Legal System
As with most form er British colonies, Zimbabwe has a dual system
of law, applying both general law (Rom an-Dutch common law and
statutes) and custom ary law (the law, customs and norms of the in­
digenous people). Criminal law is governed only by general law and
enforced by general law courts (M ag istrate’s Courts and High Court).
The c ustom ary law, although it can be applied by any court in the land,
is generally applied only in the Primary Courts (Community Courts
and Village Courts, formerly called Tribal Courts) and applies only to
civil cases.
Seduction and adultery, both of which are unlawful sexual inter­

course with the consent o f the woman, are considered to be civil a c ­
tions and therefore can be governed by customary law and adjudicated
in the Com m unity Courts. On the other hand, rape, which is sexual in­
tercourse w ithout the consent o f the woman, is a crime and can be
tried only in the general law courts. This distinction has important ef­
fect on the treatm ent of rape in Zimbabwe, underemphasising the im ­
portance of the issue o f the w o m a n ’s consent.
The division betw een criminal and civil wrongs is one that was
generally not recognized in the custom ary law. Both crimes and d e­
licts were punished under custom ary law by com pensation to the v ic ­
tim or his family for injuries suffered. However, distinction was
introduced early in the British rule o f what is now Zimbabwe; from
the beginning unlawful sexual intercourse was explicitly singled out
as an area to w hich this distinction would apply.
The British South Africa Company first entefed the territory now
known as Zim babw e in 1890 under a Royal Charter issued on 29 O c­
tober 1889.30 Section 14 of the Charter provided that “careful regard
shall alw ays be had to the customs and laws o f the class or tribe or
nation to which the parties respectively b e lo n g .” The High C o m m is­
s io n e r ’s P roclam ation o f 10 June 1891 provided for a court system
presided o ver by Resident Com m issioners, Assistant Com m issioners
and M agistrates. The High C om m issioner was enjoined to:
respect any Native laws and custom s by which the
civil relations of any Native chiefs, tribes or p opu ­


14 ISAS Human Rights Series No.10
lations under Her M a je sty ’s protection are now
regulated, except so far as the same may be in com ­
patible with the due exercise o f Her M a je sty ’s

power and jurisdiction. (M y em phasis)
The jurisdiction- of these courts did “ not extend to any m atter in
w hich Natives only are concerned unless in the opinion of such court
the exercise o f jurisdictio n is necessary in the interest o f peace or for
the p r e v e n tio n or p u n ish m e n t o f acts o f v io le n c e to p erson s or
p rop erty” (my emphasis). Thus, customary law was to apply to cases
involving ‘n a tiv e s ’ except in cases where violence to persons or
property was concerned. Therefore, from the beginning rape, as a
crime o f violence, was handled by the court system adm inistered by
white civil servants, while seduction and adultery, as civil matters,
were governed by custom ary law.
The Charter was followed by a succession of other laws through the
years, the most im portant o f w hich is African Law and Tribal Courts
A ct of 1969 (C hapter 237) which specifically refers to seduction and
adultery as cases to be determined by custom ary law. Under section
3(i), in any civil case betw een Africans or betw een an A frican and a
person who is not an African, the decision may be in accordance with
custom ary law. Unless the justice of the case otherw ise requires:
(a) custom ary law shall be deemed ap plicable in
any case w hich is betw een Africans and which re­
lates to —
(i) seduction or adultery
(ii) the custody or guardianship of children; or
(iii) the devolution other than by will o f m ovable
property on the death of an African...
(iv) rights in land which is not held under regis­
tered individual title; or
(v) marriage consideration
(vi) a m a rria g e betw e e n Africans co n tra cte d
under custom ary law, w hether or not it has been

solem nized under the A frican M arriages Act;
(b) the law of Rhodesia shall be deemed applicable
to any other case. (M y e m p h a sis)
The African law and Tribal Courts Act was replaced in 1981 by the


Women and Rape in Zimbabwe

15

C ustom ary Law and Primary Courts Act 6 of 1981. The 1981 Act,
w hich still governs, introduced far-reaching changes by abolishing
racially-based rules for the application of customary law and intro­
ducing the ‘su rrounding c irc u m sta n c es’ test in its place. Although se ­
duction and adultery are no longer singled out as cases to which the
c ustom ary law must apply, in practice the custom ary law will almost
alw ays apply to these cases since this is the law that is applied in the
C om m unity Courts w here most of these cases are litigated.
In w estern law the distinction betw een a criminal and a civil wrong
is im portant. A crime is considered an offense against the state, for
w hich the state punishes the offender either by im prisonm ent or by a
fine to go to the state. A civil wrong, on the other hand, is a wrong
against another individual. The offender must com pensate the injured
person for the damage she/he has caused. Further, in most western
legal systems, a criminal action is brought in a criminal court by a
prosecutor em ployed by the state, while a civil action is brought in a
civil court by the individual himself.
The distinction betw een crime and delict is not so clear cut in cu s­
tom ary law. Regardless of the nature o f the wrong, the w rongdoer
must com pensate the injured party for the dam age he has caused. The

‘R obinson R e p o rt’ (1961) 22 explained:
“ the aim of the (custom ary) law is primarily to
com pensate the person or family wronged by the
c rim e ra th e r than to inflict pu n ish m e n t of the
crim inal...T he A frican in our rural areas still has
this outlook and he regards our approach to c rim i­
nal law as wrong. The chiefs in M atebeleland made
this quite clear to us. They certainly asked to be
granted some criminal jurisdiction. In elaborating
this request they appeared to be more interested in
being able to award dam ages to the w ronged p er­
son than in fining or putting the accused in prison.”
It is clear that com pensation is central to both civil and criminal c u s ­
tom ary law. The European colonists, in a ttem pting to institutionalize
the d istinction betw een crime and delict by providing that seduction
and a dultery w ould be governed by custom ary law in the ‘Tribal
C o u r ts ’ and rape by general law in the general law courts, encouraged
the reporting o f all unlawful sexual intercourse as civil wrongs, to be


16 ISAS Human Rights Series No.10
governed by custom ary law, and therefore the question of the consent
o f the w om an lost its importance.
This happened in the follow ing way: if the father or husband o f a
w o m an who has been raped reports that rape to the local police, the
rapist is arrested, spends months w aiting for trial, perhaps years in
jail, and he receives no com pensation. He is forced to deal with the
general law courts, with which he is unfam iliar and w hich are often
located far away in the city centres. All rapes are officially handled
only in Regional M agistrates Courts, of which there are only two in

the country.
If, on the o th er hand, the father or husband treats his daughter or
w if e ’s rape as seduction or adultery, he can report it locally to the
Com m un ity Court with which he is familiar, the Court will apply c u s ­
tomary laws with which he is familiar, and he receives com pensation.
Or he can go one step further, and settle the matter privately, with the
family o f the guilty man or through the ch ief of his area. This way he
gets his com pensation, and avoids the e m barrassm ent of hearing his
wife or daugh ter tell her story in public. Therefore, there is a great in­
centive to disregard the issue of consent on the part of the wom an, and
to treat rape as if it were seduction or adultery.

Customary Law Today - The Interviews
O ur interviews show ed that many o f the custom s outlined above are
still the custom today. For instance, inform ants say that w hen there is
a rape, the couple is forced to marry. A hearing is held in the c o m ­
munity and the ch ief or headman would probably first ask the boy
w h ether he loved the girl, and then negotiate for marriage. “The first
question is, Were you raped? If she answers yes, the second question
becom es, Were you in lov e?” The girl herself actually does very little
talking, her father speaks for her. There is usually no need to ask the
man involved a lot o f questions, but only to determ ine how much d a m ­
ages should be paid. If the accused admits the charge, the c om m unity
will usually feel great sym pathy for him. If he denies it, he has to give
reasons, for exam ple, the com plainant is a loose w om an, w ho is not a
virgin, and “ has been knocking at my door ever since she began to
have b rea sts.” The girl is then judged by the court in terms o f w hat
they already know o f her, and if she is know n as a loose w om an the
case is likely to be dismissed.

Women and Rape in Zimbabwe

17

The traditional view is that it takes two to com m it the crime of rape,
and that it usually happens w hen the boy has some feeling for the girl.
No good com es from reporting the crime to the police - it is better to
resolve the problem either by charging the boy with seduction in the
primary courts or by negotiating with his family. Rape is seen as a
problem which exists mainly in the urban areas. The way to solve the
problem of rape is proper marriages for all the girls. The traditional
view of rape is that there is no problem presented if the boy wants to
marry the girl. It is assumed that the ‘r a p is t’ will be known to the com ­
munity and that the girl will w ant to marry him. The procedure for
handling all cases of illegal sexual intercourse would appear to be
s im ila r - the solution is marriage, and failing that, damages to be paid
to the family of the girl. This pattern was confirmed by many other
interview s in many areas.

Examples Of Traditional Disregard
For Woman’s Consent
The issue of consent for sexual intercourse may in part be blurred
because o f other traditional attitudes w hich disregard the consent or
w ishes o f a w oman. Some of these traditional attitudes are falling into
disuse, and this review is not intended as an indication of the way all
people still think in Zim babwe today. However, the influence o f these
age-old custom s is still strong, and may affect the way society looks
at the question o f a w o m a n ’s consent.
In custom ary law, a w o m a n ’s consent was not required for her m ar­

riage. The only consent required was the consent o f her guardian,
usually her father. A lthough a guardian would probably seldom give
his consent if his d aughter was strongly opposed to the marriage, the
custom ary principle w hich ignores a w o m a n ’s wishes for her future
sexual partner surely has an influence on the issue o f her consent to
illicit sexual intercourse, w hether seduction or rape. The custom ary
practice of ‘p le d g in g ’, w hich allowed a father to give his daughter in
m arriage while she was still a child, or even w hile still in utero, is an
extrem e exam ple o f the disregard for the consent o f a wom an. A l­
though this practice has long been outlawed for girls below the age o f
12, old practices and attitudes die slowly. One convicted rapist who
was interview ed adm itted that his 7 year old victim had been pledged
to him as his w ife-to-be.


18 ISAS Human Rights Series No.10
The custom of kuzvarira is another which disregards a w o m a n ’s
wishes or consent. K uzvarira simply means to give som eone control
over a girl in return for gifts or service.
The age and consent o f the girl is irrelevant. This custom occurs par­
ticularly in drought years when a daughter may be given to a rich fam ­
ily in returrt for 5 bags of sorghum or maize. These cases seldom come
to the attention of the police, and are not seen by the people as wrong,
m uch less so as rape.
Both of these practices, and probably the whole question of disregard
for a w o m a n ’s wishes, is rooted in the fact that in custom ary law a
w oman was perpetually a minor, under the guardianship of a man for
life. She was not entitled to make any major decisions on her life. This
legal situation has been changed by the Legal Age o f M ajority Act
1985, which makes all persons, male or females, majors at the age of

18. However, the extent to which this law has actually affected the
lives of w om en in Zimbabwe is unknown.

Submissiveness of Women
In A frican custom, a woman is not supposed to express a desire for
sex. Consequently, even a married man is unlikely to wait to receive
an express indication of consent to sexual intercourse. Girls are taught
to feign indifference to suitors. If a girl shows interest in sex, she will
be thought of as a prostitute or a loose woman.
This passivity on the part of w om en is even expressed in the language
itself. For instance, in Shona a man marries a woman, but a w om an is
married by a man. As Chim hundu has observed about the Shona lan­
guage:
The language is so structured that activities relat­
ing to courtship, marriage and sex are described by
using expressions in which the men are the s u b ­
jects who “ D O ” and the w om en are objects who are
“ D O N E .” The men court the wom en (kunyenga,
kupfim ba) and the w om en are courted by the men
(kunyengw a, kupfim bw a) in a series of encounters
which are both a verbal duel and a battle of wits.
Eventually the man convinces the woman that he
is sincere and eligible (k u u ko n esa ) and the woman
abandons her protests and objects (ku konesw a).


Women and Rape in Zimbabwe 19
She takes a long time to decide to accept his prop­
osition (k u d a ). Therefore, for the man, kudiw a (to
be loved) com es after a struggle and as a form of

s u r r e n d e r o r c a p i t u l a t i o n on the p a rt o f the
32
woman.
In Shona culture, sexual relations involve victory or conquest on the
part o f the male and su rren der or defeat on the part o f the fem ale.33
Chim hundu argues that this is why the first experience or sexual e n ­
counter tends also to be a physical battle, particularly where the girl
is a virgin and the man is determ ined h ib o o ra (to pierce, break
through) or kuparura (to plough virgin land) He goes on to relate the
linguistic images o f violence used in speaking of sexual matters:
The images in all these expressions are strong and
imply that a certain measure of force or violence
is involved. Even in idiomatic language the strong
im agery of v iolence is still there, as in kugara
m babvu (to sit on the ribs) or kutyora gum bo (to
break a leg). The e x p re ssio n s becom e even
stron ger in slang where the men talk in terms of
kutsika (to crush underfoot), kudhinda (to stamp),
kupaza (to break in or destroy), kubvarura (to tear
apart), kukuvad za u u ra (to damage), kusota (to sort
out), kuvu la ya from kuuraya (to kill) and kudya
zvinhu (to eat things up). The slang vocabulary
keeps changing but the basic trend in the imagery
remains. Some form of violence is always implied.
Only in extreme cases do people actually begin to
talk about rape, kubhinya (to take by force, to v i­
olate, to vandalize) or kubata chibharo (to hold
and force to labour)...The logical conclusion from
all these exam ples is that the Shona view sex as a
form o f invasion and conquest in which the men

annihilate the w om en who are forced to yield and
surrender.34
As a result o f these attitudes and practices, the question of a w o m a n ’s
consent to intercourse may become blurred. She is expected to refuse
sexual advances at all times, for fear o f being thought a prostitute.
The man, on the other hand, is expected to fight for sexual favours,
even to the extent o f using violence to obtain his wishes. This affects


20 ISAS Human Rights Series No.10
the question o f what is rape and what is not, in the sense that it affects
the determ ination o f when a w om an has consented, and when a man
is aware that a w om an is not consenting. In the cultural context, the
fight for sexual intercourse is expected and customary, and therefore
it is difficult to label it illegal. On the other hand, the law must not
allow ‘sexual b u llie s ’ to force them selves on w om en who do not c o n ­
sent, and then fall back on the argum ent that all women fight against
sex and therefore the question of her consent is irrelevant.
This attitude was reflected in a recent new spaper article entitled
‘Was it really rape? Only the court must d e c id e ’ by Willie D. Musarurwa. He writes:
[A wom an] has to struggle as a matter o f duty and
honour to defend her chastity. There is also the
feeling that if she quickly and cheaply gives in her
man will think she is a cheap w om an who will
sleep with anybody on request. Men are always
faced with the problem to determ ine the am ount of
force they have to use. If it is too much it becomes
rape. If it is too little it achieves nothing. They are
in a dilem m a. The m id-point is very elusive.
In an A frican society no w om an worth her salt will

readily agree to sex on the first day, even with her
husband. The husband has to struggle for that. He
has to d e f e r his w i f e ’s resis ta n c e . F o rtu n a te ly
enough in terms o f A frican custom ary law one c a n ­
not be charged with raping o n e ’s wife. However,
in this situation both have a cultural obligation to
f ig h t it o u t. T h e m a n ’s a l l - o u t fig h t and the
w o m a n ’s all-out resistance are cu lture-bound and
c u lture-enco urag ed.35
This ‘cultural o b lig a tio n ’ makes it very difficult for a court faced
with a rape case to decide when there has been consent and when there
has not. Perhaps this is one reason that the consent o f the w om an to
sexual intercourse is not central to the question o f rape in the eyes of
the public, who expect all w om en to fight and all men to use a certain
am ount o f force.