A category of sexual abuse of girls that directly undercuts their right to education is sexual abuse in school. Evidence is mounting that sexual violence targeting girls in school or on their way to or from school is a significant problem in many parts of Africa, though it is only relatively recently coming to light, partly out of concern for its link to HIV/AIDS.34 In 2001, Human Rights Watch documented widespread sexual abuse perpetrated against girls in school by male classmates, teachers, school administrators and other employees in South Africa. As one fifteen-year-old girl stated:
Overall, girls described to Human Rights Watch an environment in which violent, harassing and degrading sexual assaults are so normalized in many schools that they constituted a systemic problem for education, not merely a series of incidents.
Zambian NGOs reported to Human Rights Watch numerous incidents of teachers preying on vulnerable girls, exchanging answers to the tests or higher grades for sex. Most abuses by teachers are not reported, and few teachers are penalized, they said. “The laws are strict, but there’s no real attempt to find out what goes on,” said one experienced NGO worker.36 The more likely outcome is that a teacher would be cautioned and possibly transferred. Advocates for girls’ education have been trying to enact stiffer penalties against teachers who abuse students and to ensure that those found responsible are dismissed. However, the onus is on the girl’s parents, not the school, to report the case to the police so that criminal charges can be brought. School administrators sometimes interfere with the process by transferring the teacher elsewhere, which makes it extremely difficult for the case to proceed. In addition, the process of lodging a formal complaint or filing charges is not always clear. “Where do parents go to complain?” asked Elizabeth Mataka of Family Health Trust in Lusaka. “Often there’s no police within miles, and the Ministry of Education is at the provincial level, so the headmaster is the ultimate authority. . . . Teachers escape ethical sanctions.”37
NGO representatives in Zambia and South Africa also told Human Rights Watch that girls’ safety and security on their way to and from school was often threatened. The length of the girls’ commute to school was an important factor since their risk of sexual abuse by minibus drivers or conductors, if they were transported, or abuse by others along the road, if they walk, could be significant. One youth development counselor in Braamfontein, South Africa, told this story:
In some cases, the long distance to school, often two hours walk or more, made some girls stay in insecure sheds nearer to school during the week, which then exposed them to abuses by men who could walk in at will.
Some of the girls Human Rights Watch interviewed in South Africa found sexual violence in school so threatening or injurious that they left school. Others performed poorly because of the fear they experienced, according to teachers or parents. All of this abuse carries the risk of HIV and other sexually transmitted infections, not only from the sexual abuse itself. For those who can’t take it anymore and leave school, it deprives them of the best chance they have of empowerment—sexual, economic, intellectual and otherwise—and, sadly, what may be the best chance they have to protect themselves from HIV/AIDS. In addition, while classroom programs on HIV/AIDS leave much to be desired in some locations, they are in many countries one of the most important means of conveying to children basic information on HIV transmission, AIDS treatment and care, and the importance of compassion for people living with and affected by HIV/AIDS. Many school-based “life skills” programs also include elements of assertiveness training for girls and prevention of sexual harassment and abuse.
A central problem in many African countries is the failure of the state and particularly the criminal justice system to deal appropriately with complaints of sexual abuse from women of all ages, but perhaps particularly from girls and young women. There are many barriers to effective reporting and prosecution of crimes of sexual assault. For orphaned girls being abused by men who are meant to be their guardians or otherwise to be helping to look after them, reporting the abuse may mean risking abandonment or violent punishment. Families will often go to great lengths to conceal this abuse. In other cases, victimized girls remain silent in the face of legal and social services systems that fail to act to protect girls’ rights. To report a crime of sexual violence or abuse, a girl would face a police department that is rarely child- or gender-sensitive, health service providers that may scold her for being promiscuous, a court system lacking any facilities for youths, and a social structure that teaches girls to be submissive to men. Even if she did report an abuse, chances that officials would act against the abuser are minimal. Official inaction on the part of the criminal justice system helps to perpetuate the abuse by contributing to a climate in which girls who suffer sexual violence decide it is not worth reporting to the police because of the unlikelihood of punishment of perpetrators and by sending the message to perpetrators that they can commit abuse with impunity. As a result, the perpetrators remain free to abuse again.
In most African countries, the police play a central role in facilitating the access to justice and to judicial mechanisms of sexual abuse survivors. The police hear complaints and are often a survivor’s gateway to forensic medical services, which are important to prove sexual offences cases and may be essential where corroborative evidence is required. A number of African countries have established special units of the police department for dealing with rape and sexual assault cases, but few of these are specialized in handling cases of sexual abuse of children. The Child Protection Units of South Africa are an exception. In Zambia, the Victim Support Units (VSUs) found in some police stations handle sexual abuse cases, including those involving children. Although the VSU has intervened effectively in some cases, the potential impact of the VSU has been undermined by a fundamental shortage of resources, equipment, and training. For example, in 2002 the VSU had only two vehicles for the whole country.39 There were 100 women officers in the VSU, and one woman officer was supposed to be assigned to each police post. A VSU spokesperson said that this system was difficult to implement because many women refuse to be assigned to police stations in remote areas.40
While the mandate of the VSUs is laudable, many observers told Human Rights Watch that the VSUs were tainted by their association with a police force that did not enjoy the confidence of the people in Zambia. Eugene Sibote, a spokesperson for the VSU, said VSU was willing to try to set up liaison functions with schools as a way “to target children and let them know about their rights and about the work of the police. Because they mistrust the police, they fail to seek police assistance.”41 Karen Doll Manda of the NGO Family Health International, put it more starkly: “The concept of the VSU is a step – but you need a whole overhaul of the police system before people will have faith in the VSU. People go there out of desperation.”42 Girls often expressed fears that they would not be believed. In other cases the basic logistics—distance to the police station and medical clinics, and the cost of the police report—dissuaded people from reporting.
Moreover, when faced with a complaint, the VSU all too frequently failed to respond or was ineffective. Juliet Chilengi, director of the New Horizons orphanage for girls, lamented this lack of follow-through:
In one case reported to Human Rights Watch, a girl was allegedly raped by an army officer and her family reported the case to the VSU. Although the VSU expressed support for the family, they were unable or unwilling to deliver the summonses to the parties involved. Therefore, the girl’s father had to track down each party and deliver a summons. When none of the parties appeared, the VSU did nothing.44 The case of Tina B., thirteen, who lived with her grandmother and then in an orphanage after the death of her parents, is another of the numerous cases reported to Human Rights Watch where the police failed to respond:
The VSU is limited in the options it has to deal with abuses against girls. At the moment, it can remove a girl from her family or from the street, but there are few safe places to send her. The VSU lacks child-friendly resources that aim to address the needs of abused girls. As Alick Nyirenda of the Copperbelt Health Education Project (CHEP) put it: “The child goes through the regular police station; the environment is not appropriate.”46
As noted above, there are also problems of the VSU’s standing within the police department itself. “Some police officers are in weak positions,” explained Eugene Sibote. “They may be frustrated or intimidated locally.”47 Sibote said he has told all VSU officers to report to him if they experience any interference by local authorities and offered to handle the case from Lusaka.
Given all of these negative factors, it is relatively rare in Zambia as in many other countries for police to investigate these cases or for prosecutors to bring them before a court. The responsibility for failure to follow up in abuse cases does not exclusively reside with the VSU, however. Sometimes, the failure to follow up is due to corruption, where court officials as well as police may be paid off by perpetrators.48 In other cases the family may not want to press charges. Judge Lombe Chibesakunda, who chairs Zambia’s National Human Rights Commission, observed, “The chances of coming to court are almost nil; it’s an embarrassment to the family, to the girl. They try to hide it under the carpet.”49
Other constraints to prosecution in child abuse cases in Zambia and elsewhere include the attitude of the legal and law enforcement agencies toward girl victims, the inadequate training and resources for investigation (as noted with respect to the VSU above), the difficulties of using a child’s testimony in court, and the lack of trained prosecutors to pursue cases of child and gender violence. Chapter 88 of the Criminal Procedure Code of Zambia requires that a child’s testimony be corroborated to be admissible as evidence, a feature of the law not unique to Zambia. Even the government acknowledges that this presents obstacles to prosecuting perpetrators of child abuse. The judge can use his or her discretion to determine whether the child is competent and therefore whether his or her evidence is admissible.50 Although evaluating the competency of a child witness is a standard part of common law doctrine, it tends to work to the disadvantage of the child when he, or especially she, is the victim. The courts often do not take her case seriously and, in the case of an older girl with a complaint of sexual abuse, the case may hinge on whether or not the judge believes she “asked for it.” This problem underscores the need for effective child protection units that could investigate cases of abuse and provide corroboration.51
The law on rape in Zambia, as in a number of countries, also leaves much to be desired. Some Zambian women’s groups have called for an expanded definition of rape, stressing the need to restructure the law to provide for circumstances of aggravated rape, which should lead to stiffer penalties. They have also called for stiffer, mandatory minimum sentences as a way of addressing the lenient sentences.52
In 2002, a group of Zambian women’s organizations published an NGO commentary on the government’s official report to the U.N. on the implementation of CEDAW. The NGO report underscores the vulnerability of girls to violence and HIV, and the state’s failure to protect them:
The NGO commentary further condemns the light sentences meted out to offenders:
The Convention on the Rights of the Child (CRC) is the most widely ratified human rights treaty in history. It has been ratified by every country except the United States and Somalia. The CRC contains provisions to protect children from abuse and exploitation. Article 2 requires states to take all appropriate measures to ensure that children are protected from discrimination. Article 19 requires state parties to take all appropriate measures to protect children from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” Article 24 recognizes the right of children to enjoy “the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health.” Article 32 recognizes the right of children “to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.” Article 34 requires states to undertake to protect children “from all forms of sexual exploitation and sexual abuse,” and in particular take all appropriate measures to prevent “(a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices.”55
Child trafficking is prohibited under international law as both a “practice similar to slavery” and one of the “worst forms of child labor.”56 The CRC obliges states parties to “take all appropriate national, bilateral and multilateral measures to prevent the abduction, the sale of or traffic in children for any purpose or in any form.”57 It further obliges states to ensure that children are not separated from their parents against their will; to take measures to combat the illicit transfer and nonreturn of children abroad; and to protect children from economic exploitation, hazardous labor, involvement in drug trafficking, sexual exploitation and abuse and any other form of exploitation.58 Of additional relevance to child trafficking is the CRC’s guarantee of protection against abuse and neglect within the family. Article 20(1) provides that “a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.”59 This provision is especially relevant to children who have already been trafficked, particularly where parents have been complicit in the trafficking.
34 Mirsky, Beyond victims and villains, pp. 20-25.
35 Human Rights Watch interview, Johannesburg, March 18, 1999.
36 Human Rights Watch interview with Cosmas Musumali, Lusaka, Zambia, May 16, 2002.
37 Human Rights Watch interview with Elizabeth Mataka, Family Health Trust, Lusaka, Zambia, May 20, 2002.
38 Human Rights Watch interview, Braamfontein, South Africa, March 17, 2000.
39 Human Rights Watch interview with Eugene Sibote, Lusaka, Zambia, May 22, 2002.
40 Human Rights Watch interview with Jayne Kunda Mwila, Kalingalinga Health Centre, Lusaka, Zambia, May 30, 2002.
41 Human Rights Watch interview with Eugene Sibote, Lusaka, May 22, 2002.
42 Human Rights Watch interview with Karen Doll Manda, Lusaka, May 21, 2002.
43 Human Rights Watch interview at New Horizons orphanage, Lusaka, June 1, 2002.
44 Human Rights Watch interview at YWCA, Lusaka, May 22, 2002.
45 Human Rights Watch interview at Jesus Cares Ministries, Lusaka, May 24, 2002.
46 Human Rights Watch interview, Kitwe, Zambia, May 25, 2002.
47 Human Rights Watch interview, Lusaka, May 22, 2002.
48 Human Rights Watch interview with Sibote, May 22, 2002.
49 Human Rights Watch interview with Judge Lombe Chibesakunda, chair of National Human Rights Commission, Lusaka, Zambia, May 30, 2002.
50 CRC report, p. 19 and 23.
51 Human Rights Watch telephone interview with Prof. Muna Ndulo, Cornell University School of Law, July 15, 2002.
52 Women and Law in Southern Africa Trust - Zambia, “Gender Violence: The invisible struggle,” (Lusaka: 2001), p. 25.
53 Women in Law and Development in Africa (WILDAF)-Zambia, “NGO Commentary on the Government of Zambia Combined Third and Fourth Report on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),” Lusaka, May 2002, p. 16.
54 NGO Commentary, p. 16.
55 Convention on the Rights of the Child, G.A. res. 44/25, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990.
56 See, e.g., ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (1999), art. 3(a).
57 U.N. Convention on the Rights of the Child, art. 35. Although it prohibits child trafficking, the Convention on the Rights of the Child does not provide any definition of the practice.
58 U.N. Convention on the Rights of the Child, art. 9, 11, 32-34.
59 This provision reinforces article 24(1) of the International Covenant on Civil and Political Rights guaranteeing children “the right to such measures of protection as are required by his status as a minor,” as well as the Convention on the Rights of the Child’s article 19(1), which guarantees protection from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s).”