Effie Tenge, Martin Kpebu, the rape victim and a deliberate National shame

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“The medical examination (for a reported rape case) is not free. You are to be examined by a
public health worker. The prices range between GH₵300 and GH₵800. This has been one of the
banes of the police. When people go and they cannot afford the medical examination, they do not
come back to the police.” – DSP Effia Tenge

The quote above from the police is very disturbing. It depicts in rather sad terms, how we have paid
lip service to supporting victims of sexual abuse. DSP please, does your quote above include victims
who suffer rape within the domestic setting? If yes then we have a problem! Medical management
of rape victims cannot be a simple ornamental exercise. This is because it is essential in mitigating
the adverse effects of rape. It is aimed at managing any life-threatening injuries and providing other
post-rape services to reduce the chances of the survivor contracting any STD and pregnancy. Yes,
we do because several laws are lying idle in our books passed for this very purpose. Is it laziness?
Or ours is a society that simply doesn’t care? It is instructive to note for instance, that victims of
domestic violence to date do not qualify for exemptions under the National Health Insurance
Scheme.

I will in this article bring to your attention how elaborately the Domestic Violence Act[i], has dealt
with this issue, from the perspective of at least rape that occurs in the domestic setting. I will further
shed light on the mandate of the police and why the respected officer must never utter such words
again, especially publicly. In doing so, I will focus on sexual offenses (including rape) within the
domestic setting and how the courts have dealt with the need to offer medical assistance to victims.
I will conclude with some proposals on the way forward.
The venerable Martin Kpebu in 2017 tested this very issue in the High court[ii]. According to him,
the Domestic Violence Act provides in section 8(3) that free medical care is to be provided for
victims of domestic violence. Section 29 of the Act also provides for the establishment of a Victims
of Domestic Violence Support Fund, inter alia, to provide free medical care to the domestic violence
victims. Interestingly, this free medical assistance is to be facilitated by the police. Is Effie Tenge
aware of this?

Anyway, back to Kpebu. The following were the specific reliefs he sought from the court:

  1. An order of mandamus to bring up into this court, compelling the state to provide free medical care to the victims of Domestic Violence and to set up a fund to provide the various objectives set out in section 31 of the Domestic Violence Act, 2007, Act 732.
  2. A declaration that a failure at [sic] the state to establish and operationalize is the Domestic Violence fund is wrongful.

He essentially called on the court to order the state to perform a function the state itself committed
a decade earlier (2007) to perform. Thankfully, the court found the application meritorious both in
fact and legally, and granted his reliefs. The court consequentially made the following orders:

  1. The failure by the State to establish and operationalize the Victims of Domestic Violence
    Support Fund in accordance with section 29 of Act, 2007, Act 732 is wrongful;
  2. the State set up the Victims of Domestic Violence Support Fund to provide free medical care to the victims of Domestic Violence and the various objectives set out in section 31 of the Domestic Violence Act, 2007, Act 732;

Justice Yeboah went a step further by looking at the discriminatory nature of the refusal by state
actors to act when he said:

“is (it) not offensive to the human dignity of the victim of a crime, when an alleged criminal goes
unprosecuted and, therefore, unpunished by reason only of the fact that the victim is poor and
incapable of financing the procurement of a medical report which is a step in criminal investigation
statutorily assigned to the police, a statutory body? Answering this question is especially imperative
when we recall that the Government is constitutionally enjoined to respect the fundamental human
rights and freedoms, which exist to protect the dignity of the human person. Both the poor and the
rich are equally entitled to have crimes against them punished without discrimination on account
of poverty”.

The Domestic Violence Support Fund

The framers of the Act anticipated the very problem the police are crying over today. To avoid that,
sections 29, 30, and 31 of the Act establishes that fund, provides its objectives and also its source
of funding. For the sake of clarity, I reproduce those sections as follows:
Section 29 under the heading “Establishment of Fund” states that:

There is established by this Act a Victims of Domestic Violence Support Fund. Section 30
further provides the following as the OBJECTIVES of the fund:

The moneys of the Fund shall be applied

  1. towards the basic material support of victims of domestic violence,
  2. for training the families of victims of domestic violence,
  3. for any matter connected with the rescue, rehabilitation, and reintegration of victims of domestic violence,
  4. towards the construction of reception shelters for victims of domestic violence in regions and districts, and
  5. for training and capacity building of persons connected with the provision of shelter, rehabilitation, and reintegration.

Imagine all the above being put into action. That would greatly lift some, if not most of the burden
off the shoulders of victims.

Back to the act, Section 31 on SOURCE OF FUNDING lists the following:

  1. voluntary contributions to the Fund from individuals, organizations and the private
    sector;
  2. moneys approved by Parliament for payment into the Fund, and
  3. moneys from any other source approved by the Minister responsible for finance.

I am yet to come across any law spelling out critical requirements in such clear and unambiguous
terms but loudly ignored despite its importance. The closest we got to any light, was the publication
of the National Domestic Violence Policy and Plan of Action to implement the Domestic Violence
Act[iii]. This policy document was a beautifully written one detailing the key responsibilities to be
performed by all stakeholders (from CSOs, the police, the judiciary, the State, Victims, etc) in
actualizing the Act. This Plan of action was signed by Hajia Alima Mahama the current Local
government minister (Then Minister for Women and Children’s affairs). Our plan is similar to the
National Guideline on Management of Sexual Violence in Kenya. The Kenyan policy is in full force
by the way. That document was to crystalize in ten years. That is, from 2009 to 2019. Unfortunately,
that action plan is today suffering from carefully planned inaction whiles the Kenyan edition
continues to be reviewed to fine-tune it to perfection.

THE POLICE

Paragraph 8.5.1 of the Plan of Action policy, under the heading THE POLICE outlines the duties of
the police. Some of which are to assist them (victims) to get to medical facilities. This is not too
different from the police’s duty in Section 8 of the act which states that when a police officer
receives a complaint under section 6(6), the officer shall assist the victim to obtain medical treatment
where necessary. This assistance according to the Act consists of issuing a medical form to the
victim and where necessary sending the victim to a medical facility. Further, a victim of domestic
violence who is assisted by the police to obtain medical treatment under subsection (1) (c) is entitled
to free medical treatment from the State. In case of emergency or a life-threatening situation, a
victim of domestic violence may receive free medical treatment pending a complaint to the police
and the issuance of a report.

So Dsp, respectfully what are you talking about? Hearing you say rape victims do not return to the
police due to the cost of their medical examination made me sad. I concede, however, that this act
and its accompanying plan of action which outlines the duties of the police doesn’t cover all classes
of rape. (it covers those that occur in the domestic setting only). Since your lamentations added no
exception, I conclude that victims of rape even from the domestic setting continue to fork out such
huge amounts to be medically examined.

THE STATE

Ghana is a signatory to almost all known international human rights instruments and standards such
as the International Conference for Population and development and even the Millennium
Development Goals (MDGs). These instruments obligate Ghana to put in place measures that
address all forms of sexual violence. In Kenya, emergency contraceptives, for instance, are made
readily available at all times and provided free of charge. They have long gone beyond the realms
of paid testing and medical examinations. What will it take to improve community centers to provide
free counseling? The fact that the victim support fund has still not been created to date baffles me.
Dear somebody in power with the ability to do this, please do something about it. That is the least
you can do to assist a victim of rape. These victims, don’t forget, have personally societal and
physical injuries to contend with, we must not add the headache of getting medical examination to
it, please. We cannot continuously adorn our library shelves with impotent and idle laws. We
committed ourselves to be serious, let us do so as people please.

CONCLUSION

Victims of rape must not only be ‘tested’ to prove rape. They ought to be provided with free
comprehensive care. This ranges from medical treatment which includes management of physical
injuries, provision of emergency medication to reduce chances of contracting sexually transmitted
infections including HIV, and provision of emergency contraception to reduce chances of unwanted
pregnancies. Furthermore, it has to include the provision of psycho-social support through
counseling to help survivors deal with trauma, etc[iv].

The Domestic Violence fund must be set up now. The state must as a matter of urgency set up that
board. The fund according to the law will be financed by donations from private people as well as
from the state kitty. If the board is not left in the incompetent hands it will yield positive results. We
are naturally compassionate people; I do not doubt in my mind at all that people will contribute.
Maybe it is time for a sexual offenses Act, like what pertains to Kenya. The Criminal offenses Act
comprehensively deals with sexual offenses including rape and defilement. It is limited in scope
since it contains nothing about what forms of assistance the state should provide victims. The
Domestic Violence Act in its current form focuses on Domestic violence means on sexual offenses
committed within persons with a previous or existing domestic relationship. This certainly does not
cover all forms of rape. After all, G.cpl Valentino Gligah & Anor v. The Republic[v] has shown
us that even within the confines of the police station, rape can occur.
We cannot afford to let any more victims suffer in silence due to their inability to get medical
examinations as a result of financial constraints. That would be a shameful blot on our collective
national conscience.

The time to make our laws work is now.

Francis Boye

  • Domestic Violence Act, 2007, Act 732.
  • SUIT NO. HR/0088/2016
  • National Domestic Violence Policy and Plan of Action to implement the Domestic Violence Act (Act 732).
  • The National Guideline on Management of Sexual Violence in Kenya, 2014
  • G/CPL VALENTINO GLIGAH & ANOR v. THE REPUBLIC [06/05/2010] CRIMINAL

APPEAL NO. J3/4/2009

Featured image: pulse voice