SB 97: Protection Against Domestic Violence Act (Amendment) Bill, 2015

Bill Analysis:

SHORT TITLE

Protection Against Domestic Violence Bill, 2015

OBJECTIVE OF THE BILL

The objective of the Bill is to provide for the protection against domestic violence and other related matters (Pursuant to the Police Reform Act, 2015)

NUMBER OF CLAUSES/PARTS

The Bill has 19 clauses, including citation.

IMPLICATIONS

If the Bill is passed into law: -

• A complainant of a domestic violence incident may apply directly to the Court for a protection order;
• An application may be brought on behalf of the complainant by any other person who has interest in the well being of the complainant provided the application is brought with the consent of the complainant, except where the complainant is legally incapable of giving consent;
• The court shall issue an interim order against the respondent, notwithstanding whether a notice has been given where the complainant had suffered undue hardship of domestic violence if a protection order is not issued immediately;
• The Chief Justice of the Federation shall designate counseling centers in each State.

PROVISIONS OF THE BILL

1. Application to the Court for a Protection Order

A complainant of domestic violence may apply for a protection order and if they are not represented by a legal counsel, the Registrar shall advise the complainant of the relief available and the rights to lodge a criminal complaint against the respondent, who commits a criminal offence.

2. Interested Party in Bringing a Complaint: -

An application can be brought on behalf of the complainant by a health service provider, counselor, social worker, organization or teacher, who has interest in the well being of the complainant with their consent except in circumstances where the complainant is a minor, mentally retarded, unconscious or incapable of giving consent due to fear, etc.

Where a complainant may suffer undue hardship if the application is not dealt with immediately, the application may be brought to the judge in chambers. Within 72 hours of lodging the application and affidavit, the registrar of the court shall submit them to the court.

3. Assistance to Complainant of Domestic Violence: -

Any member of the Nigerian Police, health worker, etc. shall as soon as reasonably possible render assistance to the complainant to obtain shelter or medical care; issue to the complainant a notice containing information as prescribed to the complainant in a language they understand as well as remedies at his/her disposal and the right to lodge a complaint.

4. Arrest and Warrant: -  

A police officer may warrant the arrest of a person at the scene of an incident of domestic violence whom he reasonably suspects of having committed an offence containing an element of violence against a complainant (Clause 4 and Clause 8(4)(b))

A person detained shall not be held beyond the time prescribed under the Constitution of the Federal Republic of Nigeria, 1999.

5. Interim Protection Order by the Court: -

The Court shall notwithstanding that the respondent has not been given notice of the proceedings issue an interim protection order against the respondent where:

1. the person has committed an act of violence
2. undue hardship may be suffered by the complainant as a result of such domestic violence if a protection order is not issued immediately

A copy of the application for an interim order shall be served on the respondent together with the interim protection order. Where the court does not issue an interim protection order (as above), the Court shall direct the registrar to cause certified copies of the application and any supporting affidavit to be served on the respondent, calling the respondent to show cause on the return date specified in the notice why a protection order should not be issued. The return dates may not be less than 8 days after service has been effected upon the respondent.

6. Failure to Appear: -

Where the respondent fails to appear on a return date and the Court is satisfied that proper service has been effected on the respondent and the application contains prima facie evidence that the respondent has committed or is committing an act of domestic violence, the Court shall issue a protection order (Clause 6).

However, where the respondent appears on the return date in order to oppose the issuance of a protection order, the Court shall proceed to hear the matter and consider any additional evidence received. The Court shall after a hearing issue a protection order in the prescribed form on a balance of probability, that the respondent has committed or is committing an act of domestic violence (Clause 6(4)).

A protection order issued in the terms prescribed under this Bill (when passed into law) remains in force until it is set aside, and the execution of such order shall not be automatically suspended upon the notice of appeal (Clause 6(7)).

7. Implications of a Protection Order: -

The Court, by means of a protection order shall prohibit the respondent from

1. Committing an act or further acts of violence
2. Enlisting the help of another person to commit any act of violence
3. Entering the residence shared with the complainants;

The Court may impose this application only if it appears to be in the best interest of the complainant. The Court may impose additional conditions, which it deemed reasonably necessary to protect and provide for the safety of the complainant, including an order:

1. to seize any arm or dangerous weapon in the control of the respondent
2. that a police officer must accompany the complainant to a specific place to assist with arrangements regarding the connection of personal property

In ordering prohibition, the Court shall impose on the respondent obligations as to the discharge of rent or mortgage payments having regard to the financial needs and resources of the complainant and the respondent. The physical address of the complainant shall be omitted from the protection, unless the nature of the terms of the order necessitates the inclusion (Clause 7(5)(a)). However the Court shall issue directions to ensure that the complainant’s physical address is not disclosed in any manner that may endanger the safety of the complainant.

8. Refusal to issue a Protection Order: -

Under Clause 7(7)(a) the Court may refuse to issue a protection order or impose any conditions or make any order, which it is competent to impose merely on the grounds that other legal remedies are available to the complainant; and if the Court is of the opinion that any provision of a protection order which deals with a matter that should, in the interest of justice, be dealt with further in compliance with any other law, including Matrimonial Causes Law, in order to afford the party concerned the opportunity to seek appropriate relief.

9. Arrest of Respondent: -

Whenever the Court issues a protection order, the Court authorizes the issuance of a warrant for the arrest of the respondent, and suspends the execution of such warrant subject to compliance with any prohibition, obligation or order imposed.

The Registrar shall issue the complainant with a second or further warrant of arrest, if the complainant files an affidavit in the prescribed form in which it is stated that such warrant is required for his or her protection and that the existing warrant has been executed, cancelled, lost or destroyed (Clause 8(3)).

10. Written Notice to Appear: -

If the police officer is of the opinion that there are insufficient grounds for arresting the respondent, the police shall serve a written notice requesting the respondent to appear before a Court on a specified date and time. The notice shall contain a certificate signed by a police officer showing that the original notice has been served on the respondent. The police officer shall forward a copy of the notice referred to, with the Registrar of the Court.

11. Determining Imminent Harm: -

In considering whether the complainant may suffer imminent harm, the police office shall take into account – the risk of safety, health or wellbeing of the complainant; the seriousness of the conduct comprising an alleged breach of protection order; and the length of time of the breach.

12. Auditing of the Agency’s Accounts: - Under Clause 17(3), the Bill provides that the account of the Agency shall be audited by auditors appointed from the list of auditors and in accordance with guidelines issued by the Auditor-General of the Federation.

The report shall be submitted through the Minister not later than 6 (six) months after the end of each year.

13. Seizure of Dangerous Weapon: -

The court shall order for the weapon of respondent to be seized by the police if the court is satisfied that the respondent has threatened or expressed intention to harm any person, or possession of such weapon is not in the best interest of the respondent as a result of a mental condition or inclination to violence.

Any arms seized must be handed over to the Nigerian Police Force in accordance with the provisions of the Police Act (Cap 154, LFN) and Firearms Act (Cap 69, LFN) 1990. Any dangerous weapon seized must be given a distinctive identification mark and retained in police custody for a period of time as the Court shall determine.

14. Setting aside a Protection Order: -

A complainant or respondent may upon written notice, apply for a variation or setting aside of a protection order. If the Court is satisfied that good cause has been shown for the variation or setting aside of a protection order, it shall issue an order to this effect (Clause 10).  The Court may grant such application if it is satisfied that the application is made freely and voluntarily.

15. Court Proceedings: -

No person shall be present during any proceeding in compliance with the law except officers of the Court, parties to the proceedings, or any person(s) bringing an application on behalf of the complainant, which may be a legal representation, witnesses or not more than 3 persons for the purpose of providing support to the complainant or any person whom the Court permits to be present.

16. Publication: -

No person shall publish any information relating to the proceedings held in compliance with the provisions of this Bill (when passed into law) and no person may publish any information that might reveal the identity of any party to the proceedings. (Clause 11(2)(a))

17. Jurisdiction: -

Any Federal High Court of the States and within the FCT shall have jurisdiction to grant protection order if the respondent or complainant resides there or the cause of action arose in the FCT or State. A protection order shall be enforceable across Nigeria irrespective of where it was issued.

18. Special Court: -

The Chief Judge of the Federal Courts shall create a special court, which shall have a counseling unit where the respondent or complainants may undergo compulsory period of counseling as provided under Clause 7(8) of the Bill.

19. Offences and Penalties: -

Any person who willfully makes a false statement in an affidavit shall be guilty of an offence and on conviction shall be liable to a fine of N20,000 or imprisonment for a period of one year or both

Any person who publishes information, which may directly or indirectly reveal the identity of any party to the proceedings shall be guilty of an offence and on conviction be liable to a fine of N50,000 or imprisonment for a period not exceeding one year or both.

Any person who contravenes any prohibition, condition or obligation or order imposed under this Bill (when it becomes law) shall be guilty of an offence and liable on conviction to a fine of N100,000 or imprisonment up to 5 years or both.

CONCLUDING ISSUES

The Bill seeks to provide protection against of domestic violence. Under the Bill, domestic violence includes physical abuse, sexual exploitation (which includes but not limited to rape), sexual assault, starvation, emotional/verbal or psychological abuse, intimidation, harassment, etc.

Domestic violence is a menace to the society and needs to be curbed. The provisions of the Bill can adequately protect victims of domestic violence; however there are a few discrepancies. Clause 12 provides that the Federal High Court shall have jurisdiction to grant protection orders against suspects or perpetrators of domestic violence. However, Clause 14 introduces the Magistrate Court and State High Court in the provision on Appeal. This provision requires clarity.

A few provisions are similar – Clause 4 provides for arrest of anyone reasonably suspected of having committed an incident of domestic violence by a police officer; and Clause 8(4)(b) provides the same. In the same vein, Clause 6(7) provides that a protection order remains in force until it is set aside, and Clause 8(2) provides the same.

The Bill addresses a societal menace – domestic violence, passage of which would benefit the society immensely.

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