Legal Clinic: My sister is married to an abusive man. How can I help her?

Hello Eric,
My case does not involve me but my sister. She is married to an abusive man, and we have, countless times, filled P3 Forms only for her to retract her statements and refuse to push forward with the cases. My question is, is there anything we can do about it from a legal perspective? I am afraid he will kill her one day.

Hi concerned sibling,
The concern to liberate your sister from the chains of domestic violence is not only commendable but worthy to emulate. It resonates with the concepts of the common good, public interest and individuals’ accountability to tenets of social harmony. Justice and love are two sides of a coin that must advance humanity. The law anticipated this scenario. At Article 22 (1), every person has the right to institute court proceedings claiming that a right of fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened. In this case, the right of your sister to violence-free life is violated, which contradicts Article 25 (a), which removes the limitation on a person’s right to be free from torture, cruel, inhuman, and degrading treatment, Article 29 (c and d), on the right not to be subjected to any form of violence and any form of torture. 

The right to act on behalf of your sisters 
You demonstrate your sister’s lack of capacity to proceed with the matter against the husband. On several occasions, as mentioned, she has retreated or refrained from offering support that may have led to the prosecution of the allegedly abusive man. Capacity in law is the ability, fitness, or competency to perform an act, especially one can understand the nature and consequences of their act(s). This is likely caused by what I may refer to as in-house dynamics that are not observable outside their residence. Section 10 of the Protection Against Domestic Violence Act, according to Article 22 (2a), gives you the right to act on behalf of your sister and seek a protection order. This Section, in particular, 10 (1-b) befits your sister, as it anticipates a person who is not a child with the capacity to understand the nature and foresee the consequences of decisions in respect of matters relating to his or her personal care and welfare, but cannot wholly communicate the decision in respect of such matters. Your sister understands the consequences since she goes ahead to take P 3 forms but unable to display the decision in this grievous matter. 
On the strength of Article 28, which emphasises the right to the inherent dignity of a person and further legitimacy found at Article in 22 (2a), you are guided by Section 10 (2-c), which by the permission of the court you may apply for a Protection Order on behalf of your sister. When seeking the leave of court, you may have to demonstrate why you inform your action since you are not a police officer or her representative. In moving the Resident Magistrate’s court, where such matters are vested, with the application to procure the protection order, you will be required to make the court understand that your action is motivated by the best interest of her as a survivor of violence, especially creating an environment in which such violations cease. This means that you articulately recall and regurgitate the violations your sister has been going through, considering your knowledge of the many retracted statements and P 3 forms to convince the court to find value in her lack of capacity. Similarly, demonstrate that you have no conflict of interest with the survivor, in his case, your sister. 
Your action may invite the court to do either of the following: a) if it concludes that the perpetrator (in this case the respondent) is likely to commit, threaten and assign domestic violence on your sister, it may pronounce an interim protection order: b) should the likelihood of violation be remote, it may request the alleged violator to show cause why a protection order is unnecessary. Let be known that a protection order was procured, remains in place till it is revoked or replaced by a competent; besides, the same may be reviewed from time to time as the circumstances may prevail. On the Protection Order, Section 19 outlines several prohibitions that the respondent is to refrain from, importantly barred from perpetrating any form of violence to the victim. Section 20 states that “non-contact” shall affect where the protected person lives in the same house with the respondent considering the vulnerability of the protected person. 
Go forth as J W Van Goethe advised, “knowing alone is not enough: we must apply. Willing is not enough; we must do”. The law is on your side if you decide to walk the talk. Good luck. 

***
Mr Mukoya is a lawyer with over 17 years of experience. He’s the Executive Director, Legal Resources Foundation. Legal query? E-mail [email protected]