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By SIFISO DLAMINI | 2024-10-14
Parliamentarians and women rights activists say the country’s out-dated draconian laws are contributing towards perpetuating gender-based violence (GBV).
They have called for the speedy review of some of the country’s legislations such as the Marriage Act of 1964, Administration of Estate Act of 1902 and the Wills Act of 1955, among other out-dated legislations.
The need for the speedy review of the legislations was also raised during Sibaya, People’s Parliament, by the Minister of Foreign Affairs and International Cooperation Pholile Shakantu.
The former minister of Justice and Constitutional Affairs said some of the country’s out-dated laws were no longer constitutional as they did not align with the Constitution of 2005.
The minister called for the review of the legislations in order to afford women equal rights to property.
Under the minister’s watch, government through the ministry of justice, piloted two notable bills in Parliament, being the Marriages Bill and Matrimonial Properties Bill, which sought to address some of the inconsistencies.
The proposed bills included provisions to abolish marital power held by husbands over their wives ability to contract and to litigate, as well as provisions for the equitable distribution and equal access of spouses to marital property.
The Marriages Act provides for only two grounds for divorce being adultery and witchcraft. However in the proposed Marriages Bill of 2022 which was piloted during the 11th Parliament, six new grounds for divorce were provided for, among which is impotence.
The National Health Service (NHS) defines impotence as erectile dysfunction, where a person becomes either unable to get an erection or unable to keep an erection for long enough to have sexual intercourse.
committee
During the debate of the ministry of justice and Constitutional Affairs Portfolio Committee report on the Marriage Bill of 2022 at the House of Assembly, parliamentarians strongly opposed to certain provisions of the Bill, which lists abuse (physical and mental) and non-declaration of bankruptcy prior to marriage as a valid reason for divorce.
Other grounds, according to the Bill, include change of religion and sexual perversion together with desertion.
The Bill proposes that if either of the parties deserts the home for 12 months, this may result in automatic divorce.
The legislators argued that any additions apart from the commonly known grounds for divorce, which customarily were adultery and witchcraft ought to be justified and incorporated in the proposed legislation, with a view to improve marriages as opposed to providing an array of reasons for marriages not to last.
Senator Lorraine Nxumalo said she was also of the view that the Marriages and Matrimonial Property Bills needed urgency and as parliamentarians, they needed to work on them as soon as possible in order to curb or reduce some of the negative effects that were caused by the delay in reviewing the out-dated legislations.
“GBV yindzaba yetfu sonkhe, we all have to play a role in fighting to end GBV. The family structure must be revived, parents need to teach their children about GBV and they must live harmoniously with each other,’ she said.
The senator also said the church and traditional leaders such as chiefs needed to make their voices heard on ending GBV at community level because they had command and authority and the people listened to them and trusted their word and leadership.
She also said the ending GBV advocacy must also be incorporated in the school curriculum.
She said as legislators, they had a huge role to play in the fight against GBV.
Nxumalo proposed that resources must be put in place to end GBV and as legislators; they had a responsibility to hold the executive accountable.
She highlighted that His Majesty King Mswati III indicated in the Speech from the Throne that government would allocate more resources to the fight against GBV, adding that it was their role as legislators to play an oversight role on whether the relevant ministries allocated the resources to the relevant agencies dealing with GBV such as courts, ensuring the availability of specific courts for domestic violence cases.
training
The senator also mentioned that there was a need for training of court personnel such as prosecutors and judicial officers to sensitively deal with GBV cases. She further urged government to consider setting up specialised courts to deal with GBV cases and they must to be prosecuted with urgency and be in line with the Sexual Offenses and Domestic Violence (SODV) Act of 2018.
The senator insisted that law enforcement agencies should also fully implement the provisions of the SODV Act by arresting and prosecuting people who witness GBV and not report it.
She said a classic example was the incident involving the police officer who killed his wife and committed suicide. Nxumalo said the late police officer’s colleagues should also be brought to book because they were aware of the abuse but did not take any action and arrest the culprit.
The country has over the past few years witnessed an increase in GBV cases as well as a scourge in feticide cases involving both married and unmarried couples.
Over the past few months, the country has woken up to news headlines of gruesome murder-suicide cases which have prompted women rights activists to advocate for the declaration of GBV as a national disaster.
Recently, women rights activists said the delay in the review of the Marriages Act contributes to increasing cases of GBV.
The activists are of the view that enacting the Sexual Offences and Domestic Violence Act of 2018 is not enough to curb gender based violence.
One Billion Rising Africa Regional Coordinator, Colani Hlatjwako, said Emaswati were serious about ending GBV, but it was not practical to only rely on the SODV Act. She said ending GBV could not be achieved without reviewing other related legislation to be in the spirit of ending violence in the country, not only GBV.
Hlatjwako said for time immemorial, it has been advocated that women should not stay in abusive relationships for their children.
However, there were cases of women who were married in terms of Eswatini Law and Custom and in abusive relationships yet they found it difficult to move out of the marriages in terms of the traditional laws.
“If legislations are not enacted in the spirit of ending GBV, this will defeat the purpose of enacting the SODV Act because even if women report such cases, the perpetrator will be arrested and released on bail and return back to abuse the victim further,” said the senator.
Senator Nxumalo said most of the laws and tradition portray men as having power and control over women, which was embedded in society.
She said ending GBV was not only held back by the delayed review of the Marriages Act but also the delayed in the review of other legislations such as the Administration of Estates Act as well as laws on granting citizenship.
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