Thoboloko Ntšonyane
MASERU – There are swelling concerns about the gaps in the implementation of the Counter Domestic Violence Act, 2022 that have been touted in some quarters as a remedy to the heightened cases of gender-based violence (GBV).
Despite the government’s efforts to tackle the scourge of GBV, many survivors are still denied full justice, as some provisions in the new law reportedly conflict with those in the Sexual Offences Act.
According to the Act, domestic violence is “an act, omission or behaviour which inflicts pain and injury on a person physically, sexually, emotionally, verbally, psychologically and economically”.
While major strides have been made in this piece of legislation that was fiercely worked on by the 10th parliament to domesticate some provisions of the Southern African Development Community- Parliamentary Forum (SADC-PF) model law on GBV in line with the SADC Regional Strategy and Framework of Action for Addressing GBV (2018 – 2030), there are fears that it will remain ineffective as some key provisions are still not provided for, to enable its full implementation.
All Basotho Convention (ABC) proportional representation (PR) member Hon ‘Malelaka Lehohla Malakane, recently acknowledged that the law has not been fully implemented due to certain outstanding issues, particularly the lack of a specialized court. The Counter Domestic Violence Act, 2022, proposes the establishment of a Family Court.
She reflected on a case of a woman who experienced abuse at the hands of her partner. However, the law could not fully take its course, as the survivor was told by the court that there was “no special court” to handle her case.
This is despite the Act defining the court as a Local Court, Central Court, Magistrate, Children’s Court, or “any court that may be accessible to the victim of domestic violence at the time of need.”
Section 16 (1) of the Act calls for the establishment of a Family Court “which shall deal with problems arising out of family matters and hear cases of domestic violence. (2) Every court shall sit as the Family Court within its area of jurisdiction.” According to the MP, the absence of this ‘court’ is a setback for survivors.
Malakane also recently added her voice to the discussion, expressing her support for the law. However, she pointed out that many women are unaware of its provisions, which are meant to protect them. “This means that it is the responsibility of us, female MPs, after passing laws that directly affect women, to sensitize them about these laws,” she remarked.
Attempts to solicit a reaction from the Judiciary drew a blank, as the Registrar of the High Court, Advocate ‘Mathato Sekoai, declined to comment on the questions we had asked concerning allegedly improperly addressed cases of GBV survivors, referring us to the Public Relations Officer, whose mobile was unavailable and also did not answer the questions sent to her.
Meanwhile, Malakane’s calls reflect growing concern among GBV advocates, who argue that while the Act in question was a step in the right direction, its impact remains limited without a fully functioning system to support it. Some are of the view that this law is “badly written” and that there was not enough “consultation” during its drafting.
The Deputy Speaker in the National Assembly and former 10th parliament Movement for Economic Change (MEC) PR MP, Hon Tšepang Tšita-Mosena strongly argues however that the responsibility of parliament is to make laws while the executive’s mandate is to ensure implementation of such laws.
During its crafting, there were thorough consultations by MPs countrywide, and views of both men and women, young and old, were taken into consideration, inclusive of key stakeholders.
“It should also be appreciated that this law had been stalled for too long, and it was time for Lesotho to take the right direction, starting with the political will of parliament to address the cultural norms that justified inhuman behavior”, she says. What remains now is for the necessary funds to be allocated nationwide, to support in the implementation of the law such that no excuses can be entertained.
“Once a law is enacted, disregarding its provisions is actually being unlawful, which can be worrisome if courts can claim there are no special courts to handle GBV cases, yet such persons who disregard implementation of the law need to be subjected to the very courts of law. Parliament needs to ensure resources are available for the Judiciary and the Executive towards full implementation,” said the Deputy Speaker.
Hon Malakane warned that failure to use these laws in courts could result in further harm to survivors, underscoring the urgency of addressing the bottlenecks, as GBV cases continue.
She said sometimes women don’t report cases of abuse because they want to protect their partners and their marriages, which escalates the cases of abuse.
“My question is, why are you in that marriage where you are not happy? Why are you staying and not reporting? Staying and reporting are two different issues. Why don’t you report abuse? We can stay and address the issues, but living in the scourge of abuse without reporting is a weakness that we women have. We made noise for this law to be enacted, showing how we are disadvantaged, as human rights dictate that every person has the right to live freely,” she stated.
She said as lawmakers, their duty is to take this issue to the government to ensure all resources are made available and hurdles are addressed for this Act to come into effect.
Talking about abuse, she says, will heal women emotionally or psychologically, as not talking could result in unnecessary deaths, some due to strokes or other causes.
Malakane further noted that there has been progress on laws that protect women, as these issues are no longer “silent.” She said the reforms have ensured that women are no longer regarded as “children,” as some customs perpetuate patriarchal tendencies. “It is important for women to use platforms to voice their concerns wherever they meet, and they should not fear, as this will help and strengthen each other.”
According to Afrobarometer, a non-partisan African research network that conducts surveys on democracy, governance, and quality of life, 56% of respondents in Lesotho believe women are likely to face victimization if they report incidents of GBV.
The study also highlights that 38 percent of those interviewed across 39 African countries perceive GBV as either “somewhat common” or “very common” in their communities.
In a previous report, Afrobarometer pointed out that GBV poses a significant threat to the country’s development and economy and is recognized as a major driver of HIV in Lesotho, which has the third-highest HIV prevalence rate globally, at 23.2% (UNAIDS, 2021).
Additionally, 69% of African respondents stated that it is “never” acceptable for a man to use physical force to discipline his wife.
With increasing pressure on the government to establish a specialized court, the question remains – are current efforts enough to combat the crisis of GBV?