Plan to codify Eswatini law and custom?
MBABANE – Could it now be possible that after decades of shunning the subject, the country will codify Eswatini law and custom?
In terms of the National Strategy to End Violence, whose objective is to reduce gender-based violence (GBV) cases by half in Eswatini, this remains a promise that is calculated to contribute towards this target. By 2027, policy dictates that the country must have codified its laws and customs. Codification is the process of compiling rules and laws into an orderly, formal code. The code is a systematic compilation of existing laws to included in a legislative statute,
This is marked as an activity of the five-year national strategy 2023-2027, whose mission statement is ‘to reduce all forms of violence in Eswatini by 50 per cent by 2027.’ Its vision statement is, “A safe Eswatini, where every liSwati and persons residing in it are free to pursue their self-determination in a violent, free environment.”
APPROACH
This multi-pronged and multisectoral approach was one of the policies adopted after the Deputy Prime Minister’s (DMP) Office consulted various stakeholders. These included various ministries and government departments, bilateral and multilateral development partners, civil society formations and advocacy groups for vulnerable groups. The strategy notes that the lack of codified customary law results in the disguise of violence as culture and affects the administration of justice. This includes child marriage, ownership of assets by married women, and OVC rights. The national document also says that codification is an activity under Objective 3.1. The objective is to strengthen and review laws and policies governing the response to violence.
The purpose of the codification of law and custom is to standardise the interpretation of this law.
The stakeholders also held the view that a supportive legal environment is one where violence is prohibited by the law and whereby a law reform that conforms to the Constitution of 2005 is promoted and supported in the prevention of violence as well as the promotion of human rights and justice for survivors. “The lack of codified customary law results in the disguise of violence as culture and affects the administration of justice. This includes child marriage, ownership of assets by married women, and the rights of OVC,” the strategy reads. It is also said that the approach is to review the current response to ending violence, whereby such efforts are largely to prevent violence through laws and advocacy which creates awareness.
Mobilising communities is also a priority. The strategy allocated this activity to the Ministry of -ustice and Constitutional Affairs. It has also been allocated an estimated cost of E850 000. However, there is no timeline set for this to happen.
HARMONISATION
Other directives include the harmonisation of laws and policies to successfully respond to all forms of violence; promoting civil, family, and administrative law procedures among statutory service providers and community cadres.; ensuring that constitutional protections against discrimination in marriage are codified in statutory law to ensure effective protection of women and girls; enacting pending family laws to address discrimination and abuse of women, especially widows; and expediting the establishment of the Office of the Registrar for sexual offenders.
The document also highlights that there are challenges in the implementation of the directives. Among these challenges is that some laws continue to be inconsistent with the Constitution and the Sexual Offences and Domestic Violence (SODV) Act. “For example, the age of consent in the SODV Act of 2018 is 18 whereas in the Children’s Protection and Welfare Act (CPWA) of 2012 is 16,” the strategy reads in part. The strategy also says the laws protecting women and children are not clear against economic or financial abuse. Moreover, customary marriages still instil ‘a subordinate and minority status for wives.’ Stakeholders resolved that the minority State’s perception of customary marriages ‘affects inheritance after the death of spouses where a wife is given a child’s share.’
They, however, remained hopeful that this was going to be addressed by the passing into law of the amendment to the Marriage Act. The rest of the challenges are the cases’ backlog and the absence of a case management system for tracking how many cases were prosecuted, withdrawn, and pending. The strategy also highlighted that although GBV affects everyone, there are at least four subpopulations where it is most prevalent. Women take the lead. They suffer mostly intimate partner violence (IPV), physical, sexual, economic or financial, psychological or mental and structural (uneven opportunities), as well as cyberbullying.
Children come second and are mostly suffering from abuses including psychological, physical and economic exploitation, maltreatment, neglect, and bullying. Third, orphaned and vulnerable children (OVC), persons with disabilities (PWDs), and the elderly experience physical, sexual, psychological, or mental dispossession of assets.
The elderly suffer the most economic deprivation. PWDs are affected by neglect, uneven opportunities, the concealment of violence and access to services.
SUBGROUP
The last subgroup is asylum seekers, including refugees, persons on the move, stateless persons and widows.
They suffer mostly abuse with regards to physical, sexual, psychological, or mental health and access to services.
The strategy is aimed at expanding responsive systems in the community, health and justice sectors in order to respond to violence and still enable victims and survivors to access services.
There has been collaboration with the health sector and the Royal Eswatini Police Service (REPS), as well as with community structures for access to medical and justice services.
There have also been toll-free help lines established by the DPM’s Office, REPS, Swatini Action Group Against Abuse (SWAGAA), and Bantwana.
The Ministry of Health provides a comprehensive package of services through one-stop centres in three hospitals in Mbabane, Manzini, and Siteki.
An academic research on customary law by Buhle Dube and Alfred Magagula in 2007 has attempted to define what Eswatini law and custom is.
The researchers said the country is largely perceived to be a homogenous society with minimal divisions along clan or tribal lines.
IMMEMORIAL
They said people believed that customary law for Eswatini was uniform, taken from practices and customs that have been in place since time immemorial. They cautioned that, however, for a custom to be worthy of the name, it must be certain, reasonable, practised by many people, and notorious.
“It must attain the recognition of formal law. The custom must be so notorious that it must gain lawful recognition,” the academics said.
They said that the application of customary law was sanctioned by Section 252(1)(c) of the Constitution, which provides that the principles of Eswatini law and custom are recognised and adopted and shall be applied and enforced as part of the law of the country.
In Subsection (3) thereof, it is provided that the provisions of Subsection (2) do not apply in respect of any custom, that is, to the extent that it is inconsistent with a provision of the Constitution or a statute and enforced as part of the law of Eswatini. They said these constitutional provisions buttress those of the Swazi Courts Act No. 80 of 1950, which provide that where customary law is repugnant to natural justice, it shall, to the extent of that repugnancy, be null and void. However, instances where customary law is declared null and void for its failure to comply with natural justice are hard to come by.
“The denial of legal representation under customary criminal procedure is a clear infraction of the rules of natural justice and the right to a fair trial,” the researchers aver. Customary law, they said, is not codified but is passed down from generation to generation by oral tradition, which has led to varying and conflicting versions of what real Eswatini law and custom are.