By Alec Lushaba | 2019-03-16
Today I want to look at two critical issues, which in my view deserve to be given attention.
The first issue is the growing number of women who are raped and murdered or just murdered which seems to have reached critical levels.
These cases happen at the time when we have just passed and now implementing the Sexual Offences and Domestic Violence Act (SODV) of 2018.
The law is punitive when it comes to the punishment being meted to offenders and also widens the scope of what constitute an offence under the law. Whilst we have applauded the promulgation of the law, it would seem at the moment the discourse is not yet how effective the law is but concern seems to be how punitive the law is to would be offenders.
In fact, such a discourse is insensitive to the numerous reports of women being murdered or raped in the country.
Only last week we reported how two missing teenage girls of Mahwalala Zone 6 were allegedly raped and murdered whilst a young woman of Buka was found hidden under the bed of her room she shared with her partner who strangled her to death.
These are a few cases of many since the beginning of the year which seem to raise our eyebrows. Even before the coming into force of this law, SODV, concerns were raised about lack of legislation that protects the weaker sex, women and children, in our society.
Now that we have the law, men, who see themselves as victims or potential victims want us to believe that this law is bad and too punitive and even before it can be given a chance to operate, must be reviewed.
I am sure no one will entertain such calls, because they are devoid of the reality we live in everyday of women being abused, raped or murdered under our watch.
At the rate things are going we may not even see the effect of the law if we don’t take drastic measures to protect our women against would be offenders.
Here is what I am proposing to ensure that this law can have the necessary impact. Given the high number of women who are murdered almost on a daily basis or pushed towards committing suicide, let us declare a State of Emergency for two years on murder cases.
The State of Emergency should be such that in this period, let our courts grant no bail for any murder cases, especially those which involve women.
This would allow the SODV to deal with all suspects charged under that law. We expect that the courts would also give priority to such cases immediately they are ready for trial.
I am aware that our Constitution talks about fair hearing or trial and the presumption of innocence until proven guilty.
The declaration of a State of Emergency would be declared as unconstitutional and would be seen as treating people unfairly; places people in pre-trial detention as if they are already guilty or convicted of the alleged offence and denies persons their right to liberty and restricts their freedom of movement.
Those who would argue on the basis of constitutional rights and talk presumption of innocence until proven guilty would also need to balance that right with those of the victims and their families.
Assuming that the police have correctly identified the suspect in such cases, we should then not put their rights above those of their victims and therefore should remain detained in custody until their cases have been heard.
This would spare us the limited resources we have in engaging in wasteful expenditure dealing with their bail and not the substantive case.
We have had this State of Emergency before in the early 90s to mid 2000s where one Mbayiyane in Northern Hhohho was killed by the mob after accusing him of murder, which later the act became known as Mbayiyanism.
We were condemned by some human rights organisations for the existence of non-bailable, but I am sure it was more on the other offences like treason, armed robberies and theft of motor vehicles.
The human rights approach on this issue has always been that let the judges apply their discretion on the issue of granting or not granting bail. But the moment you say that, the court seems to lean towards the rights of the suspects than those of the victims and their families.
In fact, in our case, the Director of Public Prosecutions representing the state has been the one demanded to justify why the court should not grant bail and in often times their objections to bail have been turned down by the courts. It is rare where the judge would not grant the accused person bail, especially when doing so would put the accused life in danger either to the society or endanger him or herself.
So my appeal would be to Justice and Constitutional Affairs Minister Pholile Shakantu to consider motivating for the declaration of a State of Emergency or pilot a Bill that would seek for the return of Non-Bailable for some offences. That should be done considering the obtaining situation on the ground and to enforce certain behaviours that would curb the continued murder cases, particularly those that are a result of domestic violence.
I also feel rape involving minors must be considered under the schedule of offences not to be considered for bail.
The spirit of the law or the State of Emergency must be such that it is clear what it seeks to address. We cannot speak of seeking to lure foreign direct investors when our behavior is of people who continue to commit heinous crimes and hide behind the leaf of human rights. Someone must take responsibility and instill a society that respects rights for minority groups, if women can be classified as such in so far as the SODV Act is concerned.
Lastly, let me deal with the other matter being considered by Parliament, the growing of cannabis.
As we consider reviewing the law around the growing of cannabis, let me appeal to Parliamentarians to consider the indigenous Emaswati who for years have borne the brunt of risking with their lives whilst undertaking this illegal activity.
The country’s cannabis is considered one of the best in the world, irrespective of it having existed illegally for years. At the time when we are considering this industry for some commercial gain be it for research and medicinal purposes, let us not fail to find space for our farmers. We need to consider them in everything we do around this space including consulting them for ideas.
Whatever ‘Green Gold Rush’ we talk about, it must not discount the indigenous Emaswati as active players. It would be a shame if we were to reduce them into hewers of wood and drawers of water even when the people who are supposed to decide their fate it’s us. If we fail them, then we must consider the meaning of independence.
Smart MPs would always try and fight for Emaswati’s space in every opportunity little to turn our economic fortunes around.
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