The right to harm women and children first. It is the summary description that is most consistent with the various experiences that women who demand the help of the law have lived. It is this right hidden in the law that we, lawyers and activists, face when we accompany applicants. For women and children, patriarchy is concretely a set of laws made to prevent them from living and deprive them of the help of the law.
If the patriarchy did not begin with the law, it is nevertheless the law that consolidates it. Since 1972, we have been living in Senegal under a family law full of discriminatory provisions against women, even for some separation. This while those who make the laws and those who apply them not only know that equality is a basis and a legal principle, but also that the family establishes equality between the sexes in a solid and lasting way.
So the law embodies what the family cultivates, namely the gender hierarchy, inferiority, subordination and slavery of women.
Article 111 of the Family Act sets the minimum age for marriage at 18 for boys, while girls can be married at 16 and even earlier if decided by the President of the High Court, as the law gives full power through what the Code calls. the “age exemption”. The law refuses to promise the young girl the same chance as the boy, both in life and in the household, once she has been married. Moreover, the concept of “marital power”, which appears in Article 152 of the Code, removes doubts about what awaits this young girl. In fact, only the man has the quality of the head of the family. So what is a power that can not be exercised?
Have a voice
In 2013, together with AJS (Association of Senegalese Lawyers), we supported a woman in a dispute over residence. The Lord had decided to go and live in another city in the country. The lady did not want to move on a whim and risk disturbing the balance of the household. The kids went to school in Dakar, they had their ties there, she too, she had a business there. She could not get her husband to listen to reason, and the discussion turned sour.
When he systematically told her that her duty as a wife was to follow him wherever he wanted, she came to consult us. This distressed woman came to seek the help of the law to get a voice in the matter, but we had to tell her what we reveal to all those who turn to us in similar cases, namely, that the law just denies their help.
According to Article 153 of the Family Law, the choice of marital residence belongs exclusively to the husband as the head of the family. The wife’s only option to challenge this choice is to prove that there would be a risk to her life at the new place of residence chosen by the husband. Neither his work, his financial contribution to the household, his career, his professional life, his social balance or any considerations other than a possible danger to life are taken into account. If she does not prove it, then she must obey and follow. Most of the laws of patriarchy are laws that prevent women from living!
We took the case to court based on international texts ratified by the State of Senegal. Since they have a superiority over national laws – the principle is enshrined in Article 98 of the Constitution – we wanted to obtain a judgment that could give this woman the right to talk about the move. The judge did not consider it necessary to apply the conventions and treaties relied on. In addition, he did not fail to present the plaintiff at the hearing: she had to stop being influenced, she only has to follow what her husband decides. It should be understood that 90% of Senegalese judges are men who mostly have this patriarchal mentality. They know that Senegalese laws prevent the application of regional and international obligations. That is why they do not want to create jurisprudence that would circumvent this blockage. Following this judgment, her husband’s decision for the lady could and should be implemented.
These discriminatory provisions are also found in the Senegalese criminal law banning the right to medical abortion. Our goal is to allow abortion in the event of rape, incest and when the mother’s health is threatened, in accordance with Article 14 of the Maputo Protocol.
The laws must be changed, because it is imperative that they are equal. Beyond the question of the legal ideal and the challenge of human development, it is quite specifically a question of helping women to live by letting them benefit from their existence, as any citizen, by means of the law.
* Amy Sakho is a lawyer at the Association of Senegalese Lawyers, a feminist activist for women’s rights. She is also the coordinator of the Committee on Access to Medical Abortion in the Event of Rape or Incest in Senegal.