VZCZCXRO3300
PP RUEHMA RUEHPA
DE RUEHCO #0424 2540640
ZNR UUUUU ZZH
P 110640Z SEP 09
FM AMEMBASSY COTONOU
TO RUEHC/SECSTATE WASHDC PRIORITY 1110
INFO RUEHZK/ECOWAS COLLECTIVE
RUEHFR/AMEMBASSY PARIS 1516
RUEHLO/AMEMBASSY LONDON 0470

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