Despite being convicted of no crime Mary Deng [not her real name] sits gloomily in the women's section of Rumbek prison, south Sudan. She has not been put on trial and she is not awaiting trial. In fact, she has not even been arrested. She has been imprisoned merely as a result of asking for a divorce - a divorce from a husband who is in fact dead.
Mary was detained by a customary 'chiefs’ court’ in an attempt to force her to change her mind and retract her divorce request. If, after seven days imprisonment, she still insisted on a divorce, she had been told she would be returned to the prison for seven days more, Gabriel Giet, the manager of Rumbek prison told IRIN.
"This is exactly torture. This is physical torture. Even if she changes her mind later it is not a voluntary thing. It is totally out of place and should not have been done by the court," Monyluak Kuol, a United Nations Children’s Fund (UNICEF) project officer in Rumbek and a former judge, told IRIN.
Mary is languishing in the prison as a result of resisting the customary practice by which a married woman, in the event of her husband’s death, becomes the de facto wife of her brother-in-law. This tradition (the levirate) is designed to ensure that when a man dies before fathering a child, his name and the name of his lineage survives through the sons his brother sires in his name.
Without an officially sanctioned separation the woman is still considered as the wife of the dead man, and as such, is also considered to be the ‘property’ of his family, Afaf Ismail Ibrahim, a lawyer at the Bahr al-Ghazal Women’s Legal Centre in Rumbek, told IRIN.
“The woman’s opinion is not important in the issue of marriage,” Ibrahim said.
International law, however, would seem to prohibit the detention of any person under such circumstances. Article 9 of the International Covenant on Civil and Political Rights, which became international law in 1976, states: “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”
According to Kuol, Mary Deng’s detention was also not permitted under the local customary law, and the court had overstepped its authority in imprisoning her.
In an attempt to prevent any future cases of this nature, a lawyer from the Bahr al-Ghazal Women’s Legal Centre and a UNICEF legal expert would meet with senior judges in Rumbek to raise concerns over the grounds for her imprisonment, according to UNICEF.
Mother and child imprisonment
While Mary may be the victim of some harsh treatment from the local courts, at least she has not found herself struggling to care for children while in jail - her husband had died before she had been able to bear any children.
This is not true of most of the women inmates. Of the 19 women doing time in Rumbek jail, many have been forced to take their children with them, either because the children are still very young and need to be breast-fed or because no relative could be found who was willing to look after them.
As some of the children were of school-going age, a spell of several months in jail could have serious consequences for their future. “I'm not sure the children go to the school at all. It is very damaging for them," Kuol said.
According to prison manager Giet, the jail lacks food supplies to adequately feed the inmates and their children, and there is no facility for the provision of medical care. Until UNICEF provided some plastic sheeting they were all sleeping on the bare floor with their babies and young children, he added.
“The situation is very, very bad because the prison was damaged during the war,” Ibrahim told IRIN.
For those women with young children beyond breastfeeding age, the only way to provide them with food is to work as water carriers for vendors in a local market in exchange for a small amount of food. This is the only way, Giet says, of ensuring the children get something to eat.
According to Ibrahim, most of the detained women have been imprisoned as a result of convictions for adultery. Under the customary law operating in the 'chiefs’ courts', a woman found guilty of adultery would normally be fined the equivalent of US $50, usually payable in heads of cattle.
However, in a typical Dinka family – Dinka are the majority ethnic group in the Rumbek area - it is the male head of the household who has sole control over the family’s wealth, and so most women are unable to pay their fine without the help of their husband, or other male relatives.
In spite of the inherent inequality in this arrangement, it could hold the key to a short-term solution to the plight of the imprisoned women and children. In such cases, especially the ones where the women were responsible for the lives of young children, the local courts could allow them sufficient time to raise payment of the fine from relatives, or ideally from the husband, Kuol told IRIN.
In addition, Kuol said, a circular from judges in the higher courts to the local chiefs’ courts could suggest that more investigation be carried out to ascertain the number and ages of children involved. The court could then instruct the husband, if he fails to pay his wife’s fine and so spare her from prison, to take care of children above breastfeeding age.
Since, in most adultery cases, the husband will probably receive compensation from the male offender, he could pay his wife’s lesser fine out of this amount, he added.
“We even need to change the situation long-term, not just these cases,” Kuol said.
Legal loopholes and imbalances
In July, the rebel Sudan People’s Liberation Movement (SPLM) enacted 26 new laws, designed to govern SPLM areas in the south, and to form the core of the legal apparatus in the south should a final peace deal be struck between the rebels and the Khartoum government.
Included among these laws there is one dealing with prisons. This prison law says, among other things, that breastfeeding mothers should not be sent to prison without exhausting efforts to find an alternative solution and that, if fined, mothers of babies and young children should be given time to petition their relatives to pay the fine, Kuol told IRIN.
However, during the drafting of the laws, it was not foreseen that a situation might arise where school-age children would be forced to accompany their mothers to jail, and so there was something of a gap in legislation on this issue, he told IRIN.
In customary law, men are also subject to convictions for adultery, and are normally required to pay a heavier fine than the women as well as compensation to the husband of their co-adulterer. However, it is only the poorest men who find themselves in jail, as men generally have the resources to pay the fine.
This can often mean that, at the conclusion of an adultery hearing where both parties are being judged, the woman will be sent to jail for up to one year while the man will pay the fine and go free.
"The way it is implemented should be changed so they are not sent to prison," Ibrahim told IRIN.
According to Giet, Rumbek jail currently housed at least one man convicted of adultery, while his co-adulterer was also being held in the women's section.
Cycles of incarceration
Ibrahim told IRIN that many of the women claim they have committed adultery in an attempt to get a divorce. It is extremely difficult for a woman to successfully sue for divorce in traditional Dinka societies, and she must enlist the support of at least her own relatives, and preferably the support of the general community as well, she said.
This support is usually very difficult to gain, as the husband would have arranged with the woman’s family to take her as his wife without her consent, and would have paid a dowry in heads of cattle to her family in order to marry her. A divorce would mean they would have to return at least some of this payment.
“It is very rare for a woman to initiate divorce successfully,” Ibrahim said.
In the absence of sufficient backing, a woman may then turn to adultery in an effort to provoke the husband into divorcing her, Ibrahim said. However, she added that the great majority of these attempts were unsuccessful, and on return to her community after incarceration, many women found themselves back with a husband they still did not want.
This sometimes led to them committing adultery once more in a renewed attempt to gain a divorce and, more often than not, finding themselves imprisoned once again.
Fortunately for Mary Deng this does not seem to be a fate she is likely to suffer again soon. After her seven days in prison was up, she returned to the chiefs’ court and again asked for a divorce, refusing to cohabit with either her brother-in-law or any other male member of his family.
The court reluctantly accepted that a divorce was inevitable, and she was ordered to return to her father home while both families prepared for the dissolution of the marriage and the recovery of the bride-wealth, UNICEF reported.