Protection orders

This is the last instalment in the series of domestic violence articles in line with the recently concluded 16 Days of Activism Against Gender-Based Violence campaign. We have so far discussed the broad aspects of domestic violence as defined in the statutes. We have discussed the available interventions and remedies starting with the role of the police. We now look at protection orders

Your Rights: MIRIAM TOSE MAJOME

The law

The Domestic Violence Act Chapter 5:16 provides protection and relief for victims of domestic violence. Section 80 of the Constitution especially, provides for the rights of women and protection of their dignity and worth as equal human beings in the society. Section 80(3) particularly outlaws laws, customs, traditions and cultural practices that infringe upon the rights and personal safety of women.

Interventions and relief

Help is available in the form of pursuing criminal and civil remedies. The legal provisions not only seek to punish offenders but aim to prevent domestic violence and protect victims and potential victims.

To expect domestic violence to be completely eradicated is a pipe dream because it finds ready defences and support in personal beliefs, social customs and religious beliefs.

However it can be minimised and it has been shown that it is possible with adequate measures. The most effective approach is to continue raising awareness, changing attitudes, tightening policing and improving preventive interventions.

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Protection Orders Section 7

These are peace orders, which are specific to domestic violence. Where an act of domestic violence has been or is being committed or is threatened, an application for a protection order may be made to a court.

The application is handled on an urgent basis and granted if there is sufficient reason to grant it and a warrant of arrest is issued simultaneously.

The warrant is suspended pending commission of an offence by the offender. Five years imprisonment is the penalty for breaching a protection order. An interim protection order is given in the absence of the offender as the matter is handled urgently.

The intention is to accord the complainant immediate protection by moving quickly to avert the threat or violent action.

After granting an interim order the court sets a date for hearing both the complainant and offender. The protection order is granted after hearing both sides.

Reciprocal protection orders are also given if it is proved that the violence is mutual. Both parties may be violent and giving as much as they are getting.

Domestic violence is not only physical and can refer to any number of the acts defined in the Act. This was discussed in the first article

Third party applications

The application for a protection order can be made by the complainant themselves or any person acting with or without their consent.

The provision for third party applications is a unique and very sophisticated approach. People other than the victim are allowed to apply for protection on the victim’s behalf. A guardian, parent or any person having care or custody of a complainant who is a minor can apply for a protection order on behalf of the minor.

Any person can act on a victim’s behalf and can even appoint themselves the victims’ representative.

This is very important because it effectively deals with the problem of reluctant and endangered victims.

Some victims of abuse may be too traumatised and incapacitated to take measures to protect themselves.

Some may even adamantly refuse to seek protection because of all sorts of external and internal pressures that may be exerted on them.

Because of the personal and social complexities involved in domestic violence victims often receive severe reprisals from the perpetrator or society for reporting to the police or courts.

It is therefore, incumbent upon other able members of society to act on behalf of victims who cannot or will not seek protection.

The fight against domestic violence requires this aggressive intrusion because its consequences are severe quite often resulting in death, serious injuries, fractured families and damaged relationships.

How friends and family can help

An application made on behalf of someone who has not consented to the representation depends on the reasons the complainant has not given consent and why they are not able to act for themselves.

It must be in the victim’s best interests to grant the protection order even without their participation or consent. This provision allows neighbours, colleagues family, friends and even strangers to act on behalf of victims who will not act to protect themselves.

Reasons for the reluctance are many and varied and it is futile to blame victims.

They must only be helped and protected even from themselves.

Simplicity of procedure

The application process is very simple that anybody can do it.

The courts employ a user friendly approach in domestic violence matters.

It is not necessary to be represented by a legal practitioner although the option is open. magistrate courts dispense application forms on site to enable complainants to represent themselves.

magistrate courts have dedicated offices and courts exclusively for domestic violence cases.

The Domestic Violence Act was enacted in 2007 and to date has been one of the country’s most progressive pieces of legislation and has had the biggest impact on the justice delivery system.

There are structures in place now, which were not there 20 years ago with the police and the courts. Progress is being made in fits and starts.