A critical analysis of the Bill which is at the second reading reveals that some of the proposed amendments are likely to water it down.
Areas of contention include plans to limit the number of people deemed to be in a domestic relationship.
According to lawyer Joyce Majiwa, the proposed amendment appears to protect only spouses and former spouses and leaves out other persons who are in a domestic relationship.
Majiwa cited the plight of children who suffer most when there is violence at the family level and underscores the need to re-introduce the section to help offer protection for all categories of persons in a domestic relationship.
Majiwa observed that it is during separation when family members need most protection and must, therefore, be included.
The Legal and Justice Committee has also proposed to delete section 7 of the Bill which allows applicants recourse in the event they are dissatisfied with the services of a police officer.
“Section 7(1) stipulates that an applicant who is not satisfied with the services of a police officer to whom he or she has reported a case of domestic violence shall have the right to register a complaint,” reads the Bill in part.
According to Majiwa, the section has been deleted ostensibly on the ground that complaints against police officers can be raised under other laws that address police service and conduct but not under this law.
“This implies less protection as police officers are usually the first port of call and their accountability to victims of domestic violence is crucial,” Majiwa said during a meeting convened by the Women Empowerment Link (WEL) to sensitize the Media on the Bill.
Other areas of contention include Section 8 which directs that the Cabinet Secretary in the Ministry of Devolution and Planning, in consultation with county executives are to develop the necessary policy to pave way for the establishment of temporary emergency shelters or safe houses and any other relevant services for the protection of victims of domestic violence.
Majiwa noted that the removal of this section weakens the entire Bill which proposes to create appropriate protection mechanisms for victims of domestic violence including providing for legal aid, shelters, health and support services for victims of domestic violence at both National and at the County level.
“This is a law that seeks to protect the victims and must, therefore, provide effective integrated mechanisms for protection,” Majiwa explained.
The Legal and Justice Committee has also proposed to reduce the number of people who can make application on behalf of children.
“Public officers who work with children and who may have first-hand information are excluded from bringing application on behalf of children,” Majiwa noted.
Further, the proposed deletion of Section 18 (1) will undermine protection orders to be issued by the courts for the benefit of the applicant’s children and family members.
“There is need to re-introduce the clause so that children are protected because they are usually the casualties of domestic violence whether intended or not and should be protected at all costs,” she explained.
Majiwa spoke as Ndhiwa MP Agostino Neto who is also a member of the Justice and Legal Affairs Committee allayed fears of any bid to weaken the Bill.
Neto admitted that there are sections in the Bill which are proposed for deletion but the Committee has agreed to push for consensus even as debate on the Bill continues in the National Assembly.
Neto who is also a member of the Parliamentary caucus on Human Rights singled out Section 8 of the Bill which is to be reintroduced to pave way for the establishment of appropriate support mechanisms for victims of domestic violence.
“The moment as a married woman, you are thrown out of the house, you do not have anywhere to go, and we are hoping that counties and national governments can establish safe havens for the affected families so that they can be accommodated in the shelters for the few hours they are homeless,” Neto explained.
He noted that the Bill has managed to consolidate the gains espoused in the Constitution and cited interventions contemplated to protect the family unit.
“The Bill anticipates that there are moments when problems in the family can be resolved through counselling and provides an option where spouses can be counselled so as not to resort to violence as a means of addressing issues,” Neto pointed out.
In addition, the Bill provides the right to privacy and guarantees that domestic violence cases can be held in camera so that proceedings are not open to the public.
The Bill speaks to the need for speedy justice noting that the Kenyan legal system is fraught with delays and cases can drag before the court for a long time. The Bill anticipates that there can be speedy justice and clearly spells out procedures for application by victims and other parties.
Section 28 (2) (4) is to be reintroduced to ensure that no valuable time is lost in the confusion of not knowing what to do,” reiterated Neto.
In echoing Neto’s sentiments, Kibra MP Ken Okoth said that the Bill has been tailored to adhere to local institutional principles and aspirations.
He said that the Legal and Justice Committee is alive to the political realities including membership in parliament and cultural practices in Kenya that have over the years defined the context within which laws are made.
Okoth said that the Justice and Legal Committee is exploring possibilities where cases of domestic violence are not entirely labelled criminal but filed as civil cases that seek to reconcile parties in dispute.
“In cases where reconciliation is not possible, the cases may be filed not as fully criminal cases but rather civil cases that lie between the civil and criminal procedure. We need to leave that window open to protect the family unit,” Okoth urged.
He noted that the National and County governments must provide shelters and safe houses where victims of domestic violence can escape from life threatening violence at the homestead.
“We need safe spaces where people who feel threatened can seek refuge and allow for their establishment either by faith based organisations, civil society groups or even county governments.
He noted that many victims of domestic violence are just looking to be safe and eventually when things are resolved in their relationships, they can reconcile and live with their families.
At the same time, Okoth called on the Media not to dwell too much on sideshows but instead give critical insights on the bill to help to enrich debate on the law that seeks to protect the family unit.
Human rights and right to live in dignity and to be protected against violence are universal and have been enshrined in Articles 29, 53, 49 of the Constitution of Kenya 2010 and focuses on the Protection of Children, women and dignity for everybody.
The proposed law seeks to give effect to Articles 29(c), 45 and 50 (9) as enshrined in the bill of rights of the Constitution.
Article 29 (c) states that every person has the right to freedom and security, which includes the right not to be subjected to any form of violence from either public or private sources.
Article 45 (1) stipulates that the family is the natural and fundamental unit of society and the necessary basis of social disorder and shall enjoy the recognition and protection of the state.
Article 50 (9) directs Parliament to enact legislation providing for the protection, rights and welfare of victims of offenses.