‘Tweak Domestic Violence Bill’

‘Tweak Domestic Violence Bill’

MASERU – A BILL tabled in parliament to address the lack of a substantive law dealing with domestic violence has attracted criticism, with some analysts and activists saying it fails to adequately address a scourge that has affected Lesotho for decades.
Others said though in need of improvement, the Bill makes strides in tackling domestic violence, which has become a cancer in the country.

Despite being one of the countries most affected by domestic violence, Lesotho currently has no law directly addressing the problem.
To plug the gap, the Ministry of Gender, Sports and Recreation recently initiated a draft Bill which was tabled in parliament by Minister Likeleli Tampane.
The ministry’s Chief Information Officer, Maqalika Matsepe, said the Bill is a result of wide consultations between the ministry and relevant stakeholders and “beneficiaries”.

“It is a broad exercise involving all stakeholders,” said Matsepe.
He said the Bill is currently being taken to communities to get feedback from the people.
“MPs, along with gender ministry officers, are this week out in the villages to verify whether indeed it’s necessary,” he said.
Some human rights lawyers said the Bill contains loopholes that should be addressed before it can be made law.
Advocate Lineo Tsikoane, from NAIRASH Legal Support, is one of those who criticised the Bill.

“They should let themselves think beyond binary terms,” she said.
She cited section 5 of the Bill which states that an application for an interim protection order may be granted without notice or outside court hours.
It should not require a seasoned lawyer to obtain an interim protection order on 2021.
“The expense of an urgent application is prohibitory. It’s archaic to have this kind of condition in 2021. If it’s interim it should be interim, prompt and hassle free for it to be accessible to everyone.”
She noted that although the interim order can be issued outside court hours, it still requires someone who has acquired the services of a lawyer to access it.

“Financial issues aside, there still has to be certain knowledge about law and this is elitist. We need to make use of opportunities that other countries have shown us, such as what happens in South Africa where it is issued at a police station,” said Advocate Tsikoane.
Advocate Tsikoane questioned section 6 of the Bill, querying why one should wait for a commission of a transgression to get a protection order.
“What use is a protection order if I have to be transgressed first?”
“Same people, just a different name,” quipped Advocate Tsikoane while commenting on section 16 (1-3) of the Bill relating to the establishment of a family court.

“We risk having the same results. Doing the same thing twice and expecting a different result? Why are we not going out to properly establish and constitute family courts?” she queried.
She said statistics between 2003 and 2013 showed that 86 percent of women have at some point experienced violence in their lives.
“Why are we doing the same thing and expecting different results? Why doesn’t the Bill require a properly constituted, trained and capacitated family court if we are really saying we want to fight this?”
She said there are limitations in section 18, which relates to counselling.

“I am not disputing its relevance but it has limitations and it has to be broader. A tailor-made solution such as counselling is not the only way, was it so integral that it had to have its own section? This denotes that everything can be solved by just talking…”
“There is a lot of burden beyond counseling. Domestic violence has a lot more to do with poverty. Just being through counselling doesn’t mean one’s life or circumstances change automatically. We shouldn’t have specifically mentioned counseling. Rather, we should have a complainant-responsive remedy which can be counselling, separation support, housing etc.”
She said the Bill is not progressive particularly section 19, which deals with restorative justice.

“There has to be guidelines; power should be factored to have boundaries,” she said.
As a deeply patriarchal society, the composition of the council is “Ok” but in constituting such councils the law should pay special attention to the complainant, gender bias and stereotyping.
“There has to be boundaries and guidance.”
She said section 22 of the Bill on non-compliance with restorative justice resolution burdens the complainant.
“Why should a complainant bear so much burden?”

Advocate Tsikoane suggested that the draft team should “consider opinions of non-gender conforming persons, victims and survivors, ordinary Basotho, organisations and institutions that deal with survivors and institutions that empower and create an equal society”.
“I feel this was a noble effort but it’s too late, it reads like a Bill from 1993. It doesn’t reflect the strides that we have made as a nation with regards to what we have seen and observed. We don’t have to think out of the box as this has been the reality of many Basotho and it has to reflect that,” she said, adding: “Personally, I think the Bill should be thrown away.”
“Stakeholders should be assembled, break it apart for 10 days, give them a break for public consultations, bring them back for another 10 days, consolidate, take them back again to the community and there will be a comprehensive, more inclusive Bill that will represent the Lesotho of today.

Let our law reflect the path that we have travelled,” suggested Advocate Tsikoane.
The People’s Matrix, in collaboration with Advocate Rethabile Mathealira-Molapo, suggested that the definition of domestic violence should include intimidation, harassment, stalking, damage to property and other acts that constitute domestic violence.
“The definition (contained in the Bill) is too limited,” she said.
However she commended the Bill for recognising the discrimination experienced by certain groups of people by virtue of their age, disability, sexual orientation and gender identity.

“The list has been extended to be more comprehensive to cover sex so as to include intersex people, gender expression, which is the way people express their gender identity through behaviours, including language, body language, dress, or mannerisms. We have included economic activity should a person be violated for their economic activity on the basis that it is not lawful legal activity,” she said.
Mathealira-Molapo also commended the Bill for seeking to abolish some of the existing abusive practices that degrade children and women such as forced child marriages.

“We need to provide protection for both children and adults forced into marriage as the most important element of any marriage should be consent,” she said.
She suggested that interpretation should include abusive practices, domestic violence acts between any number of people regardless of relationship, ability or disability, age, sex, sexual orientation and gender identity and expression.
Portions of the Marriage Act providing for the marriages of children should be repealed.

“This Act should provide an opportunity to harmonise all laws dealing with the affairs of children, especially with regard to marriage and all forms of sexual activity and sexual violence involving children,” Mathealira-Molapo said.
“If courts other than the family court are permitted to deal with domestic violence acts there may be inconsistencies in sentences handed down. Basotho courts’ jurisdiction is to apply Customary Law and there may be resistance to apply the Domestic Violence Act. This may deny victims the protection they so desperately need.”
She also suggested that the family court be a court at the level of the Magistrates Court, with reviews and appeals lying with the High Court and the Court of Appeal respectively.

“It is recommended that cases of domestic violence be exclusively adjudicated over by the family court, which may be housed even at the local court premises. The proposed definition is too limited, namely on one form of abuse and the people it affected,” she said.
She recommended changing the wording to avoid making the interpretation too restrictive.
“This is to offer better protection for people who may be living together in an intimate relationship regardless of sex, gender, sexual orientation or expression.

She said physical abuse should be any act or conduct that is of such a nature as to cause bodily pain, harm or danger to life, limb or health or which impairs the health or development of the victim; and includes assault, criminal intimidation or criminal force.
“The original definition should end with “and other forms of physical harm” instead of “and other essential…”
Regarding sexual abuse, she suggested an addition: (e & f) any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the complainant or a related person, regardless of sex, sexual orientation, gender, gender identity or expression, whether or not such conduct constitutes a sexual offence as contemplated in the Criminal Law (Sexual Offences Act, 2003 (Act No. 3 of 2003) and Penal Code Act, 2010 (Act No. 6 of 2012).

She said stealthing would ensure that where consent is given on the basis that a condom be used during intercourse, and the alleged offender either removes the condom or does not put on a condom at all, and intentionally does not inform the other person, then the other person’s consent is taken to have been negated.
“This is to take into account that emotional and psychological abuse often manifests itself in physiological symptoms,” she said.
Stealthing refers to the conduct of a man who removes a condom midway through sex despite agreeing to wear one when intimacy started.

On section 7 of the Bill relating to contents of a protection order, she suggested adding the nature of domestic violence and relationship in relation to the vacating of shared residence.
“Entering a residence shared by the complainant and the respondent: Provided that the court may impose this prohibition only if it appears to be in the best interests of the complainant taking into consideration the nature of the domestic relation in relation to rights to the ownership of property.”
Other suggested additions are on the seizure of arms and dangerous weapons.

On Section 9.(1) the court must order a member of the Lesotho Mounted Police Service to seize any arms or dangerous weapons in the possession or under the control of a respondent, if the court is satisfied on the evidence placed before it. The evidence includes any affidavits supporting an application referred to in section 4(1), which are that (a) the respondent has threatened or expressed the intention to kill or injure himself or herself, or any person in a domestic relationship, whether or not by means of such arm or dangerous weapon; or (b) possession of such arm or dangerous weapon is not in the best interests of the respondent or any other person in a domestic relationship. This would be a result of the respondent’s (i) state of mind or mental condition; (ii) inclination to violence; or (iii) use of or dependence on intoxicating liquor or drugs.

In part IV related to institutions, section 10 of the Bill on duties of a police officer in respect of domestic violence, she suggested the following: 10(1) … social workers and relevant expertise
10(4) … gender-sensitive and gender affirming officer instead
10(7) request for clarity of context of authority
10(8) accountability for incompetent service.

“Police officers are not primarily experts in this field and are further often transferred out of units. The social worker can work hand in hand with police officers for purposes of investigations,” she said.
Mathealira-Molapo said in section 11 on records of domestic violence, section 11(2) should ensure that original forms must be sent to the commissioner of police monthly. Section 11(3) should ensure that statistics are compiled quarterly and presented to parliament quarterly, she suggested.

’Mapule Motsopa

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