21 February 2020
Eswatini Women Challenge Oppressive Laws
“How can I be equal to my husband and expect the marriage to work?” the baffled mother of three asked in response to a question on what she felt about the August 30, 2019 High Court ruling that declared unconstitutional the kingdom’s customary marriage law which makes husbands supreme over their wives and the family’s property.
“Maybe it works for others, but for me I don’t think so”, she added, thoughtfully shaking her head from side to side.
At least Hlengiwe has a vague idea of the ruling that many women in her country are celebrating, although she doesn’t fully grasp what changes the ruling could bring to her marriage. Many others have no clue about the ruling itself, let alone what it seeks to achieve.
Need for education
It is nearly six months after the High Court in Eswatini made a watershed ruling that invalidated the common law doctrine of marital power, but most of those who are supposed to benefit from the ruling are yet to fully understand it.
While women rights activists celebrated the court victory, a lot of work still needs to be done in order for the ordinary woman and – more importantly men – in Africa’s last absolute monarchy, to understand this ruling that caused both jubilation and consternation.
In 2017, human rights groups, the Southern African Litigation Centre (SALC) and Women and Law in Southern Africa (WLSA) Eswatini challenged these discriminatory laws in court on behalf of a married Swazi woman, Makhosazane Eunice Sacolo, who upon being deserted by her husband, found herself stranded, as she was unable to sell any of the livestock she purchased with her own money because she did not have her estranged husband’s consent.
Under both Swazi customary law and the Marriage Act (1964), married women are assigned a disadvantaged status, granting men more privileges and rights. The act provides that married women require the consent of their husbands to enter into certain contracts, including accessing credit from financial institutions. The Marriage Act imposes on African spouses the customary consequences of marriage while granting to non-African spouses the common law consequences of marriage. This, the litigants successfully contended, violates the right of married women to be free from racial discrimination under the constitution and international human rights treaties.
“Marital power refers to the archaic common law doctrine that a husband has the ultimate right to decide over his wife and the matrimonial property,” the SALC explained. “The doctrine of marital power means that a married woman cannot deal with the marital assets without the knowledge and consent of her husband, yet her husband can do so without seeking and obtaining her approval.”
The SALC highlighted that this doctrine limited women’s legal rights so severely that they effectively lived as if under guardianship.
The applicants successfully petitioned the court to remove marital power from the common law, granting equal rights to sue or be sued, contract, and administer property to all Swazi women married under the civil system. They also succeeded in getting the court to strike those portions of the Marriage Act that distinguish on the basis of race, specifically parts of Section 24 and the entirety of Section 25.
In this August 30 judgement, the High Court held that the doctrine of marital power violated married women’s rights to equality and dignity. The court also struck down the offending parts of sections 24 and 25 of the Marriage Act.
“For many years, these discriminatory marital power laws have negatively impacted on women and on our ability to provide legal assistance to women”, said WLSA-Eswatini director Colani Hlatjwayo. “We hope the judgement will bolster the State’s law reform process to ensure marriage equality is reflected in our marriage laws.”
Human Rights Watch took note of the court ruling that it says is a step in the right direction for a kingdom that ranks lowly in terms of human rights observance.
“The progressive ruling builds on Eswatini’s law reform process, aimed at promoting and protecting women’s and girls’ rights, including the Sexual Offences and Domestic Violence Act of 2018,” noted Human Rights Watch in its latest human rights report on the kingdom.
Eswatini has remained an absolute monarchy under King Mswati III, who has led the country since 1986. It has no legally recognised opposition parties due to a 1973 ban, despite the adoption of the 2005 constitution, which guarantees basic rights.