The problem of domestic violence in Kenya is currentlywell documented. One majorrecurring challenge pointed out by numerous legal scholars and researchers inthis area is the lack of a proper legal and policy framework to tackle theproblem. The Family Protection bill 2011 will address this lack in four ways.
Firstly, it will provide the legal basis and framework for prosecuting domestic violence.
Secondly, it fulfill theprovision of Article 45 (1) and Article 53 of the Constitution of Kenya whichobliges the State to protect of the family as a basic unit of ahealthy and prosperous society.
Thirdly, it will provide protection for victims of domestic violence, many of whom are children and other vulnerable members of the society.
Fourthly, the Bill guarantees the victim a way out of abusive relationship by providing a legalmechanism and justification. The Bill's definition of domestic violence is wide enough tocover situations arising from actual violence or a threat of violence tostalking and abuse arising from social, cultural and religious practices. The definition may take most Kenyans by surprise as stalking has never been considered a form of domestic abuse. It raises concerns that the wide definition of what domestic violence is might be subject to abuse as domestic relationships are often fiercely personal and emotional.
This viewis indeed a true reflection of the tension resulting from the need for changein the social values of the society to conform to the law. The gender rolesthat are ingrained by our upbringing will need to be reviewed. For example, is a man's pursuit of a woman with whom he wants to be romantically involved stalking or is it acceptable as the natural way of things? What does this mean for the traditional social power relations in relationships where men are expected to be dominant' while women are supposed to be submissive? What are the socially acceptable role of menand women?
The Bill also gives a broad definition to themeaning of domestic relations to include house helps, ex- lovers, formerspouses, people in close relations and people living in the same household. It recognises that domestic violence is not limited to marriedcouples but extends to the complex nature and form of domestic relationships.
The Bill gives courts the leeway to ascertain theexistence of a personal relationship on the basis of two parameters— thenature and intensity of the relationship having regard to the amount of time, places and manner in whichthe persons spend together and the duration of the relationship. This calls for a change in how Kenyans view their domestic servants. To many, the domestic servants are not part of the family but mere employees. They are considered outsiders and as such, are sometimes treated with contempt, paid a pittance and exposed to sexual, economic, psychological,verbal and even physical abuse.
The Bill provides such victims ofabuse with a way out as it gives the coirts the power to interfere in such relations. The courts can issue people in these circumstances with protection orders which will protect the victim from theabuser and also commands the abuser to refrain from committing certain abusive actse.g. stalking, harassment etc.
Courts will also be able to prevent contact between the victim and the abuser. Interim ProtectionOrders can also be obtained as a matter of urgency even at night provided the victimcan prove that there has been abuse or threat of abuse. Orders can be grantedin the interim protecting the victim from abuse pending the hearing anddetermination of the final protection order.
Society must embrace the conceptand the reality that courts can interfere in our day to day lives. If it becomes law, Courts will have a great influence in shapingdomestic relations as more victims seek court intervention against theirabusers. Our society must accept and embrace this change.
The Bill is still inits formative and final stages at the Commission of Implementation of theConstitution (CIC) before it is transmitted to the Attorney General and the Cabinetfor approval. It is likely tomeet opposition as well as approval as a result of the radical changes it proposes and which islikely to be forcibly thrust upon the Kenyan society.
The author is an advocate of the High Court of Kenya and a member of the LawSociety of Kenya. He specializes in Constitutional Law, Family Law and PublicPolicy issues.
