DOMESTIC VIOLENCE IN NIGERIA: HOW THE LAW CAN HELP

DOMESTIC VIOLENCE IN NIGERIA: HOW THE LAW CAN HELP

Introduction:

I read with deep concern your feature article “Domestic Violence: When the Law Fails to Protect” in the Thisday Lawyer of Tuesday, September 20, 2011. It was indeed a sad, brutal and pathetic story for want of worse words. At times I wondered how all the things the woman in your story endured could even happen. The woman went through hell and I wept for all victims of domestic violence but we cannot afford to fold our arms and watch this evil fester. The law is not of much help in this part of the World because it is more of a cultural and social problem. Here it is still a man’s world where many think they have earned the right to chastise their wives. But this is by no means implying that domestic violence is a one way traffic. There have also been reported cases of wives abusing their husbands. Apart from assault; nagging, vulgar abuse and neglect of general marital duties by the wife to a certain degree may amount to domestic violence and abuse against the man.

Cultural, Social and Economic Issues:

It is crucial that the law takes into consideration our peculiar circumstances in dealing with this issue. There are too many closet abusers and domestic violence perpetrators than you think. Studies have shown that otherwise very successful men and even members of the clergy are involved. So as they say ‘things are not always as they seem’. For cultural reasons though, our women would rather put forward a bold face, flash cosmetic smiles and disguise the bruises with a generous dose of cosmetics with a veneer of ‘happily married’ and all is well to boot.

Like the experiences of the woman in your story, it is for these cultural reasons that victims suffer most. The family, friends and now most annoyingly the church are always likely to counsel patience, endurance and remind the victim of how love is long suffering and marriage is meant to last forever even at the expense of her health and life.

The very important Economic and Social factors cannot also be discountenanced. Here men are likely to have better jobs and earn more. Many women do not even work. In a situation like that it becomes so difficult to walk away from domestic violence and abuse especially in a country and an economy where Children are the ones who support their parents and siblings are also likely to be unemployed and in School even. Where your cousins, siblings and friends seem to be enjoying their marriages even where they might be getting as much abuse and enduring domestic violence as you are doing; who wants to be the one who is divorced? They will even say you walked out of your marriage. These are the serious dilemmas women who suffer domestic violence and abuse in our society face and is the reason why domestic violence and abuse festers and is perpetuated without fear of purnishment.

What is Domestic Violence:

Domestic violence may not lend itself to a particular or one encompassing definition because of the change in concept overtime and the shifting quicksand’s on which assumptions stand these days. What is domestic, family or intimate relationships used to be quite simple but not anymore so we will attempt to work with a few definitions which capture and suits our present purpose.

A study wrote “Domestic violence has traditionally been defined as violence in the home, or between family members. As society's definition of family has changed, so has the law's definition of family violence. While some states cling to the traditional view of domestic violence as between spouses or former spouses, increasingly legislatures are expanding the scope of the law to include children, relatives, unmarried persons living together, persons with a child in common, and even those in an "intimate relationship."

According to Wikipedia, the free encyclopedia, “Domestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence (IPV), has been broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, friends or cohabitation. Domestic violence, so defined, has many forms, including physical aggression (hitting, kicking, biting, shoving, restraining, slapping, throwing objects), or threats thereof; sexual abuse; emotional abuse; controlling or domineering; intimidation; stalking; passive/covert abuse (e.g., neglect); and economic deprivation. Alcohol consumption and mental illness can be co-morbid with abuse, and present additional challenges when present alongside patterns of abuse.”

How the Law Can Help:

Domestic violence is no longer a family secret, it is now a public health problem and we must acknowledge it as such in Nigeria if we must draw the necessary focus to it and ensure the passage of relevant legislation to curb same. Apart from the general criminal laws on assault, sexual crimes and to a limited extent a few gender specific laws and the ones against Child abuse there has been no concerted effort and comprehensive legislation against domestic violence and abuse in Nigeria.

But in expanding the frontiers of the law for the prevention and protection of victims of domestic violence, Nigeria can learn a few things from abroad. For example one of the most potent weapons for addressing domestic violence is the Protective Order that excludes the abuser from the home. We shall come back to this very important order with drastic implications for the abuser and his victim shortly.

The cultural, social and economic impediments that victims face are indeed enormous and will not be dismantled any time soon but the law, our Government and relevant authorities will need to shed its indifference, take affirmative action and if indeed it is necessary enact gender sensitive/specific legislation to help bridge the gap and set us on the way to addressing domestic violence and create the necessary awareness and avenues to end domestic violence and abuse.

All Schools, Churches, Mosques, Employers, Medical Centres, the Law Enforcement Agencies and other social places of contact should be legally mandated and encouraged to have proper counseling and support units and to take more than a passing interest in those with whom they come in contact. The priority should be geared towards early detection of domestic violence and adequately address same and determine where continuous monitoring and evaluation may be necessary.

The Protective Order:

The protective order is an important legal tool which bans a person from the home on pain of arrest and enables the treatment of presence at home as a prelude to committing the crime of domestic violence as the protective order has transformed from being a mere Civil remedy to a Criminal weapon.

The standard method of redress for domestic violence victims in many United States jurisdictions is obtaining a protective order. These may be short-term, emergency protective orders, or longer term orders issued after a hearing. An emergency protective order in most cases is only issued where the applicant can show that there is a danger of immediate harm unless an order is issued. Such an order ordinarily is valid for only a few days, until a contested hearing can be held. After a hearing, the court may issue a longer term protective order.

A protective order may provide such relief as prohibition of further abuse; prohibiting contact with the victim; excluding the offender from the home, excluding the offender from the victim’s place of work or school; payment by the offender of spousal support, child support, monetary compensation or payment for alternative housing for the victim and other forms of relief.

The protective order once conceived as a civil remedy to be sought by victims themselves in court and enforced through contempt proceedings has become firmly a component of criminal law. The state itself now initiates, seeks and obtains criminal protection orders pursuant to criminal prosecution and violation of a civil or criminal protection order is now prosecuted as a crime, usually a misdemeanor and sometimes even as a felony.

Of all the reliefs provided by a protective order, the most far reaching and with far reaching consequences still for the parties is that which excludes the abuser from the home with drastic implications for property law and the old common law of home invasion, burglary. It is no defence that the person excluded from the home co-owns or even solely owns the property and any violation of the order may be and is often treated and prosecuted as burglary. To convict for burglary in the classic common law sense will require the offender to break into another’s dwelling with intent to commit felony therein. But here presence at home will suffice thus criminalizing mere presence at home. Any form of contact is usually prohibited. The person excluded will still have violated the order even if he was contacted by the victim and the order cannot be lifted at the instance of the victim. If we consider that the order which may initially be for three months can be repeatedly extended for up to three years in some jurisdictions then parties may well be staring de facto divorce in the face. For if there is no form of communication for that long period of time, what will be left of any relationship?

If we explore and use protective orders here in Nigeria, many grasping its full implications may not thread the path of domestic violence and/or abuse. Exclusion from the home aims particularly to reverse the power relations as the abuser is almost always likely to be in a superior power position. It seeks to protect the homestead, install peace and a measure of tranquility free from intimidation which will otherwise not be possible if the abuser were to remain at home. Off course this also brings about the unpleasant consequences of enforced separation which the parties could do nothing about even if they desire to resume intimate relations whilst the protective order lasts. In our circumstances however, we may seek ways to temper or ameliorate the consequences but I think a proper appreciation of these dire consequences will deter many an abuser and help end domestic violence.

Conclusion:

Domestic Violence is such a serious matter in Nigeria now and as the rest of the civilized world has done, we must find ways to combat and ultimately end domestic violence. Our circumstances may differ but there is no way we cannot adopt and adapt measures that have worked elsewhere to suit our local circumstances. One of those important measures we must adopt in the fight against domestic violence and abuse is the protective order.

The protective order is a drastic measure but what choice have we got in a world where domestic violence and abuse has become so common place. In an ideal world, the home is a fortress, a tranquil and a place of shelter from the vicissitudes of the outside world for afterall where else should a man (read woman) be safe if not in his own home? But we do not live in an ideal world. Until we get that Adamic world back where man is at peace with man and beast we must explore the use of the protective order to either curb or end domestic violence.

Stephen O. Obajaja Esq. is a Partner at the Lagos Law Firm of Fountain Court Partners.

STEPHEN O. OBAJAJA

Fountain Court Partners

Block 36B, LSPDC Estate

Ogudu Road

Ojota – Lagos.

08052066172.