SWAZILAND: A CHALLENGE TO THE CUSTOMARY PRINCIPLE OF MALE PRIMOGENITURE

Salc : Brigadier Siachitema

SALC is working with Women and Law in Southern Africa’s Swaziland chapter (WLSA-Swaziland) on a case challenging the customary principle or practice of male primogeniture for being inconsistent with the Constitution of the Kingdom of Swaziland Act No. 001 of 2005. The customary principle of male primogeniture dictates that only a male who is related to the deceased through a male line qualifies as intestate heir and it looks to the eldest male descendant of the deceased first, that is, in a monogamous family.

The applicants argue that by denying daughters and other female relatives the right to become intestate heirs and inherit property, the customary principle of male primogeniture violates the right of daughters and other female relatives under the Constitution and international law to the right to dignity and protection from inhuman and degrading treatment, equality before the law with men, equal treatment with men, a child entitlement to a reasonable provision out of the estate of its parents, and the spouse’s entitlement to a reasonable provision out of the estate of the other spouse. The applicants further argue that the customary principle of male primogeniture offends against natural justice and general principles of humanity as enshrined in sections 252 of the Constitution of the Kingdom of Swaziland Act No. 001 of 2005.

The case was brought by WLSA-Swaziland, Colani Hlatjwako (WLSA- Swaziland Executive Director) and Zodwa Kunene, an adult Swazi woman. Zodwa Kunene is the only surviving child and last born of her deceased parent’s six (6) children. Of her five (5) deceased siblings, only one was male. Zodwa Kunene stays with her children at her parental home, together with her nephew, Mbongeni, who is a son to her deceased brother. Zodwa is not in gainful employment but earn a living though farming in her late parent’s field at the parental home and selling the surplus, if any. Maize faming is her only source of income for her six children as she is not married and does not receive any support from the father of her children. In August 2017, the Chief’s Inner Council informed Zodwa Kunene that her nephew, Mbongeni, is an heir of her deceased parent home and assets and that she must vacate the home to enable Mbongeni to take over her parents homestead, including the fields she has been using for growing maize. She was advised to build her own house at the end of the boundary of her parental home where there is a thick forest of gum trees and stumps that would require heavy machinery and very high cost to clear. She was also given an option that she should go and present herself for marriage to the father of her children for marriage. The father of her children has never proposed marriage to her before. She declined both the offer of the land at the end of the building and the option to present herself for marriage to the father of her children as they are demeaning to her and indeed any other female child in her situation.   Zodwa Kunene has been barred from continuing to plough her parent’s field and her nephew, Mbongeni, has continued demanding that she move out the home because the Chief and Indvuna appointed him as heir. Zodwa has however refused to move out as she has nowhere to go if she leaves her parental home

The applicants are asking the Court to declare that the customary principle or practice of male primogeniture is inconsistent with sections 18, 20, 28, 29(7) (b) and 34(1) of the Constitution of the Kingdom of Swaziland Act No. 001 of 2005. In the alternative they are asking the court to declare that customary principle or practice of male primogeniture offends against natural justice and general principles of humanity as enshrined in section 252 of inconsistent with the Constitution of the Kingdom of Swaziland Act No. 001 of 2005.They also ask the Court to grant an order restraining all the Respondents from preventing Zodwa Kunene to continue ploughing the field at her parental homestead pending the finalization of the legal proceedings. The matter was  scheduled for hearing on 24th April 2019 but was postponed to a future date to be advised.