James Hall Generations of fathers in Jasper Nxumalo’s family of Hhohho, Swaziland, have found an expedient and, they say, biblically sanctioned way to achieve primogeniture, or obtain a male heir: incest with a daughter. “I slept with my first-born daughter because it is family custom to do so,” Nxumalo told the Mbabane Court of Appeal this week while seeking to have his conviction overturned for rape and incest. “My father did the same, my grandfather did it, and my great grandfather did it, too.” A trio of appeal court judges sat alternately stonefaced and slack-jawed as Nxumalo explained that the rape of the eldest daughter is required to secure a male heir to the family homestead. “This is even in the Bible,” he told the court, citing chapter and verse from Genesis and I Corinthians 7:36: “If she pass the flower of her age, and need so require, let him do what he will, he sinneth not.” The Nxumalo family values did succeed in producing an heir. After being forced to have sex with her father for four years, beginning in 1992 when she was nine years old, Nxumalo’s daughter fell pregnant in 1996, when she was 13, and gave birth to a boy the following year. Public prosecutor Musa Nsibandze was not permitted to rise from his chair and present the crown’s case. Judge Herbert Shearer told him not to bother as he had heard enough from the defendant to uphold Chief Justice Stanley Sapire’s original con- viction. Shearer only regretted the brevity of Nxumalo’s nine-year jail term. Nxumalo left the court complaining bitterly that his family custom would never have come to light if his estranged wife, now remarried, had not urged his daughter to reveal to police the identity of her child’s father.
His former wife has been seeking therapy for the girl from councillors attached to the Swaziland Action Group Against Abuse. The Manzini-based anti-abuse NGO is pleased with the conviction. Incest cases are increasing, but court sentences have been rare. Councillors urge abuse victims to report their tormentors to the police. Police in turn bring rape victims to the group’s councillors for assistance. Is incest to achieve primogeniture an honoured Swazi custom in rural areas? At least two previous defendants claimed the same thing when they were tried for incest. Khosi Mthethwa, director of the anti-abuse group, is incredulous about this “custom”.
“The current case is clearly a copy-cat of previous attempts to use this defence,” she says. “When we first heard about this ‘custom’ we did extensive research, including focus groups with traditionalists and elders. We found no evidence that incest was ever tolerated in Swazi society.” A theologian, Jabulani Dlamini, scoffs at the notion that biblical passages given by defendants are justification for incest. “The selection of verses mentioned in court was nonsensical. The ones cited from Genesis were merely ‘so-and-so begat so-and-so’, and the Corinthians passage was taken out of context.” Dlamini doubts any church in Swaziland advocates incest. But church sanctioning is apparently unnecessary for some men in the kingdom. Mthethwa’s statistics show reported cases of abuse are up 50% on last year. Abuse cases fall into three categories: physical, including rape and incest; emotional, such as threats and bullying; and economic, where a husband takes all his wife’s earnings, sometimes leaving the family to starve, because by Swazi law a woman is a legal minor. “Part of the increase is due to better reporting, but some of it is an actual rise in abuse crimes,” she says. “In the southern Shiselweni district, there has been an influx of unemployed miners who were retrenched from mines in South Africa, and some are taking out their misfortune on spouses and children.”
But some cases are appearing in court, with convictions taking place despite claims of customary privilege.