By Mohammed A. Foboi, Contributing Writer
The Liberian Senate on Tuesday, October 3, 2017 voted to amend the 2005 Rape Law, making it a bailable crime, which has caused public outcry especially from female and child rights advocates.
The Senators took the decision following a report from its’ statutory Committee on Judiciary recommending that Rape should be a bailable offense as is provided for in the draft Act submitted by Senator Milton Teahjay (UP-Sinoe County).
Of the eight senators in chamber, presided over by Senator Varney Sherman who couldn’t vote according to the Senate rule, five senators voted for. One senator (Johnathan Kaipay, LP-Grand Bassa County) voted against and one senator (Peter Coleman, CDC-Grand Kru County) filed a motion for reconsidering.
A motion for reconsideration is a privileged motion filed by members of the legislature in a decision requiring voting. He or she has three sittings to submit his or her motion for reconsideration.
The 2005 Rape Law defines rape as “the intentional penetration however slight with the perpetrator’s penis in the victim’s vagina, anus, mouth, or other opening without the victim’s consent, or the intentional penetration with a foreign object or other body part of the victim’s vagina or anus without the victim’s consent.”
The law is therefore gender-neutral, providing for both male and female victims and perpetrators.
The Rape Law raised the age of consent to 18 and defines consent broadly, providing that a person consents if he or she does so by choice and has the freedom and capacity to make that choice.
The 2005 Rape Law makes rape a non-bailable offense with perpetrators having no access to parole while serving his/her term in prison. The law further goes on to state that the maximum sentence for first degree (statutory or gang rape) shall be life imprisonment, and for the purposes of bail, it shall be treated as per capital offenses under section 13.11 of the Criminal Procedure Law.
But in the view of the judiciary Committee of the Liberian Senate, the punishment for rape as provided in the Rape Law is excessive and therefore unconstitutional. Article 21 (d) (ii) of the 1986 Constitution of Liberia provides that “Excessive bail shall not be required, nor excessive fines imposed, nor excessive punishment inflicted”.
Liberia has ratified or acceded to the core international human rights treaties 15 and is a party to the major regional human rights instruments 16 which oblige States to respect, protect and fulfill human rights of all persons within the territory and subject to the jurisdiction of the State, without discrimination.
The 1986 Constitution enshrines a number of fundamental human rights that may be violated by sexual violence, including the right to life and security of person, the right to equality before the law and equal protection of the law, and the prohibition of torture or inhumane treatment.
The Constitution also prohibits discrimination in the enjoyment of these and other rights on the basis of sex.
Early this year in fulfillment of an academic assignment for the course of Human Rights Reporting, I did a research articles on the 2005 Rape Law titled “New Rape Law, a Violation of the Constitution?”
In that piece, published in the Heritage Newspaper and other local dailies, I interviewed lawyers, human rights advocates, politicians, and alleged rapists currently behind bars at the Monrovia Central Prison.
Those interviewed at the time (January 2017) gave mixed views on the 2005 Rape Law.
Ms. Korto Kpane Browne, President of Young Women Professionals, believes the law is a tool for some people to get at others they have problem with.
“Even though there are evil people in our society who go about raping women and even children, but I don’t think this is the right law for the crime. Article 21 (h) of our constitution presumes an accused person innocent until proven guilty in a court of competent jurisdiction.
So how on earth can you put someone behind bars only because the person is accused of a crime. I believe it is against our constitution and our human rights,” Ms Brown explained.
The then Speaker of the Liberia Children Representative Forum, Ms. Satta F. Sheriff, who is still an active child rights advocate, told me this about any attempt to amend the rape law.
“You can’t rape a nine or 12 year old child and you expect yourself to be floating around the place while the child or person’s life is being destroyed by you and the local community.”
She believes if alleged perpetrators of rape are bailed, many people will rape younger children, women, and young girls because someone somewhere is willing to bail the person.
“If you want your rights to be protected and respected, don’t violate another person’s rights. All of us are equal before the law,” the children head explained.
Another person who has similar view with Speaker Sheriff, is Ms. Ade Wede Kerkuleh, a practicing lawyer, medial practitioner, and Secretary General of the Liberia Association of Writers.
“If you don’t want to be placed behind bar, don’t rape someone’s child. you can’t destroy a child’s future and expect yourself to be moving around in the same community with the child. That is not possible. Laws are made to serve as deterrent for would-be violators. What I will call for is a good judicial system where cases are tried faster and fairly, but I don’t believe this law should be repealed,” Ms. Kerkuleh averred.
For Jah Wolobah Beyan, the then president of the Student Council Government of the United Methodist University, government is attaching too much importance to rape, but has not put into place any system to adjudicate the process speedily.
“Rape is non-bailable, but you have only one court, Criminal Court E that tries rape cases and our term of court is too short. And there is no scientific instrument to carry out forensic test. So according to Mr. Beyan, the government must repeal the law because it doesn’t have the means and facilities to fairly enforce it.”
“I believe we must all advocate for reform of the judicial system. The rape law doesn’t say people should be placed behind bars for months or years before being tried. Everyone is equal before the law and like every other crime under our constitution, alleged rapists have the right to lawyer and trial by jury. But it’s the court system that is slow because we don’t have many legal facilities and lawyers.” Ms. Kula Fofana, Assistant Minister for Youth Development at the Ministry of Youth and Sports gave her view on the issue.
For alledged rapists currently behind bars at the Monrovia Central Prison, including Liberia National Student Union President, Varney Jersay, they believe the law is a target for political opponents.
Since the law was amended by the Liberian Senate, there have been protests against such amendment from individuals and groups in Monrovia.
But in this political time, some are using the amendment against politicians to gain political favors for their parties while others are protesting the senate action for the rights of women.
Minister Kula Fofana wrote this on Facebook on Wednesday, October 4 about the amendment- “And Madam Taylor is a member of the Senate that amended the rape law. Talk to me again about opportunism oh I meant feminism..
Hopefully the lower house doesn’t concur. Madam President, do not allow them to pull the string off your legacy. Women’s political participation manifest in different forms.
She was referring to Senator Jewel Howard-Taylor (NPP, Bong County) who is the running mate to Senator George M. Weah (CDC, Montserrado County) of the Coalition for Democratic Change. Both of them were not in chambers on October 3, the day the law was amended by the Senate.
Mr. Kunkunyon Wleh Teh had this to say “I support the amendment to the Rape Law! It makes no sense to have a harsh law in place to remedy a crime, yet the crime rate keeps exponentially increasing? Then, it goes without saying that the harshness of the law is not the solution.
However, we only get bad results from the harshness of the law with a huge increase in the number of pretrial detainees (some people stayed in jail for over 5 years on mere allegations – not even being charged)!
IT IS TOTALLY UNACCEPTABLE TO POLITICIZED SOCIAL PROBLEMS! LET’S BE EMPIRICAL AND UTILIZE THE STATISTICS!
Satta Sheriff made her position clear after the law was amended “The Liberian senate have shown how involved they were and are still in the case of Morais Waylee. Their recent action is unacceptable, wicked and bias.
I am now convinced that they mean nothing for the future of this country.
We will join forces and call for a stop to such old-days injustice. The rape law must not be concur.”
Representative Morais Waylee of Grand Gedeh County was accused and investigated on allegation of raping a 13 year old girl.
Many are waiting to see what a male dominated House of Representative will do with the amended law sent to it by the Senate.