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Domestic Violence: A few lessons in the law
Catherine Makoni
November 02, 2006

Index of articles surrounding the debate of the Domestic Violence Bill

Tony Namate raises some issues which l feel need clarification. Violence is violence and should be condemned whenever and whereever it occurs. There is no argument there. However, the problem comes when dealing with violence. Perhaps for Tony’s information, it is important to explain how the law works. The law works in such a way that specific laws are enacted for specific crimes. This is the reason we have so many laws on our law books. So for instance there is a law that deals with theft of livestock. This is not to say that theft of a goat is not theft, but that law is a recognition that theft of livestock is a peculiar kind of theft which needs to be dealt with in a specific way. if one were to go by Tony’s argument and say that theft is theft (like violence is violence) then there would be no need for laws on stock theft. Indeed there would be no need for laws that deal with armed robbery (because couldn’t we argue that stealing is stealing? That does it really matter whether or not you had a gun held to your had while someone was stealing from you because the upshot of it is you were deprived of your belongings?) The law recognises that a pickpocket who picks your cellphone from your handbag while you are preoccupied with looking at the ever-increasing prices of milk, and the thug who holds you up, roughs you up, puts a knife to your throat or holds a gun to your head before making off with your handbag are different species of criminal.

Another example; Banks are companies. If companies are companies (like violence is violence) then one would assume that all companies would be governed by the Companies Act. But no, there are a number of specific laws that deal specifically with banking institutions, e.g. the Banking Act. This is because the legislature recognised that there were certain aspects of banking business that needed specific laws to regulate them. The same institutions are also governed by the Labour Act, which the legislature saw it fit to enact to deal specifically with employer-employee relations, in the self-same banks, which also happen to be companies. That is how it works. The point? All manner of violent acts should not be lumped together in one Act. Political violence is bad, but it is not domestic violence. We are not putting them on a scale. They are different. They need to be dealt with separately. This Bill specifically deals with violence within the so-called private domain, that is the gap we want dealt with right now.

Why? The Domestic Violence Bill was enacted to cover violence which occurs within a specific space- the private domain.At present we have a host of laws which cover the public sphere. To illustrate the point;when two men bash each other over a scud of opaque beer, it is treated as assault. If one of them is badly injured in the process, it becomes assault with intent to cause grievous bodily harm. If a man beats up his wife, it is treated as a "private matter" to be dealt with within the family. If he should break her ribs and dislodge her teeth, it is treated as a matter for the family or perhaps the pastor to deal with. Women who have been brave enough to lodge a report have sometimes been told to go and bring the perpetrator to the police station! How many times have we witnessed two men fighting in public who soon get arrested? But how many times have people folded their hands and watched while a woman was being beaten on the streets by her husband or boyfriend? How many times have we seen some man being dragged by the collar, by an incensed woman and silently sniggered into our armpits? That is the problem with the current state of the law, it does not specifically cover violence arising out of intimate relationships.

A lot of the gaps that Tony believes should be covered by the Domestic Violence Bill, are already covered by a multitude of other legislation. I will explain what l mean. The rights of widows are already provided for by laws such as the Administration of Estates Act, the Admin of Estates Amendment Act, among many others. The law already provides for abortion under the Termination of Pregnancy Act, while the Infanticide Act provides for "baby dumping". The Sexual Offences Act criminalises rape, among other sexual offences, so again that is covered. The situation of domestic workers, while worrying is already covered by the laws cited above, including the Labour Act, as well as the Sexual Offences Act, among others. If Tony believes they need strengthening, then that is a different matter.

I am happy that Tony problematises the shortage of trauma/counselling and shelter facilities. The Bill tries to address that aspect in Part IV. In its former format, there was a Schedule which would have strengthened further this protection, however, in its passage through the corridors of power and patriarchy, some of these provisions have been dropped.

I get worried when people try to introduce apparently unrelated topics in a discussion. One has to wonder whether it is ignorance or the motives are mischievous. As a wise person observed, there are none so blind as those that refuse to see. Tony raises the issue of dressing. Asserting that some forms of dressing by women are a form of violence and these women should be arrested for violating people’s sensibilities. Tony has to explain to all of us how exactly dressing can even begin to compare with the battering to death of a girl or the murder of a woman or the loss of sight by a person whose partner threw acid over them.? How exactly does he even compare forced marriage to "offended sensibilities"? It boggles the mind. This comment sounds familiar. Can someone remind me what Mubhawu said in Parliament about women’s dressing?

Notions of decency are notoriously difficult to define. Who gets the privilege of setting the standards for decency for society? Allow me to explain. During Victorian England, the exposure of a woman’s legs was considered indecent exposure in much of the western world. Around about that time, in Africa, most of us were still in our animal skins. Exposure of women’s legs was par for the course. There was nothing indecent about it. The settlers who came to Africa were coming from Victorian England and they imposed Victorian notions of decency. Gone were the animal skins, in came the voluminous dresses and skirts (totally inappropriate for the weather, one might add!) So successful was this process of inculturation that a lot of people (Mr Namate included it seems) are still advocating for this mode of dressing, long after its chief proponents have realised its folly and moved on!!

What exactly is decent? In Zimbabwe it is perfectly ok for a woman to breastfeed a child in a public place. In fact if a baby is crying (say on a bus) everyone on that bus is likely to be heard asking the mother "madii mayamwisa mwana?" (Why don’t you breastfeed the baby?) Interesting then that in some states in the US, laws have had to be enacted to specifically protect nursing mothers from harassment by people on the basis that exposing a breast while breastfeeding is indecent exposure as some people find it offensive to their sensibilities?

What exactly is decent? In some parts of Pakistan, exposure of all parts of an adult woman’s body is considered indecent, except for the hands and feet. While in Afghanistan under the Taliban, no part of the woman’s body was permitted to be seen, so women had to wear the burqa, which covered them from head to toe, including the mouth and eyes (there would be a mesh to enable sight and breathing). Where exactly do we draw the line and who draws it?

It is not an accident that Mr. Namate raises this issue and he is not the only one. It is only interesting that in a lot of things traditionalists will clash with Christians for example. But when it comes to issues of women’s rights, we get avowed traditionalists quoting scripture, avowed Christians will begin talking about "our culture", avowed atheists will suddenly dredge up a long forgotten scripture from the deep recesses of their memories, that will support their point of view regarding the proper place of women. Suddenly you get a resurgence of Christian fundamentalism, together with a resurgence of cultural fundamentalism. As l always say, strange bedfellows!

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