MANDATORY REPORTING AND TIBI TENDLU

Welcome back to Kwakha Indvodza’s weekly column on the SODV Act (2018). Using our experience training on the Act in communities and workplaces across the country, this column is written to help all emaSwati learn about the contents of the Act and its application in our daily lives.

This week we examine clauses 70 and 71 which detail reporting of a sexual offence. 
We cannot speak of sexual offences without exploring the unofficial practice of silencing or ignoring abuse in Eswatini homes. Many emaSwati have been socialised to keep sexual or physical abuse secret because of a belief that these are family secrets (tibi tendlu), not for public ears and eyes, and as a result the health, dignity and security of survivors is undermined.

In worst cases, abusers become bolder and the abuse is allowed to continue or even get worse.

Practice

Tibi tendlu is widespread and insidious, and we are all in some ways responsible for its continual practice. It’s likely that we can all name a family where it is known or suspected that physical, financial, sexual or psychological abuse takes place.

We may too, be one of those who feel that this cannot be spoken of - it is not our family, our secret or our problem, or, even more commonly, we worry that the family would suffer if we expose the breadwinner or head of the family as an abuser. In some ways, this makes us all part of the problem and means that, to build a better Eswatini, we all must know what the law says about it, in order to be part of the solution.

Perpetrators are often reported to threaten survivors using financial power, emotional and mental manipulation in order to escape justice and continue the cycle of abuse. Often perpetrators know this and take advantage of it.

It is for this reason that this practice has now been made unlawful through the Mandatory Reporting clauses within the Sexual Offences and Domestic Violent Act. Clause 70 reads: “Any person who witnesses or receives any information of an offence under this Act or has reasonable grounds to believe that an offence under this Act has taken place or is about to take place, shall report the case to the police or the relevant structure. A person who contravenes this subsection commits an offence.”

Implications

Now, to our knowledge, there has yet to be a case brought to trial or prosecuted using Clause 70 and so we are unsure how it might be implemented. However, this clause could have quite serious legal implications for a number of service providers and medical practitioners whose work brings them into contact with survivors in confidential settings, such as the examination room or counselling room. It is also unclear what institutions might be included in the term ‘relevant structure’, something we are working to clarify.

As it stands now, the law can be interpreted as: if you know of, or are directly or explicitly informed of a sexual or domestic violence offence, you must report it or you commit a crime yourself by not reporting it. The next clause is clearer regarding those who try to coerce (through further threats, or offers of money, educational support etc) a victim not to report. “Any person who coerces a victim of a sexual offence not to report the offence or to withdraw a complaint to the police regarding the offence because of their interest or the interest of another person commits an offence,” (Clause 71).

The intent to counter a tibi tendlu practice with legislation criminalising lack of reporting and coercion not to report is commendable. But, unlike much of the Act, we are still unsure of exactly how it might be both implemented and prosecuted or how it might conflict with the ethical responsibilities of service providers such as counsellors and healthcare professionals.

Life-destroying

Certainly, we need more debate and guidance on this issue. What is for certain is that the spirit of this clause – to end that the harmful and life-destroying practice of hiding family abuse – is a call to action for us all. As service providers, we need to be clear that this law should not prevent people from reporting but is designed to encourage reporting abuse whenever it occurs.

Ultimately, we hope, this will put an end to the abuse itself. The only way to break the long-term cycle of abuse is for abusers to know that those they abuse can and will speak out about it and report it. If you witness any form of violence or abuse, you should report it immediately to the Royal Eswatini Police (preferably the Domestic Violence Unit), Department of Social Welfare or SWAGAA, whose specially-trained personnel will assist you with the understanding and dignity you deserve.

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