Introduction
It was noted in the first post that one of the functions of family law is to protect family members from physical, psychological and economic harm. Domestic violence is an example of such harm. The term domestic violence refers to acts of physical, mental, and/or sexual abuse committed by one spouse against the other or against the children of the family. In polygamous households, domestic violence may also occur between co-wives. In this lecture we consider domestic violence and the extent to which family law protects family members from such physical and psychological harm.
The starting point here is the Law of Marriage which surprisingly contains very little on this form of protection. The closest reference to domestic violence in the Law of Marriage Act is section 66 which prohibits married couples from inflicting “corporal punishment” upon one another. But there are no additional provisions for enforcing this prohibition. On the other hand there is s 139 LMA which empowers the court during the hearing of any matrimonial proceedings or on or after the grant of the decree annulment, separation or divorce, to order any person to refrain from forcing his or her company on his or her spouse or former spouse and from other acts of molestation. The term molestation is not defined by the LMA. It should be taken to include most acts of domestic violence.
Indirectly, there is also section 140 LMA which provides that no proceedings may be brought to compel cohabitation between married couples. Others include provisions governing voluntary separation and divorce. These carry the implication that a victim of domestic violence could secure protection by obtaining physical separation or by ending the marriage through divorce. But there are no provisions to prohibit the aggressive spouse from following the victim where he/she lives and attacking her there.
In effect the Law of Marriage Act is largely silent on the protection of spouses from domestic violence. This is in contrast to jurisdictions such as South Africa and Zimbabwe which have specific legislation designed to fight domestic violence.[1]
Domestic Violence Defined
Domestic violence occurs when one of the spouses or former spouse commits or threatens to commit acts of physical and/or emotional abuse or violence against the other. It is committed when one of the spouses destroys the other spouse’s property or isolates him/her from potential sources of support including family and friends. Exclusion from access to personal items such as food, money, mobile phones, transport, credit cards, etc; amounts to domestic violence; including various forms of harassment such as stalking and silent phone calls.[2]
Civil Remedies
As noted above the Law of Marriage Act is largely silent and clearly inadequate to prevent domestic violence. But note must be taken of s 139 LMA which empowers the court during the pendency of any matrimonial proceedings or on or after the grant of the decree annulment, separation or divorce, to order any person to refrain from forcing his or her company on his or her spouse or former spouse and from other acts of molestation. The term molestation is not defined by the LMA. It should be taken to include most acts of domestic violence. There is, however, section 65(b) of the Law of Marriage Act which provides that “a husband and wife shall have the same liability in tort towards each other as if they were unmarried.” Much of the foregoing analysis relating to domestic violence could fall under the common law tort of assault and/or battery.
Assault can be defined as an intentional attempt or threat to inflict injury upon a person. Such an attempt must be capable of causing, in the mind of the intended victim, reasonable apprehension of bodily harm. In order for the harm apprehended to be reasonable the potential attacker must have the present capability to cause the intended harm.[3]An assault is both a crime and a tort. Therefore, an attacker may face both criminal and civil sanctions. A criminal assault conviction may result in a fine, imprisonment, or both. In a civil assault case, the victim may be entitled to monetary damages from the assailant.
Criminal Remedies
Domestic violence is also committed in the form of criminal conduct such as physical assault (in its various grading), sexual assault, threats/intimidation and murder.[4] These offences are provided for under the Penal Code[5] and although they are intended to apply to strangers, they can also be used to prevent and punish domestic violence. There are, however, several factors that hinder the effective application of these laws such that, except for murder, it can be said that they are not helpful in fighting domestic violence. [6]
Domestic Violence and Human Rights
Domestic violence affects a large proportion of women compared to men. Women are subordinate to men both economically and socially. There is a sense in which domestic violence can be viewed as a male weapon to assert control over women and to maintain their subordination to men.[7] On that basis, domestic violence has been associated with “gender based violence”, that is, violence directed at a woman because she is a woman. International human rights treaties including, in particular, the United Nations Convention on the Elimination of Discrimination Against Women (CEDAW) prohibit discrimination against women and gender based violence. In the light of the above domestic violence is now viewed as a human rights issue and not simply a crime or a civil wrong.
States parties to international human rights treaties are required to take deliberate and effective measures to eradicate domestic violence. In Tanzania, as noted above, there are no specific provisions designed to prevent or at least control domestic violence. Law enforcement agencies and policy makers are reluctant to apply existing legal provisions to protect victims of domestic violence. Indeed, in many communities domestic violence is viewed as an internal family matter and there is also in many communities a degree of tolerance to domestic violence. Community leaders are also known to be reluctant to intervene or condemn acts of violence against women.
The Limits and Limitations of the law
It has been noted above that Tanzania has not taken adequate steps to combat domestic violence at various levels. For example, no special legislation has been enacted to target domestic violence as a social problem. Although there is a special desk for battered women at certain police stations, there is no evidence that husbands who beat up their wives are actively sought and punished. Some battered wives are slow to report domestic violence for fear that such reporting would make matters worse for them. Some women fear that reporting would lead to the imprisonment of a bread winner. There is also social pressure against wives taking husbands to court or reporting them to authorities.[8]The inadequacy of the law against domestic violence is no doubt an accurate reflection of the community’s ambivalence about how to tackle this social problem. It is clear that any efforts to establish a legal framework to fight domestic violence must begin at the level of the community because the law cannot work in isolation.
Summary and Conclusion
One of the functions of family law is to protect family members from harm. The Law of Marriage Act, which is Tanzania’s principal legislation on family law, has little to say about the protection of spouses and their children from domestic violence. Section 65(b) LMA which states that spouses are liable to torts committed against one another opens up the possibility of civil actions but these are a rarity. The fact that most acts of domestic violence are punishable as criminal offences also implies that spouses who are guilty of domestic violence can be prosecuted and punished. But again this is rarely done. The low status of women in our society and the community’s tolerance to the vice has been implicated in the persistence of domestic violence. This has in turn provided strong ground for the widely accepted view that domestic violence is a human rights issue. Tanzania is a party to several international treaties prohibiting discrimination against women and the protection of women’s human rights. It is clear that Tanzania has failed to protect spouses from domestic violence and has therefore breached its international treaty obligations. Tanzania has shown sensitivity to gender equality in other spheres. It should now take another step to fight domestic violence and make the family a safe place for all its members.
Citation
[1]Cite the relevant legislation
[2] See, Domestic Violence: A guide to Civil Remedies and Criminal Sanctions, The UK Lord Chancellor’s Department (2003, at p3) cited in Rebecca Probert (2003, 107).
[3] put ref
[4]In Republic v Kihandika Lwenyakali 1973 LRT n 91 the husband was found guilty of manslaughter on account of the injuries he inflicted upon his wife. Onyiuke J, in his judgement, noted that the accused husband “was undoubtedly guilty of a most barbarous and callous conduct by [tying and] leaving a 7 months pregnant wife bound with ropes the whole night and inflicting cut wounds on her with some hot sharp instrument. The accused exhibited a shocking degree of callousness and perversity in his treatment of the deceased. His conduct was most revolting. ” The accused as sentenced to 12 years imprisonment.
[5] See Penal Code Cap 16 R. E . 2002 and Sexual Offences Special Provisions (SOSPA) Cap 110 R.E. 2002
[6] see Domestic Violence in Tanzania, in Scholastica Jullu,Safina Hassan, Mary Njau and Florence Tesha, (eds) Women’s Legal Aid Centre (WLAC) (2009) pp 106-200
[7] See Deus Buganywa, “Ndoa ni Ndoana kwa Ghathi Chacha binti wa miaka 21” in Raia Mwema, Novemba 27th -December 3, 2013 p 6 where it is reported that a 23 year old husband Chacha Mwita attacked his 21 year old wife Ghathi and severed off her foot. It appears the wife delayed opening the door for her husband when he returned home at night. It is reported that the wife delayed opening the door which made Chacha suspicious. But instead of searching in the house for the suspected lover, he simply attacked his wife with a machette.
[8] For example, Gathi Chacha, who had her foot chopped off with a machete by her husband reports that the husband’s relatives were upset by her because she reported the incident to the authorities. See Raia Mwema, Nov 27-Dec 3rd (2013) ar p 6.
