Why ending any form of patriarchal control is imperative to realize both human rights and gender justice in Africa and beyond.
By Paleki Ayang
As South Sudan rebuilds in the shadows of conflict, the country has a pivotal chance to reshape its justice system to serve its people better. However, outdated laws such as the criminalization of adultery stand in the way of progress when it comes to realizing the rights of women and girls in line with regional and international human rights instruments, including the Maputo Protocol, an important treaty ratified by President Salva Kiir in March 2023.
Rooted in patriarchal control, laws addressing inequalities when it comes to adultery, for example, perpetuate gender inequality and subject women to disproportionate violence, social exclusion, and legal oppression.
Decriminalizing adultery is more than a legal reform — it is an urgent human rights and feminist demand for the autonomy, dignity, and rights of women across the nation.
A tool of control over women
In South Sudan, adultery is criminalized with severe consequences — including fines, imprisonment, public humiliation, and even death in extreme cases. Article 266 of the Penal Code defines adultery as “consensual sexual intercourse with a man or woman who is and whom he or she has reason to believe to be the spouse of another person….”
While the law ostensibly applies to both men and women, its application is deeply skewed. Women are the primary victims, as societal norms place the burden of sexual morality almost exclusively on them. This law serves as a tool that polices women’s bodies and reinforces their subordinate status. Women accused of adultery face not only the threat of legal punishment but also societal ostracization, domestic violence, and even “honor” killings.
For men, the consequences of adultery accusations are far less severe. The patriarchal system affords them protection, allowing them to evade accountability while maintaining control over women’s lives. This gender bias is exacerbated by the lack of access women have to legal representation and the discriminatory burden of proof, which often presumes their guilt. In this way, the law institutionalizes the violence and inequality women experience daily.
South Sudan lacks a statutory framework for family law, as evidenced in Equality Now’s 2024 research on family laws in Africa. This legal gap leads to significant disparities in marriage, divorce, and inheritance rights. For example, there is no minimum age for marriage under customary law, no equal inheritance provisions, and polygamy is legal for men, which exacerbates the vulnerabilities of women and girls.
Polygamy and adultery: A paradox
One of the most glaring contradictions within South Sudan’s legal framework is the contrast between polygamy’s legal sanction and the criminalization of adultery. With the responsibility of moral conduct regarding family and sexual norms disproportionately on women, it enforces traditional roles and limits women’s autonomy.
Laws like the criminalization of adultery are enforced in a way that reinforces these roles, pressuring women to conform to stringent standards while giving men more leniency. This legal and social setup not only restricts women but also ingrains inequality as a cultural norm. Polygamy enables men to marry multiple women freely, yet women accused of adultery face severe penalties. This double standard primarily targets women, subjecting them to criminal trials, punishment, and societal condemnation.
Decriminalizing adultery would remove this discriminatory practice and protect women’s rights.
Breaking free from patriarchal chains
The continued criminalization of adultery is incompatible with South Sudan’s stated commitments to gender equality and human rights. It violates women’s rights to autonomy, privacy, and dignity — basic principles enshrined in international human rights law. The United Nations Human Rights Committee has already called for the abolition of adultery laws globally, recognizing their inherent discrimination against women.
From a feminist as well as a human rights perspective, decriminalizing adultery is not only about legal reform — it is a rejection of patriarchal control over women’s sexuality. It represents a challenge to a legal system that uses women’s bodies as battlegrounds for moral superiority. This move is about reclaiming agency, ensuring that women have the right to make choices about their bodies without fear of legal or social retribution.
A call for compassionate justice
Opponents of decriminalization often claim that the law protects family values and the sanctity of marriage. However, in reality, the criminalization of adultery erodes the very foundations of family and community.
When women are prosecuted for adultery, their families are torn apart — not preserved. Marriages end in divorce, children are separated from their mothers and women are left with the lifelong stigma of being branded as immoral. This law, far from upholding family values, weaponizes morality to control women.
Instead of punitive legal measures for address family disputes, South Sudan legal system should embrace compassionate justice — one that acknowledges the complexity of marital disputes and prioritizes mediation, counseling, and reconciliation over criminal prosecution. Family dynamics and cultural values can still be respected without the state’s interference and targeting of women.
Global lessons in gender justice
South Sudan is not alone in facing these issues. Many countries have successfully decriminalized adultery without the feared collapse of social morality. In fact, legal reforms in other countries have demonstrated that decriminalization strengthens gender equality, upholds human rights, and promotes social stability.
- In India, for example, the Supreme Court in 2018 struck down Section 497 of the Indian Penal Code, which criminalized adultery, recognizing it as discriminatory against women.
- In Mexico, in 2011 the country’s Supreme Court declared adultery laws unconstitutional in several states, resulting in decriminalization across much of the country.
- Benin and Mali, both countries in Africa, have decriminalized adultery as part of broader reforms to promote gender equality. In 2022, Benin repealed adultery laws, while Mali’s decriminalization efforts aimed to align with international human rights standards.
The importance of learning from other nations
South Sudan should learn from these global examples and reframe its legal system to reflect a more equitable future.
By decriminalizing adultery, the country can send a powerful message to the world: That it is committed to building a society where women are no longer punished for seeking autonomy over their lives.
Civil society, women’s rights organizations, and feminist activists have a crucial role to play in this transformation. They can build the momentum necessary to drive change by raising awareness, engaging in legal advocacy, and pushing for gender-responsive lawmaking.
Most importantly, women’s voices must be centered in these efforts — particularly those of women from marginalized and rural communities, who are most affected by these draconian laws.
Conclusion: A just future, at long last
Despite the progress in addressing gender inequality, significant gaps remain, particularly in family law and the fight against sexual violence. In South Sudan, where customary law often governs family matters, harmful practices such as polygamy, forced marriage, and child marriage persist, undermining women’s rights and perpetuating cycles of abuse and poverty.
The criminalization of adultery in South Sudan is a relic of a patriarchal past that has no place in a just society. It is a stark reminder of the entrenched gender inequalities that persist in South Sudan’s legal framework.
As the country takes steps toward rebuilding its society, it is time for global allies to support this pivotal shift toward justice and equality. International human rights advocates, policymakers, and grassroots organizations can play a critical role by amplifying South Sudanese voices and pushing for change. Whether through raising awareness, supporting local advocacy, or partnering with women’s rights groups in the region, global actors can help sustain momentum.
By standing with those fighting for decriminalization, we can make a powerful statement that a fairer, more inclusive legal system benefits everyone.
Equality Now works with partners in South Sudan and around the world to address discrimination in family law. We are a founding Coordination Committee Member and the secretariat of the Global Campaign for Equality in Family Law, co-convenors of the Africa Family Law Network, and currently the secretariat of the Hurra Coalition, which is working to address unequal family laws in the MENA region. In May 2024, we released Gender Inequality In Family Laws In Africa: An Overview Of Key Trends In Select Countries.
This article was originally published in The Globalist on November 8, 2024.
Recommended reading:
Human Rights Watch (HRW). (2017). No Safe Place: Crimes Against Women in South Sudan’s Conflict. Available at: https://www.hrw.org/
International Commission of Jurists (ICJ). (2020). Women’s Access to Justice in South Sudan: Identifying the Gaps and Challenges. Available at: https://www.icj.org
Maputo Protocol. (2003). Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Available at: https://au.int/en/treaties
South Sudan Penal Code. (2008). The Penal Code Act 2008 Southern Sudan. Available at: https://www.warnathgroup.com/wp-content/uploads/2015/03/South-Sudan-Penal-Code-TIP-Articles.pdf
Transitional Justice Working Group (TJWG). (2022). Legal Reforms and Transitional Justice in South Sudan: Priorities for Gender Equality. Available at: https://www.tjwg.org/
United Nations Human Rights Committee. (2013). General Comment No. 28: Equality of Rights Between Men and Women (Article 3). Available at: https://www.ohchr.org/
United Nations Population Fund (UNFPA). (2018). Gender-Based Violence in South Sudan: A Quantitative Analysis. Available at: https://www.unfpa.org/