The good and bad for women of Swazi Constitution

There are several reasons why women’s rights activists might welcome Swaziland’s new Constitution, intended to replace the document that was suspended by King Sobhuza in 1973. Then again, there are also reasons why they might not.

In certain respects, the draft is refreshingly modern.

Chapter 29 of the document, devoted entirely to women’s rights, states that women and men should be treated equally, and given the same opportunities in “political, economic and social activities”.

To ensure that this is given practical effect, a third of parliamentary seats are to be reserved for women. This may also be a belated nod in the direction of the Southern African Development Community, which had set 2005 as the deadline for having 30% of decision-making posts in its member states occupied by women.

Once the Constitution is promulgated, gone will be the days when a Swazi woman could not get a bank loan, sign a contract or own property without the sponsorship of a husband or male relative.

The draft also alters a long-standing custom whereby only a child born to a Swazi man can claim Swazi citizenship.

In addition, the new Constitution relaxes abortion law slightly to permit the procedure in instances where continued pregnancy would threaten the physical or mental health of a woman. Abortion is also permitted when there is a risk of a child being born with an irreparable mental or physical handicap.

“The Constitution takes seriously women’s rights,” says Prince David Dlamini, the Minister of Justice and Constitutional Affairs who headed the constitutional drafting committee.

Concerning tribal customs, the draft says “A woman shall not be compelled to undergo or uphold any custom to which she is in conscience opposed.”

Specifically, it guards against having a woman’s relatives by marriage loot the estate of her deceased husband.

This custom has proved especially ruinous for women at a time when HIV prevalence in Swaziland is put at almost 40%. Women who lose their husbands to Aids — and who might themselves be HIV-positive — can ill afford to sacrifice an inheritance that may go some way towards compensating for the loss of a breadwinner, or subsidising the purchase of anti-retroviral drugs.

The new Constitution also outlaws forced marriage. At present, many women are obliged to marry a brother of their deceased husbands — something that has also taken a toll in the age of HIV.

“The custom of kutega, where the brother takes his dead brother’s wife, is one cause for the spread of Aids. The widow may have been infected by her husband, or she might be infected by the brother,” says Agnes Kunene, a civics teacher in the commercial hub of Manzini.

But even as the Constitution protects women from traditional practices that are incompatible with their rights, it also contains a clause that declares these customs inviolate.

This ambiguity would appear to make the draft less a passport to instant freedom for women than the starting point for court battles in which the relative merits of modern and traditional law will have to be decided on, case by case.

“If Swazi women are not openly celebrating this [the Constitution] … it may be due to the ambiguous nature of the Constitution that reflects a society that is both moving progressively forward but rooted in a traditional past,” observes Kunene.

“The only way to see if the Constitution’s promise can be fulfilled is to test it once it is the law of the land,” she adds.

For activists who are somewhat nervously contemplating the grey areas of the Constitution, there is one bright spot, says Jan Sithole — secretary general of the Swaziland Federation of Trade Unions.

“In Swaziland, there are two judicial systems: the traditional courts that deal with Swazi law and custom, and the modern magistrates’ courts up to the High Court and Court of Appeal,” he says. “It is the latter who will adjudicate constitutional matters, and they rule by law and not by Swazi custom.”

An attorney based in the capital, Mbabane, further notes that the determination of Swazi women to embrace new rights — however uncertain they may appear in the Constitution — should not be underestimated.

“Will an unsophisticated rural girl rebel against family traditions by citing her constitutional rights? You’ll be surprised, some will. But an education campaign publicising these rights will be required,” says the attorney, a woman who has been at the forefront of redefining the role that women can play in Swaziland.

Bongekile Khumalo is one of those who might benefit from such a campaign. The 20-year-old, born in a rural area, now works with orphans in Manzini.

“The Constitution? I haven’t read it,” she says, without concern. “I’m not very political.”

Looking beyond the sphere of women’s rights, there are additional aspects of the draft document that have raised eyebrows among rights activists.

The new Constitution, commissioned by the current king of Swaziland, Mswati III, in 1996, is being debated by parliamentarians at a time when political parties are banned in the Southern African country. Mswati’s father, King Sobhuza, outlawed these groupings when he suspended the previous Constitution (Swaziland is Africa’s last absolute monarchy).

The draft is silent on whether political parties are to be permitted in Swaziland, although it allows for freedom of assembly. However, the Constitution also enables the king to suspend this and other rights when he believes it to be in the public interest. The document fails to define what the public interest might be, however.

“This has the potential for misuse in future,” says Joshua Mzizi, director of the Human Rights Association of Swaziland.

No date has been set for the conclusion of debate about the new Constitution.

Even after the document is promulgated, however, discussion is likely to continue about whether it is a step in the right direction — or evidence that Swaziland still has both feet planted in the past. — IPS

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James Hall
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