BENIN: CONSTITUTIONAL COURT DECLARES ADULTERY LAWS

UNCLAS COTONOU 000424 SIPDIS DEPT FOR AF/E JKNIGHT; AF/W ACOOK LONDON FOR PETER LORD PARIS FOR BKANEDA E.O. 12958: N/A TAGS: PGOV PREL PHUM BN SUBJECT: BENIN: CONSTITUTIONAL COURT DECLARES ADULTERY LAWS UNCONSTITUTIONAL ¶1. SUMMARY: In response to a complaint filed by a woman being prosecuted for adultery, the Constitutional Court ruled July 30, 2009, that adultery-related provisions contained in the Penal Code are unconstitutional on the grounds that these provisions discriminate against women. The Constitutional Court's ruling becomes case law that will likely prevent women from being prosecuted under the stated unconstitutional provisions in the current Penal Code. The new draft Penal Code which is still on parliamentarians' desks is expected to correct the discriminatory treatment of women convicted of adultery. END SUMMARY. ¶2. The Constitutional Court ruled Articles 336 to 339 of the Penal Code discriminate against women regarding the offense of adultery. Women may be prosecuted for adultery committed anywhere, whereas men may only be prosecuted for the act if committed in the marital home. The Constitutional Court cited Article 26 of the Constitution and Articles 2 and 3 of the African Charter on Human and People's Rights as the basis for the decision (The two charters provide for the equality of men and women before the law). The Court maintained that adultery is still an offense under the Penal Code. The now defunct articles provide fines of up to CFA 480,000(960 US Dollars) for anyone convicted of adultery, whereas a woman convicted of adultery faces an additional penalty of up to two years in prison. ¶3. The July 30 Constitutional Court's decision was a response to an appeal filed by a woman whose husband, a magistrate, had accused her of adultery before the Criminal Court of Cotonou in April 2009. The Civil Court in Porto-Novo had not yet ruled on the accused woman's initial 2007 divorce petition when her husband decided to sue her for adultery in Criminal Court in Cotonou. ¶4. According to lawyers the Constitutional Court's ruling has created a legal vacuum since the provisions dealing with adultery were declared unconstitutional. In addition, the ruling could serve as case law to prevent any future prosecutions of individuals for adultery pending the promulgation of the new Penal Code. It is noteworthy that Benin still uses the French Bouvenet Penal Code of May 6, 1877. ¶5. COMMENT: Human Rights advocates have long criticized Benin for only prosecuting women for adultery. Article 367 and Article 368 of the draft Penal Code that is being examined in the National Assembly still maintain that adultery is an offense, but applies sanctions to adulterers without any sex-based discrimination. END COMMENT. BOUSTANI