A RISING REVOLUTION

Swaziland women can now sue.

Assessing the Swaziland High Court Judgment on marital power (Nombuyiselo Sihlongonyane v MholiSihlongonyane High Court Case No. 470/2013 A).

On 18 July 2013, the Swazi High Court passed a judgement declaring marital power unconstitutional. The concept of marital power denies women married under civil rites and in community of property the ability to sue and being sued in their own name. Much as this judgment has been received with delight by lots of women in Swaziland, the practical implications are depressing. This is due to the fact that the discrimination of women in administering matrimonial property continues to persist. The case which brought the matter to the fore involved a husband and wife who got married under a civil rites marriage in community of property with the husband retaining the power to administer the matrimonial possessions. The wife made an application to the court to have her husband removed as administrator of the joint property as a result of the husband’s alleged mismanagement of the estate. The Constitutional question arose after the husband challenged his wife’s capacity to institute legal proceedings without his assistance. Consequently the High Court had to interrogate sections 20 and 28 (on equality and non-discrimination of women) of the Swaziland Constitution and determine if the common law position of marital power still exist in light of the constitutional dispensation. Under the common law, the property of spouses falls into a common pool which, although jointly owned by the spouses, is entirely controlled by the husband unless the spouses execute an ante-nuptial contract before marriage. This places the wife, in relation to the property of the marriage, in almost the same position as a minor child except the fact that guardianship of a minor serves the interests of the minor, whereas marital power serves the interests of the husband. Marital power embraces three elements, namely:

a)      The husband’s power as head of the family by virtue of which he has the decisive say in all matters concerning the common life of the spouses and determines, inter alia where and in what lifestyle they are to live,

b)     The husband’s power over the person of his wife, including her representation in legal proceedings and

c)      The husband’s power over the property of the wife which enables him, in his absolute discretion, to deal with the joint estate as its administrator.

The overall effect of the husband’s exercise of marital power is to subject the wife to the husband’s guardianship, effectively making her subservient to her husband.  The court relying on the case of The Attorney General v Mary Joyce DooAphane, Civil Appeal case 12/2010 held that marital power unlawfully and arbitrarily subordinates the wife to the power of her husband and was an unfair discrimination based on sex or gender inasmuch as it adversely affects women who have contracted a civil rites marriage in community of property with no ante-nuptial contract.  The court further observed that, whilst it is accepted in common law that a married woman who is subject to the marital power may approach the court for leave to sue without the aid of her husband, such notion or concept is discriminatory of such women in so far as it applies to such class of women and not men. “A married man does not, under any circumstances, have to apply for such leave and therefore this common law requirement constitutes an unfair discrimination”, the court noted. Notwithstanding this observation, the court did not entirely abolish the common law position of marital power. It confined itself to the issue of women’s capacity to institute and defend legal proceedings without the assistance of their husbands.  Undoubtedly, the root cause of the dispute in this case relates to the husband’s inability to exercise marital power to administer the joint estate in good faith. In this case the Applicant approached the court as a result of her husband’s maladministration of the matrimonial property in the exercise of such marital power. Thus even if her husband did not challenge her legal capacity, she would have still proceeded under common law to prove that her husband had acted fraudulently in dealing with the joint property to her loss as this will be the case in the main application which will be held at a later stage. In other words, if marital power is declared unconstitutional, the starting point in making a just and equitable inquiry  would be for the court to place the wife on an equal footing as her husband by pronouncing joint administration of the matrimonial property. This therefore means that in order for this kind of marriage to comply with the Constitution, the entire concept of marital power must be abolished. For other women in the same position as the Applicant, their emancipation only extends as far as their capacity to institute and defend legal actions; however, their husbands retain their common law status of being sole administrators of their matrimonial properties.

Recommendations

In order for Swazi women to realize their rights as enshrined in the Constitution, there needs to be a holistic review of the marriage laws in the country.  A positive way to start would be amending all marriage laws by passing a legislation that will effectively facilitate equality of spouses in marriage. Similar legislation have been passed by several countries in the region. For instance Botswana and Namibia abolished marital power by enacting the Abolition of Marital Power Act of 2004 and the Married Persons Equality Act of 1996 respectively, thereby giving equal power to spouses to administer their joint property. In promoting equality and non-discrimination of women as required by the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and other regional and international obligations, Swaziland must take positive action to pass a law that will put to an end the power of husbands to choose the domicile for their wives just like South Africa did by passing the Domicile Act in 1992. There is also a crucial need for Swazi civil society to collaborate with lawyers in providing refresher courses and discussion forums that will enable them to develop appropriate litigation strategies to ensure the meaningful realization of the Bill of Rights.

Human Rights versus Animal Welfare.

Analysis of killings by game rangers

The intention of this article is to gain familiarity with the fundamental concept of human rights in contradistinction to animal welfare. This will be attained by reviewing the Constitution of the Kingdom of Swaziland Act, 2005 especially chapter three which deals with human rights protection. In the process I will strive to demonstrate that the provisions of the Game Act of 1992 which give impunity to game rangers for human rights violations caused to suspected poachers violates the bill of rights. Essentially all laws that hamper the enjoyment of fundamental rights as enshrined in the Constitution should be abolished or amended to comply with the supreme law of the land.

The Constitution seeks to re-order and improve human interaction and the environment by ensuring that people are able to enjoy their basic human rights. Our Constitution does not have a provision on environmental rights hence animal welfare should not override human rights. The rights to life and dignity are the most important of all human rights and the source of all the other personal rights, thus the state has a duty to ensure their full realization. According to section 15(1) of the Constitution, a person shall not be deprived of life intentionally except in the execution of a sentence of a court in respect of a criminal offence under the laws of Swaziland of which that person has been convicted. The Constitution goes on to state that the death penalty shall not be mandatory. These provisions clearly demonstrate the extent to which extrajudicial killings are condemned by the Constitution, as the taking of human life is only permitted under exceptional circumstances which involve the justice system. However, the Constitution goes on to provide other circumstances under which the right to life can be taken, amongst of which is self defence.

Self Defence.

As a rule, our law does not support community justice, vigilantism or self- help, requiring rather that citizens resort to the law.  However, it is recognised that there are circumstances when an individual has to gain necessary and/or immediate redress that will not be achieved by waiting for the law to intervene.  In such circumstances, the law permits the individual a right to resort to self-defence (Jonathan Burchel on Principles of Criminal Law; 2005). This is where section 23(3) of the Game Act which provides immunity for game rangers come to play. The provision guarantees the safety of game rangers in protecting themselves against any unlawful attacks from poachers. However this does not give them a general licence to kill suspected poachers as we have seen in the past. In our criminal law, self defence is treated as a ground for justifying an otherwise unlawful act (e.g murder). Thus, when self-defence is raised in evidence, the accused person is, in fact, seeking to negate the element of unlawfulness from his/her conduct by claiming that his/her action, despite meeting the definitional elements of the crime, is nevertheless justified and, consequently, not unlawful.

The process of proving whether the act is justifiable in law should be done by the courts which are the ultimate interpreters and enforcers of the fundamental freedoms that are enshrined in the Constitution. Therefore, the impunity that is enjoyed by game rangers is not only unconstitutional but also offends the basic principles of justice and fairness. The law sets a threshold that must be met by a person seeking to apply self defence to justify his/her unlawful action. For instance, it must be proved that the defence was necessary to protect the interest threatened, and there must be a relationship between the attack and the defensive act. 

This implies that for the game ranger, shooting to kill must be the only available remedy to defend his/her life and that of the wild animals under attack. In fact, self-defence requires that a person should rather flee than kill his assailant where he can save himself by flight, however, no one is expected to take flight to avoid an attack where flight would not afford him a safe way of escape (Shiba v. Rex 1977-1978 SLR 16). Furthermore, the law requires that the retaliation be proportionate or rather the method used to avert the attack must be reasonable under the circumstances and if excessive force is used, the plea of self defence fails. Therefore, it suffices to say that shooting to kill is not sensible to protect wild life since there are always other available alternatives to track down suspected poachers especially when they are using vehicles to escape. In fact even police officers fire warning shots in the air before shooting at suspects,  this should be the same approach with game rangers.

In line with the United Nations Universal Periodic Review recommendations on Swaziland’s human rights status, the country must amend the Game Act to comply with section 15 of the Constitution protecting the right to life. This will help in ensuring the rule of law and provide means to protect the rights under threat. Since Swaziland is party to the International Covenant on Civil and Political Rights (acceded to on 26 March 2004) and the African Charter on human and Peoples’ Rights (ratified 15 September 1995), the state is obliged to investigate and prosecute game rangers who exceed the permissible confines of self defence. Additionally efforts must be made to rejuvenate the co-existence of wildlife and human beings in order to create a more self-sustainable environment. This can be achieved if the Swaziland National Trust Commission can intensify its efforts to implement a policy that will ensure the participation of the communities neighbouring game parks in order to protect wild life. Studies indicate that a high level of community participation in nature conservation has a positive impact in reducing the rate of poaching. For example, in Zambia as a result of a national policy of wildlife management called the Administrative Management Design (ADMADE) in a three-year period, poaching of elephants declined by over 90 percent in one wildlife area where local participation was actively promoted. 

Furthermore, the communities must be assisted to establish projects that will enable them to have alternative protein sources other than game (i.e. introduction of fish farming, more intensive farming of plant protein species, etc.) Furthermore, game parks must allot a sustainable quota of animals to the local communities for food purposes, and employ the community members to guard the game and further assist them to establish strong community policing mechanisms. Ultimately the communities will have a sense of ownership and work together to protect the wildlife in their communities. Since animals do not have rights in the way that humans do, we should recognize that animals can be used for reasonable purposes, but should not be abused. Hence in protecting wildlife, the rights of human beings should not be relegated.

CELEBRATING THE SWAZI CHILD

CELEBRATING THE #SWAZI CHILD

The 16^th of June marks an important day for children in Africa. Countries celebrate the African child by commemorating the courage of the youths of South Africa that lost their lives in the streets of Soweto in 1976. In a march more than half a mile long, they protested the inferior quality of their education and demanded their right to be taught in their own language. Hundreds of young boys and girls were shot down by security forces. In the two weeks of protest that followed, more than a hundred people were killed and more than a thousand were injured. To honour the memory of those killed and the courage of all those who marched, the Day of the African Child has been celebrated on 16 June every year since 1991, when it was first initiated by the Organization of African Unity (now the African Union).

The theme for this year's event is Eliminating Harmful Social and Cultural Practices Affecting Children: Our Collective Responsibility. I’m very much inspired by the last part of the theme which charges the nation with the collective responsibility of protecting children. The idea of collectivity is embedded in the African and Swazi way of life through the concept of buntfu or the respect for the humanity of every human being. The day of the African child comes at a time when the lives of some of our children are threatened. I refer to the children who are victims of the impending evictions at Malkerns, Madonsa and KaShali. I must point however that there is nothing sinister about the recent Supreme Court judgment where the eviction of four homesteads was ordered.

I must emphasize that the government has done well in formulating laws and policies to protect children. These include the promulgation of the Child Welfare Protection Act, the provision of free primary education and the establishment of child friendly court systems. Despite the significant progress that has been made in addressing the rights and needs of children, including the progressive legislative frameworks and programmes that have been put in place, Swazi children are still faced with formidable challenges. 

This I say because notwithstanding the country being signatory to the Convention on the Rights of the Child(CRC-ratified 7 September 1995)  which obliges states parties to ensure that in every transaction involving children, the best interest of the child take precedence, children threatened with evictions continue to be neglected. This principle (best interest of the child) must be integrated in all legislative frameworks, programmes, projects, services and decision-making processes affecting children. Therefore in matters of evictions, the best interest of the child should be considered and such children must be treated with dignity and protection. Evictions are not only a threat to the education and social development of children but also pose a danger to the lives of such children. The traumatic experiences that the children go through has a potential to destroy them for the rest of their lives, hence the need for intervention cannot be overemphasized. These children also stand the risk of losing their education as they would have to relocate with their parents at times to places remote from their schools as a consequence of the evictions. Furthermore the risks of sexual violence and child trafficking are more likely for such children as they become more vulnerable in the transition stage where their parents go through depression. The CRC and the Constitution protects children against any form of discrimination in the application and the enjoyment of their basic freedoms hence the state should provide equal protection to children threatened with evictions.

As the country celebrates the day of the Swazi child it is necessary to take positive action towards ensuring that children threatened with evictions are protected. Accordingly, government should ensure that eviction judgments are not executed in a way that will have a negative impact on children and formulate land reform policies that will foster equal access to land by all citizens. The land question has been avoided far too long amid the rampant evictions that are taking place in the country.  One of the reasons could be that perhaps the majority of Swazis who are living on communal land (Swazi Nation Land) believe they are safe from eviction as they are protected by chiefs. However, the rise of chieftaincy disputes and concealed demarcations could result to many Swazis facing evictions and the lives of many children will be put at risk as a consequence. Hence the eradication of harmful social practices for the development of children cannot be isolated from the broader national development plan that would be achieved through the collaboration of grassroots structures (including families) and the government. The realisation of children’s rights is not only fundamental for their development and well-being; it is also pivotal to creating a world of peace, equity, security, freedom, respect for the environment and shared responsibility. Umntfwana ngumliba loya embili – children are the future and the vehicle to development therefore we have the collective responsibility to protect them.

 Human Rights are #Swazi

This article was published by the Swazi Observer on 13 June 2013.

African cultures have rightfully been criticised for not respecting fundamental rights especially the rights of women, mostly because of harmful practices which negate gender equality. Many campaigns have been launched against these practices and laws have been passed to ensure that women enjoy the same rights as their male counterparts. Having discussed the key provisions of the preamble in the previous article, it is necessary to examine constitutional provisions that secure Swazi cultural practices and norms which promote human rights. The ultimate aim for this discussion is to identify the good cultural norms that can be promoted for human rights protection and national development. Culture can be understood to be the foundation of society; integrating the values, customs and characteristics of a people, and promoting interaction and dialogue amongst people is necessary. This is the reason in Swazi culture we have the saying that goes; ‘injobo itfungelwa ebandla’ (issues are better resolved through consultation and people involvement). Within this value of consultation or public participation there is the essence of the respect for the worth of every human being in society, hence it is encouraged for leaders to involve their communities in the decision-making processes.

Swazi customary law is entrenched in the Constitution as one of the laws in force in Swaziland although it is subjected to the provisions of the Constitution (section 252(2). This therefore means that customary law is recognized but its application is limited by its consistency with the Constitution. The Constitution further subjects customary law to other laws, natural justice, morality and humanity. It is necessary therefore to identify the cultural values that comply with the Constitution and use them to promote fundamental freedoms. For instance the principle of humanity is embedded in the Swazi way of life through the spirit of buntfu(humanity) which stems from the idiom that a person exists in unity with other people (umunftu ngumuntfu ngebantfu). The spirit of humanity acknowledges both the right and responsibilities of every citizen in promoting individual and societal wellbeing. This concept is about the individual being so rooted in the community that your personal identity is defined by what you give to the community. A person with buntfu is open and available to others, affirms and respects others, does not feel threatened by others’ strengths or abilities, because he or she recognises that we all belong to a greater whole.

The erosion of the spirit of bunftu and moral degradation has led to the many human rights violations that we see almost every day. Domestic violence, child abuse, harassment, property grabbing, ritual murders have become a norm as a consequence. Swazis of the past used to respect the country and its people; live liyengcayelwa is the essence of respect for the people, land and the environment. With this kind of respect people would treat each other in a spirit of brother/sisterhood knowing that if you harm your fellow human being you harm yourself. This approach can also be adopted to solve the many social ills we experience today. The society of Swaziland (especially the older generation) must revive the good cultural values that define the true Swazi way of life. Those in leadership (from community level to national government) must formulate and implement moral regeneration programmes that seek to counteract the social ills faced by our societies.  These very cultural norms can be used to send the right messages that build and unite society instead of creating division among people. If children are indeed the future (umnftwana ngumliba loya embili) they should be trained the right way and not be used as instruments to promote division and hatred in society. Live linye ngetjani; the strength of a nation is derived from its diversity in opinions and experiences hence the respect for freedom of expression, opinion, assembly and association. It is necessary to blend the good institutions of traditional law and custom with those of an open and democratic society in order to promote development (paragraph 5 preamble of the Constitution). Thus traditional practices like those regulating the land tenure system under communal land (kukhonta) can be merged with the right to property and equality as enshrined in the Constitution (sections 19 and 20 respectively). Government must undertake research to establish the number of people who do not have access to land and work together with traditional leaders to ensure that such people are assisted at a low cost to obtain land to build their households. This will reduce the alarming rate of evictions and demolitions as well as guarantee the well being of the people. Therefore, culture should serve the great cause of holding the Swazi people together and strengthening their unity in diversity: whether within families, public life, communities or organisations. As the election process advances it is imperative for the people of Swaziland to rejuvenate the fundamental values that promote a sense of community and be wary of people who rush to serve the king without having done any service to their chiefdoms because it is through selflessness that a nation can prosper. Therefore cultural norms and values should help the nation to make a sense of itself in order to assert its roots, reflect on its troubles and forge a better, safer and prosperous way forward through a shared vision.

Food for votes poisons democracy and violates human rights.

CONSTITUTIONALLY SPEAKING

This article was published by the Swazi Observer on May 30 page 11.

Food for votes poisons democracy and violates human rights.

It is an honour to have this space to share ideas and provoke discussions among my fellow citizens on matters affecting our everyday life with the understanding of our Constitution. Our Constitution may not be the best in the world but it does aspire to meet some of the internationally recognized standards. For example, the Constitution in chapter 3 provides a comprehensive bill of rights protecting among others, freedom of thought and expression – which I seek to exercise in this column. These rights are further emphasized in many other provisions, including the right to vote, found in section 85 of the Constitution. Swaziland’s Constitution, like many others all over the world, declares and guarantees the right to life, liberty, free speech, free thinking, association, and dignity. As we move into the elections mode, it is important for us to be fully armed with the necessary knowledge in order to exercise our right to vote, knowing that elections are not the end but the beginning of a long journey to self governance.

Since our Constitution is similar to those in other countries, both internationally and regionally, why is it that we are not able to meaningfully enjoy the bill of rights? Some of our neighbours are able to freely express themselves (in both speech and art); many are more free to question and to be questioned; meet and discuss issues; elect and recall leaders. Does this mean that there is something wrong with our Constitution?

In an attempt to deal with this question one is reminded of Burmese democracy activsit Aung San Suu Kyi, a Nobel Peace Prize Winner and longtime prisoner of conscience, who said: “Within a system which denies the existence of basic human rights, fear tends to be the order of the day. Fear of imprisonment, fear of torture, fear of death, fear of losing friends, family, property or means of livelihood, fear of poverty, fear of isolation, fear of failure. A most insidious form of fear is that which masquerades as common sense or even wisdom, condemning as foolish, reckless, insignificant or futile the small, daily acts of courage which help to preserve man's self-respect and inherent human dignity.”

She continues, “It is not easy for a people conditioned by fear under the iron rule of the principle that might is right to free themselves from the enervating miasma of fear. Yet even under the most crushing state machinery courage rises up again and again, for fear is not the natural state of civilized man.” 

It becomes clear, therefore, that fear is the greatest enemy of human rights. In the past weekend the African Union celebrated its 50^th Anniversary with one clear message: “One Africa for Prosperity and Peace”. This theme was complemented by other messages, freedom and liberation from colonial powers to name two. We might have fought and received liberation as Africans to be independent and govern ourselves but the bigger picture is the full attainment of individual freedom to enjoy the fundamental rights as enshrined in our Constitutions. For Swaziland it has been 45 years since independence and almost eight years after the adoption of the Constitution.

Does independence of the nation, achieved in 1968, also mean independence and freedom for the individual? Have we taken steps as a country and as Swazi citizens to realise our individual freedom? It’s from this point – individual autonomy – that a stronger, more unifeid country can be built.  

From my experince of working with Swazi communities, we have a way to go before we reach individual liberation. Many people confuse human rights with favours from government. Some believe that kindness from government or other individuals is akin to the protection of human rights. 

This perception exacerbates the many human rights violations being commited every day. Newspapers report stories of ministers, MPs and powerful individuals who use the name of poverty as a stepping stone to enter parliament.

It is clear that behind this kindness is a wish to be elected to parliament and possibly, the thought of enriching oneself ahead of the consituuceny.

The Elections and Boundaries Commission (EBC) is franticically attempting to caution Swazis, especially law-abiding citizens without much power, to refrain from influencing people to vote for them before the actual campaigning period begins. However we cannot blame the EBC, nor the law breakers for this – it is a true reflection of our society.

It is government’s job to provide for basic welfare needs, such as maintenance of the elderly and other underprivileged groups in society; not to supoort – directly or otherwise – law breakers who pose as good samaritans.

People have a right to adequate standard of living, including the right to enough food, as protected by Article 11 of the International Covenant on Economic Social and Cultural Rights which Swaziland acceded in 2004. Therefore, whether people buy votes with food or money, they do not take away the obligation of the government because poverty and hunger will remain even after elections if the electorate does not have ideas that will influence the positive implementation of the national poverty reduction strategy.

The EBC must stand up and protect poor Swazis from manipulation because the success of the electoral process will not only be determined by the number of voters but by also the quality of leaders that will be produced. Yet we cannot keep blaming the EBC for the indifference of our people but instead we should be reminded of our obligation to respect the rights, freedoms and legitimate interests of others, and generally refrain from doing acts that are detrimental to the welfare of others (section 63(d) of the Constitution).

Food for votes is poison to democracy and a serious violation of human rights. The only sure bulwark of continuing liberty is a government strong enough to protect the interests of the people, and a people strong enough and well enough informed to maintain its sovereign control over the government, as said by former US President Franklin Delano Roselvelt.

Or, as Nelson Mandela put it : To be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others.

Phakama Shili; Advocacy Officer, MISA-Swaziland

Comments to:phakamashili@gmai.com

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Twitter: @Pshili1

INTESTATE SUCCESSION UNDER SWAZI CUSTOMARY LAW; UNEARTHING THE PLIGHT OF WOMEN AND CHILDREN.

INTESTATE SUCCESSION UNDER SWAZI CUSTOMARY LAW; UNEARTHING THE PLIGHT OF WOMEN AND CHILDREN.

By; #Phakama Shili

A) Introduction

The law of succession regulates the form and manner in which a deceased person’s estate is dealt with.[1] This is regardless as to whether the deceased died having made a will or not; that is to say whether the person died testate or intestate. Swaziland observes a dual legal system which comprises of the modern law inherited through the Roman Dutch Common Law and Swazi customary law a bulk of which is not written and emanates from the long practices by indigenous Swazis. With this status core Swaziland’s law of succession varies depending on the form of marriage which persons enter into. For instance a civil rites marriage is regulated by the Intestate Succession Act No 3/1957 whilst inheritance in a customary marriage is regulated by Swazi customary law.

Inheritance under Swazi customary law does not allow women to inherit from the estates of their late husband’s and relatives. Girls do not succeed to their father unless their father makes a donation to them during his lifetime.[2]   Widows only succeed in exceptional circumstances where the rules of intestacy fail to provide an heir, they may enjoy use of the heirs inheritance provided they stay with him.[3]  The established rules of inheritance under Swazi customary law only allow males to inherit property from a deceased person. This discrimination is justified by the minority status which women possess until they die. The principles of customary law have also restrain freedom of testation as the family inner council (lusendvo- composes of the deceased headman’s family, including his aunts, uncles, and brothers and sisters) is the final arbiter in dealing with a deceased person’s estate.  In most instances a will under customary law is not written and does not comply with the provisions of the Wills Act which makes it prone to manipulation by the lusendvo who may disinherit beneficiaries.

This paper seeks to critically analyse the order of succession in terms of intestate succession under Swazi customary law and further discuss the recognition or otherwise of testate succession or succession in terms of a will with a view to make recommendations on the reformation of Swazi customary law and the making of a law that will take into account the provisions of the Constitution[4] to regulate succession under Swazi customary law.   

 

 

B) The order of succession under Swazi Customary Law.

Intestate succession in Swaziland is regulated by two very old and discriminatory legislations; the Intestate Succession Act 3/1953 and the Administration of Estates Act 29/1902.[5] These laws discriminates Africans from non-Africans and treats differently customary marriages from civil rights marriages. A clear example is that of section 4 of the Intestate Succession Act which provides that the Act shall not apply to Africans whose  estates are to be dealt with in terms of the customs of that African as provided by section 68 of the Administration of Estates Act. [6] In light of these provisions then Swazi Customary law comes into play to regulate intestate succession of estates of Swazis who are married on customary marriage and die having not made a will.

As already stated, under Swazi customary law women are not considered to inherit the estates of their late husbands and fathers. In terms of Swazi customary law there is only one heir who succeeds to the whole estate of the deceased and such person is chosen by lusendvo. Where the deceased headman had one wife, his eldest son, in the absence of factors which may disqualify him becomes heir.[7] This therefore means that his siblings will not inherit but only benefit from the estate through their brother. This preference of the eldest son over his siblings and mother goes against the dictates of the Constitution which provides for equal treatment and non-discrimination of women.[8]

 If the deceased dies having married to two or more wives, the lusendvo will choose the principal wife and the oldest son of that wife or house will become the main heir.[9] The main house is chosen on the basis of the ranking of the wives and character plays a crucial role in this regard. The discretion of lusendvo to select the main house may also be influenced by several reasons like the blue blood of the wife or the wife shares the same surname with the grandmother of the deceased husband or the wife was married through arranged marriage (kwendzisa).  Apart from these considerations the lusendvo may appoint a principal wife on the basis of her personality and relations with the family members.

It is important to note at this point that the factors outlined above may also be overlooked by the lusendvo to benefit a house which they favour most. This situation does not however guarantee that the wife whose house has been chosen will benefit directly from the estate of her late husband but she will enjoy such benefits through her elder son who will be a custodian for the whole family. This arrangement was done with the perception that women could not handle family affairs properly hence everything needed to be put under the hand of a male figure. With civilization and women having jobs and owning their own properties, these practices have become irrelevant as women have proven to be capable of administering properties well.

In a situation where there is no son in all the households to be heir, girl children of the widows are not allowed to inherit. Rather the main wife or that only wife( in a monogamous marriage) may have to be given one of the late husbands’ brothers for a new husband by the operation of ‘kungena’ (levirate) and a son may be born from this arrangement and inherit as an heir.[10] This further demonstrates the plight of women under Swazi customary law as they are treated like properties that are inherited by their in-laws.

When the levirate system does not take place, the deceased’s young brother coming next after him in seniority become heir. If such brother predeceases the headman then the brother’s own elder son or if the two situations fail then the next brother of the deceased or his son will become heir. In the absence of such younger brother of the deceased, or their own sons, the older brothers come in order of their seniority where in the same way as with the younger brothers as demonstrated above.[11] If all the above fails then any senior male relative of the deceased will become heir to the estate of the deceased. It is important to note that in all the processes, the widow and her girl children have no say. In a situation where all the above does not provide an heir then it is resorted to the deceased’s sisters’ sons starting with the eldest sister (married sister) and if such also does not provide then the sons of the nephews in the same order of seniority or younger son. This process goes to even consider cousins in order to obtain an heir who must be male to inherit the estate. In a situation where all the above stages do not provide an heir it is then that the widow may inherit as a guardian of the estate for her children. This practice demonstrates how women are so much undermined by family structures. This also applies to when a woman dies leaving her property behind. The property is automatically inherited by her husband (if married) or her father (if unmarried).

With the enormous role of the family inner council in the affairs of the estate of a late person, it is very difficult for wills to be observed. The Swazi law and custom wills are not at all times written and evidence of such testation may not be available, for instance when the witness of such a verbal will predeceases the testator or are giving different versions as to the nature of the bequeath. Another is the problem of no freedom of testation, the Swazi law and custom allows certain persons to denounce a will of a testator and continuing to dispose of the property in intestacy even though the deceased person left a verbal will. [12]  The lusendvo always decides how estates are administered and distributed if the person dies whether having made a verbal will or not. 

In some parts of Swaziland, wills that are made by people married under Swazi customary law are observed especially when such are written as these are enforced by the office of the Master of the High Court. This however does not preclude the family members from forcefully evicting the widow and her children from the family home since a family home that is located on Swazi Nation Land normally does not form part of the property that is subject to a will as such land is perceived to be belonging to the nation and held in trust by the King. The family inner council may then forcefully take the family fields and use them for their own gain. This has been proven by the spate of evictions and displacements of women and children which has contributed to the high poverty rate.

Therefore, there is no recognition of freedom of testation. Furthermore, problems with customary law wills is that even persons who witness the making of such wills maybe beneficiaries to the will as the close relatives of the deceased like his elder sisters form part of lusendvo. Such a will should not be made known by the beneficiaries in that they may tend to accelerate the death of the testator. Such witnessing of the will by members of lusendvo might cause or sow seeds of hatred of the beneficiary by those who are not mentioned as beneficiaries. It can even sow seeds of hatred among the beneficiaries themselves even before the death of the testator. There is not much written on testamentary succession under Swazi law and custom. Maybe it is because a person is under the control and supervision of lusendvo, so he may not be free to make a will. He can only dispose of his property inter vivos, but even then the consent of the lusendvo needs to be obtained.[13]

 

C) The Constitutional Implications of the Swazi customary law on Intestacy and testate succession.

The inherent women discrimination of Swazi customary law violates the rights of women to be treated equally as provided by section 21 of the Constitution. In case of Marry Joyce Doo Aphane it the Supreme Court of Swaziland held provisions of the Deeds Registry Act No1/1968 which precluded women from registering immovable property under their name to be unconstitutional.[14] The Doo Aphane judgment was received as a historic step towards the equality of women in the Swazi society.[15] Swaziland is a party to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and other international human rights instruments that protects the rights of women.[16] According to Maxine Langwenya,

 ‘adopting these instruments seems to underline the country’s willingness to respect and uphold the rights of women. However the reality is that this theoretical commitment to women’s rights is not matched to repeal discriminatory laws, even though they are now unconstitutional.’[17]

The discrimination against women also violates women’s right to dignity as it exposes women to be treated without respect in contravention of the Constitution.[18] Furthermore the forceful eviction of women and children and the vesting of property to male heirs of a deceased person in disregard of the wife and children of the deceased property owner violate the Constitution in so far as it deprives them their right to own property.[19] The Constitution describes discrimination as a means to give different treatment to different persons attributable only or mainly to their respective descriptions by gender, age...[20] this definition therefore demonstrates the prohibition of the unfair treatment that women and children face in Swaziland under the application of Swazi customary law on inheritance.

The Constitution further protects the rights to marry and found a family.[21] These rights are reaffirmed by the provisions for that marriage shall be entered into only with the free and full consent of the intending spouses and that a family is a natural and fundamental unit of society and is entitled to protection by the state.[22] This therefore means that the customary practice levirate violates the Constitution in so far as it exposes widows to forced marriages and deprives them their family rights.  This further destroys the family unit by treating the woman with disrespect as she is given the same status as her children, in fact her male children are even better than her. This position results to the male heir disrespecting his mother and even evicting her from the family home.[23]

The imposed marriage further violates the Constitutional rights of women to refuse to practice a custom which they don’t believe in.[24] In many parts of Swaziland customary law is still dominant and the majority of Swazis that practice these custom condemn women who stand up against such imposed marriages and as a result most women in customary marriages resort to oblige with the customs.[25] The wrath of Swazi customary law is also suffered by children who are not permitted to inherit at the preference of their elder brother. The Constitution protects children either born in or out of wedlock by ensuring their rights to be properly cared for and brought up by their parents. Swazi customary law does not permit children born out of wedlock to inherit from the estates of their late parents.

Further the selection of an heir who is a relative of the deceased husband affects the welfare of the deceased’s children as such heir may decide to keep the estate for himself. Moreover if the widow is not entrusted with the estate of her late husband especially the homestead, it becomes impractical for her to provide for her children. For example in some instances the deceased may leave cattle behind which he used to pay children’s school fees and these ends up being taken by the heir who does not allow the widow to sell them for her children’s welfare.

The Constitution also abolishes the status of illegitimacy of children[26] hence the custom of disinheriting such children is unconstitutional and should be avoided. Apart from protecting the rights of children, the Constitution also protects the rights of spouses by providing for the reasonable provision for surviving spouses out of the estates of their late spouses.[27] This applies even in customary marriages regardless of whether the deceased made a will or not. These rights however cannot be realized by women without Parliament having passed laws to make these effective. To that end, the constitution obliges Parliament to enact laws regulating property rights of spouses including rights of common husband and wife and such must be done as reasonable as practicable.[28] The same applies with children who must have a reasonable provision out of the estates of their parents.[29]

D) Conclusion

Many laws and customs continue to exist in Swaziland in spite of their clear inconsistency with the Constitution and the international treaties ratified by Swaziland. Such laws must be repealed and such customs must be abandoned.  Parliament must take action to repeal the existing discriminatory provisions regulating inheritance, particularly in the intestate succession laws and the administration of estates, and replace them with laws that provide women with equal rights as guaranteed in the Constitution and the various international treaties.[30] Parliament must further pass laws that will give effect to the ‘reasonable provision’ clause as provided by the Constitution and further speed up the promulgation of the Deeds Registry Act that gives women married in community of property the right to register immovable property in their names.

The two most important aspects of the proposed legislative provisions on inheritance shares are; (1) that the surviving spouse inherit explicitly, by statute the marital home upon the death of a spouse, and (2) that the remainder of the deceased’s estate devolve half to the surviving spouse and half to the children (to be shared equally among them).[31] These practices have already been adopted by various countries in Africa. For example, South Africa has the Intestate Succession Act No81 of 1987 which covers both civil and customary marriages. Also in South Africa the Courts in the cases of Bhe and Others v Magistrate, Khayelitsha and Others 2004 (1) BCLR 27 (C) and Shibi v Sithole and Others Unreported case no 729/01 (TPD) have ruled that the provisions of customary law which exclude females from inheriting from an intestate estate were inconsistent with the Constitution.

The Intestate Succession Act must be amended to guarantee all married women and children the right to remain in their marital home after the death of a husband regardless of the type of marriage entered into. In addition, when a spouse dies, it is essential that the surviving spouse be entitled to half of the deceased’s estate, leaving the remaining half to be divided among the children. Further, widows (and widowers) must be granted the automatic right to both control and administer the estate of their deceased spouses under the Administration of Estates Act. Without these guarantees, women are all too vulnerable to property grabbing and forcible eviction.[32]

In facilitating the suggested reforms, Swaziland must create and implement programmes that will promote the rights of women in general and further ensure that inheritance rights of both women and children are protected. Furthermore, women whose properties have been forcefully taken by their relatives should be assisted to access the courts for redress. This can be done by establishing a legal unit in the Social Welfare department that will deal with such issues or permit lawyers from Non-governmental Organizations to assist victims in bringing their cases before court.[33] This can also ensure strategic litigation on laws and customs that violate the Constitution in order to influence reforms.

Securing the inheritance rights of women and children requires a collaborative effort from both human rights advocates and traditional leaders hence the need for civic education on these issues cannot be over-emphasized. With this comes the political will to speed up the process of legislation and enforcement which rests with the government and parliament. If Swaziland could ratify 30 international instruments in one week then it could take one day to pass a legislation protecting the inheritance rights of women and children.[34]

 

BIBLIOGRAPHY

LEGISLATION

1. Constitution of the Kingdom of Swaziland Act, 2005.
2. Administration of Estates Act
3. Intestate Succession Act

CASE LAW

1. Bhe and Others v Magistrate, Khayelitsha and Others 2004 (1) BCLR 27 (C).
2. Marry Joyce Doo Aphane v Registrar of Deeds Supreme Court case No12. Of 2010.
3. Shibi v Sithole and Others Unreported case no 729/01 (TPD).

BOOKS.

1. Corbett M, Hofmeyr G, Kahn E, The  Law of Succession in South Africa, 2^nd Edition Juta & Co Cape Town South Africa 2008.

JOURNALS

1. Watch the courts dance: Litigating the Right to Non-Discrimination on the Grounds of Sex: Equal Rights Review volume 4(2009) page 26.

 

REPORTS & PAPERS

1. South African Law Reform Commission: Report on the Customary Law of Succession , Pretoria South Africa ,2004
2. The Promise for a new Constitution- Achieving Equal Inheritance Rights for Women in Swaziland: A human Rights Report and Proposed Legislation, Georgetown Journal of International Law, Georgetown University Law Centre, Volume 40, London 2009.
3. Centre on Housing Rights and Evictions Report; A place to live; Women’s Inheritance Rights in Africa, 2005.

 

ARTICLES & PAPERS

1. Simelane N.N, Succession under Swazi Law and Custom, University of Swaziland 1994.
2. Langwenya M; Historic Step Towards the Equality of Women; Analysis of the Marry Joyce Doo Aphane v Registrar of Deeds, Open Debate OSISA Johannesburg 2011.

 

WEBSITES

1. www.sz.one.un.org/index.php/142-home/un-in0swaziland/268-un-instruments

 

#Phakama Shili

#shili

 

 

 

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[1] Corbett, Hofmeyr & Kahn, The Law of Succession in South Africa at page 5.

[2]  Simelane N.N, Succession under Swazi Law and Custom, University of Swaziland 1994.

[3] As above.

[4] The Constitution of the Kingdom of Swaziland Act, 2005.

[5] The Promise for a new Constitution- Achieving Equal Inheritance Rights for Women in Swaziland: A human Rights Report and Proposed Legislation, Georgetown University Law Centre at page 447.

[6] As above.

[7] Simelane No2 above.

[8] Section 21 and 28 of the Constitution of the Kingdom of Swaziland Act, 2005.

[9] Simelane No2 above.

[10] As Simelane No2 above at page 40.

[11] As above.

[12] As No 4 above.

[13] Simelane No2 above at page

[14] Marry Joyce Doo Aphane v Registrar of Deeds Supreme Court case No12. Of 2010.

[15]Langwenya M; Historic Step Towards the Equality of Women; Analysis of the Marry Joyce Doo Aphane v Registrar of Deeds Civil Case No 383/2009 at page 2.

[16] Swaziland ratified CEDAW a year before the adoption of the Constitution which also protects these rights.

[17] As No 13 above.

[18] Section 18 of the Constitution protects the right to dignity.

[19] Section 19 of the Constitution protects the right to property.

[20] Section 20(3).

[21] Section 27.

[22] Section 27 (2) and (3).

[23] Centre on Housing Rights and Evictions report 2005; A place to live; Women’s Inheritance Rights in Africa, page 26.

[24] Section 28(3) of the Constitution.

[25] A study by UNDP cited in the Georgetown University Journal above.

[26] Section 31 of the Constitution.

[27] Section 34.

[28] Section 34(2).

[29] Section 29(7)(b).

[30] GeorgeTown University Report No4 above at page.

[31] As above at page 468.

[32] As above at page 469.

[33] As above.

[34] In September 2012 Swaziland deposited 30 international instruments with the United Nations which were ratified by the country following a one week consultative meeting during the peoples parliament (sibaya). www.sz.one.un.org/index.php/142-home/un-in0swaziland/268-un-instruments (last visited 23 March 2013).