Swaziland: Some women can now own property

MBABANE, 25 February 2010 (IRIN) - The High Court of Swaziland ruled on 23 February 2010 that some married women will be allowed to register property in their own name. It has been five years since the new Constitution granted women equal status, after centuries of being classified and treated as minors.

Gender activists greeted the ruling as a small victory; despite the 2005 enactment of the Constitution, the second-class status of women in the country ruled by sub-Sahara's last absolute monarch, King Mswati III, has largely remained intact, denying women their inheritance rights and hobbling their progress as entrepreneurs and traders.

"I went to apply for a bank loan, and I was shocked to find that nothing has changed for women in this country. The loan was approved for my business, the bank was in support of my project, but the bank manager asked me, 'Where is your husband? He must sign the loan forms,'" Thabsile Masuku told IRIN.

"The bank did not recognize me as an adult who can enter into a contract. Legally, I am just a minor who is dependant on my husband. He is a good man but the situation is galling - I am not dependant on my husband, I am an independent person, but in Swaziland I don't exist," she said.

A woman who declined to be identified told IRIN that a house she had built from the proceeds of her chicken-breeding business was sold by her husband without her knowledge. In Swaziland the husband remains the legal administrator of the marriage estate, to use as he likes - with or without his wife's knowledge or consent.

Lack of political will

Although the Constitution has granted women equal rights with men, in practice old laws still on the statute books continue to define gender relations. Observers blame a lack of political will for the slow progress in replacing laws that conflict with the Constitution.

Lomcebo Dlamini, director of the Swaziland branch of Women in Law in Southern Africa - one of the legal bodies advising the Mswati-appointed Constitutional Review Commission during the 10 years it took to create the Constitution - told IRIN that gender equality could be partly achieved with a new law that defined modern marriages.

"The Marriage Act No. 47 of 1964 dates from the colonial era before Swaziland's independence [in 1968] and was really written with European residents in mind. Under the law, Swazis are assumed to be wed according to the traditional practice, which falls under the rules of Swazi Law and Custom that Swazis have always lived by," said Lomcebo Dlamini.

When the Constitution took effect, it stated that all laws counter to the Constitution were null and void, yet a recent ruling by the High Court of Swaziland said government must be given time to revise or repeal all non-compliant laws, but failed to provide a timeframe.

Activism has contributed to eroding gender-prejudiced legislation, and this week the High Court amended the 1968 Deeds Registry Act by making it possible for a Swazi woman to register immovable property, like a home or business, in her own name.

Justice Qinisile Dlamini, the High Court's sole female judge, ruled that "Section 151 (2) of the Constitution states that the High Court has jurisdiction to enforce fundamental human rights and freedoms guaranteed by (the Constitution). This includes the right to equality, which is guaranteed by section 20 and 28 of the Constitution."

However, the ruling only applies to women married in a civil ceremony, and with a community of property agreement. About 80 percent of Swaziland's one million people live on communal Swazi Nation Land under customary law administered by chiefs.

"The marriage law must be changed because it assumes that all Swazi women are married the traditional way, which is really arranged marriages that unite two families. A woman is a minor under her parent's homestead until she goes to her husband's homestead, where she is also a minor. The law considers the husband the administrator of the marital property," said Lomcebo Dlamini.

Polygamy

Social historian Anita Magongo told IRIN: "Traditional marriages are polygamous, which is one reason why a man is given administrative control. How do you divide administration of family property amongst any number of wives? ... A traditional homestead is a communal affair, without any real property."

The question of land ownership was also problematic. "The land belongs to the King, and Swazis reside on a piece of land at the pleasure of their chief. There was no wage-earning or commerce, no material objects beyond blankets and pots, and no need for loans or savings - but that was then."

With increasing numbers of women widowed by HIV/AIDS and in need of family property on which to live and raise their children, AIDS activists object to Swazi Law and Custom that results in the family of the deceased husband inheriting all marital property.

Widows are often left destitute, but custom dictates that a widow must mourn for at least six months, during which she is forbidden to leave the home, preventing her from working to support her children and compounding the vulnerability of the family.

"A new Marriage Act is essential," said Lomcebo Dlamini. "Fewer women are entering into traditional marriages, and it is wrong for the law to assume that 21st century Swazi women live as the Colonial-era lawmakers assumed they did long ago."

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