SWAZI JUDGE DEFENDS CONSTITUTION

A Swaziland High Court judge has rewritten a law because it denies women their human rights.

Justice Qinisile Mabuza said she was entitled to do this because the Swazi Constitution allows judges to defend the rights of the Swazi people.

It happened on Tuesday (23 February 2010) when Justice Mabuza ruled that Swazi women may register property in their own name.

The ruling made national and international news, but as far as I can tell no media pointed out that Justice Mabuza had defended the constitution.

She wanted to find in favour of the applicant Doo Aphane but the law as it stood denied Aphane her human rights. So the judge changed the law.

It involved S16 (3) of the Deeds Registry Act, which reads:

‘immovable property, bonds and other real rights shall not be transferred or ceded to, or registered in the name of, a woman married in community of property, save where such property bonds or real rights are by law or by a condition of a bequest or donation excluded from the community’.

The judge said she would ignore this and instead rewrite the paragraph. She cut out the words ‘not’ and ‘save’ and replaced ‘save’ with the word ‘even’, thereby making the paragraph say the exact opposite to what the lawmakers intended.

The paragraph now reads:

‘immovable property, bonds and other real rights shall be transferred or ceded to, or registered in the name of, a woman married in community of property, even where such property bonds or real rights are by law or by a condition of a bequest or donation excluded from the community’.

To see the full judgement click here.

Justice Mabuza, the only woman High Court judge in Swaziland, says she is entitled to do this because ‘S151 (2) (a) of the constitution states that the High Court has jurisdiction to enforce fundamental human rights and freedoms guaranteed by the Constitution, This includes the right to equality which is guaranteed by sections 20 and 28 of the Constitution.’

She also criticised the Swazi Government for not moving faster to ‘embark on aggressive legal reforms especially those relating to women who have been marginalised over the years in many areas of the law.’

She awarded the costs of the trail against the government ‘in the hope that such sanction will galvanize them into action’.

This is a brave decision from Justice Mabuza. I’m sure we haven’t heard the last of it. How can Barnabas Dlamini, the illegally-appointed Prime Minister of Swaziland, who only this week said he was answerable to no one except King Mswati III, sub-Saharan Africa’s last absoluter monarch, let this go?

Just think what would happen if it caught on and all High Court judges started rewriting laws so they gave people their human rights.