African culture and custom, as they exist today, are a blend of African customs, imported colonial common and civil law notions, and religious concepts from Christianity, Islam, and traditional African religions. The application of these laws within the plural legal systems, which are the legacy of the colonial era, has left women socially and politically in a very subordinate position. The result is the inability of women to protect and ensure their reproductive rights, which include their reproductive autonomy and their reproductive health.
Reproductive rights are defined in terms of the legal notions generally used to express the principle that women, and men as well, are entitled to control their reproductive lives. A woman’s right to control her reproductive life is inextricably connected to other rights in civil, political, economic, and social areas. To be able to control her reproductive life, a woman requires reproductive autonomy. Thus, reproductive autonomy is determined by the existing and operative laws in the society in which an individual resides.
Reproductive or sexual autonomy refers to a woman’s ability to make her own choices and decisions on matters pertaining to her reproductive & sexual affairs/activities. Such decisions include matters on sexuality, contraception, pregnancy, childbearing, and the formation of families. It is the freedom, power, and control one holds in making decisions such as: whether to have sex (how and with whom), whether to have children, when to have children (spacing between the children), how to have children, and, whether to have an abortion.
One effect of no reproductive autonomy is deteriorating reproductive health. Researchers have shown that there’s a strong connection between reproductive health & reproductive autonomy. Without safe sex, fertility regulation & no health hazards women are not able to conceive & deliver in a safe environment.
Our women also bear physical, psychological, and emotional abuses when they are not able to exercise their autonomy. Furthermore, lack of sexual autonomy leads to sexual abuse of young girls and women as we have seen with the #SouthSudaneseSurvivor movement.
Considering these definitions, the African woman’s reproductive autonomy, reproductive health, and ability to exercise her rights in these areas are closely linked to the customary laws and traditional practices that are applied in her community. The nexus between the prevailing customs in Africa and a woman’s reproductive health is her reproductive autonomy, which would seem to encompass decisions on whether to have sex, whether to have children, how many children to have and the spacing of her births, whether to use contraception and the type of contraception, and whether to carry a pregnancy to term.
There are several traditional practices and customs which keep African women in cultural subordination and put them in such a low bargaining position that they have little, if any, control over decisions that affect their bodily integrity. This is because their reproductive labor is responsible for keeping the family bloodline alive, and because this responsibility is of the essence to Africans, they have not been permitted the freedom to make their own reproductive choices. Polygamy, bride price, leviratic and sororate marriages, child and forced marriage, an array of puberty rites, female genital mutilation (FGM), and general traditional rules relating to women, greatly impede a woman’s ability to exercise her reproductive rights.
The practice of these customs and traditions results in the infraction of several human rights norms. Rights such as the right to the highest attainable standard of physical and mental health, the right to life, liberty, and security, the right to marry and found a family,’ the right to freedom from customs that discriminate against women, and the right of sexual nondiscrimination’ are all violated by African customs and traditions that seek to keep women in subjugation. If we are to engage in this dialogue, we must approach it from a human rights perspective. We must learn, accept and respect that sexual and reproductive rights are indeed human rights!
There are several practices that keep women subordinate & strangle their bargaining powers. Our South Sudanese cultures today consist in conjunction with our traditional customs, colonial laws, and customs as well as religious concepts. For the African woman, the most severe violations of her human rights are rooted deeply within the family system, bolstered by community norms of male privilege, and frequently justified by religious doctrines or appeal to custom or tradition. Thus, the reproductive decisions of the African woman are usually made under enormous pressures from family, community, and society to comply with the prevailing gender and reproductive norms, as well as internalized commitments, to act responsibly towards others. Male-dominated societies employ customary law to hold women captive to their reproductive functions. An examination of some African traditional practices and norms will show the reasons why African women lack reproductive autonomy.
Sex as a taboo
In most (if not all) of our South Sudanese communities, sex is an unspoken topic. When children hit puberty, they are not taught about sex or the reproductive system. Only in some minute instances is sex spoken about. For example, in the Dinka culture when a woman is getting married, the night before some older women gives the bride a talk. She is told to always say yes to sex no matter how tired she is or no matter how much she doesn’t want it.
This culture leaves women (and men) to believe that sex is a dirty thing and that anything related to that subject should not be discussed, even when sexual harassment or sexual abuse has been committed. Therefore, we have seen our women speaking out with the #SouthSudaneseSurvivor with many attributing their abstinence from speech to the culture of silence.
Bride Price System
This is undoubted, is the backbone for many systems of marriages within our South Sudanese societies. In this system, a potential husband is said to negotiate the terms of marriage to the potential bride’s family.
The man gives a valuable gift or property to the bride’s family in exchange for the bride. Many cultures tend to lean on cows while others depend on other livestock and some demand gifts or money. The bride price may be returned in case of divorce if it has not been largely consumed. That means without compensation for the bride price a woman is trapped. However, divorce is not an accepted or invited practice.
In many instances, women are married off for the sole purpose of gaining more cows like we see every day. They are married off without their permission simply because a prospective man can pay the dowry. Women are thus not able to exercise their autonomy in such situations. In instances where women do not consent to the marriage, sexual intercourse within this marriage may be considered rape from a feminist perspective although our laws do not recognize marital rape as rape.
Before a woman is married, she is under her father’s responsibility. Once she gets married that responsibly is shifted to her husband. She is not able to be decided whether to use contraception when/if to have sex, when/if to have children. She is thus not viewed as an individual but a liability & further perpetuates the notion that women have no autonomy, no power, and no freedom. Under this external exploitative and patriarchal system, women are viewed as chattel to be passed on from one male figure to another figure. Men tend to feel like the bride price gives them unlimited access to women’s bodies. And since the price has been paid the woman fees are trapped. This system further outages systems of gendered violence. The bride price system reinforces the notion that women are chattels that can be passed on from one male to another. Before marriage, women are under the control of their father or other male guardians, and after marriage, this control passes on to her husband in return for the bride price.
The payment of bride price adversely affects a woman’s ability to decide whether to use contraception and the type of contraception she will use. This is because after the payment of the bride price all decisions in relation to a woman’s reproductive life are determined by her husband, who has paid for this right. This in turn impacts her ability to make decisions on how many children she will bear and the amount of spacing between each birth. She is also unable to demand safe sex to protect herself from sexually transmitted diseases and HIV infection. Thus, the effect of the bride price system is to literally transform a woman’s personality and reproductive capabilities into part of her husband’s property
Spousal Veto
The spousal veto denies a woman reproductive health care and is a direct result of the position in which women are put by practices such as polygamy and bride price. By virtue of this practice, a husband may forbid his wife from seeking family planning or other advice. It is the practice of some health clinics to require a wife, but not an unmarried adult woman, to obtain the authorization of her husband to receive health care. For example, customary law holds that a woman must provide written consent from her husband or a male relative in order to receive medical treatment from a clinic or hospital. This practice prevents a woman from seeking family planning advice and following a certain course of family planning, or even treating a sexually transmitted disease, without her husband’s knowledge and consent. Thus, the spousal veto curtails a woman’s freedom to make decisions regarding her own body. This practice is also a form of discrimination against women because, while men can deny their wives access to healthcare, women may not place these constraints on their husbands.
Widow Inheritance
The leviratic marriage, or widow inheritance, is a custom in which a man is obliged to marry his brother’s widow. This system perpetually restrains the widow from marrying any other person except the customary successor of her dead husband or a member of his family. The effect of this custom is to thrust many women into unwanted marriages and resulting in forced marriages and forced sex within marriage. Widow inheritance treats women as chattel, instead of human beings who have rights equal to those of a man. A widow who resists being inherited will most likely be evicted from her home by her in-laws, particularly if she is living on what is regarded as family land. Because most rural women are dependent on their husbands for their livelihood, the threat of eviction forces women to comply with the traditional practice.
Sororate Marriage
In the sororate marriage, a wife who fled her marriage or died before giving birth is replaced by her sister. This is the result of the idea that a woman has been purchased by the payment of bride price or bridewealth and is valued mainly for her reproductive labor which constituted an important part of the purchase. The second wives are just as vulnerable as their sisters before them, having no reproductive autonomy whatsoever. This practice also results in forced marriages and forced sex within marriage.
Marital Rape
Marital rape is a form of sexual violence & domestic violence. It constitutes non-consensual sexual intercourse between a married couple. The notion of marital rape is widely rejected due to the strong patriarchal system we operate in which is backed up with laws that secure its existence. Women disproportionately experience marital rape as opposed to their male counterparts. Moreover, within South Sudan’s legal system, marital rape is not recognized as a real form of rape. Therefore, it is not punishable by law.
Since South Sudanese marriages are heavily dependent on the dowry system which views women as the property of the husband. Therefore, demanding sex even when the wife has not given consent does not constitute rape because the man is entitled to everything with marriage.
With this system, sex is a man’s privilege and a woman’s obligation. Therefore, refusal of sex is irrelevant. Since the man is seen as the head of the house, he dictates the frequency and times of sexual intercourse. This is because men are taught and thought to be sexual beings while women are not. Men in our societies get to enjoy sex while women are simply there to assist in their enjoyment. These all cripple a woman’s freedom, power, and right to dictate her sexual affairs.
The law of customary marriages allows a man to rape his wife with impunity. Indeed, the conceptual idea that a wife in a customary marriage can be raped by her husband does not even exist because all sex within a customary marriage is considered “consensual,” whether the woman consents. This is true because in some parts of Africa marriage results in a woman’s physical person and her sexuality becomes part of her husband’s property. In other parts of Africa, even though customary law did not, in theory, incorporate the very existence of a woman into that of a man’s property upon marriage, in practice women are treated as though this were the case.3″ This is mainly due to women’s ignorance of the laws that protect them. Moreover, it is a general rule all over Africa that a man can never be said to rape his own wife. As such, forced sex within marriage does not constitute an offense either under customary or statutory law. A woman is therefore not able to protect herself from sexually transmitted diseases by ceasing to have sex with her husband or seeking to have safe sex, even though she may suspect, or even know for a fact, that her husband or one of her co-wives has a sexually transmitted disease.
Moreover, forced marriages do not constitute the woman’s consent therefore sex within a marriage that the woman has not accepted is thought of to amount to marital rape. This is where we see the autonomy of women wiped out. The same can be applied to child marriage. Since marital rape is not considered rape within our legal system, women are not able to file for or initiate divorce. If their families have already consumed the dowry, it becomes almost impossible. They become trapped in the cycle of abuse and violence.
