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Second update on Domestic Violence Bill
Veritas, Bill Watch 52/2006
October 25, 2006

View the index of articles on the debate around the Domestic Violence Bill
Read the First update on the Domestic Violence Bill

The Domestic Violence Bill is now at the Committee Stage in the House of Assembly. The Committee Stage commenced on Tuesday 17th October for one day and it will continue on Tuesday 31st October.

During the Committee Stage, the Bill is put to the House clause by clause. This stage is an opportunity for debate. The sponsoring Minister can be questioned and amendments considered from the Minister, the relevant Portfolio Committee or individual MPs. If prior notice of amendments has been given they will be on the printed order paper. New amendments arising from the debate, but not on the order paper, can be introduced with the permission of the chairperson. All amendments have to be within the main principles and objectives of the Bill as approved in the Second Reading.

On the Order Paper for 17th October were amendments previously notified by the Minister of Justice. No amendments had been previously notified by private members. Read the First update on the Domestic Violence Bill

Note 1: Only one women MP contributed to Tuesday’s work in the House of Assembly on the Domestic Violence Bill. Is this because our other women MPs are all happy with the Bill and the amendments the men MPs are proposing? Some clauses were agreed to without amendment, some were agreed to with the amendments proposed by the Minister, and others were deferred for further consideration on 31st October.

Note 2: Even clauses that have already been agreed to can be revisited during the continuing Committee stage.

Clause 1
The short title and specifying that the President will fix a date of commencement by statutory instrument.
Clause agreed to without amendment.

Clause 2
The interpretation of terms contained in the Bill (other than the definition of domestic violence, which is in clause 3).

• Mr Gonese suggested the insertion of a definition of "abduction" into Clause 2 to ensure that certain acceptable traditional practices would not constitute domestic violence. He suggested that the word “abduction” used in clause 3 (1)(l) may be misinterpreted without a definition. Clause 3(1)(l) states that domestic violence includes – “abuse derived from any cultural or customary rites or practices that discriminate or degrade women, such as forced virginity testing, female genital mutilation, pledging of women or girls for the purposes of appeasing spirits, abduction, child marriage, forced marriage, forced wife inheritance, sexual intercourse between fathers-in-law and newly married daughters-in-law, and other such practices”.
  
  The Minister undertook to consider the point. He said that the intention is to criminalise "forced abduction":

  "We have no intention of defining domestic violence like kutiza mukumbo during the night. That clearly is an acceptable customary way of starting a marriage and is always by consent."

Clause deferred for further consideration.

Comment: Either a definition in clause 2 or clarification of what is meant in clause 3 as suggested by Mr Coltart would seem necessary. Women wanted the word “abduction” included and should carefully monitor any changes made (whether to clause 2 or clause 3) to ensure that new wording or added definitions are acceptable.

Clause 3
Definition of “domestic violence”.

There was some discussion of the Minister's proposed amendments to delete “or jealousy” and “household effects or other”. See first update

The debate was deferred.

• There was considerable opposition to including “unreasonable denial of conjugal rights” in the Bill. The debate had its lighter moments with male MPs concerned about how an appropriate performance would be determined. The Minister pointed out that “unreasonable denial of conjugal rights” comes in the part of the Bill that deals with emotional and psychological abuse and is not a criminal offence but as one of the common precursors of violence it may require interventions such as counselling and therefore should not be removed from the Bill.
• Mr Coltart suggested putting the preventative provisions of the Bill, i.e. emotional, verbal and psychological and economic abuse, into another section for purposes of clarity.
  
  The Minister agreed and invited Mr Coltart to draft and table such an amendment.

Clause deferred for further consideration.

Comment: As it stands the Bill puts all acts of domestic violence in one clause – those which are criminal offences and that those that are not. This is creating an assumption that same procedures, remedies and penalties apply to all categories of domestic violence. Many of the objections to the Bill, both in Parliament and in the press, have arisen from this misunderstanding. Separating the offences and the preventive provisions of the Bill should clarify and promote acceptance of the Bill. This is a proposal for a significant amendment and should be monitored by the women’s lobby.

Clauses 4 and 5
The whole of Part II of the Bill, making provision for Duties of Police and Powers of Arrest in Respect of Domestic Violence.
Clauses agreed to without amendment.

Clauses 6 to 13
The whole of Part III, dealing with protection orders.
Clauses agreed to without amendment.

Clause 14
Referring to anti-domestic violence counsellors.

The effect of the amendments was to add the following two categories to the persons qualified to be appointed as anti-domestic violence counsellors (appointments to be made by the Minister) –

• “members of the traditional leadership”
• “any officer involved in community work".
  Note: the Minister has proposed in his amendments on the order paper “any officer involved in development work" but this was changed after an intervention from MP Mrs Stevenson.

Clause agreed to with amendments.

Clause 15
In the original Bill this was the clause establishing the Anti-Domestic Violence Committee. But the Minister had given notice of an amendment to upgrade the Committee to a Board by deleting this clause and replacing it with four new clauses:

• New clause 15
  Establishment and constitution of Anti-Domestic Violence Board;
• New Clause 16
  Functions and powers of Board;
• New clause 17
  Funds of Board;
• New clause 18
  Secretariat of Board.

If this amendment is agreed to, Parliament is likely to produce a revised copy of the Bill with the clauses renumbered for the use of MPs.

There was debate on the composition of the proposed new Anti-Domestic Violence Board.

• It was suggested (Coltart and Gonese) that:
  there should be fewer government representatives and more from relevant NGOs and from the church/religious sector.
  The Minister would not agree to cut the number of government representative, but agreed to two extra NGO representatives, and, recognising the difficulty of getting agreement form the church/religious sector on a single nomination – it might take “the remainder of the millennium” – said he would amend the clause to allow the Minister to select a representative of that sector’s interests.
• In the proposed new clause on Functions and powers of Board, Ms Stevenson suggested the setting up of regional and provincial committees so that the work on domestic violence would be more decentralised.
  This suggestion was not debated, because at this point confusion arose, with some members following the original clause numbering and others using the numbers in the Minister’s amendments.

There will have to be some corrections (there are discrepancies between the Hansard report and Votes & Proceedings) and those clauses which were not fully debated will have to revisited.
Clause 15 and the three other proposed new clauses to be inserted here, deferred for further consideration.

Comment : There was still no amendment proposed to ensure that the Board comprises a majority of women - see first update. The relevant NGO’s may like to lobby for still more representation (the Minister agreed to three and the government has at least seven). The church/religious sector may like to lobby for the right to nominate their own representative – failure to agree on a nominee within a set time limit should be the only situation where a Minister decides on a representative of an interest group. Mrs Stevenson’s suggestion of decentralization still needs to be introduced as an amendment.

Clause 16
Offences

This is the clause which provides for penalties for acts of domestic violence which are criminal offences (it specifically excludes emotional, verbal and psychological abuse and economic abuse). It will require amendment if effect is to be given to Mr Coltart's suggestion about clarifying the differences between criminal and non-criminal acts of domestic violence.
Clause deferred for further consideration.

New clause to be inserted after clause 16, and to be titled Special jurisdiction of community courts.
Amendment proposed by Minister - see first update.

There was no debate on this clause recorded – some members were still seeking clarification on numbering.
Clause recorded as agreed to without amendment in Hansard, but recorded as deferred in Votes and Proceeding.

Clause 17
Minister's power to make regulations.

Again there was some confusion and Hansard did not record any debate. Votes and Proceedings recorded this clause as agreed to, but Hansard did not, nor did it record it as deferred.

Comment: Perhaps this clause should be revisited and an amendment proposed as at the moment this clause does not require the Minister to consult before making regulations, not even to consult the proposed Board. Regulations will be playing a major role in the implementation of the Act. They will, for example, prescribe the forms of applications for protection orders and the forms of warrants and protection orders. It is vital that all those documents be simple and easy to understand. One means of achieving this would be to amend the clause to make input from stakeholders/interested parties part of the regulation-making process, by obliging the Minister, before making regulations, to consult and/or to publish draft regulations and give stakeholders/ interested parties and members of the general public an opportunity to make representations.

Schedule to the Bill
Amendment proposed by Minister (there was no such schedule in the original Bill).

This Schedule is linked to the Minister’s proposal to upgrade the Anti-Domestic Violence Committee to a Board, and is referred to in subclause (5) of the new clause 15 proposed by the Minister. The Schedule contains comprehensive provisions applicable to the Board - see first update. The Minister dismissed as "unnecessarily elaborate" MP Mr Coltart's suggestion that anyone with a previous conviction for domestic violence, no matter how light the sentence, should be disqualified for appointment to the Board. Schedule agreed to without amendment.

Comment: women might like to pursue this point and reopen this debate. There is a risk that if members of the Board have an previous conviction they may not be rigorous in ensuring the act is properly implemented.

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