The High Court in Swaziland
/ eSwatini has been asked to rule
that the Marriage Act is unconstitutional because it discriminates against
women.
The Act allows that if the
marriage is under civil law a husband has the decisive say in all matters and
the wife has no legal rights and cannot independently
administer property, sign contracts or conduct legal proceedings.
The case was brought by Women
and Law in Southern Africa (WLSA). The High Court, sitting as a Constitutional
Court, was told the Marriage Act dated from 1964 but the Swaziland Constitution
of 2005 included a Bill of Rights. WLSA said the Marriage Act was now unconstitutional.
WLSA also said the Swazi
Government had signed treaties advocating for gender equality and women’s
rights but had failed to implement them. Swaziland agreed in 2004
to be bound by the UN Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) – the key
international treaty on women’s human rights.
The court will announce a judgment
at a date to be set.
Discrimination against women in Swaziland has been reported
for many years. Amnesty International in
a submission to the United Nations Periodic Review of Human Rights in 2011 stated
the Constitution guaranteed women the right to equal treatment with men, a right
that ‘shall include equal opportunities in political, economic and social
activities’ (Section 28 (1)).
However other provisions of the Constitution fell
short of international human rights standards. For example, Section 15(1) that
prohibited discrimination on various grounds did not include marital status.
Amnesty said women’s right to equality in the cultural
sphere was also inadequately protected by the provision guaranteeing that ‘a
woman shall not be compelled to undergo or uphold any custom to which she is in
conscience opposed’(Section 28(3)). Amnesty said, ‘This formulation places an
undue burden on the individual woman, whereas international human rights law
stipulates that it is the responsibility of the state to prohibit and condemn
all forms of harmful practices which negatively affect women. Furthermore,
girls and young women are not sufficiently protected under the law from forced
or early marriages.
‘As a consequence of the slow pace of law reform,
women remain unprotected by the law and continue to face forms of
discrimination permitted by domestic law. The delays cannot be blamed on a lack
of resources since the government has been provided with various forms of
practical support for this process as it pertains to women’s rights by the European
Union and United Nations agencies.’
Swaziland, ruled by King Mswati III as an
absolute monarch, is a deeply conservative kingdom. In 2016 ACTSA (Action for
Southern Africa) reported that despite claims that Swaziland was a modern
country, ‘the reality is, despite pledges and commitments, women continue to
suffer discrimination, are treated as inferior to men, and are denied rights.’
ACTSA added, ‘The King has demonstrated he is
unwilling to change the status quo and promotes multiple aspects of the
patriarchal society.’
In a briefing paper called Women’s Rights in Swaziland ACTSA
said, ‘Swaziland has a deeply patriarchal society, where polygamy and violence
against women are normalised, deeply unequal cultural and religious norms, and
a male monarch who is unwilling to make any change. All this contributes
towards the daily discrimination faced by women.’
See also
Woman,
36, in Swaziland beaten and ordered to leave home because she is not married
Protest
Swazi law reform delay
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