Statement by the Secretary General During Stakeholder Consultations for the GBV Model Law – Prosecutors on 4th October 2021 Featured
Distinguished prosecutors and participants, Salutations
Guest of Honour, Honourable Justice Zione Jane Veronica Ntaba, Judge of the High Court, Malawi Justice Prof. Oagile Key Dingake, former judge of High Court of Botswana, the Industrial Court of Botswana, the Residual Special Court for Sierra Leone, and the Supreme and National Courts of Papua New Guinea.
Marco Moreira De Sa Assuncao Teixeira, UNODC Acting Regional Representative
Linda Naidoo, National Project Officer for Gender based Violence, United Nations Office on Drugs and Crime (UNODC) Regional Office for Southern Africa
Distinguished Prosecutors from SADC Member States. Ladies and Gentlemen
It is with an immense sense of gratitude that I welcome you to this meeting under the auspices of the SADC Parliamentary Forum. As you may be aware, the SADC-PF has been conducting a series of stakeholder consultations for its flagship SADC GBV Model Law. While consultations have been successfully held with SADC lawyers and jurists as well as judicial officers and Line Ministries, it was necessary to engage in consultations to understand and delve further into the prosecutor’s perspective to Gender Based Violence (GBV).
Today, we welcome you not only in your capacity as lawyers or police officials who act as prosecutors, but also as representatives of prosecuting agencies across SADC. In this respect, in my capacity as Secretary General of the SADC Parliamentary Forum, I wish to start by paying tribute to the august constitutional function of the Office of Directors of Public Prosecutions (DPPs) across the whole SADC region. All around the world, the DPP’s Office stands as a steadfast guardian against arbitrary arrests, unlawful imprisonment and detention by representatives of the Executive, and DPP’s offices thus constitute a pillar of the democratic framework of each SADC nation. It is well-known that the independence of the Office of the DPP lies at the very heart of any healthy democracy.
Since the Vision of the SADC-PF is to act as the Flag- Bearer of Democratisation and Socio-Economic Development for the region, it goes without saying that Offices of the DPP in SADC are valued and esteemed partners to the Forum. We hope to continue to collaborate with Offices of the DPP beyond the adoption of the GBV Model Law and we trust you will act as bridges to consolidate our partnership framework.
- Why is the Forum addressing GBV through a Model Law?
I wish to highlight that the need to address GBV is rectilinear to the Strategic Plan of the Forum. Indeed, according to the Strategic Plan (2019-2023), the Forum is to ensure gender equality and promote a culture of human rights that encompasses the right to physical integrity, the right to health as well as the right to life.
As prosecutors of SADC Member States, I am confident you will concur that human rights cannot thrive in an environment which is beleaguered by GBV. Furthermore, the ambit of GBV literally knows no bounds, with GBV affecting the destitute as well as wealthy individuals, being common at home or in workplaces, in urban or in rural areas alike. In this dominion, the Forum was inclined to consider the SADC Regional Strategy on GBV (2018-2030) and act on its recommendation to have a human rights compliant legal framework to address GBV.
By setting a normative framework through a GBV Model Law, the Forum is thus bringing SADC Member Parliaments several steps closer to the enactment of a robust GBV law that befits international best practices while also bearing in mind the SADC context. Soft law developed in this respect can thus act as a legal catalyst to facilitate the development of binding laws in each SADC country. A SADC Model Law can thus become a trend setter, and act as a template or a baseline for additional research or adaptation to the domestic context. With the SADC Model Law on HIV and Child Marriage, the Forum has already witnessed an upsurge in legal amendments brought to existing laws due to the convenient facility provided by the SADC Model Laws as benchmarking legal instruments. While the SADC Model Law is intended to be a booster at the domestic level, prosecutors present today are invited to continue to request for legal reform for GBV laws to be modernised and aligned with the Model Law and other current human rights instruments.
- Why is the engagement with prosecutors important?
Having said this, I wish to emphasize that prosecutors have a central role to play in the fight against GBV. Increasingly, GBV is 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. In that regard, 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. Moreover, Prosecutors are involved in sensitisation campaigns against violence in society, inclusive of GBV. Prosecutors are thus prominent stakeholders in the fight against GBV as well as for sensitisation initiatives to prevent GBV.
- Areas in the Model Law that can interest Prosecutors
Distinguished Prosecutors and participants,
Your engagement today will be centred on the GBV Model Law, in particular on the offences which may be relevant for GBV. It is often said that a law is not a law unless it can be enforced in some binding manner by offence provisions or penalties.
In this respect, you may wish to consider the GBV Model Law from an offence perspective and determine if there are sufficient provisions to deter offending and also punish adequately repeated GBV offending. While the Model Law aims to provide the outline of the GBV offence framework, it will of course be up to the Member State to decide on the length of the proposed sentence and the type of sentence, whether custodial or non-custodial. Still, we would appreciate the wise input of prosecutors in this respect on issues such as proportionality of sentencing and preservation of the chain of custody, to set the GBV Model Law on the right track of implementation.
In addition, prosecutors should consider their respective country situations and advise when criminal law provisions are most relevant for application to domestic GBV situations. Key questions that may be addressed are “ Could GBV be adequately punished by a fine only?” – “When will be the custodial threshold be passed for GBV? That is when does GBV become serious enough to merit imprisonment?”- “ How does Member States reinforce the confidentiality of GBV reporting?” – “Should the divulging of confidential information relating to GBV reporting itself be considered as an offence?” – “Is prosecution always the right approach concerning GBV?”
These are just a flavour of the questions that participants may dwell upon for further engagement with the Legal drafter and facilitators of today’s session.
In addition, Prosecutors are also invited to give their views generally as lawyers on the purview of the Model Law and its responsiveness to the GBV context for the SADC region.
Having made the above remarks, I wish to thank you again for your attendance today, and I wish you all a pleasant session.
Ms Boemo Sekgoma, Secretary General,
SADC Parliamentary Forum 4th October 2021
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