A Brave Approach to Domestic Violence
Ghana adopted a pensive approach to domestic violence which is projected by the adoption of broad and flexible factors for conceptualizing domestic violence and domestic relationships. The approach clogs loopholes for regulatory arbitrage.
Defining Domestic Violence
Ordinarily, violence connotes the usage of force or exposure to danger. We expect to witness an upper cut to the jaw, a ninja kick to the groin, snipping off an ear with a knife or perhaps a bullet to the temple. Ghana maintains this ordinary expectation but doubles it up with the fringe meanings for the concept. Domestic violence commands a broad definition which can be subcategorized into four prohibited activities.
Firstly, all forms of threat or harm criminalized by the Criminal Offences Act 1960, fall under the broad definition. Secondly, specific acts or threats covering physical, sexual, economic, emotional or psychological abuse fall within the broad definition. These acts are not exhaustive. These may include deprivation of necessities like food, shelter or clothing, deliberate transmission of sexually transmitted diseases, failure to provide financial assistance, verbal abuse, humiliating conduct or even selling off property without the victim’s consent.
Thirdly, the definition encompasses sexual harassment. Harassment includes contact-based harassment, verbal and non-verbal harassments. It will suffice if a person takes a suspicious sexual gaze at a victim. Lastly, the definition covers other breaches to dignity, integrity, privacy, safety, well-being or security of a victim.
Considering the holistic definition, to sound daring, I will define domestic violence to include abusive acts, threats, omissions and activities.
Legislative Conceptualization of Domestic Relationships
The DVA also defines domestic relationships broadly. There is a sixfold definition which includes:
- Present family relationship
- Past family relationship
- Present relationship akin to family relationship
- Past relationship akin to family relationship
- Present domestic relationship
- Past domestic relationship.
Detailing this further, the definition includes marital situations, non-marital cohabitation, sexual and non-sexual relationships, parenthood relationships, family relationships drawn from blood linkage, adoption or family imposed by law, co-tenanting, domestic staff, provision of refuge for a person under attack and any other relationship that can legally exist under a roof.
The court is empowered to define a relationship using four factors which are:
- duration spent together,
- common place where time was spent,
- the way time was spent and
- the duration of relationship.
Probing the Remedies
In the architecture of the DVA, there is provision for police arrests, orders for cessation of domestic violence and orders for ejection of abusers. The legislature sends three basic messages to the society which are:
- Upon suspicion of breach, you will be arrested.
- Upon proof of breach, you will be restrained from future breaches.
- Upon proof of breach and if restraint will not be sufficient, you will be asked to relocate.
Technically, these solutions are called arrest powers, interim protection orders, protection orders and occupation orders.
Arrest Powers and Role of Police
The police serve a pivotal role as the most accessible stop gap for domestic violence. In 2015, the police administration commendably commissioned the Domestic Violence and Victim Support Unit to replace the erstwhile Women and Juvenile Unit.
The doors for lodging complaints are widely opened to victims, family members, social workers, health care providers and other key stakeholders. As an enhanced accessibility approach, the power to entertain complaints is vested in the police stationed at either the abode of the offender or the victim.
Upon receipt of complaints, the police must perform three main responsibilities, vide licet:
- Provision of any form of assistance and protection.
- Facilitating free medical treatment from the state.
- Conducting arrests.
The arrest powers can be exercised with or without the issuance of an arrest warrant by a judge. The police can arrest without warrant if the act of domestic violence is committed in the presence of the police, if a person obstructs the police from arresting an abuser, if the abuser has escaped or is attempting to escape from lawful custody, or the police reasonably suspects that an offence has been committed or an offence will be committed without an arrest.
Further to these powers, the law recognizes distance and time as counter progressive factors. By the time the police arrive, the victim may even be dead. So, private persons have been granted limited powers of arrest to avert such occurrences.
This power is only exercisable if the crime is committed in the presence of the private person or there is reasonable suspicion that the offence has indeed been committed. The private person must immediately send the abuser to the police.
Interim Protection Orders as a Balance Between Audi Alteram Partem and Substantive Justice
The abuser has a constitutional right to police enquiry bail if he or she is not placed before court within forty-eight hours of arrest. That right to bail does not wane down in court. All offences are presumed bailable in Ghana therefore in appropriate cases, the court can grant the abuser bail. Certainly, arrest is not in itself sufficient to curb the menace. Also, some cases are never reported.
A more compelling solution is the provision of interim protection orders. A victim is allowed to apply to the court to restrain the abuser from carrying out abuses or threats. If granted, the parties may still live under the same roof, but under the terms of the court.
The court can grant this order without granting the abuser a hearing. It is structured to render support and protection at a speedy pace.
To beef up support, the powers are vested in the District Court, Circuit Court , and High Court. These courts are scattered across the country so remoteness cannot be used as an excuse for dormancy.
The fact the side of the abuser is not heard may be used as a recipe for abuse through lies and hyperbolization. Therefore, there are three levels of checks to prevent abuse.
- Firstly, the supposed abuser can apply to the court to cancel the order. He must prove to the court that the supposed victim lied.
- Secondly, the supposed abuser can lodge a complaint for the supposed victim to be prosecuted for perjury if indeed the victim lied.
- Lastly, the interim protection order can only have a maximum duration of three months. The supposed abuser can decide to take no action for the duration to expire if the order causes no real discomfort.
All Sides Heard So Yes, The Protection Order
A curious mind will wonder how far the law can go to protect the victim after the expiration of the three-month interim protection duration. Further protection will require a fair hearing.
Upon application, the supposed abuser will be given the opportunity to debunk the claims of the victim. The application must be heard within fourteen days after it is filed at the registry of the court.
The court decides the case from material evidence. It has additional powers to request for the preparation of a social or psychological enquiry report to make the evidence more understandable.
The report is prepared by a psychologist or a social welfare officer. It covers the psychological make-up of the parties and the social circumstances underpinning their traits. The Act is in tune with medical analysis on the causes of domestic violence.
Domestic violence is not always a product of anger. It may be psychological or borne from childhood training. Society may normalize violence for some people. Turmoil in life may trigger violence traits. It may even be the byproduct of previous wrecked relationships in the form of post-traumatic stress disorders.
From the report, the court can direct the abuser to seek counselling or rehabilitation. The court will also order the abuser to desist from committing further abuse or threats. The abuser may be asked to cater for the medical expenses accrued or accruing from the abuse.
The protection order can have a maximum duration of twelve months which may be extended, reduced, or cancelled. The behaviour of the abuser will be the telling factor.
So Far So Good?
We have five vivid points, vide licet, :
- Ghana abhors domestic violence
- Ghana defines domestic violence and domestic relationships broadly
- If you commit domestic violence, you can be arrested
- The court can restrain you for a shorter duration of three months without giving you a hearing.
- The court can restrain you for a longer duration of twelve months after your side is heard.
The final hatchets worth burying are: what if the parties cannot live under one roof? What if the abuser breaches the protection order or the abuser will not respect the protection order? Upstage the Occupation Order!
Upstage the Occupation Order!
The court has the power to issue an order which requires the abuser to vacate the matrimonial home or any other specified home. This is possible in three main situations, vide licet:
- The abuser flouts terms of the protection order.
- The abuser has put across conduct to show that he will not respect the terms of the protection order.
- The parties cannot survive physically or psychologically under the same roof.
It is worthy noting that the occupation order is the main power for relocation. The court whilst issuing a protection order can also instruct the abuser to leave the home. In both cases, the court has the power to order the abuser to keep paying rent, mortgage or maintenance for the property and the survival of the victim.
The law in its full throttle structures this shield around the victim. The court can even restrict the abuser from contacting the victim by phone or any other means of communication. There is however a squeaky door!
Ownership Rights as the Squeaky Door
Success with procuring an occupation order hinges upon proof of a right in the house. The law clearly defines the order as one which requires a person to vacate a matrimonial home or any other home. Reference to matrimonial home posits that there must be a spousal right in the property within the terms of Article 22 of the 1992 Constitution of Ghana. Any other home may be referable to a rented apartment or even an affinity or consanguinity relationship.
The interpretation rule of common sensu dictates that a landowner will not be asked to vacate his land for a person with a mere license in the land. To wit, a house owner will not be asked to vacate his house for a house help or a ‘mere’ paramour.
At best, the court may rather require the landowner to find another suitable place for the house help or paramour. At worst, it will be a question of ‘just leave the abusive climate for your peace and sustainability!’. Other sanctions may apply but not an interest in the house. Exposure to violence per se cannot be construed as sufficient to earn property. The pressing concern however is; what then happens if there is the urgent need to severe the dwelling of the parties?
Possible Inferential Answers
The Act fails to expressly prescribe occupation rights for mere licensees. That notwithstanding, there are some contestable inferences that can be drawn. These are:
- Under protection order, the court has the power order to restrain the abuser from doing an act if it will not be in the best interest of the victim. This is a carte blanche power. Well, it is arguable whether a judge can rely on this to restrain the abuser from residing in his or her own house. Odd it may sound but maybe it may be remotely possible. How that will align with common sense will be subject to legal debate.
- Secondly, it may be argued that the court can grant the occupation order for the abuser to leave ‘any other specified home’ (in the language of the Act). Reference to ‘any other specified home’ may be construed as sufficient to empower the court to restrain the abuser from residing in his own home. Perhaps, the idiosyncrasies of some cases may call for this interpretation but again, we cannot discount the patent irrationality of this reasoning.
- Lastly, the Act runs concurrently with additional civil and criminal liabilities. There is therefore the slim possibility of relying on other legal principles outside the scope of the Act like injunctions. It is important to add that even for injunctions, a person must show that he has a right to the property. Thus, the other remedies will not come any easy.
Fixing the Squeaky Hinges with Irish Oil
The Irish system provides for mere licensees in the Domestic Violence Act 2018 of Ireland. The system has similar orders dubbed the safety orders, barring orders, interim barring orders, and protection orders.
The safety orders and the protection orders share similarities with the Ghanaian interim protection orders and the protection orders. The safety order works like the Ghanaian protection orders such that it prohibits the abuser from perpetuating domestic violence on the victim. It does not lead to relocation. The protection orders work like the Ghanaian interim protection orders. It normally preserves the peace in the home until the court makes a final decision on the appropriate solution to the problem.
The barring order and the interim barring orders operate like the Ghanaian occupation order. It requires the abuser to leave the home with additional instructions to desist from perpetuating further abuse. There is a requirement for the victim to prove he or she has ownership right in the home. The victim in this situation may be a spouse, parent, child or a civil partner.
In addition to these provisions, the system has the emergency barring order as a solution to the mere licensee problem. The Irish court has the power to force the relocation of the abuser even if the victim has no right in the property. There is a high standard for this order considering its questionability. The victim must show the existence of an immediate risk of significant harm to himself or a person under his care.
In addition to the restraint, the abuser will be further prohibited from even communicating with the victim. It will be an interesting scene to behold a landlord being ordered out of his apartment to protect a house help. That is the price to pay for abuse, so it falls within the dictates of justice. In appropriate cases, the order can even be made without giving the landowner a hearing.
In the wisdom of the Irish legislator, some safeguards have been put in place to prevent abuse of the remedy. These are:
- The order has a maximum duration of 8 days. Clearly, the prohibition is granted to give the mere licensee time to find another suitable accommodation. It is not a mean to earn a right in a property.
- The order does not affect the rights of persons other than the abuser. So, if there are children in the house, their continuous stay is assured. Again, this confirms the point that the order does not constitute a transfer of a right in the property.
- If the order is granted without giving the abuser a hearing, the copy of the order, the affidavit and a note containing all pieces of evidence the court considered must be prepared and served on the abuser. This is to give the abuser a clear picture of the circumstances the court considered to decide his next line of action. The abuser has the power to request for cancellation or variation of the court order upon proof of injustice.
At the expiration of the 8-day duration, the court generally cannot give the same order unless at least a month has expired since the expiration of the first order. This is to prevent deliberate frequents to the court to discomfort the true landowner. Basically, the message of the law is that preferably the licensee should relocate despite the readiness to temporarily protect the welfare and safety.
Lessons Ready! The Conclusion
Pats at the back of the Ghanaian legislator. The Domestic Violence Act 2007 has stood the test of time. Non-marital cohabitation and house help services have become rife in modern Ghana so an enhanced layer of protection will best serve and protect these persons from violence in the home.
The Irish emergency barring order may be that door grease for the squeaky hinges of the anti-domestic violence system. Like Achilles, the armour is robust, but the heel is exposed. Emergency barring order; the heel guard.
