Zimbabwe: Critique of the Domestic Violence Bill
Source:
AMANITARE An update from Zimbabwe Women's Resource Centre Network on the Draft Domestic Violence Bill 2003.
The Draft Domestic Violence Bill 2003 seeks to address domestic violence in a Zimbabwean context and outlines the duties of the police officer, protection order, domestic violence counselors and committee and the definitions of terms relating to domestic violence.
Theresa Mugadza, a Lawyer and Women’s right activist provided first some background and then an overview of the bill, and its aims. This was then followed by a critique of the bill with some areas highlighted for further deliberation and thought.
It was emphasized that the Bill should be celebrated by civil society and women’s non-governmental organizations (NGOs) as it had come a long way since 1995 when it was first brought through the Bulawayo Women Lawyers Association.
She said the Bill provided a comprehensive definition of violence covering physical, economic, emotional and sexual aspects. The Bill also unpacks the wide scope of domestic violence, describes police officers’ expected role in prevention through the provision of arrest without a warrant. The traditional peace orders have been upgraded to protection orders to cover financial, emotional and economic support. The justice system’s expected role is also enunciated as is enforcement.
Also laudable is the establishment of the Domestic Violence Committee by the Minister of Justice, to oversee the Act when adopted. The state recognizes the role of NGOs and has included their representatives on the committee.
However the requirement of there being psychologists on the Committee needed further clarification.
In critiquing the Domestic Violence Bill, Theresa noted that the fact that the bill is still being discussed to date shows that not enough seriousness has been attached to the problem of domestic violence.
Specific concerns relate to the fact that unlike in similar situations with new legislation (Inheritance), no background paper or policy document was prepared for this Bill to provide the context within which the Bill is being discussed with a view to becoming law. As a result, no correlation has been done for the issues that are covered in this bill while appearing elsewhere in the statutes. The background document would have shown why the Bill is necessary.
As a result, the Bill as it is now, is based on assumptions and may therefore overestimate people’s existing knowledge on domestic violence. Thus it is unfortunate that there was no white paper to guide discussions.
A recommendation was made to keep the title of the Bill as it is, since it adequately addresses all relevant issues. The definitions are also quite comprehensive, making the Bill an excellent piece of legislation.
There is need however for a lot of specialized training for service providers in the enforcement of the law otherwise not much will come out of it. The training should include for example, sensitization of the police as was done in the Victim Friendly Courts. Expectations should not assume that police officers, magistrates, clerks of court are not abusers themselves.
A suggestion was made that people other than the complainant can report or seek assistance without his/her consent. The presenter however questioned the relationship between the principle that people should be allowed to make their own decisions, which should be respected.
Ancillary orders such as maintenance have been included in the protection order, which has replaced the peace order. The latter used to restrict movement/proximity and this in some cases affected the upkeep of children in a case of maintenance.
A suggestion was made for the Bill to propose counseling for those seeking protection but wanting to keep their relationship. Counseling should thus be made compulsory for parties choosing to remain together.
The provision for an interim order to proceed with a case if the complainant withdraws the complaint was seen as having potential to scare off the people who may still be in love with the accused respondent.
Another issue interrogated by the presenter is that of who meets costs of Messenger of Court. The Bill, says if desired, this could be met, but there is room for abuse especially where the Clerk of Court may end up making all women pay regardless of whether they wish to or not.
Under enforcement, the Bill highlights, under section 13, that if a protection order is violated one has to fill in an affidavit.
Based on current experiences with affidavits, this process may become cumbersome as it duplicates the process that brings the protection order. A suggestion was made that this be removed as a condition as it may delay the process and make vulnerable people more marginalized. Although the Bill gives discretion to women, experience has taught that this may not benefit women.
There is also need for traditional leaders, religious groups, and other representatives beyond the ministerial groups. Another provision questioned during the critique of the Bill is the requirement that the Chairperson and Deputy of the Committee should have knowledge and experience of Psychology. It was felt that the requirement is not necessarily rational as there may be people experienced in other relevant areas.
An issue for further study for relevant groups is the relationship between the Domestic Violence Bill and other Acts. A suggestion was thus made for a protocol or guidelines to be attached to the Bill for reference.
Points raised during discussion
Need for the bill to make a provision for a programme of information sharing for people working with the public so that some participation on the issue takes place outside of the domestic arena.
The Bill seems entirely about protection orders and it does not state the penalties as relevant.
It is dangerous with the lawless situation in Zimbabwe today to trust police with powers to arrest without a warrant.
Offences under the Domestic Violence Bill should defined in other Acts while the bill should make references to these other Acts.
There is need for the Bill to make provision for the rehabilitation of the perpetrator as in anger management clinics.
Bill smacks of elitism with western ideas while it makes no reference to Zimbabwe-based conflict resolution mechanisms e.g. Musasa, tetes, Padare.
Under offences, the last part does not address penalties.
On laws such as Sexual Offences Act, the Bill addresses violence within the domestic sphere so there is need to include other laws.
All police officers should be trained on domestic violence as part of their routine training. Current efforts at training for select officers difficult due to mobility of the individual officers.
In the quest to make the Bill relevant to the local scenario what would be the context over and above practice since law reinforces where other avenues have failed.
How does the Bill respond to realities of the country, such as social problems and needs of women? To what extent have the women been involved in education and sensitization around domestic violence?
There are so many laws in place that are not being used, as they are viewed as unfriendly or irrelevant where a woman wants to continue a relationship despite it being abusive.
How can we change the mindsets so we can benefit from the laws?
Medical personnel could also be used as part of the process to expose and report battery.
Traditional practices such as virginity testing, spirit appeasement have not been covered enough in the Bill.
There is need to strengthen the protection of women as a priority but this should not be done under conditions where their rights are violated.
The protection orders do not use other legislation enough, could the Domestic Violence Bill run concurrently with other Acts.
A lot of criminal offences acts put in alcohol as an extenuating rather thanan exacerbating circumstance.
It would have been good to have a White Paper but there is need to move forward – civil society should then take responsibility to educate the public on the context within which the Bill has been developed.
There is a difference between making law and recommending amendments for education therefore more time should be provided for consultation.
Costs of counseling should be provided for under section 8 where provision should be made for resources – these could be secured through partnership between government and civil society.
Virginity testing is covered under CEDAW but there is need to realize that in rural areas especially, there is need for lobbying prior to taking issues for consultation or presentation to villagers.
The clause that allows law enforcement officers to arrest without a warrant should be kept on because laws are made for posterity not just to address immediate problems.
The Bill had provision for a Compensation Fund but this was removed.
Way Forward
Parliamentary Portfolio Committee on Gender should make copies of the Bill available to all sectors of the community to allow for an effective consultative process.
Section 12 on revocation etc not explained.
Civil society can coordinate process to come up with a position paper on domestic violence.
Suggestion to change the word “victim” to “survivor”.
Need to look for and circulate the existing position papers on domestic violence that have been circulated before.
Need to keep the momentum on process as in the past, activities were being started, dying and revived.
Need to highlight the potential for police to misuse this law to “arrest someone for a crime that has not been committed”.
Need to improve and ensure consultation to ensure buy-in through an advocacy campaign.
Need to build upon traditional institutions of conflict resolution, consider cultural aspects in legislation operationalisation.
Need to ensure that the well crafted legislation is implementable.
Women’s Coalition volunteered to circulate position paper from before as they have it although it may need updating.
UNIFEM also willing to coordinate the process.
Honourable Khupe noted that more meetings would enable the gender committee to do a proper job. She also said she would discuss the possibility of extending the time for consultation with the Minister.
The Zimbabwe Women’s Resource Centre and Network (ZWRCN) is a gender and development organisation involved in gathering, analysing, repackaging, and disseminating information on gender and development issues, especially those on gender, HIV/AIDs and the economy.
It was emphasized that the Bill should be celebrated by civil society and women’s non-governmental organizations (NGOs) as it had come a long way since 1995 when it was first brought through the Bulawayo Women Lawyers Association.
She said the Bill provided a comprehensive definition of violence covering physical, economic, emotional and sexual aspects. The Bill also unpacks the wide scope of domestic violence, describes police officers’ expected role in prevention through the provision of arrest without a warrant. The traditional peace orders have been upgraded to protection orders to cover financial, emotional and economic support. The justice system’s expected role is also enunciated as is enforcement.
Also laudable is the establishment of the Domestic Violence Committee by the Minister of Justice, to oversee the Act when adopted. The state recognizes the role of NGOs and has included their representatives on the committee.
However the requirement of there being psychologists on the Committee needed further clarification.
In critiquing the Domestic Violence Bill, Theresa noted that the fact that the bill is still being discussed to date shows that not enough seriousness has been attached to the problem of domestic violence.
Specific concerns relate to the fact that unlike in similar situations with new legislation (Inheritance), no background paper or policy document was prepared for this Bill to provide the context within which the Bill is being discussed with a view to becoming law. As a result, no correlation has been done for the issues that are covered in this bill while appearing elsewhere in the statutes. The background document would have shown why the Bill is necessary.
As a result, the Bill as it is now, is based on assumptions and may therefore overestimate people’s existing knowledge on domestic violence. Thus it is unfortunate that there was no white paper to guide discussions.
A recommendation was made to keep the title of the Bill as it is, since it adequately addresses all relevant issues. The definitions are also quite comprehensive, making the Bill an excellent piece of legislation.
There is need however for a lot of specialized training for service providers in the enforcement of the law otherwise not much will come out of it. The training should include for example, sensitization of the police as was done in the Victim Friendly Courts. Expectations should not assume that police officers, magistrates, clerks of court are not abusers themselves.
A suggestion was made that people other than the complainant can report or seek assistance without his/her consent. The presenter however questioned the relationship between the principle that people should be allowed to make their own decisions, which should be respected.
Ancillary orders such as maintenance have been included in the protection order, which has replaced the peace order. The latter used to restrict movement/proximity and this in some cases affected the upkeep of children in a case of maintenance.
A suggestion was made for the Bill to propose counseling for those seeking protection but wanting to keep their relationship. Counseling should thus be made compulsory for parties choosing to remain together.
The provision for an interim order to proceed with a case if the complainant withdraws the complaint was seen as having potential to scare off the people who may still be in love with the accused respondent.
Another issue interrogated by the presenter is that of who meets costs of Messenger of Court. The Bill, says if desired, this could be met, but there is room for abuse especially where the Clerk of Court may end up making all women pay regardless of whether they wish to or not.
Under enforcement, the Bill highlights, under section 13, that if a protection order is violated one has to fill in an affidavit.
Based on current experiences with affidavits, this process may become cumbersome as it duplicates the process that brings the protection order. A suggestion was made that this be removed as a condition as it may delay the process and make vulnerable people more marginalized. Although the Bill gives discretion to women, experience has taught that this may not benefit women.
There is also need for traditional leaders, religious groups, and other representatives beyond the ministerial groups. Another provision questioned during the critique of the Bill is the requirement that the Chairperson and Deputy of the Committee should have knowledge and experience of Psychology. It was felt that the requirement is not necessarily rational as there may be people experienced in other relevant areas.
An issue for further study for relevant groups is the relationship between the Domestic Violence Bill and other Acts. A suggestion was thus made for a protocol or guidelines to be attached to the Bill for reference.
Points raised during discussion
Need for the bill to make a provision for a programme of information sharing for people working with the public so that some participation on the issue takes place outside of the domestic arena.
The Bill seems entirely about protection orders and it does not state the penalties as relevant.
It is dangerous with the lawless situation in Zimbabwe today to trust police with powers to arrest without a warrant.
Offences under the Domestic Violence Bill should defined in other Acts while the bill should make references to these other Acts.
There is need for the Bill to make provision for the rehabilitation of the perpetrator as in anger management clinics.
Bill smacks of elitism with western ideas while it makes no reference to Zimbabwe-based conflict resolution mechanisms e.g. Musasa, tetes, Padare.
Under offences, the last part does not address penalties.
On laws such as Sexual Offences Act, the Bill addresses violence within the domestic sphere so there is need to include other laws.
All police officers should be trained on domestic violence as part of their routine training. Current efforts at training for select officers difficult due to mobility of the individual officers.
In the quest to make the Bill relevant to the local scenario what would be the context over and above practice since law reinforces where other avenues have failed.
How does the Bill respond to realities of the country, such as social problems and needs of women? To what extent have the women been involved in education and sensitization around domestic violence?
There are so many laws in place that are not being used, as they are viewed as unfriendly or irrelevant where a woman wants to continue a relationship despite it being abusive.
How can we change the mindsets so we can benefit from the laws?
Medical personnel could also be used as part of the process to expose and report battery.
Traditional practices such as virginity testing, spirit appeasement have not been covered enough in the Bill.
There is need to strengthen the protection of women as a priority but this should not be done under conditions where their rights are violated.
The protection orders do not use other legislation enough, could the Domestic Violence Bill run concurrently with other Acts.
A lot of criminal offences acts put in alcohol as an extenuating rather thanan exacerbating circumstance.
It would have been good to have a White Paper but there is need to move forward – civil society should then take responsibility to educate the public on the context within which the Bill has been developed.
There is a difference between making law and recommending amendments for education therefore more time should be provided for consultation.
Costs of counseling should be provided for under section 8 where provision should be made for resources – these could be secured through partnership between government and civil society.
Virginity testing is covered under CEDAW but there is need to realize that in rural areas especially, there is need for lobbying prior to taking issues for consultation or presentation to villagers.
The clause that allows law enforcement officers to arrest without a warrant should be kept on because laws are made for posterity not just to address immediate problems.
The Bill had provision for a Compensation Fund but this was removed.
Way Forward
Parliamentary Portfolio Committee on Gender should make copies of the Bill available to all sectors of the community to allow for an effective consultative process.
Section 12 on revocation etc not explained.
Civil society can coordinate process to come up with a position paper on domestic violence.
Suggestion to change the word “victim” to “survivor”.
Need to look for and circulate the existing position papers on domestic violence that have been circulated before.
Need to keep the momentum on process as in the past, activities were being started, dying and revived.
Need to highlight the potential for police to misuse this law to “arrest someone for a crime that has not been committed”.
Need to improve and ensure consultation to ensure buy-in through an advocacy campaign.
Need to build upon traditional institutions of conflict resolution, consider cultural aspects in legislation operationalisation.
Need to ensure that the well crafted legislation is implementable.
Women’s Coalition volunteered to circulate position paper from before as they have it although it may need updating.
UNIFEM also willing to coordinate the process.
Honourable Khupe noted that more meetings would enable the gender committee to do a proper job. She also said she would discuss the possibility of extending the time for consultation with the Minister.
The Zimbabwe Women’s Resource Centre and Network (ZWRCN) is a gender and development organisation involved in gathering, analysing, repackaging, and disseminating information on gender and development issues, especially those on gender, HIV/AIDs and the economy.
