POLITICS-SWAZILAND:
Women Fight for a Place in the Constitution
James Hall
MBABANE, Oct 7 (IPS) - The Swaziland branch of Women in Law in Southern
Africa is concerned that guarantees of women's rights that were announced in
the draft constitution, soon to be ratified by King Mswati, are not as
secure as first thought.
"When the draft constitution came out, there were many parts that we
greeted with enthusiasm, because they called for equality for women. But
upon further reflection, it is apparent that all rights, whether granted to
women or anyone else in the form of human rights, may not be absolute," said
Manzini attorney Fikile Mthembu.
Women in Law, this month, issued a booklet intended for a general
readership that examines the constitution from a women's point of view.
Production was paid by the British High Commission. Britain has financially
supported King Mswati's constitutional exercise since its inception in 1996.
While Swaziland has had no formally ratified constitution since 1973,
when Mswati's father, King Sobhuza, overturned the Independence Constitution
and assumed absolute governing powers, the minority status of women in
Swaziland has its origins in pre-historical accounts, and is deeply
ingrained in traditional culture and modern attitudes. Even with
constitutional guarantees of gender equality, changing the values held by
many Swazi men and women may prove difficult.
"The prerogatives conferred on the King effectively place him above the
constitution, and this puts in doubt the supremacy of the constitution,
especially with regard to protection of the rights and freedoms of
citizens," stated the Women in Law booklet.
One graduate student in law at the University of Swaziland said her view
is that a competition between two governing systems - one ancient and one
modern - is at play, and the conflict can be resolved with only one system
supreme.
"The heart of the dilemma is which will win in the end: the old values
that are enshrined in the unwritten rules called 'Swazi Law and Custom,' or
the modern laws with their human rights based value system," said the
aspiring attorney, Lungile Lushaba.
"The continued recognition of both common law and Swazi customary law
without clear synthesis to avoid conflict of law is a concern. The
constitution should clearly subject Swazi law and custom to the same
standards as any other law," said the Women in Law report.
All over the kingdom, women are reading copies of the report acquired at
health clinics and at women's cooperatives, churches, even beauty salons and
other centres where women gather.
What they are finding is that the draft constitution, written under the
supervision of two Swazi princes who are King Mswati's brothers, boldly
proclaims an end to gender discrimination, and even ensures a quota of
parliamentary seats to be set aside for women. But then it states that any
and all matters raised in the constitution cannot conflict with the
traditional way of life of Swaziland.
"The constitution gives to women on one hand, but it takes away with the
other. It's confusing. Have women advanced in Swaziland, or are we still
subject to a traditional system where we are legal minors?" asked Lushaba.
Women's groups say that clarification on this discrepancy is required
before the king ratifies the constitution by royal decree, as Mswati said he
wanted to do by month's end. "I am not permitted to take out a bank loan
because I am a woman. I am a legal minor in the eyes of the law, and so I
cannot own property in my own name. No property, no collateral to secure a
loan. But banks cannot enter into an agreement with me in any case, because
minors cannot enter into contracts," said Mbabane businesswoman Sheila
Shabalala.
Shabalala noted that the constitution prohibits sexual discrimination in
legal matters, and when it takes effect all barriers for property ownership
in towns will end. "That is okay for urban areas, but 80 percent of Swazis
live on Swazi Nation Land under chiefs. The traditional system is in effect
there, as it has been for centuries, and it will continue to be even when
the constitution takes effect," she noted.
Only male heads of Swazi households are granted land by chiefs to build
homes, plant crops and graze cattle. Because it is communal land, there is
no title deed ownership. But if women challenge the custom of only granting
land use to men, they wonder if a chief will disregard their appeal because
the power of the constitution does not extend over traditional matters.
Another issue of concern to Swazi women in the constitution is the
sensitive matter of Swazi citizenship. Just who is determined to be a Swazi
has always had tremendous importance in a small country with a population of
less than one million. People's greater mobility, marriage between Swazis
and foreigners, and the breakdown of racial discrimination to allow sexual
relations between races has traumatized traditionalists who insist the
nation can only survive if Swazi bloodlines remain "pure."
Just who is Swazi has always been determined by parentage. To be
considered a Swazi, a child's father must be Swazi. Further, the father of
any child has had the right to claim his offspring at any time, even if he
has abandoned the child and was never involved in the child's upbringing.
Under the assumption that this can happen, and giving fathers the right to
claim their children at any time, Swazi authorities will not grant
citizenship to the children of Swazi women whose offspring have foreign
fathers. This system is unchanged in the new constitution.
"Women who have children outside marriage with foreign men will have to
prove that the child's father has not claimed the child before the child can
qualify for citizenship. This can be embarrassing and degrading. It means
that children born outside marriage by Swazi women can be claimed at any
time by their fathers, leading to insecurity of custody," said the Women in
Law report.
The report also noted of the draft constitution's attitude toward Swazi
women who marry foreign men, "Women who marry foreign men can easily be
assumed to have lost their citizenship."
The group wants an equality clause in the constitution that allows both
women and men to pass citizenship onto their children, irrespective of
marital status. With only days remaining before the constitution becomes law
through royal fiat, Swazi women know they have little time to push for
reforms that will genuinely ensure their equality in society.
(ENDS/IPS/AF/SA/IP/CR/JH/SM/03)
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