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SWAZILAND: Govt in Court Over Property Rights

Mantoe Phakathi

MBABANE, Aug 6 2009 (IPS) - In a battle for gender equality, well-known Swazi women’s rights activist Doo Aphane has taken government to court. Aphane is contesting legislation that prohibits her from registering property in her maiden name jointly with her husband.

If the court grants Aphane, who is chairperson of the Swaziland Gender Consortium and previous national coordinator of Women in Law in Southern Africa – Swaziland, her request, it would give Swazi women married in community of property equal rights to their husbands in the administration of property.

The Swazi women’s movement has rallied behind Aphane, with more than 50 supporters attending the hearing at the High Court in late July. Justice Qinisile Mabuza reserved judgment and a date is yet to be set for the verdict.

Currently, Section 16(3) and regulations 7 and 9 of the Deeds Registry Regulation prohibit married women who are married in community of property from registering immovable property in their maiden names. This means that they cannot register properties without assuming their husbands’ surnames. It also implies that married women cannot have sole ownership of property.

Under Swazi common law, men married in community of property are regarded as administrators of the estate. As a result, women cannot sell or buy property without their husband’s consent, while men can sell property without consulting their wives.

Aphane argues these provisions of the Deeds Registry Act disadvantage all women married in community of property and foster gender inequality. "The purpose of this application is to protect my dignity and the right to non-discrimination," she explained.

Aphane also believes that the country's common law is in conflict with Section 20 of the constitution, which makes everyone equal before the law, and Section 28, which awards women equal rights to men in political, economic and social activities.

She is therefore demanding that the court declare the offending sections of the Deeds Act unconstitutional.

Unconstitutional

Government on the other hand argues that Aphane’s application is unnecessary.

Government lawyer Mndeni Vilakati said the practice of forcing women married in community of property to use their husbands’ surnames when registering property was established by conveyancers but not sanctioned by any law of Swaziland.

"The court should order that they [conveyancers] should desist from doing so," Vilakati argued. He pleaded with the court to restrict its verdict to Aphane's case alone, and avoid interpreting Section 16(3) on the basis of the constitution and making a ruling that would have implications for all women in Swaziland.

In case government loses the case, Vilakati asked the court to give parliament time to amend the legislation, because granting Aphane her wish might disrupt the buying and selling of properties in the country.

Coordinating Assembly of Non-Governmental Organisations (CANGO) gender specialist Sizakele Hlatshwayo says Swazi women are discriminated against by many outdated laws despite a more modern constitutional dispensation introduced four years ago.

"The Marriage Act, the Deeds Registry Act and the Administration of Estates Act all need to be amended. These pieces of legislation were identified by stakeholders as problematic way back in 2003, but up until today there is not even a bill for these three laws," Hlatshwayo explained.

She says the laws are problematic because they give men more economic power than women.

"The key challenge is that we continue to use laws which are contradictory to the constitution. Such laws deprive women of their rights awarded in the constitution, which means the supremacy of the constitution is nonexistent in practice," said Hlatshwayo.

Swaziland adopted a new constitution in 2005, but it has not yet harmonised the country’s common law to bring it in line with the constitution and other international instruments such as the United Nations Convention on the Elimination of all Discrimination Against Women (CEDAW).

No reform

In fact, Swaziland does not have a law reform commission. "For now, the review of laws is given to the officers at the attorney general’s chambers who are already overwhelmed by too much work. Women’s rights tend to take the back seat because they are not regarded as priority issues," explained Hlatshwayo.

She said the fact that Swazi women are not adequately represented in parliament indicates that there is no political will to advance women's rights in the country. Last year, King Mswati III stunned the nation when he violated the constitution by appointing fewer women to parliament than stipulated by law.

Out of the 55 elected members of parliament, only seven are women. Section 95 of the constitution stipulates that the Head of State, who appoints 20 members of parliament, should appoint at least five women into the House of Assembly and eight into the House of Senate; King Mswati III appointed only two women into the House of Assembly and seven into the House of Senate. Not even an outcry from civil society organisations could make the King change his mind.

"We have lost confidence in parliament because it is not constitutionally constituted, and I think the only way women can get their rights is through the courts," said Hlatshwayo.