Domestic violence is an issue that cuts across civil marriage, customary marriage, and marriage presumption. Currently, this issue is minimally addressed by the Penal law and the Children’s Bill. There is no stand-alone domestic violence law in Liberia. Domestic violence committed against children is treated as a first-degree misdemeanor, that is, when the duty of care, protection, and support is breached. On the other hand, when committed against adults, it is regarded as endangering behavior or threats.
Domestic violence claims can also be in the form of aggravated assault or simple assault. The Penal law investigates physical abuse and is unclear on how to remedy psychological, sexual, and economic abuse, which are also important to human well-being and dignity. The Children’s Bill addresses sexual abuse and exploitation, prostitution, and pornography. The vagueness of the provisions leaves little room for application and enforcement.
There is a need to pass legislation specifically covering such a situation. Both normative equality and substantive equality claims can be utilized, to remedy the issue of the lack of defined stand-alone domestic violence law. Normative because the absence of law weighs on the dignity
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of the affected class, and substantive because citizens can petition the court to request the legislature to pass a law that addresses the issue. While this may be an assertion of positive rights, the state can also take affirmative action to ensure that their rights to have domestic violence laws are granted.
F. Conclusion
There are factors which make substantive equality model suitable for Liberia, although other models of equality could also be utilized. These factors are cultural and traditional influences, historical, political norms/culture, low literacy rate which speaks to the poor understanding of the role of the court. These factors have perpetuated age-old male dominance and the suppression of females, which has propelled the research of four models of equality, in a bid to find an appropriate model that will curtail or eradicate discrimination in Liberia.
Based on this research, this dissertation espouses that formal equality does not fit the Liberian setting because it divides people into categories without stating how these classifications were made. Also, it perpetuates discrimination by treating likes alike and rendering different treatment to those outside the like classification. Discriminatory legislation is substantiated, further widening the social gap. For example, the disparity of treatment between civil and customary marriages which has already been expounded could form a legitimate basis for male supremacy and validation of cultural and traditional practices that have long subordinated women.
On the same note, the rational connection model as is, will encourage discriminative statues and diminish the opportunity for disadvantaged classes, based on legislative classification and policy. Poignant is the fact that it gives a lot of power to the executive branch of government that arguably already has excessive power. Notwithstanding these demerits, it is important to note that there should always be a salient connection between legislative classification and legislative policy; that connection should not be arbitrary but serve a legitimate purpose. Governmental
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interest should not be politically motivated but geared towards the interest of the governed, since the legislature that makes the law is the representative of the people. In that way, it establishes a genuine governmental interest that can be candidly proven in a competent court. The goal is to have sound legislation that protects every citizen and at the same time equip government with the requisite tool to prosecute violators and demand justice from the court.
Conversely, the nonexistence of a rational nexus between the legislative classification and legislative policy should defeat any governmental interest in a competent court. For example, in a civil marriage, both parents are obligated by law for the care, nurture, and welfare of a child during the marriage, but upon divorce, the father becomes the paramount custodian of the child by law. What interest does such a law seek to protect or promote without inquiry into the fitness of each parent? Courts should have the capacity to strike laws based on discrimination and irrationality. When governments seek to prove the court sustains a candid governmental interest, then justice is served in the process.
The normative model will be useful to Liberia in that morality and legal reasoning can be used to arrive at non-discriminatory decisions, especially in customary courts that are hugely influenced by cultural and traditional practices. Additionally, the doctrine of comparative rights can also be employed to bring about equal treatment based on particular circumstances. For example, equality of marriage in customary and civil legal systems. Comparative rights are equalizing the treatment of differently situated people, creating some relationship in treatment by providing equal treatment to differently situated people, or giving preferential treatment to a group of people to have some form of equality.426 The form of equality can be achieved through some form of the affirmative action plan.
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The normative model can also be utilized by creating a system where widows are accorded the same rights to inherit regardless of the form of marriage. Comparatively, women would enjoy the same right even though they may be differently situated regarding legal jurisdictions. On the same note, customary wives could be entitled to contracting in their names without the consent of their husbands, thereby promoting equal treatment between men and women.
Given the above analysis, the historical, social, economic, and political perspective of inequality issues in Liberia must be critically examined to make an informed decision on determining which standard of equality is the most suitable for Liberia. Historically, males are presumed the breadwinners and female the caregivers. It underpins the patriarchal way the laws are written and how the courts have interpreted the laws. Therefore, a normative equality model is relevant to consider how society has created a modus operandi where males are preferred over their female counterparts. The normative model would give a realistic profile of the country, considering morality and legal reasoning to derive comparative rights and separate rights to treatment.
In my view, the essence of an equality model is not to treat similarly situated people alike or differently situated dissimilarly because people’s differences and similarities could be a factor of external elements that are controlled by societal factors or simply uncontrollable. Therefore, equality models should meet the practical needs of their beneficiaries, having the ability to be measured and consisting of a proper standard of review. That is why the substantive equality model, which has affirmative actions embedded, will assist the eradication inequality in Liberia. Also, substantive equality will help create the flexibility for the government to design programs and policies that will improve the lives of citizens. It will help reduce the presence of laws that disadvantage and discriminate citizens, and where there are omissions in the law, the citizens can
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petition the court to enact the necessary law. Courts, on the other hand, can remedy claims of facially discriminatory laws and facially neutral laws.
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CHAPTER SEVEN: RECOMMENDATIONS
The success of an equality model that could reduce gender inequality in Liberia would require statutory and Constitutional amendments. The process of statutory amendment is much easier, and the likelihood that a legislature will or can amend a statute is more foreseeable. A constitutional amendment is a more complex issue. However, there are ways to address some discriminatory issues without necessarily amending the constitution substantively. Affirmative programs and policies could be utilized. This chapter suggests the need for statutory and Constitutional amendments. It also recommends language for proposed draft constitutional and statutory amendments.
Given the disparity in the two legal systems and the discriminatory laws, the issue could be resolved through the following methods. First, by amending or, if necessary, repealing facially discriminatory laws and facially neutral laws that have a disparate impact and enacting laws that fully address such equality issues. Second, by drawing from the examples of other countries, Liberia should have an equality model that would guide both claimants seeking remedy and the courts in adjudicating cases. Administrative policies could detail actions to be taken that are consistent with the law in order to eradicate or curtail gender inequality. The problem with this method is that no constitutional provision mandates the government to do so; therefore, there is no obligation. On the same note, the government, on its own, could decide to enact legislation and/or design programs and policies that deal with inequality—as done in Sweden—but that would be leaving the solution for the problem to chance.
As discussed in Chapter Five, the substantive model of equality is recommended for Liberia. The effectiveness of the model depends, in part, on amending the equal protection clause of the Constitution, which would serve as the foundation for legislating new laws, while
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simultaneously amending or repealing ineffective laws. This chapter contextualizes all the previous chapters by recommending legislative and constitutional amendments to curtail the gender inequality problems identified.
As established in Chapter Two, some of the laws are either facially discriminatory or facially neutral, but have a disparate impact on certain groups. Additionally, there are cardinal gender issues not effectively addressed by existing laws; an example is domestic violence. Such omission disadvantages citizens and deprives them of an effective legal remedy. It is the prerogative of a nation to enact laws that will benefit its citizens. For enacted laws to be utilized, the laws must be clear and justiciable since ambiguous laws are subject to the discretion of the court. Interpretations of laws should not be discretionary; they should be based on their clear meaning and legislative intent.
This chapter further seeks to propose legislation that will curtail the problems identified in Chapter Two, that is, unequal treatment between civil and customary marriages, marriage presumption, custody, domestic violence, and illegitimacy. Equally, there must be a constitutional amendment to expand the definition of the equal protection clause to permit affirmative action. It is an important guarantee that empowers citizen to demand certain rights from their government, while at the same time, accommodating the utilization of the model of equality in a court of competent jurisdiction.
The proposed legislation and constitutional amendments are intended to redefine some of the current domestic relation statutes and the equal protection clause, thereby increasing their utility. The wordings of the proposed amendments to the equal protection clause mirror that of South Africa, the US, and Canada. The amendment for the statutes is an expanded version of recommendations made in my LLM thesis, “The Problems of Gender Inequality Raised by
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Unmarried Couples in Liberia.” Additionally, I will use the current proposed Domestic Violence Draft Act as a template for my domestic violence legislation.427 A portion of the Massachusetts Domestic Relations Statute will be adopted to strengthen the proposition.428