CONTENTS | ANB-BIA HOMEPAGE | WEEKLY NEWS
|
Swaziland |
WOMEN
Swazi women rights activists are nursing high hopes that the keenly-awaited Constitution
will address their minority status in Swaziland’s male-dominated society
The Women and Law in Southern Africa Research and Education Trust (WLSA), a non-governmental organisation that does research on the law from a gender perspective, has developed fact sheets aimed at raising awareness on the problematic areas of the law on women which can be addressed by the Constitution. Nozipho Mkhatshwa, WLSA‘s programme officer, says: «Over the past 13 years, WLSA has been researching the law, and has now revealed the compromised legal status of women».
The fact sheets have been developed and discussed along thematic issues following those areas of the law, which have been identified as being specifically problematic to women, and which can be addressed by the Constitution. She outlined the problematic issues as: The legal framework; minority status; citizenship; land; women’s participation in decision-making; customs and traditions; international human rights instruments.
Conceding that all these issues were important, she pointed out the three most problematic issues: Minority status; land; women’s participation in decision-making.
Minority status — the root cause
Mkhatshwa feels that minority status is the root cause of women’s problems in Swaziland. She says: «Minority status has been the source of trouble to women in this country. Under the general law, both women and men reach majority status at 21. However, civil law is gender discriminatory. The present Marriage Act refers to marriage inside and outside of community of property. In both cases the male is the administrator of the estate. The distinction is that with marriage in community of property, every property rights earned by either party is held as an undivided half share by each, but unless a marriage is declared to be inside community of property, it is deemed to be outside joint ownership. In that case, the husband cannot expropriate his wife’s property, but nor can she deal with it without her husband’s consent.
Unfortunately, the situation is still not better under traditional Swazi Law and Custom, because under this law women generally never reach their «majority». They are considered to be perpetual minors under the guardianship of their husbands and their families upon marriage.»
Mkhatshwa argues that this has had adverse effects on women. For example, women married by civil law in community of property and those married out of community of property under their husbands’ marital power, cannot register land in their own names. This has led to some husbands selling, donating and mortgaging homes without their wife’s knowledge or consent, leaving them and their families destitute. «In as far as customary law and decision-making at that level is concerned, women cannot take major decisions because they are viewed as minors under the guardianship of their husbands.»
For a constitutional remedy to the minority status situation, Mkhatshwa suggests a bill of rights entrenching fundamental human rights and freedoms, explicitly providing for womens’ protection. She also observes that the Constitution should uphold the principle of equality; equality before the law and equal protection and benefit from the law.
Land
On the issue of land, Mkhatshwa notes that women’s problems have a lot to do with their situation vis à vis security of tenure. They have conditional access but no direct control over such land. «Women have no direct access to land in Swaziland. As far as they are concerned, access to land is through their fathers or husbands. Women, whether married or single, generally lack security of tenure on such land.
When it comes to possessing a Title of Ownership to land, most married women cannot register land in their names. Mkatshwa says the problem with this situation is, that women are forced to resort to using their male children for land acquisition (the male children can have a title to property). This means the homestead, which she develops single-handedly, belongs to the son. Some sons have been reported as having expelled their mothers from their homesteads. Likewise, grandchildren have expelled their grandmothers.
Decision-making
Mkhatshwa says that «some of these problems can truly be addressed by women themselves. Women need to participate actively in positions where decisions are made. This will allow them to express their needs, and share in developing laws that protect them in various spheres of their private and public life.
Amongst such areas of concern for women are employment, womens rights, women living with disabilities, ownership and control of property and land, marriage, maintenance, inheritance, domestic violence and reproductive health. Parliamentary elections later this year, will provide an opportunity for women to make changes in those laws that currently don’t meet their needs and wishes.
Mkhatshwa hopes the new Constitution will effectively grant women their rights in today’s society.