A law in Swaziland /
eSwatini that relegates married women to the legal status of minors under the
guardianship of their husbands has been ruled unconstitutional by the kingdom’s
High Court.
The High Court of eSwatini ruled on Friday
(30 August 2019) that the common law doctrine of marital power offended women’s
constitutional rights to dignity and equality.
Marital power refers to the
archaic common law doctrine that a husband has the ultimate right to decide
over his wife and the matrimonial property. The doctrine of marital power means
that a married woman cannot deal with the marital assets without the knowledge
and consent of her husband, yet her husband can do so without seeking and
obtaining her approval. Under the doctrine, a wife cannot conclude
contracts without her husband’s permission, she cannot represent herself in
civil suits, and she cannot administer property, the Southern Africa Litigation
Centre (SALC) said in a review of the case.
SALC reported the court struck
down sections 24 and 25 of the Marriage Act to the extent that it provided that
marriages were governed by common law ‘unless both parties to the marriage are
African in which case… the marital power of the husband and proprietary rights
of the spouses shall be governed by Swazi law and custom.’
SALC said, ‘Relying on
recent judgments by the Botswana and India courts relating to the
criminalisation of sexual orientation, the eSwatini High Court emphasised that
dignity is an essential element of respect and honour and being subjected to
marital power and minority status denies women their right to dignity.’
Colani Hlatjwayo, Executive
Director of Women and Law Southern Africa-Swaziland, said, ‘The effect of the
judgment is that the common law doctrine of marital power is declared unconstitutional,
and that all spouses married in terms of the Marriage Act in community of
property have equal capacity to administer the marital property. As such, this
case is an important step towards marriage equality in eSwatini.’
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
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