Swaziland High Court judge calls for debate on legalising abortion

A High Court judge in the deeply conservative kingdom of Swaziland (eSwatini) has started a debate about legalising abortion.

Judge Qinisile Mabuza heard a case involving a 26-year-old woman who was accused of causing the death of her four-year-old son, by drowning him in a river.

The eSwatini Observer reported that the child’s father had denied paternity, leaving her to rise the child herself. This prompted the judge to question what provisions were available for women who found themselves in similar situations.

The Swazi Constitution provides that abortion might be allowed on medical or therapeutic grounds, including where a doctor certifies that continued pregnancy will endanger the life or constitute a serious threat to the physical health of the woman; continued pregnancy will constitute a serious threat to the mental health of the woman; there is serious risk that the child will suffer from physical or mental defect of such a nature that the child will be irreparably seriously handicapped. 

However, no law exists to put the constitutional provisions into effect. 

According to the Observer, ‘In her subsequent remarks, she [Judge Mabuza] hinted that she viewed the current situation as shackling women’s autonomy, making an undertaking to tackle the current ban on abortion before she retires from the bench.

‘In fact, the learned judge believes it would be reasonable to allow women to make a decision on whether to perform an abortion.’

The Observer reported, she added some of the rights of women had been addressed through the 2018 Sexual Offences and Domestic Violence Act and it was time that society explored the possibility of legalising abortion as well.

Later, a number of representatives from organisations within Swaziland supported the idea of a debate. Acting Director Bongani Msibi of the Family Life Association of Swaziland (FLAS), a leader in Sexual and Reproductive Health and Rights delivery and youth programming in Swaziland, said the illegality of abortion often posed serious risks to women, and that legalisation could help to protect their reproductive and health rights.

Acting Director Zanele Thabede of Women and the Law of Southern Africa (WLSA) said abortion law reform should be discussed. She told the Observer it was important to have meaningful conversations whatever your beliefs about abortion.

Head of the Human Rights  and  Integrity Commission Sabelo Masuku said the group was in support of the call by the judge to have Swaziland revisit its position on abortion.

Because abortions are illegal in Swaziland it is difficult to say accurately how many are performed in the kingdom. However, in August 2018 the Times of Swaziland reported that every month, nurses at the Raleigh Fitkin Memorial (RFM) Hospital in Manzini attended more than 100 cases of young women who had committed illegal abortions.

The IRIN news agency, quoting FLAS reported that in October 2012 more than 1,000 women were treated for abortion-related complications at a single clinic in Swaziland.

 

See also

Death of Swaziland schoolgirl after illegal abortion highlights suffering of women in kingdom

https://swazimedia.blogspot.com/2019/04/death-of-swaziland-schoolgirl-after.html

 

U.S. halts funding to Swaziland NGO as anti-abortion policy bites

https://swazimedia.blogspot.com/2018/08/us-halts-funding-to-swaziland-ngo-as.html

 

Swaziland college principal reveals role abortions play in lives of his students

https://swazimedia.blogspot.com/2019/08/swaziland-college-principal-reveals.html

‘NO CHANCE OF SWAZI POLICE UNION’

A suggestion from schoolteachers in Swaziland that the kingdom’s police should form a trade union will almost certainly be dead in the water.

There is a bitter history in the kingdom ruled by King Mswati III, sub-Saharan Africa’s last absolute monarch, of oppression of police union rights.

The Swaziland National Association of Teachers (SNAT) said at a workshop that it wanted an expansion of trade unionism in the kingdom to include the police. The Observer on Saturday (13 May 2017) reported SNAT representatives suggested the police should follow other countries with a well-functioning police union system such as in Botswana, Namibia and South Africa in the region and form a union to engage in collective bargaining.

History is against such progress. A Swaziland Police Union (SWAPU) had been formed in 2005 and failed after a struggle for recognition when both the Swaziland High Court and the Supreme Court dismissed it as illegal. The Police Union became incorporated to the legally-recognised Royal Swaziland Police Staff Association.

In September 2008, the then Police Commissioner Edgar Hillary applied for a court order to arrest Khanyakwezwe Mhlanga the Secretary General of the Police Union because Mhlanga was illegally mobilising officers.

This was part of a bitter fight that continued for many months. In April 2008, Swazi police officers disobeyed their commander when instructed to arrest fellow police officers who were trying to hold a trade union meeting. So, the senior officers themselves had to try to break up the meeting. As they tried to arrest trade union leaders their fellow unionists freed them and they escaped to safety.

The Times of Swaziland (19 October 2007), the only independent daily newspaper in the kingdom, gave vivid details of the disobedience of the junior officers who were on duty to break up the meeting. They were given a direct instruction from Regional Commander Senior Superintendent Caiphas Mbhamali to arrest the unionists, ‘but they did not take his orders as they stood and watched’.

More than 40 police in total were at the scene to break up the meeting, but only 10 senior officers actually tried to make the arrests.

The Swazi Observer, Swaziland’s only other daily newspaper and which is in effect owned by King Mswati, ignored the event altogether.

Swaziland police Deputy Commissioner of Police Isaac Magagula had warned the unionist against holding the meeting. The Swazi Observer had the previous week (12 October 2007) quoted Magagula saying, ‘It is only with the expressed approval of the commissioner that police officers can convene or attend any meeting.’

Although SWAPU lost its case in both the High Court and Supreme Court there was one dissenting judgment.  High Court Judge Qinisile Mabuza said that existing regulations that banned trade unions were inconsistent with the Swazi Constitution, which allowed for freedom of association. She also said Swaziland laws needed to conform to international standards and the International Labour Organisation (ILO) conventions.

The Times of Swaziland (30 April 2008) quoted the judge saying Swaziland needed, ‘to conform to modern trends in a democratic society in meeting the [union’s] expectations and fulfilling their constitutional rights’.

The Times further reported that the judge said that denying officers their ‘fundamental rights’ to form a union were, ‘repugnant to good governance and the rule of law, and particularly that the sanction for forming a union is dismissal, which is a disciplinary measure’.

She called the existing laws banning the union ‘old discriminatory and oppressive’. She went on, ‘They are inconsistent with Chapter III of the constitution. They should be declared null and void. They have no place in a democratic society.’

See also

SWAZI POLICE REFUSE TO ARREST COLLEAGUES

http://swazimedia.blogspot.com/2008/04/swazi-police-refuse-to-arrest.html

  

SWAZI POLICE ATTACK ON VIDEO

http://swazimedia.blogspot.com/2008/04/swazi-police-attack-captured-on-video.html

JUDGE BACKS SWAZI POLICE UNION

http://swazimedia.blogspot.com/2008/05/judge-backs-swazi-police-union.html

SWAZI SUPREME COURT NEPOTISM FEAR

A raft of appointments of judges to Swaziland’s Supreme Court has raised questions about nepotism in the kingdom ruled by absolute monarch, King Mswati III.

Even one of the newspapers in Swaziland that he in effect owns has raised doubts about the wisdom of appointing judges who are related to one another.

And, the Swazi Attorney-General Majahenkhaba Dlamini has been appointed a temporary Supreme Court judge for the month of July 2015, raising questions about the independence from government of the judiciary.

On Friday (26 June 2015), seven acting judges to the Supreme Court were announced, which the Sunday Observer newspaper reported, ‘resulted in the kingdom’s judiciary turning into a close knit family affair of spouses and siblings’.

The newspaper reported, ‘Newly-appointed Judge of the Supreme Court Majahenkhaba Dlamini joins his wife High Court Judge Mumcy Dlamini as members of the judiciary.

‘Former High Court Judge Qinisile Mabuza and her brother Sipho Nkosi have both been appointed Judges of the Supreme Court – the latter’s appointment is on an acting basis while the former’s is permanent.

‘There is also High Court Judge Nkululeko Hlophe whose wife is Supreme Court Registrar and Judicial Service Commission (JSC) Secretary Lorraine Hlophe.

‘With Majahenkhaba and his wife Judge Mumcy, questions have been raised on what would happen should the former, in his capacity as acting Supreme Court Judge, find himself having to review cases that were decided by the latter at the High Court.

‘There are suggestions that there are strong possibilities of this scenario coming true.’

There are also concerns that some of the new judges might not be suitably qualified.

The Observer reported, ‘A senior judicial expert who spoke to the Sunday Observer, though stating clearly not being opposed to the appointments, was worried that Acting Judges Nkosi and Cloete were appointed straight to the Supreme Court without any experience of presiding in the lower courts, especially the High Court.

‘“There is a lot that they need to learn, which they can do by presiding at the High Court before they are elevated to the Supreme Court,” said the expert.’

 The appointment of Attorney-General Majahenkhaba Dlamini to the Supreme Court for one month has raised doubts about King Mswati’s commitment to the separation of powers between the legislative, the executive and the judiciary. 

Dlamini is a member of the Swazi Government that was hand-picked by King Mswati, an ex-official member of the House of Assembly and now a judge. That gives him a place in all three branches of government.

The full list of Supreme Court Judges:

• Acting Chief Justice Bheki Maphalala

• Dr. Ben Odoki JA

• Justice Stanley Maphalala JA

• Justice Jacobus Annandale JA

• Justice Qinisile Mabuza JA

• Justice Mbutfo Mamba JA

• AG Majahenkhaba Dlamini JA

• Lawyer Robert Cloete AJA

• Lawyer Sipho Nkosi AJA

IN DEFENCE OF JUDGE THOMAS MASUKU

Letter to the editor

Swazi News

2 July 2011

SOURCE

In defence of Judge Thomas Masuku

Madam,

Please publish my email in your esteemed Swazi News, so I too may add my voice in defence of Judge Thomas Masuku, a loyal subject of His Majesty, King Mswati III, and a patriotic Swazi whose unwavering commitment is to work for a better Swaziland.

REALLY, CJ [Chief Justice]? Like all right-thinking Swazis and residents of Swaziland I am in a state of shock over what is happening to Judge Thomas Masuku, a truly patriotic professional and a man of integrity, whose interest is to see his beloved Swaziland having a functioning judiciary.

As a regular reader of The Times of Swaziland and its sister weekend papers, I have always found his reported judgments laced with compassion for his fellowman. So, I share the same sentiments as those expressed by ‘Dlamini’ in yesterday’s (Friday) Times of Swaziland that there’s some self-interest involved in all these flimsy allegations against this outstanding judge. I say ‘flimsy’ because, thanks to The Times of Swaziland’s reproduction of Masuku’s judgement extract, there’s nowhere where Masuku called His Majesty the King ‘fork-tongued’. But the CJ says he did!

The CJ’s actions smell of belly-crawling. Let us also remember, fellow-citizens of Swaziland, that this CJ has been surrounded by controversy since his arrival here in Swaziland. I also wish to remind the CJ of the wisdom of the sages that ‘If you decide to dig a hole for someone, make sure you dig two…"

Thank you, Judge Qinisile Mabuza, for standing up to be counted on the side of truth and justice. I pray and hope that as this man sets out to investigate Judge Thomas Masuku, the Law Society and the Human Rights lawyers will investigate him too.

There’s something phony here. Please expose it and put to pay the pettiness of this tongue-twister. Judge Thomas, you have our prayers. I once again join ‘Dlamini’ in calling out that, "Let us not sit back and watch the judicial system crumble like our economy," for here is the highest official of the judiciary on a self-serving mission. I also pray that the authorities see through this man and shudder at his obvious tactics of keeping his job.

Another Dlamini (L. Dlamini, Mbabane)