GBV FIGHT: SURVIVORS PREFER TO SUFFER IN SILENCE - DPP’S OFFICE

MBABANE – The war against gender-based violence (GBV) is being lost because of survivors who prefer to suffer in silence.

The Office of the Director of Public Prosecutions (DPP) under the Domestic and Child Welfare Unit, says ignorance of the law is to blame for the failure to do away with the GBV scourge in society. They said survivors who preferred to maintain an abusive relationship cited such issues as a change of heart by the perpetrator, the imminent loss of maintenance should the perpetrator be arrested and cultural norms. “But they are oblivious to the provisions of the Sexual Offences and Domestic Violence (SODV) Act, 2018, which stipulates that once a case has been reported, the discretion to prosecute now lies in the hands of the DPP,” said the prosecutors.

Constitution

They also pointed to Section 162 (4) of the Constitution of the Kingdom of Swaziland (Eswatini), 2005, which states thus: “The director shall have power in any case in which the director considers it proper to do so, to (a) institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person against the laws of Eswatini.” It further gives the DPP powers to take over and continue any criminal proceedings that may have been instituted or undertaken by any other person or authority. “When the SODV Act was enacted, we had confidence that people would flock to police stations to report cases. All along, the only remedy available was peace-binding orders. True to that, they came to report these cases, but now, some are withdrawing midstream.

Survivor

“The SODV Act has gone a step further to give the survivor a remedy to approach the police and lay charges or get a protection order.” They said the law also guided the police on how to investigate such cases. “The police can also confiscate any weapon that may have been used in the commission of the crime, without having to obtain a warrant first. These weapons may include firearms, knives, clubs and other dangerous weapons.” Once the investigation has been concluded and the case is taking off, a new problem arises. The survivor starts getting elusive and does not answer calls. When we finally reach her, she says they have reconciled (sebacolelene) with the perpetrator and does not want to pursue the matter further.” This change of heart by the survivor, referred to as the complainant in legal terms, threatens to send domestic violence cases into a tailspin.

The survivor neglects to take into consideration the provisions of the law, which have given the prerogative to prosecute into the DPP. “The SODV law states, from the onset, why it was necessary to pass such a statute. It says ‘it is an Act to make provision concerning sexual offences and domestic violence, prevention and protection of all persons from harm from other sexual acts and acts of domestic violence and to provide for matters incidental thereto’. The prosecutor continued: “Now when the person does not want to be protected, what does they expect the State to do because it has an obligation to protect people?” Once the case is in the hands of the Crown, the survivor can be referred to as a ‘witness’ of the State. They cease to have the right to determine if the prosecution continues or not. Witnesses who decline to cooperate with the DPP risk being declared hostile witnesses, which is a criminal prosecutable offence under the Criminal Procedure and Evidence Act, 1938.

Meanwhile, there is an ongoing hearing at the High Court, where a woman survivor wants all charges dropped against her boyfriend because they have reconciled. This is despite that she was allegedly stabbed by her boyfriend. The prosecutors said when survivors say they had dropped charges, they risked being interpreted as having lied from the onset. “If they were lying that they had been subjected to domestic violence, then they are liable for prosecution. In such cases, there is no option but to charge the complainant with lying to court. Such is also provided for in the SODV Act that anyone who peddles falsehoods is liable for prosecution,” the prosecutors said. Meanwhile, Magistrate Fikile Nhlabatsi, in the past few years, dealt with a case in which the complainant suddenly said she was lying that she had been abused by the accused person. The magistrate, on the inverse, found her guilty of misleading the court and sentenced her to four years imprisonment with the option of a fine of E4 000. The prosecutors said the public also lost confidence in the courts if such cases were not concluded.

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