She told the virtual meeting that soft laws developed by the SADC-PF in the form of model laws have accelerated domestic incorporation processes. For example, the SADC Model Law on HIV and on Child Marriage have already been domesticated across much of the SADC region.
“The SADC Model Law on GBV is on the same wavelength as the SADC Regional Strategy and Framework of Action for Addressing GBV (2018 - 2030), which calls for human rights-compliant legislative provisions to outlaw negative traditional, social, economic and political practices that promote all forms of GBV,” said Ms Sekgoma.
Giving more details, the legal drafter of the SADC Model Law on GBV, Ms Eva Jhala, said it will be a useful tool in guiding national legislatures when developing GBV laws in their countries. “The GBV model law will be a governance tool to assist parliaments to develop and enact national laws on GBV or revise or reform existing laws on GBV, in order to meet their international, continental and regional commitments relating to human rights and, more specifically, against gender-based violence.
“The underlining rationale is to protect victims and probable victims of GBV, punish perpetrators and ensure that human rights are upheld in accordance with international, continental and regional standards and requirements,” explained Ms Jhala.
It will also encourage national legislatures to enact GBV laws where these do not exist or, where they do exist, but do not conform with this model law, to review such laws and enact relevant GBV laws that do conform.
“GBV not only has terrible effects on the victim, but impacts negatively on society at large, with serious social and economic consequences. It is a national issue which requires drastic national interventions through the highest tool of governance – the law,” she said.
The majority of SADC member states do have laws in one form or another dealing with GBV, however these do not seem to have had any effect on GBV. Most legislation contain loopholes, the provisions lack scope or content, are fragmented, inconsistent, conflict in allocation of mandates, are ambiguous or generally vague as to meaning, privilege, entitlement or right.
They also lack adequate access to justice provisions to enable and capacitate the various players in the criminal justice and administrative systems, at various stages, to prevent, receive, investigate, attend, prosecute and decide on GBV cases; and enforce decisions and protect victims of GBV.
Ms Jhala told the meeting that for effective and efficacious handling of GBV cases, countries must have legislative and institutional frameworks that provide adequate measures, strategies, programmes and interventions to deal with GBV, including adequate capacity building of critical role players and stakeholders for effective and sustainable prevention, monitoring and management of GBV cases.
“It is also important to ensure that the law provides an adequate institutional framework for engagement of all players who regulate, manage and are affected by GBV, by providing for a clear system for coordination, communication and collaboration among all the players when dealing with GBV cases, with clear lines of responsibilities,” she said.
She also advised that countries and their legislators must consider statutes of general application whilst adopting or adapting the GBV model law. She said these are statutes that generally apply to all laws in a country’s jurisdiction, such as the interpretation and general provisions acts, statutory portfolio acts, criminal laws, evidence codes and financial management laws.
The SADC Model Law on GBV also urges member states to embark on legislative reforms in order to give effect to their international and regional obligations and commitments, which are generally incorporated as requirements, principles, concepts, standards, measures, interventions and programmes.
Should the GBV Model Law be adopted by SADC PF, domestication of regional and international instruments on GBV will still depend on national legislative or executive action.
Ms Jhala said domestication will depend on and evolve according to the requirements and complexities of national constitutional requirements and processes, which may vary among member countries.