By Gama Hassan Oscas
Section 266 of the Penal Code in South Sudan criminalizes adultery, making it an offense punishable by imprisonment, fines, or both. This provision, while seemingly gender-neutral, disproportionately affects women due to discriminatory customary practices and fails to align with the constitutional principles of equality and non-discrimination. This opinion piece argues that the criminalization of adultery, coupled with the reliance on customs and traditions to address the offense, undermines the rights of women and is inconsistent with constitutional guarantees of equality.
Consenting Adults and Personal Autonomy:
Adultery, by its nature, involves consensual sexual relations between two adults who willingly choose to engage in such activities. It is an intimate matter that should primarily be addressed within the realm of personal relationships and individual autonomy. Criminalizing such conduct restricts personal freedoms and interferes with the right to privacy and personal choices of individuals, particularly in matters pertaining to their relationships and sexuality.
Gender Bias in Customary Courts:
The provision’s reliance on customs and traditions to address adultery further exacerbates the gender inequality prevalent in South Sudanese society. While the provision applies to both men and women, the practical application of customary courts often results in biased outcomes. Many customs in South Sudan permit men to marry multiple women, creating a double standard that disproportionately penalizes women for adultery. Customary courts, which are more inclined to favor men, leave women vulnerable to unfair treatment and denial of justice. This perpetuates an unequal power dynamic between genders and undermines the principle of equality before the law.
Constitutional Guarantees of Equality and Women’s Rights:
Section 266 of the Penal Code, in its current form, is inconsistent with the constitutional provisions that safeguard the principle of equality. Article 14 of the transitional constitution guarantees equal protection under the law without discrimination based on sex, among other grounds. Additionally, Article 16 emphasizes the rights of women, promoting gender equality and non-discrimination. To uphold these constitutional principles, the criminalization of adultery, coupled with the reliance on customs and traditions, must be reviewed and amended.
The Need for Amendment:
Amending Section 266 of the Penal Code is crucial to address the discriminatory nature of the provision and uphold constitutional guarantees of equality. The provision should be revised to remove the requirement that the offense be addressed in accordance with customs and traditions. Instead, adultery should be treated as a matter of civil or personal law, focusing on the resolution of disputes through mediation, counseling, or other non-punitive means. Such an approach respects personal autonomy, protects privacy rights, and ensures equal treatment before the law, regardless of gender.
Conclusion:
The criminalization of adultery in Section 266 of the Penal Code, coupled with the reliance on customs and traditions, is a flawed approach that undermines the rights of women and perpetuates gender inequality. To align with constitutional guarantees of equality and non-discrimination, it is imperative to review and amend this provision. Adultery should be considered a matter of personal relationships, with a focus on dispute resolution rather than criminal punishment. By taking steps towards reform, South Sudan can strive towards a more equitable legal framework that upholds individual autonomy, gender equality, and the protection of human rights.
The writer is an Advocate and can be reached at Email: oscarsgama@gmail.com