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.’
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