Proposal
To what extent should the courts consider the gendered nature of the substance of criminal offences? If in the affirmative, does this mean that the engendering of offences in the law invalidate the said legal provisions? These queries come to life in the decision: Doebler v Sudan where the African Commission of Human and People’s Rights was called upon to pronounce on the legality of the punishment constituting lashes meted out to students who attended a picnic. The said students, both men and women, were accused of engaging in activities that violated ‘public order’ contrary to the national Penal Statute. The specific acts complained of were ‘girls kissing, wearing trousers, dancing with men, crossing legs with men, sitting with boys and sitting and talking with boys’. In making its decision, the African Commission of Human and Peoples’ Rights focused exclusively on the gravity of the punishment as cruel, inhuman and degrading treatment. No mention was made on the gendered description of the offence.
A feminist re-writing of this judgement will shine a light on the substance of the offence itself. At face value, the description of this offence evidences legally-permissible and state-sanctioned gender policing. Women, it seems, have been assigned roles that require them to remain ‘pure’ and ‘uncorrupted’. The female students, in going for a picnic with male students, corrupted themselves and needed to be sanctioned by the law. Therefore, a feminist re-writing will investigate how, if at all, gendered offences violate freedom from non-discrimination and whether, for that reason, the said offences should be null and void. This feminist inquiry will of course be measured against a backdrop of other human rights principles, such as cultural relativism and margin of appreciation.
As a corollary, this re-writing will also explore in more detail the severity of the punishment to women. In its judgement, the African Commission reproduced the Complainant’s allegation that ‘the punishment of lashings are disproportionate and humiliating because they require a girl to submit to baring her back in public and to the infliction of physical harm which is contrary to the high degree of respect accorded to females in Sudanese society’. This inquiry will appraise this assertion and measure how this particular punishment disproportionately affects the woman more than the man, and whether, without prejudice to the nature of the offence itself, the punishment should be unlawful due to its inherent inequality.