UNPACKING THE UNDERUSED PROVISIONS OF THE DOMESTIC VIOLENCE ACT.

avatar

Mhaka Tinatswe

Founder | Creator

On the 25th of October 2007 Zimbabwe enacted the Domestic Violence Act (Chapter 5:16.) The purpose of the legislation was to regulate and reduce the impact of domestic violence as well as provide recourse to victims seeking protection. The Act is complemented by international instruments such as the Convention on the Elimination of All Forms of Violence against women (CEDAW) and the Southern African Development Community Protocol on Gender and Development (SADC Protocol). 

THE BROAD DEFINITION OF DOMESTIC VIOLENCE

Section 3 of the Act provides a broad definition of what constitutes domestic violence including but not limited to deprivation of property or household effects, hindrance from access to facilities or the complainant’s residence, emotional or psychological abuse, and any abuse stemming from harmful cultural practice. Case experience shows that while women in various areas have attempted to report different types of abuse, only physical violence is interpreted as an offense by law enforcement. This is because while police officers are the individuals designated to protect the public, like a majority of people in conservative countries they hold their patriarchal beliefs that manifest into systemic misogyny. Not to mention, that in many instances complainants of domestic violence cases simply do not have the information that tells them they can report financial and economic abuse.

WHEN CAN ONE APPLY FOR A PROTECTION ORDER ?

Under section 7 of the Act complainants and third parties may make an application for a protection order against any act defined as domestic violence. Orders can be applied for as a preventive measure of of anticipated harm and yet a majority of women are advised to wait until harm has been done to them, because of misinformation and stigma attached to reporting cases in African households. While protection orders may be mistakenly referred to as peace orders, peace orders serve the limited purpose of ensuring harmony between parties with no relationship or relation prior to the conflict, for example neighbors, landlords and tenants. 

NON CONSENSUAL SALE / DISPOSITION OF PROPERTY 

Domestic violence may result in the unfair displacement of women from the home they share with the perpetrator or disposition of their property. The Domestic Violence Act allows complainants to ask the court that their perpetrators not only maintain peace but also desist from other harmful behaviour such as displacement from the home, non-consensual sale of movable and immovable property, malicious damage to property and economic abuse. 

TEMPORARY CUSTODY AND MAINTENANCE OF CHILDREN

The application for a protection order allows complainants to concurrently request temporary custody of minor children they may have with perpetrators as well as maintenance for a temporary period of time.

COMPENSATION FOR LOSS OR INJURY

Additionally, the Act allows complainants that have sustained loss or injury to claim compensation from the perpetrator in the same application, eliminating the burden of additionally filing a separate claim through a summons form. 

URGENT HEARINGS

Provisions that have been most underused in the Act include section 7 (6) and 15.  Section 7 (6) states that an application for a protection order may be heard outside of ordinary court hours if the court is satisfied that the complainant may suffer undue hardship if the application is not heard immediately. This urgent approach is another difference between the peace and protection order.

PROVISION OF PSYCHOSOCIAL SUPPORT FROM THE STATE

Section 15 of the Act then states that complainants may make use of anti-domestic violence counsellors designated by the state from social welfare, civil society organizations or traditional leadership to advise, counsel or mediate any personal issues between parties. Additionally, the section gives the designated counsellors power to carry out further investigation and arrange for medical attention or alternative accommodation for complainants in cases. Counsellors are also at liberty to seek further help from law enforcement should they see fit. 

THE TRUE STATE OF FORMAL JUSTICE 

These provisions are evidence of the extent of relief available to complainants. And why has it not been realized? Because we are stateless. The immersion of Zimbabwe into political violence, corruption, and poverty means that nothing works the way that it is supposed to, especially formal processes and provisions written on paper. The state cannot provide psychosocial support because there are no funds to pay mental health professionals or infrastructure to house that commitment. Law enforcement cannot be trained because state ministries are only of cosmetic value. They cannot make arrests because they do not have resources and they cannot ensure perpetrators adhere to protection orders because due to prison overcrowding they are not likely to be convicted. Countries like Zimbabwe, Uganda, Kenya, Cameroon have all fallen into a vicious cycle that can only be broken by a democratic utopia that is far out of reach in the near future. The small percentage of women that have used these provisions are those that have had unique access to non-profits working in legal or policy-making spaces where they are perceived to have enough social capital to occasionally force the hand of the justice system. But there is significance in women knowing the avenues available to them and claiming them at every turn so the state officials even at an interpersonal level can be forced to go out of their way to play a part in change. 

For Legal assistance in cases of this nature the following organizations may help 

Zimbabwe Women Lawyers Association 

Musasa Project 

Legal Resources Foundation