The High Court in Swaziland ruled on February 23, 2010 that some married women will be allowed to own property in their own names for the first time. Justice Qinisile Madbuza, the only female justice on the Court, held that the Constitution of the Kingdom of Swaziland requires women married “in community of property” — a legal status that entitles both parties in a marriage to own one half of the undivided share of their joint estate — to be able to register property in their own names and have equal partnership with their husbands in its administration. This decision comes five years after the adoption of Swaziland’s 2005 Constitution, which guarantees women equal rights and protections under Sections 20 and 28, and declares any contrary laws void under Section 2.
Since the 2005 Constitution was implemented, the legislature has not amended or repealed a single law. Despite the existence of laws that discriminate against women, Swaziland did not create a law reform commission to help harmonize laws in accordance with the new Constitution. Without an official reform commission, it is the Attorney General’s responsibility to make sure that laws are constitutional.
In 2009, Doo Aphane, a female attorney, chairperson of the Swaziland Gender Consortium, and the former coordinator of Women in Law in Southern Africa, filed a lawsuit in the High Court, challenging Section 16(3) of the Deeds Registry Act as discriminatory and contrary to the Constitution. The law treats women to be minors, and prohibits them from registering property under their own names. This allows men to buy or sell property without consulting their wives, but prevents women from doing the same without their husbands’ knowledge and consent.
The discrimination resulting from this law is exacerbated if a woman chooses to leave her husband. One Swazi woman paid for property solely with her earnings, but the property was registered in her husband’s name. Ten years later, her husband chased her away from her home and brought a mistress to live on the property. Because of the way the law is structured, the woman had no right to the property, despite having paid for it in full. Swaziland also has the highest HIV/AIDS rate in the world, with over one-third of adults infected. Because of this, many women are becoming widows. However, because a woman cannot own property, Swazi law transfers the land back to the husband’s family upon his death, leaving the widow with no protection under the law.
The February 2010 judgment that some married women can register property in their names will affect only between twenty and thirty percent of marriages, because it applies only to civil ceremony marriages. Because most Swazi people live on communal Swazi Nation Land that is administered by chiefs relying on customary law, the majority of women will not gain any rights from Justice Madbuza’s ruling. However, Aphane is hopeful that the ruling will educate men and women about women’s rights and encourage further reforms.
Although the High Court’s ruling is heartening, it has some implications that worry human rights activists. If the legislature continues to remain passive and delegate the responsibility of deciding which laws are constitutional to the courts, the reform process will be extremely slow and expensive for women challenging the laws. The legislature has the ability to enact sweeping legislation, while the courts are only capable of taking cases as they arise. This reform method is inefficient and would leave most women vulnerable to discrimination, contrary to the Constitution.
Beyond being bound by its Constitution, Swaziland is also a signatory of international agreements that require the nation to respect the equal rights of all citizens. Swaziland is a member of the African Union, and is subject to Articles 3 and 14 of The Banjul Charter on Human and Peoples’ Rights, which state that all people have rights to equal protection and to own property. Articles 6 and 15 of the Convention on the Elimination of all Forms of Discrimination against Women, of which Swaziland is a signatory, give women equal rights to enter into contracts and own property, and require all states to eliminate any discriminatory laws. By allowing discriminatory laws to remain in effect, Swaziland is violating both its own Constitution and its international commitments. The recent judgment was just a small step towards giving women equal protection under the law, but the legislature must take far more proactive steps to assure that women do not continue to suffer from discrimination.