By James Hall
MBABANE, Oct 6 2003 (IPS)

The Swaziland branch of Women in Law in Southern Africa is concerned that guarantees of women’s rights that were announced in the draft constitution, soon to be ratified by King Mswati, are not as secure as first thought.

“When the draft constitution came out, there were many parts that we greeted with enthusiasm, because they called for equality for women. But upon further reflection, it is apparent that all rights, whether granted to women or anyone else in the form of human rights, may not be absolute,” said Manzini attorney Fikile Mthembu.

Women in Law, this month, issued a booklet intended for a general readership that examines the constitution from a women’s point of view. Production was paid by the British High Commission. Britain has financially supported King Mswati’s constitutional exercise since its inception in 1996.

While Swaziland has had no formally ratified constitution since 1973, when Mswati’s father, King Sobhuza, overturned the Independence Constitution and assumed absolute governing powers, the minority status of women in Swaziland has its origins in pre-historical accounts, and is deeply ingrained in traditional culture and modern attitudes. Even with constitutional guarantees of gender equality, changing the values held by many Swazi men and women may prove difficult.

“The prerogatives conferred on the King effectively place him above the constitution, and this puts in doubt the supremacy of the constitution, especially with regard to protection of the rights and freedoms of citizens,” stated the Women in Law booklet.

One graduate student in law at the University of Swaziland said her view is that a competition between two governing systems – one ancient and one modern – is at play, and the conflict can be resolved with only one system supreme.

“The heart of the dilemma is which will win in the end: the old values that are enshrined in the unwritten rules called ‘Swazi Law and Custom,’ or the modern laws with their human rights based value system,” said the aspiring attorney, Lungile Lushaba.

“The continued recognition of both common law and Swazi customary law without clear synthesis to avoid conflict of law is a concern. The constitution should clearly subject Swazi law and custom to the same standards as any other law,” said the Women in Law report.

All over the kingdom, women are reading copies of the report acquired at health clinics and at women’s cooperatives, churches, even beauty salons and other centres where women gather.

What they are finding is that the draft constitution, written under the supervision of two Swazi princes who are King Mswati’s brothers, boldly proclaims an end to gender discrimination, and even ensures a quota of parliamentary seats to be set aside for women. But then it states that any and all matters raised in the constitution cannot conflict with the traditional way of life of Swaziland.

“The constitution gives to women on one hand, but it takes away with the other. It’s confusing. Have women advanced in Swaziland, or are we still subject to a traditional system where we are legal minors?” asked Lushaba.

Women’s groups say that clarification on this discrepancy is required before the king ratifies the constitution by royal decree, as Mswati said he wanted to do by month’s end. “I am not permitted to take out a bank loan because I am a woman. I am a legal minor in the eyes of the law, and so I cannot own property in my own name. No property, no collateral to secure a loan. But banks cannot enter into an agreement with me in any case, because minors cannot enter into contracts,” said Mbabane businesswoman Sheila Shabalala.

Shabalala noted that the constitution prohibits sexual discrimination in legal matters, and when it takes effect all barriers for property ownership in towns will end. “That is okay for urban areas, but 80 percent of Swazis live on Swazi Nation Land under chiefs. The traditional system is in effect there, as it has been for centuries, and it will continue to be even when the constitution takes effect,” she noted.

Only male heads of Swazi households are granted land by chiefs to build homes, plant crops and graze cattle. Because it is communal land, there is no title deed ownership. But if women challenge the custom of only granting land use to men, they wonder if a chief will disregard their appeal because the power of the constitution does not extend over traditional matters.

Another issue of concern to Swazi women in the constitution is the sensitive matter of Swazi citizenship. Just who is determined to be a Swazi has always had tremendous importance in a small country with a population of less than one million. People’s greater mobility, marriage between Swazis and foreigners, and the breakdown of racial discrimination to allow sexual relations between races has traumatized traditionalists who insist the nation can only survive if Swazi bloodlines remain “pure.”

Just who is Swazi has always been determined by parentage. To be considered a Swazi, a child’s father must be Swazi. Further, the father of any child has had the right to claim his offspring at any time, even if he has abandoned the child and was never involved in the child’s upbringing. Under the assumption that this can happen, and giving fathers the right to claim their children at any time, Swazi authorities will not grant citizenship to the children of Swazi women whose offspring have foreign fathers. This system is unchanged in the new constitution.

“Women who have children outside marriage with foreign men will have to prove that the child’s father has not claimed the child before the child can qualify for citizenship. This can be embarrassing and degrading. It means that children born outside marriage by Swazi women can be claimed at any time by their fathers, leading to insecurity of custody,” said the Women in Law report.

The report also noted of the draft constitution’s attitude toward Swazi women who marry foreign men, “Women who marry foreign men can easily be assumed to have lost their citizenship.”

The group wants an equality clause in the constitution that allows both women and men to pass citizenship onto their children, irrespective of marital status. With only days remaining before the constitution becomes law through royal fiat, Swazi women know they have little time to push for reforms that will genuinely ensure their equality in society. (ENDS/IPS/AF/SA/IP/CR/JH/SM/03)

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