The Gender-Based Violence Court

The Ghanaian government seems to be taking genuine steps to address issues of gender-based violence in the country. In February 2013 a new ministry for Gender, Children and Social Protection was created with a mandate committed to ensuring gender equality, the promotion and protection of children, and the empowerment of the vulnerable through social protection interventions. The current Minister with this portfolio is the founder, and former director, of the Human Rights Advocacy Centre, where I am currently volunteering.

There has been a push towards tackling violence against women and girls and violent acts against women and girls are criminalised in the Children’s Act, the Domestic Violence Act, the Human Trafficking Act, and amendments of the Criminal Offences Act. Customary servitude and Female Genital Mutilation (FGM) are also criminalised.

Despite these laws, women and girls in Ghana remain adversely affected by sexual abuse, physical violence, harmful traditional practices, child labour, and socio-economic violence. In 2011, the Domestic Violence and Victim Support Unit of the Ghanaian Police recorded 12,906 cases of various forms of violence against women nationwide.

HRAC recently carried out research into violence against girls in schools, which revealed that 52 per cent of girls surveyed had been victims of violence in school and 14 per cent had experienced sexual abuse. HRAC also carried out research into spousal murders, which revealed that two spousal murders are reported every month in Ghana.

However, as stated above, initiatives are being taken with the aim of combating gender-based violence. For example, there is now a Domestic Violence and Victim Support Unit within the Ghanaian Police, with 97 offices nationwide. Police, healthcare providers and social welfare officers now receive training in gender-based violence. There are also now two specialist gender-based violence courts: one in Accra and one in Kumasi. It was the Accra court that I had the opportunity of visiting.

The gender-based violence court is interesting in that it has both civil and criminal jurisdiction. Its focus is mainly, though not exclusively, on offences stipulated under the Domestic Violence Act 2007 (Act 732), including physical abuse, sexual abuse, economic abuse, emotional, verbal or psychological abuse occurring within the context of a domestic relationship. It also deals with gender-based violence cases arising outside of domestic relationships, including defilement, rape and indecent assault. Under its civil jurisdiction it deals with matrimonial and adoption cases.

The reasoning behind having a specialist court is the acknowledgment that sexual violence and domestic violence can often have a particularly harrowing effect on the victim and that justice should be served speedily and adjudicated by specialist judges.

I recently had the opportunity of accompanying one of HRAC’s Human Rights Clinic clients to the Gender-Based Violence Court. Her very young daughter is the complainant in a defilement case. Defilement, in Ghanaian law, requires carnal knowledge of a child under 16 years of age, with or without consent (s.101(2) Criminal Code, Act 29, 1960).

There were a number of things that initially struck me on arrival at court, aside from its very dilapidated state. The first was that, unlike any other court I’ve been to, there were no security guards or bag searches at the entrance. We just strolled in. The next thing that struck me was just how busy the courtroom was. The public gallery was packed. It was difficult for us to find a seat. Many cases are dealt with in a day and the defendants, rather than being in a dock, are all seated along the side of the room, in handcuffs, waiting for their case to be called. I noticed that one of the defendants was staring at me intensely for the entire morning. I wondered at the ability of someone to engage in a form of sexual harassment while waiting for his trial for gender-based violence to be called on.

I was surprised that all the day’s defendants were in court, along with their legal teams and many members of the public. Given that all the cases concerned gender-based violence, and actually all the cases I sat through that morning involved sexual assault on young children, I was surprised that the cases were heard in public at all.

I was also surprised by the way in which cases were listed. In the UK, of course, the preference is for a case to be heard as far as possible in one go, or at the very least over consecutive days without interruption. Perhaps an hour or so in the morning might be reserved for a judge to hear bail applications, but, by-and-large, once a judge and jury start to hear a case they will then continue to hear that case before starting on the next matter. In Ghana it is very different. In my few hours in court I must have seen tiny parts of seven or eight different cases. Each of those cases was part heard; a new witness was called; and then the matter was adjourned, sometimes for several months, before calling on the next witness. The reasoning for this appears to be a combination of (i) ensuring flexibility in order to encourage witnesses to appear; and (ii) making sure the trial at least begins expeditiously for the sake of both victims and remand prisoners. However, given that the trial can then last months, heard in extracts with week-long gaps in between, I wonder how expeditious this method really is. I also worry about the ability of the judge (there is no jury system in Ghana) to recall the facts and the evidence in each case, given it is so spaced out and so intermixed with other cases, often involving similar facts.

The first matter I heard was a sentencing in a defilement case in which the defendant had been found guilty of raping a five year old girl. The defendant stood quietly and was represented by his lawyer, who gave a very short plea in mitigation, which seemed to focus solely on the defendant’s young age. I was surprised that the lawyer in question didn’t make any other submissions in mitigation. The judge was robust in her answer. She stated that she found no mitigating factors whatsoever, and that as the defendant had abused a position of trust, and taking into account the very very young age of the defendant and the injuries caused to her, the offence was particularly aggravated. She commented that she was minded to impose a sentence of life, but instead imposed a sentence of 20 years with hard labour, less the one year the defendant had already spent on remand. There were gasps around the courtroom. This was the most severe sentence I have ever been privy to in a court anywhere in the world, including in cases of murder. It is sobering to witness a sentence like that being passed, no matter how heinous the crime.

Eventually our matter was called on. We had been concerned that our key witness, a doctor, had under cross-examination retracted all the evidence she had previously given in her medical report. We were therefore today waiting to hear if the defence would make an application of no case to answer, and if it would be accepted.

Unsurprisingly, the defence did make their submissions. The advocate emphasised the constitutional importance of the presumption of innocence, and the high burden to be met by the prosecution. The judge gave this short shrift, stating that this was not the time to make a closing speech. The question was not whether there was reasonable doubt, but whether the prosecution had made out a prima facie case. The trial would therefore continue. The matter was the adjourned for a week.

I was concerned to learn that the complainant, who is under 6, would give evidence. Trials involving such young children must of course consider their rights and it would be wrong to suggest their evidence should not be heard. What concerns me is the lack of guidance around how their evidence is put before the court. In the UK, a child's evidence in family proceedings would normally be obtained by a CAFCASS officer who would ascertain the views of the child. In criminal matters, careful consideration would first be given to whether the child was capable of giving coherent evidence, and the public interest (including the best interests of the child) in that evidence being heard. Any evidence would be given by pre-recorded video interview, so as to shield the child from the intimidating courtroom environment and, of course, prevent them from coming face-to-face with the alleged perpetrator. The proceedings would have to take into account the extensive Ministry of Justice guidance on obtaining best evidence. 

However, in Ghana is seems there is no guidance for dealing with child victims/witnesses. In cases involving a juvenile defendant, the case is normally heard in the judge’s chambers. In cases like defilement cases, where there is an adult involved, it is up to the judge to decide how to hear the evidence. This can result in children aged 5 giving evidence in open court, which as described above, might be full to the brim, noisy and intimidating, even for an adult. This is an area of concern.