Doctor Mama Amon
JF-Expert Member
- Mar 30, 2018
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Dr. Yahaya Ismail Nawanda (46), Former Simiyu RC, the alleged perpetrator of anal rape against the SAUT female student called Tumsime Mathias Ngemela
Ms. Tumsime Mathias Ngemela(21), the victim of alleged anal rape in Mwanza, on 02 June 2024.
I. Abstract
Dr. Yahaya Ismail Nawanda (46), the former Simiyu Regional Commissioner, is accused of committing anal assault against Tumsime Mathias Ngemela, a 21-year-old female, a former pupil of St. Mary's Mpanda Secondary School, and currently a first year student at SAUT-Mwanza.
The alleged incident occurred on June 2, 2024, inside a car at The Cask Bar & Grill in Mwanza Region. The following day, Tumsime reported the assault, and medical examinations confirmed severe anal trauma.
The incident gained media attention on June 11, 2024, with Mwananchi newspaper highlighting the case under the headline "RC adaiwa kulawiti mwanafunzi." A handwritten letter from Tumsime, dated June 6, 2024, surfaced, indicating her withdrawal of the case, allegedly under pressure and after receiving covert compensation.
President Samia removed Nawanda from office on June 11, 2024, presumably due to the scandal. Law enforcement's silence on the matter has raised concerns, given the coercive nature of the alleged assault and the need for Tumsime’s rehabilitation.
Against this silence, some commentators condemned the reported incident while others doubted its authenticity. Some analysts went further by drafting a policy brief for the attention and action of the cabinet of the United Republic of Tanzania.
The policy brief highlights the prevalence of anal sex and the inefficacy of existing laws to combat such crimes in Tanzania. It criticizes the legal framework for not adequately addressing sexual torture, suggesting reforms to categorize anal penetration as a physical assault rather than a crime against procreative nature. The study calls for improved legislation, victim protection, evidence collection, and rehabilitation services to address sexual torture effectively.
Recommendations include disaggregating statistics by sex and age, revising rape legislation to encompass all forms of sexual assault, removing political and cultural impediments to investigations, and establishing robust victim protection protocols. The policy brief underscores the need for immediate legislative and procedural reforms to ensure justice and protection for victims of sexual torture.
The policy brief further calls upon stakeholders of public health to embark on public education concerning the distinctions between the functions of a sexual organs system as opposed to the functions of the food digestive system, whose integrity, as a general rule, must be respected by every one, every where and every time.
II. Introduction
In the week ending on the Sunday of 16th June 2024, the media repeatedly alleged that, on 02 June 2024, the former Simiyu Regional Commissioner, one Dr. Yahaya Ismail Nawanda (46), committed forcible penile-anal penetration against a SAUTI female student, one Tumsime Mathias Ngemela (21), a first years student at SAUT-Mwanza, studying Bachelors of Arts in Procurement and Supplies.
The alleged crime is reported to have been committed inside a car, with registration number T 496 BND, in Mwanza Region, within the premises of The Cask Bar & Grill.
It is further reported that, following her mother's advice via phone, on 03 June 2024 the rape victim reported the matter before the Sexual Assault Monitoring Desk in Mwanza Region. The desk recorded her statement, and then escorted her to hospital for medical investigation.
On 04 June 2024, the Mwanza Criminal Investigation Office, concluded preliminary investigation of the matter and wrote a letter with reference number CBC.476/759/01/117, seeking further guidance from the National Director of Criminal Investigation, at Dodoma. "Hii ni taarifa ya awali kuhusiana na tukio hilo na namna ambavyo tumelishughulikia hadi sasa huku tukiomba maelekezo zaidi," the letter stated.
According to the letter, medical examinations confirmed the existence of anal fissures in both the front and the back of the skin that lines the opening of the anus, which were caused by the trauma of solid object penetration that bruised the inner lining of the anus. These fissures caused severe pain and bleeding with uncontrollable bowel movements, that is incontinence. They also created severe anal pain, resulting in anal sphincter spasms.
Amid extended silence from RCO's office at Dodoma, on 11 June 2024, the Mwananchi newspaper, reported the incident under the heading, “RC adaiwa kulawiti mwanafunzi” (p.1), while complaining that relevant investigation information was not forthcoming from the spokespersons of law enforcement organs in Mwanza Region.
On the same day, a hand written letter, allegedly written on 06 June 2024, by Tumsime Mathias Ngemela, and addressed to the Mwanza RCO, was leaked to the social media by an anonymous police officer.
The letter indicates that the rape victim had voluntarily withdrawn the case from the police offices.
This withdrawal has happened at a time when some social media are alleging that she withdrew it under pressure from Mwanza RC, Mr. Said Mtanda, who has facilitated her being paid TZS 65,000,000/= as covert compensation.
On 11 June 2024, the Simiyu Regional Commissioner, one Dr. Yahaya Ismail Nawanda, was removed from office by President Samia, without stating reasons, but presumably following the public outcry concerning the sexual scandal that had gone viral on the social media.
Until 12 June 2024 law enforcement organs were still refraining from commenting on the event, according to the Mwananchi newspaper, the 11 June 2024 issue.
Given that, the power dynamics between the two are imbalanced,, largely as a result of socio-economic, socio-political and age differences between the supposed male and female partners, it is undeniable that, if the alleged anal sex took place, then it was indeed coercive sex, in this case violent pedication, and in the absence of lubricants and essential fore plays.
Tumsime is a victim of anal sexual assault who needs physical and psychological rehabilitation and her college peers are survivors of anal sexual torture, who need state protection. For these two reasons, the question is not and cannot be closed cheaply.
And thus, the silence of law enforcement organs is disquieting. It is in response to which I am writing this policy brief.
III. Problem statement: What is at stake?
Our society is a more or less self-sufficient association of persons who in their relations to one another recognize certain rules of conduct as binding and who for the most part act in accordance with them, where these rules specify a system of cooperation designed to advance the good of those taking part in it. And an ideal society is a well-ordered society. The requirements of social well-orderedness are not many.
Essentially, a well-ordered society is a society in which all members accept the same principles of justice and the inherent basic social institutions are regulated by these principles. Principles of justice assign rights and duties and distribute equitably the benefits and burdens of social cooperation.
Concerning such principles, our constitution proposes a theory of justice which aims at finding a balance between liberty and equality, between individual autonomy and the common good of the nation.
For this reason in so far as sexual cooperation is concerned, sexually active women and men living in a sexually just society have a right to enjoy all morally warranted sexual benefits, just as they have a right to enjoy freedom from all morally unwarranted sexual burdens, such as sexual slavery, STDs, anal assault, vaginal rape, oral rape, child marriages, domestic violence, and the like.
This is one of the fundamental constitutional sexual truths which must be protected every time, every where and by every public servant, including VEOs, WEOs, DEDs, DAS's, DC's, OCD's, RC's, RAS's, RCO's, Ministers, MP's, and the President of the United republic of Tanzania.
So, the Yahaya-Tumsime scandal, namely the sexual burden of heterosexual anal assault and its attendant sphincter muscles injuries which have been medically confirmed, is a call upon researchers and policy makers to reflect critically on how sexual burdens and sexual benefits are distributed in our society, with a view of social reforms as and when required.
On this point, we know that, what separates consensual just sex from sexual assault is a matter of just consent. In consensual just sex, both parties agree to what's happening by choice, and have the freedom and ability to make that choice, from which it follows that their subsequent bodily movements are the autonomous control of their minds.
For this reason, all types of sexual rape, including anal assault, are forms of sexual torture, and sexual torture is one of the most egregious harms because it is a form of torture that intrudes into our psycho-somatic integrity, by frustrating the autonomous control of the mind over one’s bodily actions, hence introducing body-self dualism, subsequent to which bodily integrity is violated by coercively attacking specific bodily orifices, such as the mouth, vagina and anus.
Specifically, sexual assault includes such forcible acts as sexual assault by touching intimidate parts of the body, forced masturbation, forced insertion of an object into the vagina or anus, oral penetration, anal penetration and vaginal penetration, urination onto the victim, forced pregnancy, forced nudity, verbal sexualized threats, sexualized degrading or humiliating mocking and other verbal or physical treatments.
Impunity for such crimes is everywhere. Rape and sexual assault have been weapons of warfare by invading armies and hordes for millennia, and they are still regrettably commonplace in modern day armed conflicts.
Sexual assault is the ultimate expression of power over another, placing the victimized in a position of great vulnerability and powerlessness. Sexual assault involves both physical and psychological pain or suffering, with scars that can last a lifetime requiring specialist rehabilitation.
Given the continuing pervasiveness of these crimes, the critical public is of the view that there is a need to rethink how these crimes are considered and addressed.
Undoubtedly women and girls bear the greatest brunt of such crimes, being crimes historically and predominantly committed on women’s bodies by male bosses, politicians, soldiers and other perpetrators.
Men and boys are also subjected to such crimes, for many of the same reasons, such as to humiliate or punish them, to exercise power over them, to strip them of their humanity and dignity, for recreational purposes or for reasons of superstition.
Sexual torture occurs inter alia within places where persons are deprived of their liberty as well as anywhere an official has control over a person, including in cars, homes, hospitals, fields, bomb shelters, or during transport.
Legal protections addressing sexual torture have been long established within international law, as well as in many national jurisdictions. However, and despite the national and international consensus on the illegality and severity of crimes of sexual torture, many legal, procedural and practical challenges remain in identifying, documenting, investigating and prosecuting crimes of sexual torture committed officials, and rehabilitating victims and protecting survivors.
It is against this background, that a study was conducted with a view of preparing a policy brief that looks at the alleged sexual torture by the former Mwanza RC, one Dr. Yahaya Ismail Nawanda, against a SAUTI student, one Tumsime Mathias Ngemela, and its implications on the required reforms in our public policies, if any.
IV. Study approach
This study was conducted through interviews and desk research, during which newspaper articles, books and online publications were perused. One discussion was held with an expert in education psychology who has good knowledge and experience in investigating the problem of sexual assault in our schools. I am grateful for his willingness to share his experience. During literature review, I was particularly interested in collecting information on the following questions as they relate to sexual torture in Tanzania:
(a) The prevalence of unconsensual heterosexual anal intercourse (UHAI) in Tanzania: How prevalent is unconsensual heterosexual anal intercourse in Tanzania, when sorted by age and gender?
(b) The prevalence of consensual heterosexual anal intercourse (CHAI) in adult Tanzanian couples: How common is consensual heterosexual anal intercourse (CHAI) in Tanzanian adult couples?
(c) Regulatory frameworks: Does the national legislative framework properly accounts for sexual torture inflicted through anal and oral sex? How is “sexual torture” prohibited and criminalized in national legislation; Is “sexual torture” defined explicitly in national law? if it is explicitly defined in national law, is it a separate offence? if it is not explicitly defined in national law, does the general crime of torture include the sexualized nature of the torture as an aggravating factor that may increase any criminal penalties? Are there examples of national laws, or leading judgments, that criminalize sexual torture and the penalties applied?
(d) Challenges, impediments and obstacles to effective identification, documentation, investigation and prosecution of crimes of sexual torture: What are the main impediments preventing full and prompt investigations and prosecutions into allegations of sexual torture? Are there political-cultural-leadership, institutional, sociological, psychological, practical, forensic, legal gaps, as key challenges?
(e) Victim protection during investigation and prosecution: What special arrangements such as procedures, standards, protocols, good practices are there to protect the victims of sexual torture when they approach the police offices?
(f) Evidence collection and documentation: What are the practical, logistical or other challenges in evidence collection of sexual torture in police quarters? What good practices are used to address such challenges? Are there specialized policies, protocols and practices used to identify, document and secure evidence collection in respect of crimes of sexual torture and the damages caused to individuals, families, and communities? What specialist skills sets or interviewing techniques are applied by designated police officers?
(g) Rehabilitation: What specialist rehabilitation approaches and services are provided to victims, witnesses, families and communities that have been impacted by sexual torture? How do these relate to the provision of other forms of reparation such as compensation, restitution, satisfaction, and non-repetition?
V. Study findings
V.1 The prevalence of unconsensual heterosexual anal intercourse (UHAI) in Tanzania
The alleged crime of anal sex between the Simiyu Regional Commissioner, one Dr. Yahaya Ismail Nawanda and one Tumsime Mathias Ngemela, which reportedly may have happened on 02 June 2024, if confirmed, will not be an isolated incidence of anal sex in Tanzania.
According to NBS (2023), in their report entitled “Tanzania in Figures,” between 2018 and 2022 there were 6,771 instances of “un-natural offense,” which is another name of anal sex. The picture below shows the numerical realities by year.
NBS (2023) statistics do not disaggregate the figures by sex. But, The Chanzo (2023) has done that. According to The Chanzo (2023) website, between 2016 and 2021 about 5,716 children were subjected to pedication, including 5,034 boys and 683 girls. The matrix below shows the realities by sex and year.
These figures tell us one thing: despite the existence of criminal laws prohibiting anal sex, the crime still happens year after year. This means that, laws are not effective in combating the vice of anal sex.
Something more must be done, I mean public health education on the dangers of violating the bodily integrity related to food digestive system at the cost of transient sexual pleasure.
V.2 The prevalence of consensual heterosexual anal intercourse (CHAI) in adult couples
Heterosexual anal sex is related to the dysfunction of the food digestive system due to sphincter muscles injury, just as it is related to the acquisition and transmission of sexually transmitted diseases (STDs).
As common reportable STDs such as chlamydia, gonorrhea, AIDS and syphilis in Tanzania are increasing, it is important to understand the prevalence of anal sexual behaviors amongst singles and marries adults. Yet, no formal research has been done so far on this matter in Tanzania.
However, discussions with maternity wards matrons at various hospital in Dar es Salaam have allowed me to conclude that there is a high prevalence of consensual heterosexual anal intercourse (CHAI) in adult married couples.
Complications during delivery is a case in point. Many women who have had anal sex find it difficult to push the babe through normal delivery. A lot of cotton rags and wipers are needed by midwives, who try their best to rescue the situation, and when all this fails, caesarian section becomes a fall back position.
And Interviews with some sex workers around Ohio street at Posta Mpya, Sinza, KInondoni and Magomeni, revealed that these women are willing to engage in anal sex at a price which is twice the price of vagina sex. So, there is a correlation between the prevalence of consensual anal sex with poor socio-economic status.
On the other hand, when some sex workers were asked to comment on the Yahaya-Tumsime scandal just laughed it out stating that "tatizo ni kwamba binti huyo alikuwa bado ana bikira ya nyuma," meaning that the anal virginity of the girl was still intact and that is why she is complaining.
But, in America, consensual heterosexual anal intercourse (CHAI) is well researched. There, it is not an uncommon behavior since 36% of women and 44% of men aged 25–44 years old reported ever having CHAI in their lifetime.
Heterosexual American men have anal sex an average of 3.13 times per month. And heterosexual American women have anal sex an average of 1.66 times per month. But most of them have abandoned the practices due to its failure to meet the original expectations. (Chandra, Mosher, Copen and Sionean 2011).
We in Tanzania have to start similar studies on the prevalence of consensual heterosexual anal intercourse (CHAI) in adult couples so as to properly inform our public policies pertaining to human sexual behavior.
V.3 Regulatory framework
Under our civil and criminal law, legal expectations related to sexual behaviors can be grouped under main six dichotomous headings, namely: marital sex versus non-marital sex, anal sex versus vaginal sex, rape versus consensual sex, welcomed sex versus harassing sex, consensual assaulting sex versus coercive assaulting sex, and cohabitational sex versus full marital sex. Each of them is described briefly below.
Marital sex versus non-marital sex: Under our marriage act (1971), marriage is defined as a sexual union between a man and a woman, hence a regularly copulating pair which is open to procreation and the rearing of possible children.
In other words, marriage is a procreative institution, for which reason coital sex is described as a sexual act which is simultaneously organically unitive in type and procreative in type.
Technically speaking, un-contracepted penis-to-vagina sex act is a sex act by which the copulating pair is said “to have [penis-to-vagina] carnal knowledge” with each other, in such a way that the copulating pair becomes one organism, literally speaking.
Analytically, un-contracepted penis-to-vagina sex, as opposed to all other types of sexual acts, is extrinsically unitive in fact and intrinsically unitive in type.
On one hand, un-contracepted penis-to-vagina sex is extrinsically unitive in fact because its occurrence means that the copulating pair is united by a common space and common time segment. This is extrinsic bodily unity.
So, penis-to-vagina sex is spatially and temporally unitive. But, spatial address and temporal address are attributes which are external to the essential attributes of the copulating pair as human persons. So this is extrinsic bodily unity.
On the other hand, un-contracepted penis-to-vagina sex intrinsically unitive in type because, sometimes it results into procreation as an effect. Procreative capacities are properties which are intrinsic to the copulating pair considered as human persons. So this is intrinsic bodily unity.
Section 9(1) of The Law of Marriage Act, Chapter 29, which came into force in 1971, as revised in 2002, provides the definition of marriage as "the voluntary union of a man and a woman, intended to last for their joint lives."
This definition does not say the whole truth about the two types of bodily unity as summarized above. It needs to be revised accordingly, so that, the marriage act conveys the following message to its readers:
Heterosexual marriage is a sexual union based on mutual and binding promise between a man and a woman, before the public, to enter into a partnership which is specified by sexual acts which are simultaneously extrinsically unitive in fact and intrinsically unitive in type by reason of their procreative potential, which acts they perform with each other alone to the exclusion of many others, and for their joint entire life.
Anal sex versus vaginal sex: In Tanzania “to have [penis-to-rectum] carnal knowledge” with “any person,” be it a man or woman, is prohibited by section 154(1) of the Penal Code (CAP 16, RE 2022), because it is “against the order of nature.” The phrase “to have [penis-to-rectum] carnal knowledge” means having anal sex or performing pedication.
Thus, consensual pedicative sexual acts between homosexual and heterosexual adults are criminalized. But consensual non-pedicative sexual acts between heterosexual adults, such as fornication, adultery, fellatio, armpit sex, inter-crural sex, breast sex, and thigh sex, are not a crimes in Tanzania.
However, the phrase “against the order of nature” is doubly equivocal. First, the word "nature" can be interpreted to mean "homosexual nature," "heterosexual nature," or "podophilic nature," or "pygophilic nature" or "mazophilic nature."
Podophilia means attraction to feet, pygophilia means attraction to buttocks, and mazophilia means attraction to breast.
Secondly, the word "order" can be interpreted to mean “the ontological order” or “the axiological order” or “the epistemological order” or “the teleological order”.
So, if one reads the phrase “against the order of nature” to mean “against the teleological order of nature” then, section 154(1) of the Penal Code (CAP 16, RE 2022) cannot do the legal job it was intended to do.
Scientifically speaking, some teleological orders of nature such as podophilia, pygophilia, mazophilia, and anger, can be used to justify coercive inter-crural sex, coercive anal sex, coercive breast sex, and indiscriminate fights against others, simply because they are "natural" inclinations. Before the court of law, this fact can be a sufficient defense for being acquitted.
This is one of the reasons why the old natural law theory which is underpinned by the teleological order of nature was abandoned in the 1960s in favor of the new natural law theory which is underpinned by the axiological order of nature which focuses on the goods of human nature such health, knowledge, life, bodily integrity, which collectively underpin integral human flourishing.
Thus, the phrase “against the order of nature” needs to be paraphrased, if not abandoned, in light of these philosophical and scientific developments.
Rape versus consensual sex: Section 130(1) of the penal code confines an offence of “rape” between “a male person” and “a girl or a woman,” while section 130(2) defines rape as “sexual intercourse with a girl or a woman under circumstances” which show that either she is not “consenting to it at the time of the sexual intercourse”, or her “consent has been obtained by the use of force, threats or intimidation”, or “with … her consent when she is under eighteen years of age,” provided that, the two are not married to each other. In short section 130 is too verbose to be useful.
Welcomed sex versus harassing sex: Sexual harassment is prohibited under section 138D(1) of the penal code, according to which, “any person who, with intention, assaults or by use of criminal force, sexually harasses another person, or by the use of words or actions, causes sexual annoyance or harassment to such other person, commits an offence of sexual harassment and is liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding two hundred thousand shillings or to both and may also be ordered to pay compensation of an amount determined by the court to the person in respect of whom the offence was committed for any injuries caused to that person.”
However, for the purpose of this section, clause 138D(4) states that assault as here defined excludes “rape” as defined under section 130.
Consensual bodily assault versus coercive bodily assault: Non-sexual bodily assault against any person is prohibited under section 241 of the penal code according to which, “any person who commits an assault occasioning actual bodily harm is guilty of an offence.”
Sexual bodily assault against boys is prohibited under section 156(1) of the penal code, according to which, “any person who unlawfully and indecently assaults a boy under the age of eighteen years is guilty of an offence and is liable to imprisonment for life.”
Sexual assault between adults is not illegal, except under the definition of heterosexual rape. So, just as consensual fight is not necessarily an assault, as the parties have consented to the physical contact, so too some sex acts such as consensual sadomasochistic sex are not illegal.
Cohabitational sex versus full marital sex: For single persons, fornication under the disguise of trial marriage is legal under section 160 of Marriage Act (1971); and for married persons who intend to be polygamous adultery is legal under the disguise of trial marriage which is allowed under the same section.
Stock-taking on regulatory framework: Our legal framework entails an inarticulateness when it defines rape by focusing on heterosexual rape and excluding homosexual rape; it embraces a confusion when it defines sexual assault by focusing on boys and excluding sexual assault among adults; and it harbors incoherence when it defines sexual harassment by focusing on non-rape sexual conduct, while serial rape can constitute sexual harassment too.
Most importantly, our criminal law embraces an unnecessary double standard when it prohibits “having [rectal] carnal knowledge” with “any person” because it is “against the order of nature”; while it prohibits non-sexual bodily assault against any person because it occasions “actual bodily harm” against another person.
This conceptual chaos makes criminal investigators under-perform while performing their duties. I suggest that, the Mwanza investigation team are bogged down in this jig-saw puzzle of evidence collection and legal interpretation.
I suggest that, had our criminal law defined “anal penetration” as a type of physical “bodily assault,” instead of defining it as a “sexual act which is against the order of nature,” their task could have bee easier. It is very easy to establish the dilation and fissure of sphincter muscles than proving an opposition to the order of procreative nature.
In other words, the national legislative framework does not properly account for sexual assault inflicted through coercive anal sex.
Specifically, anal “sexual assault” is prohibited and criminalized in national legislation in terms of crimes against nature, which are elusive to capture. It is not defined explicitly in our national law to capture adult anal sexual assault, as a crime against the good of bodily integrity.
This is why the Algerian Philosopher, Michel Foucault (1926–1984) is reported by Cahill (2000) to have suggested a new approach to rape legislation. Situating his reply within a larger analysis of sexuality and power, he argued that: “there are problems if we are to say that rape is more serious than a punch in the face, because what we’re saying amounts to this: sexuality as such, in the body, has a preponderant place, the sexual organ isn’t like a hand, hair, or nose. It therefore has to be protected, surrounded, invested in any case with legislation that isn’t that pertaining to the rest of the body."
His point is that, anal assault is not just a matter of sexuality, it’s the physical violence against the integrity of the sphincter muscles, which form a part of the food digestive system, that should be punished, without bringing in the fact that a sexual organ called a penis was involved.
V.4 Challenges to effective investigation and prosecution of sexual torture
Based on what has been prevailing since the public appearance of the bad news from Mwanza in relation to the Yahaya-Tumsime Scandal, it is obvious that, the main impediments preventing full and prompt investigations and prosecutions into allegations of sexual torture include political, cultural, political, institutional, psychological, and legal.
It is impossible for the RPC to investigate the allegations against RC; our criminal law has framed coercive anal sex as an act which is against the order of nature; politically there is a sense that an RC who is a presidential appointee needs to be somehow protected so as to save the face of his appointing authority; and culturally the society is not used to publicly discussing sexual matters.
V.5 Victim protection during investigation and prosecution
The Yahaya-Tumsime Scandal has provided us with clear evidence that, there are no special procedures, standards, protocols, and good practices for protecting the victims of sexual torture when they approach the police offices.
The fact that the Mwanza investigators leaked the letter written by Tumsime to RCO on 06 June 2024 is so telling. The RCO was trying to protect the RC while jeopardizing the sexual torture victim, her family and relatives. Something needs to be done.
V.6 Evidence collection and documentation
Again, the Yahaya-Tumsime Scandal has provided us with clear evidence that, there are practical, logistical and other challenges in evidence collection of sexual torture in police quarters. So far the public is not informed of what is transpiring concerning the investigation of this matter.
It is doubtful that there are specialized policies, protocols and practices used to identify, document and secure evidence collection in respect of crimes of sexual torture and the damages caused to individuals, families, and communities. Moreover, it is doubted whether there are specialist skills sets or interviewing techniques which are applied by designated police officers at Mwanza.
V.7 Rehabilitation of perineal and sphincter injuries
Rehabilitation following anal rape is mandated by the fact that Perineal and Anal Sphincter Trauma can occur as a result of anal or rectal surgery, obstetrical trauma, penile-anal assault or other trauma to the rectum. This may cause disastrous complications to the structure and function of ano-rectum.
According to Rao (2004), the rectum is a hollow muscular tube, 12 to 15cm long, composed of a continuous layer of longitudinal muscle that interlaces with the underlying circular muscle.
The anus is a muscular tube 2 to 4 cm long. At rest, it forms an angle of approximately 90 degrees with the axis of the rectum. During voluntary squeeze the angle becomes more acute, whereas during defecation, the angle becomes more obtuse, see the figure below.
Figure: Structure of the ano-rectum.
Source: Satish S. C. Rao (2004:15)
Source: Satish S. C. Rao (2004:15)
The anal sphincter consists of 2 muscular components: the internal anal sphincter (IAS), a 0.3-cm to 0.5-cm thick expansion of the circular smooth muscle layer of the rectum, and the external anal sphincter (EAS), a 0.6-cm to 1.0-cm thick expansion of the levator-ani muscles.
Morphologically, both sphincters are separate and heterogeneous. The IAS is a predominantly slow-twitch, fatigue-resistant smooth muscle. The IAS generates mechanical activity, with a frequency of 15 to 35 cycles per minute, and ultra-slow waves at 1.5 to 3 cycles per minute.
The IAS contributes approximately 70% to 85% of the resting sphincter pressure, but only 40% after sudden distention of the rectum and 65%during constant rectal distention. Thus, the IAS is chiefly responsible for maintaining anal continence at rest.
The anus is normally closed by the tonic activity of the IAS. This barrier is reinforced during voluntary squeeze by the EAS. The anal mucosal folds, together with the expansive anal vascular cushions, provide a tight seal.
These barriers are further augmented by the pubo-rectalis muscle, which forms a flap-like valve that creates a forward pull and reinforces the anorectal angle.
The ano-rectum is richly innervated by the sensory, motor, and autonomic nerves and by the enteric nervous system.
Thus, the anus is the end of our large intestine, where food waste completes its journey through our digestive tract and makes its exit. Muscles, nerves and mucous membranes in our anus work together to give us two controls over bowel movements.
First they allow us to push the bowels out when we want. Secondly, they allow us to restrict the bowels inside until when we are eady for their expulsion.
Moreover, they also work to keep our anus closed to infections coming in from the outside. These are the three functions of the anus, whose integrity must be respected by everyone, everywhere and everytime.
Against this understanding of the structure and function of ano-rectum, it is possible to understand the above claim about ano-rectal traumas.
They are well evidenced by a case of complete anal sphincter disruption from anal intercourse in a 25 year old woman (Cawich, Samuels, Bambury, Cherian, Christie and Kulkarnib 2012).
In this case, a 25 year old woman presented to the Emergency Department complaining of severe perineal pain and bleeding after intercourse.
She reported that her partner was inebriated and aggressively pursued un-protected anal intercourse despite resistance. Examination of the perineum revealed the presence of a laceration at the anal mucosa, extending through the entire thickness of the anal sphincter complex into the vagina. The ends of the sphincter complex had retracted laterally.
There was minor bleeding originating from the lacerated edges of the perineal muscles. Apart from the laceration at the introitus, the vaginal examination was normal. The patient consented to examination and repair under anaesthesia.
The sphincter ends were not visualized as they had retracted laterally. Lateral dissection beneath flaps of anal mucosa was required to identify and retrieve the sphincter ends.
Post-operatively, the area was cleaned daily. Since this injury was detected and repaired early, no therapeutic antibiotics were administered. She had good continence after 154 days of follow up.
Key lesson is that, post-coital anal sphincter injuries are uncommon injuries. So, they should be treated operatively on an emergent basis.
Given the secrecy that has surrounded the Yahaya-Tumsime Scandal it is not clear to figure out what specialist rehabilitation approaches and services are provided to the victim, witnesses, families and communities that have been impacted by the reported sexual torture.
For this reason, it is similarly difficult to know how these approaches relate to the provision of other forms of reparation such as compensation, restitution, and non-repetition. Something needs to be done.
VI. Policy implications
In light of the above findings, there is an urgent need for policy influencers and policy makers to ensure that the following practical steps are taken now:
- Challenges to effective investigation and prosecution of sexual torture: The main impediments preventing full and prompt investigations and prosecutions into allegations of sexual torture include political, cultural, political, institutional, psychological, and legal should be removed immediately through proper legislation.
- Victim protection during investigation and prosecution: Special procedures, standards, protocols, and good practices for protecting the victims of sexual torture when they approach the police offices should be formulated now.
- Evidence collection and documentation: Practical, logistical and other challenges in evidence collection of sexual torture in police quarters should removed
- Law enforcement: Law enforcement organs should ensure that the Yahaya-Tumsime Scanda is quickly concluded by the court of law so as to lay a solid precedence on the fact that anal rape is a serious crime in Tanzania simply because it is an aggravated attack on the bodily integrity related to the proper function of the food digestive system.
- Public education: The civil society, political parties and the government should embark on public education on the wrong of anal sex which should be presented as a violation of bodily integrity relating to the proper functioning of the food digestive system, whose two doors are the mouth and anus. It's function should be contrasted with the functions of the sexual reproductive system. Moreover, public education needs to raise public awareness on the cultural history of human buttocks and breasts and its implications on human sexual relations.
- Studies on the prevalence of consensual heterosexual anal intercourse (CHAI) in Tanzania: Tanzania has to start formal studies on the prevalence of consensual heterosexual anal intercourse (CHAI) in adult couples so as to properly inform our public policies pertaining to such human sexual behaviors.
- Studies on the prevalence of unconsensual heterosexual anal intercourse (UHAI) in Tanzania : Tanzania has to start formal studies on the prevalence of unconsensual heterosexual anal intercourse (UHAI) in both children on one hand and adult couples on the other hand so as to properly inform our public policies pertaining to such human sexual behaviors. Specifically, the NBS statistics on “un-natural offenses” should classified by sex and age to allow meaningful interpretation of the figures. The current practice of consolidating figures by hiding sex ratios should be abandoned. Moreover, the phrase “un-natural offenses” should be replaced by phrases such as "anal sex" or "pedication."
- Need for formal studies on the prevalence of transactional sex between older men and young females: For the purpose of these research works the following objectives have to be designed to guide and facilitate the conduct of the research exercise, Identify the reasons why older men enter into a sexual relationship with younger females and why the younger women consent to the relationships; Establish the existence of compulsion or force (agency and structure) on behalf of the younger females in the relationship; Analyse the risk perception (STDs) of the young females in the relationship; and Identify the extent of benefits available to either party in the relationship.
- Regulatory framework: Rape legislation should be revised to make sure that, the crime of rape is defined as an assault against bodily integrity, so that anal rape is seen as an assault against sphincter muscles; just as a punch on the chick is an assault against the victim’s lower jaw. This is the case because, the anus and other sexual organs are like a hand, hair, or nose which have to be protected, surrounded, invested in any case with legislation that pertains to the rest of the body. Coercive anal penetration isn’t just a matter of sexuality, it’s the physical violence that has to be punished, without bringing in the fact that a sexual organ was involved. Thus:
- The current definition of sexual assault against boys should be expanded to include sexual assault against adults;
- The phrase "carnal knowledge" should be replaced by "sexual intercourse" with a clear legal definition of the latter clearly provided;
- The phrase "sexual intercourse" should be defined clearly by indicating that it includes penis-to-vagina, penis-to-mouth, penis-to-anus, penis-to-armpit, hands-to-penis, penis-to-breast, and penis-to-thighs contacts.
- The definition of marriage should be refined by introducing the idea of "penis to vagina sex" as its specific difference.
Specifically, the following minimum legal amendments are proposed:
Section 130 of the Penal Code is repealed and the following sections inserted:
“Rape:
(1) Any man who penetrates the vagina of a woman with his penis
(a) without her free consent; or
(b) with or without her free and informed consent, when she is under 18 years of age,
shall be guilty of an offence of rape."
Section 154(1) of the Penal Code is repealed and the following sections inserted:
“Sexual assault by penetration of an adult:
(1) Any man (A) who:
(a) penetrates, with A’s penis, the anus or mouth of another male or female person (B); or
(b) causes another man (B) to penetrate, with B’s penis, the anus or mouth of A,
shall be guilty of an offence if B did not provide free and informed consent to the penetration.
(2) Any person (A) who:
(a) sexually penetrates, with a part of A’s body or anything else other than A’s penis, the vagina or anus, as the case may be, of another person (B);
(b) causes a man (B) to penetrate, with B’s penis, the vagina, anus or mouth, as the case may be, of another person (C); or
(c) causes another person (B), to sexually penetrate, with a part of B’s body or anything else other than B’s penis, the vagina or anus, as the case may be, of any person including A or B,
shall be guilty of an offence of sexual assault by penetration if B did not provide free and informed consent to the penetration.
Section 154(2) of the Penal Code is repealed and the following sections inserted:
“Sexual assault by penetration of a minor:
(1) Any person (A) who:
(a) penetrates, with A’s penis, the vagina, anus or mouth, as the case may be, of a person under 16 years of age (B);
(b) sexually penetrates, with a part of A’s body (other than A’s penis) or anything else, the vagina or anus, as the case may be, of a person under 16 years of age (B);
(c) causes a man under 16 years of age (B) to penetrate, with B’s penis, the vagina, anus or mouth, as the case may be, of another person including A; or
(d) causes a person under 16 years of age (B) to sexually penetrate, with a part of B’s body or anything else other than B’s penis, the vagina or anus, as the case may be, of any person including A or B,
with or without B’s free and informed consent, shall be guilty of an offence of sexual assault by penetration of a minor.
Section 9(1) of The Law of Marriage Act, Chapter 29, is amended and the following insertions made:
the words "which is specified by regular sexual acts which facilitate extrinsic bodily unity and can facilitate intrinsic bodily unity," are added after the word "woman."
VII. Possible objections and rebuttals
Against recommendations on legal reforms, I can sense one main objection to which I want to reply at this moment before closing this brief.
Some readers may say, "there is no need of a proposal for making legal reforms in a country where law enforcement organs are not playing t6heir role properly." To this objection I now provide a rebuttal.
Specifically, my answer is that, the existence of law, even when not enforced by law enforcement organs, can help us to be moral as a result of being cited by other agents apart from law enforcement organs. However, the defense of this position depends on what it means to be moral (George 1993).
That is, there are many interpretations of what it means to be moral and, hence, many ways of interpreting whether the law can help human to be moral.
For consequentialists, what matters is whether the law can help us to realize more valuable states of affairs than those we could realize without it. Their theories tell us to maximize the value of our actions’ effects, by any means. In general, for consequentialists, an act or policy’s moral status always depends on the circumstances—on the action’s net sum of benefits to harms.
For deontologists, the issue is whether the law can help us to honor our moral duties better than we could do without it. Their theories focus on the duty to comply with principles of action while these principles make no reference to substantive goods.
Deontological ethics places more emphasis on the rightness or wrongness of actions themselves than on their effects or any other factors. The choice of whether an act is good or harmful does not depend on its result, making this a non-consequential view.
And for virtue ethicists, the question is whether the law can help us to be more virtuous than we could be without it. Virtue-based ethical theories place much less emphasis on which rules people should follow and instead focus on helping people develop good character traits, such as kindness and generosity. These character traits will, in turn, allow a person to make the correct decisions later on in life. Virtue theorists also emphasize the need for people to learn how to break bad habits of character, like greed or anger. These are called vices and stand in the way of becoming a good person.
Thus, if statutory law can indeed help us to be moral, its value is either instrumental or intrinsic or both. In other words, the law has the potential, in principle, to guide us morally through its instructions, its examples, and its motivational prompts. It also has the potential to instantiate intrinsic moral value in the world.
Either way, my point is that, the law does have the potential to help us to be moral in each of the three ways just noted. In other words, statutory laws can play a legitimate role in preserving the moral ecology of the cultural environment in which people make the morally significant choices by which they form their characters and influence the moral lives of others.
Also read: MCL: Mkuu wa Mkoa adaiwa kumlawiti mwanafunzi wa SAUT
VIII. References
- Cahill, A.J. (2000), “Foucault, Rape, and the Construction of the Feminine Body,” Hypatia 15:1, 43-64.
- Cawich, S.O. Samuels, L. Bambury, I. Cherian, C.J. Christie, L. and Kulkarnib, S. (2012), "Complete anal sphincter complex disruption from intercourse: A case report and literature review," International Journal of Surgical Case Reports, 3(11): 565–568.
- Chandra A, Mosher WD, Copen C, Sionean C. (2011), "Sexual behavior, sexual attraction, and sexual identity in the United States: data from the 2006–2008 National Survey of Family Growth." National Health Statistics Report, 2011(36):1–36.
- Robert P. George (1993), Making Men Moral: Civil Liberties and Public Morality (Oxford, England: Clarendon Press)
- URT, Penal Code, CAP 16 (RE 2022).
- NBS(2023), Tanzania in Figures, 2022.
- Satish S. C. Rao (2004), "Pathophysiology of Adult Fecal Incontinence," Gastroenterology 2004;126: S14–S22.
- The Chanzo (2023), Tatizo la Ulawiti kwa watoto: Jamii Tumejikwaa wapi?
IX. Pictorial attachments
Dr. Nawanda
X. Authentication
Authored by:
Dr. Mama Amon
"Sumbawanga Town"
P.O. Box P/Bag,
Sumbawanga
Tanzania
12 June 2024.
