Law should reflect Swaziland’s true culture

Law should reflect Swaziland’s true culture
Recent amendments to a proposed bill in Swaziland’s Parliament left potential victims of sexual violence unprotected. The people refused its passing.

Melusi Simelane

Sexual and domestic violence are endemic in Swaziland. But violence can be prevented and its impact minimised. Laws that strongly condemn violence are evidenced to prevent individuals from perpetrating it in two ways. Firstly, the threat of punishment attempts to deter individuals from carrying out acts of violence. Secondly, laws not only mould the attitudes – and consequently the behaviour – of all citizens bound by them. But also ensure that perpetrators are not treated with impunity, thereby sending a strong message that violence is unacceptable and will not be tolerated.

The Sexual Offences and Domestic Violence (SODV) Bill of 2015 comprehensively consolidates existing legislation. It introduces new and innovative provisions to effectively combat sexual and domestic violence. The bill progressively makes rape gender neutral, protects children from sexual exploitation, criminalises sexual harassment and assault, and addresses the use of technology in the perpetration of abuse.

The bill is divided into two sections: one part addresses sexual offences and the other domestic violence. The section on sexual offences provides detailed definitions of the criminal acts in question and the sentencing thereof. The domestic violence section is more procedural and provides guidance on how cases of this nature will be dealt with. It also provides comprehensive definitions of domestic violence acts including; physical, sexual, emotional, verbal, psychological and economic abuse. As well as intimidation, harassment, unlawful stalking, and damage to property. Further, it provides guidance on obtaining a protection order. There are compelling arguments for the enactment of this legislation.

Gender activists were in Parliament in their numbers on 23 October 2017 to witness the National Assembly debate and subsequently pass the bill, with its clauses intact. They had been following the matter since reports surfaced that some clauses were being removed – concerned about their withdrawal by members of the portfolio committee. The clauses in question addressed issues of incest (Clause 4), unlawful stalking (Clause 10), abduction (Clause 42), and flashing (Clause 47). The portfolio committee at the August House (National Assembly) found the clauses to be problematic at the introduction of the bill.

They relayed that the clause relating to incest was too broad and subject to abuse. They decided that if such cases arose “they could be dealt with in terms of Common Law mainly to protect young and vulnerable victims.”

In addition, “Section 15 of the Children’s Protection Act of 2012 could be invoked for this purpose” – the committee felt there was sufficient legal framework to deal with incest.

The committee also found that unlawful stalking was too western-centric a concept and did not protect certain Swazi traditions related to courting a woman. “A man seen advancing towards a woman in an annoying manner could be taken to task through a restraining order as per the common law,” was the argument.

In relation to abduction, the committee found that it could be subject to abuse and, without this law, women and children were still adequately protected against any abuse. “Offenders could still be prosecuted under Common Law and Section 75 of the Children’s Protection and Welfare Act of 2012,” the committee found.

Flashing was also seen as something that was meant to seriously undermine the Swazi tradition of dressing, Imvunulo, and other practices. It was deemed unnecessary.

The removal of these clauses caused an outcry, mainly from people who looked to benefit from the protection of the bill, which has recently been passed in Parliament.

Despite the commonly accepted notion that Swazi society is inherently peace-loving, passive, and averse to resistance, the reality paints a different picture. The youth, increasingly seeing themselves as part of a global community, are actively participating in re-imaging tradition and culture. Members of the Youth Action Movement (YAM), under the Family Life Association of Swaziland (FLAS), were visibly at the forefront in advocating for legislature to pass this bill. A move which could be interpreted as responding to the evolving needs of a young population with sights set beyond the borders of Swaziland.

“Swazis are watching us and they want this bill to be passed into an act. We must, therefore, not slack or appear to do be slacking because it is not just Swazis who are watching us as far as this bill is concerned, but the international community is also watching us. The United Nations is also watching us so we must act fast,” Barnabas Sibusiso Dlamini, the country’s Prime Minister stated in the Swazi Observer newspaper on the 22 February 2018. This, while alluding to his belief that the bill does clash with Swazi customs.

Though he believes there are clashes, he seems keen on seeing to it that it becomes law. He continued: “It is common knowledge that some parts clash with our law and custom so while dealing with it we must apply ourselves. Because while we want it to become law, we still want to preserve our custom. So it is important that we apply ourselves and find ways to balance out the two so they co-exist.”

Perhaps there is an and uneven understanding of what Swazi customary law says about the rights of women and girls. Still, the head of government while mindful of some contradictions between the bill and custom not only wants it to be passed, but also instructed Parliament to act fast. As their term comes to an end this year.

The passing of the bill could be a step towards achieving the goal of social cohesion. Make it within reach. There are often delays in the passing of bills in Swaziland because of the bicameral nature of the legislative body.

“Swazi custom doesn’t allow any unbecoming conduct,” famous words of the late Traditional Prime Minister, Jim Gama. With this is mind does remedial action offer the victim anything tangible? The more contentious issue again becomes interpretation of many practices we respectfully call “custom”.

Customary practices are often up for interpretation. Speak culture and tradition with an elder an it’s apparent that the custom of kushela or courtship has been misinterpreted or misrepresented as stalking. “When asking a lady out you take your time and allow her to turn you down. It is part of the process. She will not say yes on the first day. One should sing praises for the woman and continuously express how one feel,” my grandmother has said. “It’s courage and enthusiasm. A true man always respects and pays due diligence to the space and privacy of the woman.”

There are many stories, verified by testimonies of abuse at the hands of men who have cried “culture” when called to order. When I asked her about the common stories of peeping through bathroom windows and following women to the river when they go for a bath, she frowned and asked: “What culture are you talking about? Swazi custom doesn’t allow any unbecoming conduct.”

Swazi culture, all cultures are malleable. As long as the no harm is caused under its guise the bill should act not as a threat to it but an enhancement.

Source: Key Correspondents


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