Both Swaziland’s Accountant General and the Attorney General are being hauled before the High Court on Friday (10 December 2010) because the Swazi Government has refused to pay legal costs in a major discrimination case it lost in the Supreme Court.
The Government owes Mary-Joyce Doo Aphane E33 962.15 (about US$50,000) – the sum it was ordered to pay when she successfully convinced the court that women could register property in their own name. Swazi traditional law says women are minors and have no rights.
But no money has been forthcoming. By not paying up now, the Swazi Government looks petty mean and spiteful.
But also, how typical. The Swazi Government has a long history of ignoring the rule of law.
Barnabas Dlamini, the present illegally-appointed Prime Minister, caused international outrage among key donors and international human rights groups when he was previously in office in November 2002.
At that time he said the government would not recognise two court judgements challenging the right of King Mswati III, sub-Saharan Africa’s last absolute monarch, to rule by decree.
All six judges in the Swaziland Appeal Court resigned in protest. They returned to their posts two years later after a new Prime Minister, Themba Dlamini, was appointed by the King.
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 JusticeMabuza ruled that Swazi women may register property in their own name.
The ruling made nationaland 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’.
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.
