In terms of Section 6(6) of the Domestic Violence Act, where a complaint of domestic violence is made to a local council court, police can become involved if the local council court makes a written referral to the police and the magistrates' court where the following occur:

• the perpetrator is a second or repeat offender
• in the opinion of the court, taking into account all of the circumstances of the case, the perpetrator is likely to inflict further harm on the victim
• if, in the opinion of the court, the degree and nature of the violence warrants the involvement of the police

In addition to the above, domestic violence complaints can be made directly with police officers in terms of Section 7 of the Domestic Violence Act.

Neither the Domestic Violence Act nor the Domestic Violence Regulations specifically address the issue of the involvement of legal representatives in domestic violence matters. However, as with normal civil and criminal proceedings in Uganda, it is assumed that legal representatives will be permitted to assist in domestic violence proceedings.

Please refer to section 5.1.1.

For criminal matters, the standard of proof is beyond reasonable doubt; for civil matters, the standard of proof is on a balance of probabilities. The standard of proof does not shift where an application for a protection order is made ex parte. However, in terms of Section 12(2) of the Domestic Violence Act, where an application for a Protection Order is made ex parte, the court must be satisfied that the perpetrator has been served with the notice of the application for the order.

Requirements for evidence and documents

In terms of Section 10(2) of the Domestic Violence Act, applications for protection orders must be supported by an affidavit and any reports or documents that are to be relied upon should be attached to the application.

The use of witness statements in domestic violence cases is also regulated in terms of Regulation 40 of the Domestic Violence Regulations. It provides that if a witness intends to rely on a statement, the statement should be filed with the pleadings and served on the other party. Where the other party is served with a witness statement, the party must make a reply to the statement, file the reply with the court and serve the reply on the other party. A party to the proceedings is entitled to cross-examine a witness in respect of a witness statement filed by them.

Regulation 44 of the Domestic Violence Regulations further provides that the following evidence is admissible in domestic violence proceedings:

• previous convictions as far as it pertains to acts of violence, domestic or otherwise
• records of previous protection orders granted to or against any of the parties
• reports of acts of violence, be it domestic or otherwise, by the police or any other authority
• formal warnings issued by the police
• variations or cancellations of protection orders
• court records on matters arising out of the same

The Domestic Violence Regulations cater for instances where the procedures in domestic violence proceedings will be regulated by laws governing criminal procedure as well as civil procedure in the magistrates' courts.^[36]

In terms of the Ugandan Civil Procedure Rules,^[37] evidence given or any other proceeding at the hearing of any suit may be recorded in shorthand or by mechanical means.

Please refer to section 5.2.1.

Affirmative defenses are available to an accused person and they include self-defense and insanity. In relation to proving an affirmative defense, there is no requirement to prove willful intent. Neither the Domestic Violence Act nor the Domestic Violence Regulations expressly deal with the question of whether false accusations are punishable for the victim. However, a false accusation, depending on its nature, may constitute defamation, in which case the aggrieved party can institute an action for defamation. Section 5 of the Domestic Violence Act specifies that consent is not a defense to a charge of domestic violence. 

Please refer to section 5.3.1.

Please refer to section 5.3.1.

Please refer to section 5.3.1.

A witness may be summoned to give evidence or to produce a document in court any time after legal proceedings are instituted^[38] and such person will have a duty to either give evidence or produce the document required. Prior to testifying, a witness will take an oath and the witness will be expected to testify honestly and satisfactorily. In certain circumstances, people may abstain from testifying, for example, a wife is not a compellable witness and she may abstain from testifying in certain instances.

The Civil Procedure Rules refer to "lawful excuses" for witnesses that fail to attend or produce the document in compliance with the summons. Unfortunately, there is limited commentary on the meaning of a "lawful excuse" that can apply to witnesses.

While we are not in a position to assess the impact of domestic violence on witnesses who are children, when a child is considered a competent witness, he/she may be called to testify.

The conduct of the abuser may also constitute abuse under the Children Act. Section 42A(1) of the Children Act provides a right for children to be protected against all forms of violence, abuse and exploitation. The Children Act further states that anyone who witnesses child abuse must report it to the authorities. In terms of Section 109 of the Children Act, anyone who contravenes any of the provisions of the act will be liable to a fine and/or imprisonment. In terms of process based on Section 16 of the Children Act, a family and children court may hear the cases in informal settings to protect the child from adversarial processes. Parents or guardians of the child are entitled to be present and such proceedings will be recorded.

Please see section 5.4.1.

Please refer to section 5.4.1.

Please refer to section 5.4.1.

Please refer to section 5.4.1.

The Domestic Violence Act does not indicate what penalties and sentencing laws are applicable to first-time domestic violence offenses. However, Section 4 of the Domestic Violence Act prohibits domestic violence outright and provides that a person who engages in domestic violence commits an offense and will be liable on conviction to a fine or imprisonment, or both. In addition, Regulation 39 of the Domestic Violence Regulations provides that the laws governing criminal proceedings will apply in domestic violence cases of a criminal nature, in which case criminal penalties in terms of those laws will apply.

Section 16(4) of the Domestic Violence Act provides that a person who fails to comply with the terms and conditions of a protection order commits an offense and is liable on conviction to a fine not exceeding 48 currency points or imprisonment not exceeding two years, or both.

As already mentioned, in the exercise of its jurisdiction, a local council court may make a variety of orders for the victim or against the perpetrator.

The Maputo Protocol broadly provides that state parties must provide for appropriate remedies to any woman whose rights or freedoms have been violated. These remedies must be determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by law. Likewise, the CEDAW provides that authorities must adequately respond to all cases of gender-based violence, including by applying criminal law and imposing adequate penalties. The Domestic Violence Act, in prohibiting domestic violence and providing that it is an offense and that anyone who engages in domestic violence will be liable to a fine or imprisonment, or both, provides adequate punishment to offenders. Further, by criminalizing domestic violence, the Ugandan government has ensured that these offenses will be taken seriously, thereby affording appropriate remedies to women whose rights and freedoms have been violated. Further, the Domestic Violence Act extends the reach of remedies available to subjects of domestic violence by providing that the local council court may make a variety of orders for the victim or against the perpetrator. This may bring the Domestic Violence Act somewhat in line with Article E of the CEDAW, which provides that state parties must provide effective repatriations to victims of gender-based violence, including monetary compensation, the provision of legal, social and health services, satisfaction, and the guarantee of non-repetition.

Please refer to section 5.5.1.

Please refer to section 5.5.1.

Please refer to section 5.5.1.

There are no mechanisms in place to enable a notification to the victim of the offender's release. Sections 6(6) and 7 of the Domestic Violence Act state that the local council court will make a written referral to the police and the magistrates' court where the following occur:

• the perpetrator is a second or repeat offender
• in the opinion of the court, taking into account all the circumstances of the case, the perpetrator is likely to inflict further harm on the victim
• in the opinion of the court, the degree and nature of the violence warrants the involvement of the police and the court

Comparison between Ugandan law and the Maputo Protocol

The Maputo Protocol requires countries to adopt legislative, administrative, social and economic measures to ensure the prevention, punishment and eradication of all forms of violence against women. Local Ugandan law has adopted these measures in its legislation. The Domestic Violence Act expressly defines and prohibits domestic violence. The act also provides the process to report domestic violence, being either through the police or the court.

The Maputo Protocol requires countries to protect women who are at risk of being subjected to harmful practices or all other forms of violence, abuse and intolerance. The Domestic Violence Act provides protection for women against domestic violence. The Domestic Violence Act also provides circumstances where a court may refer a matter to the police for their intervention. These circumstances include where the perpetrator is a second or repeat offender or where, in the opinion of the court, taking into account all of the circumstances of the case, the perpetrator is likely to inflict further harm on the victim.

The protocol requires effective access for women to judicial and legal services. Neither the Domestic Violence Act nor the Domestic Violence Regulations specifically address the issue of the involvement of and access to legal representatives in domestic violence matters. However, it is assumed that, as with normal civil and criminal proceedings in Uganda, legal representatives will be permitted to assist in domestic violence proceedings.

Comparison between Ugandan law and the CEDAW

The CEDAW recommends that all legal systems, including plural legal systems, protect victims of gender-based violence and ensure that they have access to justice and effective reparations. The Domestic Violence Act has addressed this requirement and it promotes access to justice by implementing the following:

• Victims have two avenues available to them in reporting gender-based violence: (i) through local council courts or magistrates' courts; and (ii) through the police.
• Section 9 of the Domestic Violence Act states that if a member of a local council court, the executive committee or local government has a reason to believe that domestic violence has occurred and no complaint has been lodged, that member can inform the probation and social welfare officer and request them to make enquiries and take further action as necessary.
• Sections 10 and 11 of the Domestic Violence Act require the local council court to treat all cases of domestic violence with urgency and to hear all reported cases within 48 hours after the compliant has been reported, even on days that are not ordinarily working days.
• Section 12 of the Domestic Violence Act gives complainants the authority to appeal a decision of the local council court if they are not satisfied with the outcome.
• Section 7 of the Domestic Violence Act provides specific circumstances where a domestic violence complaint can be made directly to the police.
• The Civil Procedure Rules provide guidance on witnesses and witness proceedings in domestic violence cases.
• Regulation 44 of the Domestic Violence Regulations lists the types of evidence that are required in domestic violence cases.
• Regulations 39 and 29 (respectively) of the Domestic Violence Regulations cater for instances where the procedures in domestic violence proceedings will be regulated by laws governing criminal procedure as well as civil procedure in the magistrates' courts.

The CEDAW recommends that gender-based violence cases must not (mandatorily) be referred to alternative dispute resolutions, such as mediation and conciliation, unless the matter has been analyzed by specialized teams and the victim's consent to the process has been given, and that there is no risk of any further harm to the victims or their families. Regulation 12 of the Domestic Violence Regulations states that if a court finds it necessary, it may refer parties to mediation and counseling to an appropriate person or authority. However, the Domestic Violence Regulations do not provide any further requirements for circumstances whereby courts can refer domestic violence claims to mediation and counseling.

Lastly, the CEDAW recommends that discriminatory evidentiary rules and procedures should be repealed from legislation. In terms of the Domestic Violence Act, the grounds for the justification of domestic violence are insanity and self-defense. Further, it is not required to prove willful intent and consent is not a ground of justification for domestic violence. This provides guidance on the type of evidence that can be led in cases involving domestic violence. As such, we can conclude that the legislation on domestic violence does not contain discriminatory evidentiary rules and procedures.