Kleopas Dumeni Kashala 

This article is prompted by the current debate in the print, electronic and public domain as to whether or not sexual intercourse without consent in marriage can be regarded as rape. 

The point of departure in this issue is the Namibian Constitution and other legislation, such as the [a8y2000] Combating of Rape Act 8 of 2000, Married Persons Equality Act 1 of 1996, Common law principles and customary law.

 In terms of article 14 (2) of the Namibian Constitution, it states that marriage shall be entered into only with the free and full consent of the intending spouses. 

This means only persons of full age and legal capacity can enter into marriage; henceforth, sexual acts can only be performed by a person with legal capacity with a given consent. 

Lack of consent mainly happens while you are sleeping, drunk and unconscious; a sexual act committed in these circumstances is rape – whether in marriage or not. 

While legitimate consent is the presence of an enthusiastic “yes” without manipulation, threats or mind games. 

It should be noted that the lack of consent is the essential element, and it does not need to involve physical violence. 

Historically, sexual intercourse within marriage was regarded as a right to have sex with your lawful spouse without consent. 

This can be traced to common law principles in force on 21 March 1990 in which the very concept of marital rape was regarded as unlikelihood. 

These common law principles, traditions or cultures suggest that the husband cannot be guilty of a rape committed by himself upon his lawful wife; however, it should be noted that these common law principles and traditions were repealed or abolished by the [a8y2000] Combating of Rape Act and the Married Persons Equality Act.

Therefore, it is worth mentioning that marriage and sex are two different concepts; marriage cannot be used as a licence for a sexual act without consent.

I must point out that the Constitution is the mother of all laws in Namibia as per article 1(6) of the Constitution. 

This means any law that is inconsistent with the provisions of the Constitution shall not have a legal force or effect. 

In terms of article 66 (1) of the Constitution, the customary law and common law in place on the date of independence shall remain in force only if not in conflict with the Constitution or any statutory law. 

Therefore, customary law and common law principles that gave marital power to a husband over a wife to commit a sexual act without consent conflict with the Constitution, the Married Persons Equality Act and the [a8y2000] Combating of Rape Act.

As such, these common law principles and customary law shall not have legal force or effect. 

In terms of section 2 (b) of the Married Persons Equality Act 1 of 1996, the marital power a husband had over the person and property of his wife is hereby abolished.  

Moreover, the terms of section 2(3) of the Combating of Rape Act 8 of 2000 state that marriage or other relationships cannot be used as justification for rape. 

These statutes make it a criminal offence for a spouse who commits a sexual act with his/her spouse without consent – and one can not be exonerated by virtue of marriage or other relationships. 

Traditionally, rape was regarded as a criminal offence that could be committed outside marriage.

At that time, the parliament did not enact the rape statute to protect spouses in marriage or other relationships. 

With changing social views and the international condemnation of sexual violence in marriage, the parliament has enacted various legislations, such as the Married Persons Equality Act and the [a8y2000] Combating of Rape Act to criminalise rape in marriage or other relationships. 

The current applicability of marital rape has not been tested in a court of law; however, this does not imply that marital rape does not happen in Namibia. 

There could be various reasons why marital rape cases are not reported, ranging from traditional beliefs, fear of stigmatisation – and most importantly, lack of knowledge that a sexual act without consent in marriage or other relationships constitutes rape.

Terms of article 8(1)(2)(b) of the Constitution, protect the dignity of all persons, and no persons shall be subject to torture, cruel, inhuman or degrading treatment. 

Marital rape amounts to cruel, degrading, inhuman and torture; therefore, the importance of the right to a self-sexual determination of women is recognised in our law – and this is crucial to women’s rights. 

Marriage cannot be an exemption or defence for marital rape – and this is viewed to be consistent with the developing concepts of human rights and equality for women. 

In December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women, which establishes marital rape as a human rights violation. 

Violations of women’s human rights are often linked to their sexuality and reproductive role. 

In Namibia, for example, a spouse may refuse to have sexual relations with their spouse, and any coercive or forceful sexual act without consent is rape in terms of section 2(3) of the Combating of Rape Act 8 of 2000.

This act criminalises sexual acts in marriage or other relationships without consent. 

‘No’ to a sexual act in marriage or another relationship still means no. 

Sex should be enjoyable to both parties. 

I must underline that there is something fundamentally wrong if our society still relies on or believes in common law principles or religious or traditional beliefs that essentially allows this to go on still; it’s disturbing for a husband or wife to have sex with an unwilling partner. 

It should be noted in our society that our law, namely section 2(3) of the Combating of Rape Act 8 of 2000 makes it an offence for a sexual act without consent – whether in marriage or other relationships.