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This article participates on the following special index pages:

GALZ and the Domestic Violence Act [Chapter 5:16]
Gays and Lesbians of Zimbabwe (GALZ)
August 08, 2007

View the index of articles on the Domestic Violence Act

Introduction

The Domestic Violence Act is an extremely progressive piece of legislation. The difficulty some may have in believing that this law emanates from the same stable as the barrage of repressive legislation, designed to control both people and resources that has been enacted by our parliament in recent years, is well founded. The Domestic Violence Act is not a home grown Act, but one modelled on that adopted by South Africa in 1998 and customised, with the assistance of the Women's Law Centre at the Faculty of Law in Harare, to suit local conditions. Its South African pedigree required that the legislation conform to the values of the widely admired South African constitution. This being the case, the legislation needed to avoid falling foul of the clauses in the South African constitution which invalidate any law which is unfairly discriminatory.

The most common perception of domestic violence is that it is usually violence perpetrated by a man upon his wife in a domestic setting. If the gender stereotypes of this perception had been reflected in the legislation, the legislation would have been invalid under the South African constitution on the basis that it discriminated against unmarried women in favour of married women and that it discriminated against the small proportion of men who are the victims of domestic violence by their female partners. In making the legislation gender neutral, the legislation, inadvertently and without expressly stipulating as much in its various sections, provides protection for the LGBTI community. The nexus between LGBTI rights and discrimination on the basis of one's sex or gender is thus made readily apparent. Protection for LGBTI persons arises naturally from effective gender equality without use of the term "sexual orientation" anywhere in the Act.

Who is protected by the legislation?

The common perception that the legislation is required solely to protect women against their husbands is undermined at the very outset of the legislation. Section 2 indicates the people the Act intends to protect, referred to in the legislation as "complainants". The perpetrator of domestic violence is referred to in the legislation as "the respondent." Accordingly, complainants are defined as:

a) a current, former or estranged spouse; or
b) a child of the respondent, whether born in or out of wedlock and includes an adopted child or step child; or
c) any person who is or has been living with the respondent, whether related to the respondent or not; or
d) any person who;

i) co-habits with the respondent; or
ii) is or has been in an intimate relationship with the respondent.

By avoiding the heterosexist norm of marital couples, LGBTI persons who are victims of domestic violence fall within the definition of "complainants". Paragraph (b) may be interpreted as protecting any off-spring or issue of a respondent regardless of whether they are above the age of 18 (i.e. not a child in the sense of being a minor) or not. Thus any LGBTI person who suffers abuse by a parent, stepfather or stepmother can seek the protection of the Act. The legislation does not require that the abused LGBTI person be living with their parent at the time of the abuse. Provided that the abuse amounts to domestic violence, the complainant may avail him or herself of protections of the Act. What amounts to domestic violence will be considered below. Similarly, paragraph (c) above protects any person living with an abuser, whether related to them or not. This paragraph could conceivably be used to protect LGBTI lodgers who live under the same roof as their landlords and suffer abuse by them. Paragraph (d) provides protection for LGTBI persons who suffer abuse at the hands of their partners. Since sub-paragraph (ii) refers to an "intimate" rather than sexual relationship with the respondent, the courts cannot seek to sidestep the applicability of this provision to LGBTI persons on the basis that it refers to "lawful" relationships only and that gay relationships are not such. There is no law against male-male intimacy, only male-male sexual relationships. There is also no law against gay persons co-habiting, so sub-paragraph (i) is obviously applicable to gay men living together, or any other LGBTI couples who co-habit.

Against what sort of abuse does the Act provide protection?

The legislation provides, in Section 3, almost two pages of what is to be considered as domestic violence:

..domestic violence means any unlawful act, omission or behaviour which results in the death or the direct infliction of physical, sexual or mental injury to any complainant by a respondent..

This general definition is then supplemented by the inclusion of various specific acts held to be domestic violence. Several of these are relevant to the LGBTI community. Included are:

a) physical abuse, or any threatened act of physical abuse;
b) sexual abuse, that is, any conduct which humiliates, degrades or otherwise violates the sexual integrity of the complainant;
c) emotional, verbal and psychological abuse. This includes repeated insults or name calling or threats to cause emotional pain;
d) economic abuse, that is, the unreasonable deprivation of economic or financial resources to which a complainant is entitled or requires out of necessity such as household necessities, medical expenses, school fees etc;
e) intimidation, which includes making threats or inducing a fear of imminent harm in the complainant;
f) harassment, which includes, repeatedly making abusive phone calls to the complainant or sending abusive emails or other correspondence or articles to the complainant;
g) malicious damage to property;
h) depriving a complainant of access to a reasonable share of the facilities associated with the complainant's place of residence;
i) abuse derived from cultural practices including forced marriage, forced wife inheritance or sexual intercourse between fathers-in-law and newly married daughters-in-law.

Other than (c) and (d), in addition to the other remedies available to a complainant, these acts now constitute serious criminal offences and may be reported to the police as such.

By way of an example then, the two sections considered above, afford a lesbian woman protection if she is living at home and her parents or any other person in the house behaves abusively towards her. If this abuse takes the form of trying to humiliate or ridicule her on account of her sexual orientation, seeking to prevent her from accessing facilities in the house or threatening to force her into marriage or to have sex with a man, such actions would all give the woman grounds to apply for a protection order.

Protection Orders

The complainant may apply for a protection order in person. However, since abused persons are often not in a position to make an application for a protection order themselves, other people may represent complainants in an application. These representatives include police officers, members of a church or religious institution, relatives, neighbours, fellow employees or employer of the complainant and registered NGOs concerned with issues of domestic violence (this would not include GALZ which is not registered). The representative may even bring the application for a protection order without first obtaining the consent of the complainant if there is good reason why the consent cannot be obtained, for example, if the complainant is being held a virtual prisoner in her own home.

A protection order granted by the Magistrates Court or High Court may include any one or more of several orders provided for in section 11. A court may, amongst other possible orders, prohibit a person from committing an act of domestic violence, bar him or her from entering or approaching the complainant's residence or place of work, order the abuser to undergo counselling and generally direct that respondent to do or not do anything considered necessary for the well being of the complainant. Usually, when the court issues an order, if that order is breached, it is necessary to return to the court to ask that the person breaching the order be punished. The Domestic Violence Act however, assists complainants by providing that whenever an order is issued by the court a warrant for the arrest of the abuser is also issued. The warrant is automatically suspended. If however, the order is breached, instead of having to return to the court, the complainant may ask any police officer to enforce the suspended warrant of arrest. The abuser is then arrested and brought to court to answer charges of contravening the Act, which carries a penalty of up to five years imprisonment.

Other Provisions

The legislation also rather ambitiously seeks to ensure that each police station has a section specifically tasked to handle cases of domestic violence, staffed with suitably trained personnel There is provision for the establishment of a Domestic Violence Council with the function of monitoring and researching domestic violence in Zimbabwe and the establishment of a panel of domestic violence counsellors appointed by the government. Part of this panel of counsellors is to include Chiefs and headmen as defined in the Traditional Leaders Act which should make for some interesting dynamics if an LGBTI case comes before them for counselling of the complainant, abuser or both. However, it is very unlikely that these provisions will be put into effect given the current financial constraints facing the Zimbabwean government. It is possible that the legislation may be put into effect in stages, with those sections having financial implications currently beyond the capacity of the government being suspended. At present, although the Act has been passed and signed into law by the President (who did not have the opportunity of reading this paper before so doing) the legislation does not become operative until the "effective date". That date has yet to be gazetted, meaning that the law is not yet in operation.

Conclusion

Given that the passage of the Bill though parliament provoked the ire of, and elicited some of the most sexist comments yet heard from, male members of parliament objecting to what was perceived as protection being given to women, it will be interesting to observe the reaction when it is discovered that the legislation may equally be used for the protection of LGBTI persons against abuse in a domestic context. The clear and gender neutral provisions of the legislation will make it difficult for a prejudiced judicial officer to avoid including LGBTI persons in their ambit. It is certainly hoped that the LGBTI community will utilise the provisions of the legislation to obtain relief from abuse, as the opportunity exists, for the first time in the form of specific legislation, to enforce LGBTI people's right to freedom from discrimination that takes the form of physical, emotional and similar abuse. Prejudiced and homophobic members of society have in the past ill treated LGBTI persons with impunity and sometimes with the active collaboration of the police. By using the Act to obtaining protection through the Courts, the LGBTI community can demonstrate to Zimbabwean society that, like any other citizen, they are entitled to protection of the law which has so long been denied on the basis of sexual orientation.

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