A groundbreaking legal action in Swaziland’s High Court is testing the new Constitution and its recognition of equal rights for women.

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 Integrated Regional Information Networks (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.” – Third World Network Features

The above is a report by IRIN (Integrated Regional Information Networks), the humanitarian news and analysis service of the UN Office for the Coordination of Humanitarian Affairs. It is reproduced from African Agenda, Issue Vol. 12 No. 1, 2009.