Women’s equality ...
In theory, but not in practice:
King Mswati 111, sub-Saharan Africa’s last absolute monarch, approved
the Constitution in 2005 - on the back of centuries of discrimination
against women that accorded them second class status - ending customary
and institutional discrimination based on gender.
Although the Constitution recognizes the equality of women, in
practice much legislation remains unchanged and discriminatory.
Mary-Joyce Doo Aphane, an attorney, filed the lawsuit to compel
government to overturn Section 16 (3) of the Deeds of Registry Act,
which forbids women to register property in their own names.
“This is the first test case, for women and for the Constitution,”
Fikile Mtembu, an attorney and the country’s first female mayor, told
IRIN.
Section 28 of the Constitution stipulates: “Women have the right to
equal treatment with men, and the right shall include equal
opportunities in political, economic and social activities.” Aphane’s
court action stems from her attempts to jointly register a property,
using her maiden name, Aphane, with her husband, Michael Zulu. The
deed’s office refused to register her as independent of her husband.
“The property had to be registered in the name of my husband. The
Deeds Registry Office will not accept the registration of the property
in our joint names,” Aphane said in papers filed with the High Court.
The Constitution specifies that all laws prior to its promulgation
are void if they conflict with constitutional clauses. However, to date
no laws - some of which hark back to the British colonial era - have
been amended or suspended.
“All the laws in the country are so discriminatory - they reflect the
attitude towards women of a patriarchal society,” Mtembu said.
Accepted law
“Banks still turn down women for loans if they don’t have husbands to
co-sign. Some of the comments broadcast over the radio show the mindset
of the country’s authority - they refer to ‘accepted law’ when it comes
to women,” she said.
“Accepted law” is a euphemism for Swaziland’s customary law, which
classifies women as minors. Traditionalists argue that customary law
takes precedence over the Constitution.
“There is a lack of political will to carry out what is called for in
the Constitution,” said Aphane, a founding director of Women in Law in
Southern Africa, a non-governmental organization advocating the rights
of women.
“You find this in all quarters of government and traditional
authority. In parliament, MPs understand nothing of this case. The
person who should ferret out old laws and discard them is the
attorney-general, but he is not interested.
He is part of the system, part of the status quo. When the
Constitution came into force, Swazi authorities decided against
establishing a Constitutional Court to deliberate on constitutional
matters, delaying implementation of its provisions.
Against the people
“Instead, we as taxpayers must foot the bill as government hires one
lawyer after another to argue against the people of Swaziland who want
their rights,” Aphane told IRIN.
The success or failure of Aphane’s case will determine whether
women’s equality is a reality or, as one legal professional who declined
to be identified, said, “the truth is rather that the constitution’s
human rights guarantees were simply put there to indicate to the world
that we are something that in fact we are not.”
Gigi Reid, a lawyer who has worked to gain title deeds for Swazi
women in traditional, polygamous as well as civil marriage unions, told
IRIN: “I am headily excited about having our rights as women upheld, as
embodied in the Constitution under Sections 20 and more specifically
Section 28, which both envisage economic emancipation of women away from
the concept of a publica mercatrix.” Publica mercatrix is a concept that
can be traced to ancient Rome, which states a woman cannot trade without
the consent of her husband.
“This is a long overdue freedom, especially in the context of the
fast-growing ‘career woman’ phenomenon and the single [parent] family
entity,” Reid said.
“It is outrageous that even after three years since the inception of
the constitution, women are still unable to sign sureties without the
expressed consent of their husbands,” she said. Reid hopes the
constitution’s human rights provisions will be upheld by the High Court,
and that government will honour the court’s decision.
But human rights activists are concerned that Swazis might have to
spend years and a fortune on legal fees in forcing the government to
shelve discriminatory laws and practices.
“I fear this will set a precedent in respect of all other rights
under the Constitution; that citizens will have to spend not only
monetarily but also emotionally and otherwise in order to enforce their
rights.
This is definitely not within the spirit of our Constitution,” Reid
commented. Aphane said her case would be an opportunity to educate both
men and women in the social and economic value of emancipating Swazi
women.
“I will not win this case, personally,” Aphane said, predicting
victory in the courts. “The women of Swaziland will win this case.” -
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