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.’
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