By Amber Darr
THE Protection of Women (Criminal Laws Amendment) Act, 2006 enacted on Dec 1, 2006 was the culmination of more than twenty-seven years of protests against the Zina and Qazf Ordinances.
Its avowed aim was to bring these ordinances in conformity with the injunctions of Islam and the principles of social justice enshrined in the Constitution. Although it may be interesting to assess whether and to what extent the Act fulfils these objectives, it is perhaps more important to determine what it actually does to protect women.
In the fifteen months since its enactment, no cases have been decided under the Act and its provisions remain judicially untested. Does the absence of reported cases suggest that women are now better protected? To answer this question it is nearly as important to trace the circumstances surrounding the genesis of the Act, as it is to understand its provisions.
The Act amends the Zina and Qazf Ordinances promulgated during the wave of Islamisation in the late 1970s. These ordinances had dramatically altered the law relating to adultery, rape, kidnapping a woman for marriage and buying and selling a minor for prostitution. Interestingly, despite their Islamic underpinnings, these edicts applied to Muslims and non-Muslims alike.
The Zina Ordinance replaced the offences of adultery and rape with Zina and Zina-bil-jabr respectively. Unlike adultery and rape for which only men could be held liable, for Zina and Zina-bil-jabr both men and women were liable to the punishment of Hadd, which entailed whipping or even stoning to death.
This punishment however could only be awarded if four male, adult Muslim eyewitnesses gave testimony against the accused (absurdly for non-Muslim accused only non-Muslim eyewitnesses would suffice). If however the requisite number of eyewitnesses were not available the accused could only be punished with the maximum imprisonment of ten years for Zina and twenty-five years for Zina-bil-jabr. Also, if it transpired in the course of Zina proceedings that the accusation had been false, the false accuser could only be punished in independent proceedings initiated under the Qazf Ordinance.
The provisions of the Zina and Qazf Ordinances had the potential to work against women and did, particularly when a woman married against the will of her family or when she was raped. A woman who married of her own choice could be falsely accused of Zina by her family members and be prosecuted if she failed to produce a nikahnama. A victim of rape could find herself being punished for Zina because she had not raised sufficient hue and cry against her aggressor.
And, a woman who was gang-raped could watch her aggressors walk free because the Zina Ordinance did not prescribe a ...
THE Protection of Women (Criminal Laws Amendment) Act, 2006 enacted on Dec 1, 2006 was the culmination of more than twenty-seven years of protests against the Zina and Qazf Ordinances.
Its avowed aim was to bring these ordinances in conformity with the injunctions of Islam and the principles of social justice enshrined in the Constitution. Although it may be interesting to assess whether and to what extent the Act fulfils these objectives, it is perhaps more important to determine what it actually does to protect women.
In the fifteen months since its enactment, no cases have been decided under the Act and its provisions remain judicially untested. Does the absence of reported cases suggest that women are now better protected? To answer this question it is nearly as important to trace the circumstances surrounding the genesis of the Act, as it is to understand its provisions.
The Act amends the Zina and Qazf Ordinances promulgated during the wave of Islamisation in the late 1970s. These ordinances had dramatically altered the law relating to adultery, rape, kidnapping a woman for marriage and buying and selling a minor for prostitution. Interestingly, despite their Islamic underpinnings, these edicts applied to Muslims and non-Muslims alike.
The Zina Ordinance replaced the offences of adultery and rape with Zina and Zina-bil-jabr respectively. Unlike adultery and rape for which only men could be held liable, for Zina and Zina-bil-jabr both men and women were liable to the punishment of Hadd, which entailed whipping or even stoning to death.
This punishment however could only be awarded if four male, adult Muslim eyewitnesses gave testimony against the accused (absurdly for non-Muslim accused only non-Muslim eyewitnesses would suffice). If however the requisite number of eyewitnesses were not available the accused could only be punished with the maximum imprisonment of ten years for Zina and twenty-five years for Zina-bil-jabr. Also, if it transpired in the course of Zina proceedings that the accusation had been false, the false accuser could only be punished in independent proceedings initiated under the Qazf Ordinance.
The provisions of the Zina and Qazf Ordinances had the potential to work against women and did, particularly when a woman married against the will of her family or when she was raped. A woman who married of her own choice could be falsely accused of Zina by her family members and be prosecuted if she failed to produce a nikahnama. A victim of rape could find herself being punished for Zina because she had not raised sufficient hue and cry against her aggressor.
And, a woman who was gang-raped could watch her aggressors walk free because the Zina Ordinance did not prescribe a ...
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