Items filtered by date: Tuesday, 05 October 2021
Keynote Address 4th October 2021 Justice Zione Ntaba
Good morning, I bring you greetings from the Warm Heart of Africa, Malawi. A country blessed with beautiful people, rolling hills, thirst quenching rivers and an amazing lake, fondly called the Lake of Stars or the Calendar Lake. We look forward to your visit.
Let me first say, that is it is great to be among a set of people in the legal profession who I enjoy interacting with, being a former prosecutor myself. It is therefore an honour to address you at this SADC Gender-Based Violence (GBV) Model Law Consultative Meeting for Prosecutors from SADC Member States being held virtually. It is important to note that these consultative meetings are happening at a highly appropriate time right now on the African continent as every country is continuing to grapple with gender-based violence and its impact on the population as well as its economic prosperity and development for its people. Therefore, my keynote address is suitably placed in this discussion that Africa needs to have at this point but more so for the SADC countries which have their own unique issues in terms of gender-based violence.
Let me state from the onset that I find the objectives of the consultative meeting, exciting and extremely important as the issues you aim to achieve are very fundamental for gender and women’s right across Africa. It should be indicated at the beginning that there will be a lot of discussion on women and girls in this address. It is evident that even in the 21st Century, research has shown that most sectors continue to move at a glacial pace in terms of bringing women and girls into a position of achieving highest development but more so the enjoyment and promotion of their human rights.
Estimates published by WHO in March, 20211 indicate that globally about 1 in 3 (30%) of women worldwide have been subjected to either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime. Further that most of this violence is intimate partner violence. Worldwide, almost one third (27%) of women aged 15-49 years who have been in a relationship report that they have been subjected to some form of physical and/or sexual violence by their intimate partner. Incidentally that violence against women and girls particularly intimate partner violence and sexual violence is a major public health problem and a violation of women's human rights. Therefore, as prosecutors we should be very concerned and be working on ensuring that we reduce these numbers.
Distinguished prosecutors, I have gone through the draft SADC Model Law and wish to applaud the SADC Parliamentary Forum for having taken on this task which is critical and
pivotal in the justice sector. Most of us hail from countries that have Constitutions that emphasize human rights including mine where under section 19, it provides for the inviolability of human dignity. It prohibits torture, cruel, inhumane and degrading treatment. Gender based violence bears the marks of torture, and is also, under various circumstances, cruel, inhumane and degrading. The invasion of the body in sexual offences contrary to the victim’s wishes often leaves the victim traumatized, both physically and psychologically violated. It is a fact that consequences of gender-based violence means unproductive citizens and this equates to a lack of development for the citizen, nation and continent as a whole.
It is therefore imperative that as SADC we move and embrace new ways of handling gender- based violence. The words of Gubbay JA in Banana v State2 are very poignant and speak to the need to adjust especially in dealing with issues in the gender-based violence context. He stated that in present day society, there was no rational reason to apply the archaic cautionary rule in cases of a sexual nature. This followed changes in neighbouring jurisdictions like South Africa and Namibia. Gubbay JA quoted with approval the Namibian judgment, S v D & Anor3 in which the following was said: "in the end only one test applies, namely, was the accused's guilt proved beyond reasonable doubt, and the test must be the same whether the crime is theft or rape" Gubbay JA went on to quote, again with approval, the South African judgment in S v Jackson4, in which the following was said: "In my view, the cautionary rule in sexual assault cases is based on an irrational and outdated perception. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable. In our system of law, the burden is on the State to prove the guilt of an accused beyond reasonable doubt - no more and no less.”
I am, therefore, particularly pleased that this meeting affords us an opportunity to share knowledge and experiences on this very important topic and in the process build a body of knowledge that can be used to perfect the draft model law. However, it will be remiss of me, if I do not pick out a few areas in the model law which in my opinion need further examination especially taking into consideration, the role of prosecutors in the criminal justice space.
Recently, the Covid pandemic has resulted in many of our countries registering alarming incidences of gender-based violence. The model law has included a very critical area which several the SADC jurisdictions has very little legislation on, that is, the concept of femicide. WHO states that globally as many as 38% of all murders of women are committed by intimate partners. The model law only highlights femicide under the definition part but fails to expand it in terms of the legislation or offer enough insight to the various countries on how to adopt and adapt the model law.
The model law fails to provide parameters for prosecution institutions in dealing with femicide including prioritization of prosecuting such cases, charging aspects to mention a few.
It should be noted that femicide especially in honor killings or domestic situations needs to have a different focus in terms of prosecution policies in our various countries and the model law needs to ensure such is properly highlighted.
Let me take this opportunity to also buttress a critical issue which needs to be fully embraced and noted in the model law. This is in terms of implementation of the law itself especially as it relates to prosecution which goes beyond the training envisaged in section 72 of the draft model law as it relates to the concept of re-victimization. The law needs to address re- victimization to be one beyond access to justice but to one envisaged as an extension of the medical ‘first do no harm’ principle. Further that such should be addressed across the gender- based violence continuum of a victim. Whilst in terms of prosecution, this should include the parameters (policies or otherwise) to be addressed and ensured – pre, during and post prosecution.
Carmichele v Minister of Safety and Security and another5 buttresses the importance of prosecution doing their duty. The High Court and the Constitutional Court held that the common law of delict required development to reflect the constitutional duty on the State especially, the police and the prosecution, to protect the public in general, and women, against the invasion of their fundamental and guaranteed rights by the culprits of violent crime. The Court held the Minister liable, in a case of rape, for negligence because the State did not take measures to protect the victim including the prosecutor who had failed to inform the presiding officer that the accused had previously physically assaulted the victim so that he was not afforded bail.
Similarly, Mexico's Supreme Court issued a historic order where the Court analyzed the conduct of each public servant involved in a murder case and revealed how the absence of a gender-sensitive approach had led to human rights violations of the victim, Mariana Lima, the deceased as well as her mother. The court also issued legal protection for Irinea Buendía, the deceased’s mother. Eventually, Julio César Hernández Ballinas, the husband was arrested since the order required México state authorities to reopen the case but also to conduct the investigation "from the perspective" of femicide, or the murder of a woman by a man for reasons related to her gender6.
It can be said that Courts have played and continue to play their part in protecting women’s rights. They have consistently highlighted that women and girls continue to face numerous inequalities but also vulnerabilities to their wellbeing and safety. On the African continent, this is worsened due to the patriarchal nature of our society. It is my belief that most courts are moving towards gender responsive judging as well as service delivery, therefore it is critical that prosecutors also inherently adopt policies, systems and processes that are gender responsive as they can affect the delivery of justice if they do not.
Lastly, it is recognized that our courts have made significant strides in the jurisprudence involving women and girls in terms of gender-based violence, however there is some gap when it comes to men and boys who are faced with gender-based violence. Therefore, the issues of gender responsiveness are critical. Consequently, the model law needs to also address aspects of this in terms of how the system is viewing incidences of violence perpetrated against men and boys. Internationally despite the context being highlighted is conflict times related, the significance cannot be underplayed. In the case of The Prosecutor v Bosco Ntaganda7 which concerned the Forces Patriotiques pour la libération du Congo (FPLC), an armed group comprised of people from the Hema ethnic group, which was a party to the 2002-2003 DRC conflict. It was recorded that at the pre-trial and trial stage, the Defence sought to have the charges of sexual violence against FPLC child soldiers excluded on the basis that the alleged conduct could not be a war crime because the putative victims and perpetrators belonged to the same military force. However, the Appeals Chamber rejected that argument, and confirmed that the rape and sexual enslavement of child soldiers by their commanders can indeed constitute war crimes under the Rome Statute. The Trial Chamber held that the OTP proved several of the allegations of rape and sexual slavery against child soldiers beyond reasonable doubt, and that Ntaganda bears individual criminal responsibility for those crimes. It also convicted Ntaganda for acts of rape and sexual slavery committed by FPLC troops against non-Hema civilians (both male and female). Furthermore, in addition to those sexual violence crimes, Ntaganda was convicted of conscripting and enlisting child soldiers, using them to participate actively in hostilities, attacking the civilian population, murder and attempted murder, persecution on ‘ethnic’ grounds, forcible transfer, and displacement, attacking protected objects, pillage, and destruction of property. Therefore, he was held responsible for these crimes as a direct perpetrator and indirect co-perpetrator under Article 25(3)(a) of the Rome Statute. Accordingly, there is need for prosecutors in the SADC region to note that there is mounting evidence that gender-based violence committed against men and boys needs to be receiving increased attention.
Access to justice remains a key pillar towards the eradication of violence against women and girls. It contributes to break the circle of violence, provide adequate reparation to victims, and transform the circumstances that make women and girls vulnerable to violence. Enhancing the efforts of prosecutors as part of key justice responders in protecting the rights of women and girls is essential and the model law must do so.
It is important to highlight that we must continue to be determined in terms of promotion and protection of the rule of law with a special emphasis on advancing human rights of everyone but more so women and girls who continue to be vulnerable, despite a lot of efforts. Justice dispensation is a collective determination and effort of every person in the sector. Justice must be transformative and must have a Human Rights face. It is therefore imperative that prosecutors across SADC should be strategic and harnesses all its resources.
We nonetheless commend our legislators for taking such a huge and bold step. It gives us Judiciaries as well as prosecutors, a good basis for expanding the laws on gender-based violence in our various jurisdictions. It offers prosecutors opportunities to go beyond the criminal justice space including advising victims on other possible actions available like taking the civil route in addition to the criminal justice route to redress human rights violations. The need to protect women and girls as well as men and boys from unwanted violence cannot be overemphasized when we talk of gender equality including women’s rights. We must be present.
In conclusion, let me leave you with the words of the Dalai Lama who said peace can only last where human rights are respected, where the people are fed, and where individuals and nations are free. We must remain ready; we must be vigilant but more so ready to reduce the inequalities but also to prosecute with vigour gender-based violence cases in our countries.
I wish you a wonderful consultative meeting and as well wish you well as you continue to help eradicate gender-based violence across the SADC region.
05 October 2021 - A High Court Judge from Malawi, Justice Zione Jane Veronica Ntaba, has urged the legal drafters of the Southern African Development Community (SADC) Model Law on Gender Based Violence (GBV Model Law) to ensure that it clearly spells out the parameters of prosecution for femicide.
Justice Ntaba was delivering the keynote address at the virtual consultative meeting of the SADC Parliamentary Forum (SADC-PF) and the SADC Member States’ prosecutors on the GBV Model Law yesterday (04 October).
“The Model Law has included a very critical area which several of the SADC jurisdictions have very little legislation on – that is the concept of femicide… The Model Law fails to provide parameters for prosecution institutions in dealing with prioritisation of prosecuting such cases,” said Justice Ntaba adding that the focus of the parameters should be on pre, during and post prosecution.
Justice Ntaba said another issue that needed further examination on the draft was the concept of re-victimisation. “The law needs to address re-victimisation to be beyond access to justice but to be envisaged as an extension of the medical principle – ‘first do no harm.’ That is to be addressed across the GBV continuum of the victim,” she said.
However, Justice Ntaba said she was excited by the purpose of the consultations. “I find the objectives of the consultative meeting exciting and extremely important as the issues you aim to achieve are very fundamental for gender and women’s rights in Africa,” she said.
Dr Linda Naidoo, of the United Nations Office on Drugs and Crime (UNODC), told the meeting that major forms of violence in the SADC region include rape, trafficking in persons and child marriages. “In the SADC region victims generally do not seek legal recourse because of inhibiting factors such as fear of being blamed for breaking up the family, fear of reprisals from the spouse, shame about airing their personal affairs in public and economic dependency.”
Dr Naidoo said “the home is the most dangerous place for a woman. In seven countries 20 percent of 15 to 24 year old females reported sexual violence from an intimate partner, the percentage exceeds 50 percent in many countries.”
SADC-PF Secretary General, Ms Boemo Sekgoma, emphasised the central role played by prosecutors in the fight against GBV as it is “increasingly, being treated not only as a domestic issue which occurs within the confines of the household, or a civil law issue, but as an issue which can have criminal law implications.”
“Prosecutors are important to consider GBV complaints, assess the evidence, filter false complaints from meritorious ones, and proceed in accordance with the law in place to advise for further prosecution and trial. Prosecutors fill the Charge sheets and decide which charge is more appropriate to the offence committed or advise for further enquiries to be conducted by the investigating authorities,” said Ms Sekgoma adding that “prosecutors are thus prominent stakeholders in the fight against GBV as well as for sensitisation initiatives to prevent GBV.”
Facilitating the interaction was Justice Professor Oagile Key Dingake who cautioned the participating prosecutors that not all provisions of the Model Law “will be attractive to all countries. A number of countries will choose provisions that they consider will strengthen their laws, or those that are consistent with their laws.”
UNODC Crime Prevention and Criminal Justice Officer, Sven Pfeiffer, delivering his closing remarks yesterday said: “It is imperative that all justice actors take appropriate measures to prevent hardship during the detection, investigation and prosecution process in order to ensure that survivors are treated with dignity and respect, whether they participate in the criminal proceedings or not.”
Pfeiffer said the GBV Model Law “provides an excellent basis from which SADC Member States can reform their crime prevention and criminal justice response systems.”
“In pursuit of this, the promotion and protection of women’s and girls’ human rights should form the basis of the development and implementation of relevant national legislation, policy development and training programs,” he said.