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RIGHTS: Swazi Law And Custom Under Pressure

Mantoe Phakathi

MBABANE, Sep 6 2008 (IPS) - When the women's movement in the southern African kingdom of Swaziland took to the streets in August to challenge what they called extravagance by the royal family, Swazi traditionalists were livid.

It was the first time women openly questioned Africa's only remaining absolute monarch on his luxurious lifestyle amid grinding poverty where 69 percent of the king's subjects live on less than a dollar a day.

Swaziland is faced with many socio-economic challenges that primarily affect women and girls. The country has the world's highest HIV/AIDS prevalence rate – 26 percent among the reproductive group of 15 to 49 years old – an under-funded health system collapsing under the strain, and two thirds of the population are dependent on food aid.

On Sep. 6, Swaziland celebrates 40 years of independence; it is also the king's 40th birthday. Despite pleas from some quarters for fiscal discipline, millions of dollars are being spent on the joint event, dubbed the 40/40 Celebrations.

On Aug. 21, over a thousand protesters, led by the Swaziland Positive Living for Life (SWAPOL) organisation, went to demand answers from the Minister of Finance, Majozi Sithole, and Prime Minister, Themba Dlamini, to protest this perceived extravagance as well as a two-week shopping spree by nine of King Mswati's 13 wives in the Middle East.

Governor-General Jim Gama – the traditional prime minister in Swaziland's dual system of government – could not hide his anger, stating that "these women should have voiced out their concerns through their husbands who are supposed to speak on their behalf."

SWAPOL Director Siphiwe Hlophe retorted that women have a right to freedom of expression as enshrined in the Constitution of Swaziland.

"People should understand that the Constitution gives us the right to speak for ourselves," said Hlophe.

However, because of Swazi Law and Custom, Swazi women are far from enjoying their rights as enshrined in the Constitution and other international conventions to which the Kingdom is a signatory.

According to Lomcebo Dlamini, national coordinator of gender rights organisation Women and Law in Southern Africa, the duality of the Swazi system is the greatest stumbling block in the development of the country. Swaziland uses both the Western system (so-called modern law which is based on the Westminster System and Roman Dutch Law) and Swazi Law and Custom. While the Constitution of Swaziland is modelled on the United Kingdom's Westminster system, it gives the traditional structure marginal precedence.

For example, the constitution gives exception to matters pertaining to cultural activities, such as the reed dance and incwala (an annual kingship ceremony), rights to use Swazi Nation Land, the designation or removal of powers of a chief or traditional authority. These are all regulated by Swazi Law and Custom.

Only last month, King Mswati was present when heads of state from the Southern Africa Development Community (SADC) signed the Protocol on Gender and Development in Johannesburg at the SADC Summit held on Aug.16-17. The protocol calls for state parties to endeavour to enshrine gender equality and equity in their Constitutions and ensure that these rights are not compromised by any provisions, laws and practices by 2015.

"However, Swazi Law and Custom is not codified and it's vague and open to different interpretations, which leads to the manipulation and abuse of culture," said Dlamini.

Dlamini noted that though the country committed itself to international instruments such as the SADC Gender Protocol and the Convention on the Elimination of all Discrimination Against Women (CEDAW), women still found resistance from Swazi Law and Custom.

The gender analyst at the Coordinating Assembly of Non-Governmental Organisations (CANGO), Sizakele Hlatshwayo said that the two systems could not work in harmony as the traditional system was retrogressive with regards to gender equality and women rights while the modern government of the country was progressive in this regard.

"The attitude of Gama, who ranks high in the traditional structure and still believes men should speak for women, tells you that the traditional system is working backwards. The Prime Minister (Dlamini), on the other hand, always stresses that the country should achieve gender equality," said Hlatshwayo.

But does Swaziland want to discard customary law and move forward with modern or Western laws?

"Not really," said Dlamini. "It can't be either or. We derive our identity by being Swazi therefore we can't drop Western laws or Swazi Law and Custom but we need to harmonise the two."

She said the nation should devise a strategy where different people, either modern or traditional, could sit down and talk about gender issues so that those cultural practices which were against the spirit of empowering women were discarded.

Hlatshwayo felt instruments such as the SADC Protocol on Gender and Development and CEDAW presented hope to the womenfolk because once a country signs and ratifies that country would be expected to implement.

"For instance, with the protocol you have legal grounds to take your country to task for failing to meet certain articles," said Hlatshwayo. "In fact the protocol is more relevant because it is addressing prominent issues within SADC. Article 8 of the Protocol deals with Marriage and Family Rights and it is more relevant because we have customary law that infringes on the rights of women in this regard."

This year, Swaziland will for the first time report to the United Nations Committee for the Eliminations of all Discrimination Against Women on progress made towards meeting the provisions of CEDAW.

"Governments tend to lie when reporting to the international community and that is when civil society provides a shadow report so that the state may be accountable," said Dlamini.