GENDER RESEARCH & ADVOCACY PROJECT
This is the first study to assess the implementation of how the Combating of Domestic Violence Act of 2003 is working.
Download the full report
Introduction; Chapters 1-3; Chapter 4; Chapter 5; Chapter 6
Download the summary report
The Legal Assistance Centre launched a similar study of the Combating of Rape Act about five years ago, with recommendations for refinements to the law and improvements in its implementation. Read more about our report Rape in Namibia.
HOW DID WE DO THE STUDY?
The study is based on data from the court files of 1122 protection order applications from 19 different magistrates’ courts in 12 regions – covering the vast majority of applications filed in the first three years of the law’s operation. The study also drew on a total of 60 interviews, mainly with magistrates and clerks of court, and group discussions with traditional leaders, police and magistrates. We also examined reported and unreported judgments of the High Court to see how the Combating of Domestic Violence Act features in criminal cases. Furthermore, just as we were going to press, the first High Court review of a protection order application was handed down – so we were also able to include a summary of this judgment in the report.
WHAT DID WE FIND OUT?
Here is a small sample of the rich wealth of findings in the study.
Use of the law is widespread. By the end of 2008, every magistrate’s court in the country had received at least one application for a protection order and there were over 1000 applications nationwide in that year; equivalent to nearly three applications per day.
Domestic violence affects people in all walks of life. The only category of people not really accessing the law is rural residents; the vast majority of protection order applications came from persons in urban areas - probably because of lower public awareness of the law in rural areas, longer distances from courts and possibly greater reliance on extended family or traditional authorities to deal with such matters. This points to the need to hold information sessions on the law in rural areas, to discuss specific obstacles to utilization of the law in rural communities and to involve traditional leaders in popularising the law.
The law is being used to address serious incidents of domestic violence. When the Combating of Domestic Violence Bill was being debated, some were worried that people might abuse the law by going to court for trivial little tiffs, especially since the law covers non-physical forms of violence such as economic and psychological abuse. However, three-fourths of the complainants in our study had suffered physical violence, almost all had a history of abuse, most reported that the abuse had recently become worse and one out of every two complainants had received a death threat.
Here are examples of some of the threats recorded on the application forms:
- One respondent threatened that he would kill the complainant, set her on fire and then kill himself.
- Two threatened to cut the complainant’s head off, one said that he would cut the complainant’s breasts off, and one said that he would put out the complainant’s eyes.
- One threatened to cut the complainant open with a saw, and one said he would burn down her house with her inside.
And these are unlikely to be empty threats. One-quarter of the respondents had previous criminal convictions, and 12% of them owned firearms. More than half of the complainants were physically injured in the most recent incident of abuse, with almost half of these having injuries that were serious enough to cause them to seek medical attention. Looking at the history of violence, nearly two-thirds had been injured by the violence at some point in the past, and one in five said that their children had been harmed or threatened by the abuser.
But only one in ten victims of domestic violence lays a criminal charge against the abuser. This means that the protection order procedure is an important avenue of assistance.
Complainants withdraw cases in large numbers. Under the law, when you apply for a protection order, you are normally first issued with an interim protection order on an emergency basis. This interim order is made final after the magistrate hears both sides of the story at an enquiry. The research shows that more than three-quarters of people who apply for a protection order receive an interim protection order – with most getting some or all of the provisions they requested. But there is a huge rate of attrition after that.
Overall, only one-quarter of the applications resulted in a final protection order. Andthe data shows that about 1 in 5 complainants withdraw their applications before they receive a final order. We are not sure why this happens. Some apparently reconcile with their abusers, which could mean that the interim order alone was sufficient to stop the violence. But it is likely that some complainants are threatened or intimidated into abandoning their attempts to get a protection order.
Where a complainant does not appear at an enquiry, the court is supposed to request the station commander of the closest police station to enquire into the reasons for the non-appearance to ensure that no intimidation has taken place. But out of the 42 cases where the complainants clearly did not appear at enquiries, only 10 files recorded such a request from the court to the station commander – and only two files contained station commander replies.
There is no provision for follow-up by social workers either. So some domestic violence victims may be left at the mercy of their abusers after they try to reach out for help.
We are failing our children. Only seven complainants in protection order applications were children under age 18 (less than 1%) – but this should not be taken to mean that children are not suffering from domestic violence. It is more likely that they are unable to seek help in the form of protection orders.
The application form asks complainants to list any other people who are being affected by the domestic violence directed at the complainant. The responses indicate that for every victim of violence, six other people are affected on average and four of these are children.
But the mechanism in the law for communication by the court to the Ministry of Gender Equality and Child Welfare about children who are at risk does not appear to be observed in practice - meaning that no social worker is alerted to monitor the situation and see if the children are safe, or if they may need to be removed from the violent environment for their own protection. Thus, our existing system is not working well enough to help children who are being caught in the cross-fire of family conflict.
There are many more facts and figures in the report, which will be discussed in future press releases over the coming months.
WHAT ARE OUR RECOMMENDATIONS?
We suggest simplifying the application forms and the procedure for making interim orders final, since the evidence suggests that the current procedure is not well understood by either complainants or respondents.
We recommend a standard procedure for making protection orders available after-hours and on weekends – which at present seems to be based only on the goodwill of individual officials.
We urge intensified training for the relevant officials, particularly clerks of court who usually assist complainants in completing the application forms.
We recommend urgent attention to the service of protection orders on respondents – a weak point in the chain of procedure which may put complainants at increased risk. At present 40% of interim protection orders are apparently being served ten days or more after being issued and 11% are being served only one month later. This is simply not good enough – especially remembering that half of those complainants have been threatened with murder.
We recommend a number of technical refinements to the law and regulations, particularly to address the need for more safeguards for children and for complainants who approach the court and then disappear.
We recommend that the forms which police are supposed to fill in about each and every domestic violence incident should be completed as the Act directs. They are not in standard use now, but making them routine would be of immeasurable assistance to future researchers.
We also recommend more counselling services for complainants, including assistance with “exit strategies” for leaving a violent relationship – such as referrals to shelters and advice on divorce and maintenance procedures.
See our resources on domestic violence
Read some of the latest articles about the release of the study: The violent way things are (Insight magazine August 2012)
See our press releases about the report:
See our poster series using data from the report: