Gender equality: A holy grail for emaSwati women
By Vuyisile Hlatshwayo
For many emaSwati women, who jubilantly welcomed the adoption of the 2005 Constitution, guaranteeing them fundamental rights and freedoms, gender equality still disappointingly remains a holy grail in the 20-year-old constitutional dispensation. Deeply entrenched cultural, social, economic, and political inequalities and disparities continue to persist, highlighting the pressing need for accelerating action for gender equality in the still highly patriarchal society.
In its preamble, the Constitution envisions the need to start afresh under a new framework of constitutional dispensation. Moreover, it promotes and protects the fundamental rights of all in the kingdom, blending the good institutions of traditional law and custom with those of an open and democratic society to foster transparency and the nation’s social, economic, and cultural development. Perfectly modelled on international human rights instruments, it explicitly upholds gender equality as a cornerstone of a just, inclusive, peaceful and prosperous society. Section 20(2), in particular, prohibits discrimination based on gender, race, colour, ethnic origin, tribe, birth, creed, religion, social or economic standing, political opinion, age, or disability.
Additionally, Section 28 expressly provides for the rights and freedoms of women. Subsection (1) states that women have the right to equal treatment with men, which includes equal opportunities in political, economic, and social activities. It stipulates in subsection (2) that the government shall provide facilities and opportunities necessary to enhance the welfare of women, enabling them to realise their full potential and advancement. Also, subsection (3) prohibits society from forcing women to undergo or uphold any custom against their conscience. These provisions in the Bill of Rights cry for gender mainstreaming in this highly patriarchal society.
However, women’s rights advocates and ordinary women still feel that the status quo has not changed much in the highly patriarchal society since the commencement of the Constitution on 26 February 2006. Reflecting on the gains made by women in the long journey to gender equality in an Inhlase interview, Swaziland Rural Women’s Assembly (SRWA) coordinator Zakhithi Sibandze states that there is still little to write home about on the 20th anniversary of the Constitution’s guarantee of gender equality. SRWA is a women’s lobby and advocacy organisation that advances the cause of women, especially in remote rural areas.
Reflections
Speaking from her daily observations of gender inequality in the chiefdoms, Sibandze describes women’s participation in decision-making bodies, such as the chief’s inner councils (bobandlancane), as a mockery. She bitterly complains that men sideline women members when discussing real women’s issues in the chiefs’ residences. Worse still, they ensure that meetings are held at inconvenient times, thereby inconveniencing those women who also serve as housewives and caregivers.
“Even if they are included in bandlancane, they are excluded from the discussions of real women issues because men do not want to hear a thing about gender equality. They frustrate them by holding whole-day meetings at the chief’s kraal, yet these women members are expected to be home early to attend to domestic chores and care work. They then let them leave early so they can make decisions in their absence,” she complains.
Inhlase also interviews one SRWA member, who prefers anonymity due to fear of persecution, who shares her experiences spanning both her parental and marital life in the Manzini and Shiselweni Regions. She points out that there is still no gender equality in her Manzini parental chiefdom as bandlancane is the preserve of men who have the financial muscle.
“In the chiefdom where I grew up, there is no woman in the male-dominated bandlancane. As a first-born daughter in my family, I’m called now and again by bandlancane to thrash out issues affecting my siblings. But they don’t like it because they see me as a married woman meddling in their affairs. I’ve noticed that only monied men get elected to bandlancane in this chief’s kraal. Without a financial muscle, the women stand no chance of being elected into bandlancane. Women’s issues don’t feature on the agenda, thus perpetuating the subjugation of women under patriarchy,” she laments.
Conversely, in her marital chiefdom in the Shiselweni region, women are well presented in bandlancane to articulate women’s issues. She attributes this to the outcome of SRWA’s lobbying and advocacy efforts, which secured the support of the then-long-serving acting woman chief. She made it a rule that women must have a 50% representation in the community structures. Hence, she ended up being co-opted to bandlancane together with another woman. Once they were in, they won the hearts of their progressive male counterparts, who then elected an additional five women. However, she complains that unequal treatment never stops rearing its head in bandlancane.
“Men ensure that women occupy low-status positions, such as secretary, treasurer, community police, community volunteers, and rural health motivators. As ours is a highly patriarchal society, this is done to further men’s selfish interests. Female secretaries are accused of writing and erasing when women’s issues are put to discussion. There is also a senior man who tends to belittle a woman’s contribution during discussions. He always follows up with ‘waze wakhuluma njengendvodza make‘ (you speak like a man, woman) as a form of flattery. Men are failing to treat women as equals who make meaningful contributions,” she says.
Land grabbing
Land grabbing is another significant challenge facing the widows and girls, according to Umhluma Women & Youth Foundation executive director Lungelo Zulu in an interview. Yet the Constitution provides for equal access to land for men and women alike. The Umhluma Women & Youth Foundation is a not-for-profit organisation protecting the rights of widows and orphans. Zulu highlights the continuous increase in the cases of land grabbing on communal land, especially among families in sugarcane schemes. He mentions the cases of widows and girls whose fields are grabbed by either the brothers-in-law or indlunkulu upon the death of their husbands.
“Families pool their fields to form sugarcane companies on communal land. However, when the husband dies, the widow and girls have difficulty inheriting the company shares. The in-laws grabbed the property shares, claiming that the widows and girls had no right because they would marry strangers that might end up taking over the deceased’s property assets. The chief’s inner councils also repossess the land or sell it, thus condemning them to poverty,” he complains.
Additionally, Zulu criticises the discriminatory custom that bars widows from approaching the chief’s kraal and court. He says this contravenes the Constitution, which bans society from forcing women to undergo or uphold any custom against their conscience. He sees this as a significant contributing factor to land-grabbing because the widow cannot approach the chief’s court to report her land-grabbing case. The worst part is that she cannot even send her children to report it because bondlancane do not entertain any case brought by children even if they have attained the majority age of 18 and above. This is inconsistent with the Constitution, which provides that people are equal before the law and also states that a person attains majority age at 18.
While Section 211 of the Constitution provides that a citizen of Eswatini, without regard to gender, shall have equal access to land for everyday domestic purposes, the traditional leaders and male relatives, whose duty is to protect the vulnerable widows and girls, contravene this provision with impunity. Consequently, women and girls have found themselves in a worse position. Karol Boudreaux, in the Stand for Her Land Campaign, argues: “For men and women alike, the land is the foundation for security, shelter, and livelihood, supporting women’s dignity and creating pathways to empowerment and economic opportunity…”
Citadels of patriarchy
Echoing Zulu’s concerns, former MP Nonhlanhla Dlamini, executive director of the Swaziland Action Group Against Abuse (SWAGAA), laments that emaSwati women have witnessed minimal changes in gender equality under the constitutional dispensation. She maintains that though the Constitution guarantees gender equality, it has failed women in many ways. She singles out chieftaincy as one of the no-go areas for women in the highly patriarchal society.
“We are not yet there if you look at the traditional structures, which are still a preserve of men. A good example is chieftaincy, which has been the exclusive domain of men. No woman in the history of our country has been installed by her family council and blessed by the higher authorities to succeed her father in the 360 chiefdoms across the country. Instead, we have seen powerful women like Inkhosatana Gelane Simelane-Zwane acting until the heirs reach the age of majority. Why not if our Constitution provides for gender equality and non-discrimination of women?” she laments.
The self-contradictory language of the Constitution exacerbates this discrimination even further. Section 233 empowers the king to appoint anyone as a chief on nomination by the family council. However, it defines the chief as a symbolic father of the community despite the gender-neutral word “anyone”. Moreover, subsection 9 provides that “in the exercise of the functions and duties of his office, a Chief enforces a custom, tradition, practice, or usage that is just and not discriminatory.” This language, which is derogatory, undermines the inclusion of a woman as a chief.
Dlamini adds that the Swazi Courts are another male-dominated traditional institution in the patriarchal society. Historically, Eswatini has a dual judicial system: a Roman-Dutch common law and Swazi law and custom. Swazi Courts administer customary law, limiting their jurisdiction to petty crimes. A widow cannot participate in a case before Swazi Courts while mourning. The male Swazi Court presidents reportedly treat men more leniently than women, especially in cases of domestic violence. This is a violation of the right of every person to equality before the law guaranteed by the Constitution.
Inhlase has established that while the common law courts have seven female and 14 male judges, the Swazi Courts have one female court president (0.04%) out of 24 male court presidents. Only last year, King Mswati III appointed a female court president, Dumsile Dlamini, to preside over the Swazi Court in Pigg’s Peak. Women had been overlooked for 19 years since the promulgation of the Constitution. This stark reality is a cause for concern in the constitutional dispensation.
When asked about the poor representation of women, Prince Bukhosi, who is responsible for administering the Swazi Courts, attributes it to women’s lack of understanding of the fluid Swazi law and custom. Women’s particular attributes are used against them, and the delicate qualities of their nature become the means to subordinate their career development. Thus, women suffer the sorry fate of a continuously enforced position of inferiority to men. Hence, they had been overlooked because it was only the King’s function to appoint court presidents.
“We acknowledge the gender inequality concerns in the Swazi Courts, but we want only women who are well versed in our unwritten Swazi law and custom. Unfortunately, they are hard to find. I’m sure the King has begun addressing this public concern,” he told Inhlase outside the dilapidated Manzini Swazi Court.
Africa Regional Coordinator of the One Billion Rising Campaign, Colani Hlatjwako, blames the Constitution of 2005 itself for maintaining the status quo. She believes that the Constitution has too many inherent patriarchal hurdles to overcome for women to realise gender equality. She uses the example of acquiring citizenship by descent. She explains that the Constitution stipulates that children born after 2005 only acquire Eswatini citizenship from their fathers.
“This is problematic because, as a woman, I don’t confer citizenship to my children of foreign descent. However, the Constitution allows a liSwati man to transmit citizenship to his children,” she laments.
Eswatini can take a page from Germany’s playbook to address this constitutional matter. The Federal Constitutional Court of Germany invalidated the acquisition of citizenship by descent from the father because this was inconsistent with the general principle of equality and the provision on gender equality. It was amended to provide citizenship by descent if the mother was a German citizen. A provision that automatically grants German citizenship to a foreign woman who marries a German citizen has been replaced by provisions that treat men and women equally.
Not all gloom and doom
Renowned women’s rights activist Doo Aphane states that it is not all gloom and doom, considering the strides made by women in the public and private sectors. She mentions the Constitution, which provides for a 30% quota for women’s membership in Parliament, and the passage of the Election of Women’s Act of 2018. The parliamentary women’s election campaigns have paid off considering the inclusion of women in the legislature and executive.
She remembers that women had no representation in the first post-constitutional election in 2008. Only one woman was voted into Parliament in the 2013 polls. In the 2023 elections, women’s representation in the legislature increased. The directly elected members were 8 out of 59, compared to 2 in 2018. The number of appointed members increased from 3 in 2018 to 5 in 2023.
“Although still falling short of the 30% quota, women’s representation in the House of Assembly increased from 5 out of 69 members to 12 out of 70 in 2023, marking the highest number recorded in recent history. I won’t forget the day we took chairs to Parliament to pressurise MPs to increase women’s representation,” says Aphane.
SRWA is traversing the length and breadth of the country’s rural areas, conducting the lobby and advocacy activities aimed at raising awareness about the ongoing need to accelerate action for gender equality in a highly patriarchal society.
