Articles - The Promise of a New Constitution

The Promise of a New Constitution—Achieving Equal Inheritance Rights for Women in Swaziland: A Human Rights Report and Proposed Legislation, The International Women's Human Rights Clinic at Georgetown Law, The Women and Law In Southern Africa Research Trust (WLSA) and the Council of Swaziland Churches, the Department of Justice, Peace, and Reconciliation

     This human rights report was authored by Kristie Bluett, Allison Menkes, Carla Smith, and Andrea Vossler, Spring 2007 student advocates with the International Women's Human Rights Clinic at Georgetown Law. It was supervised by Clinic Director, Susan Deller Ross, with input by then Attorney-Fellow, Tzili Mor. The report was produced in conjunction with two Swazi Non-Governmental Organizations: The Women and Law In Southern Africa Research Trust (WLSA), headed by Lomcebo Dlamini, with invaluable input and feedback from Patience Bennett, Lomcebo Dlamini, Sibongile Dlamini, Edward Mathabela, Sibonelo Mdluli, Bonginkhosi Sengway, Jabu Tsabedze; and the Council of Swaziland Churches, the Department of Justice, Peace, and Reconciliation, headed by Lungile Magagula. Support for this clinic project was provided by DLA Piper, New Perimeter Fund. The clinic would also like to thank U.S. participating attorneys, Eliza Bechtold and Whitney Stevens (DLA Piper, New Perimeter); and Tamar Ezer (Open Society Institute, Public Health Program, Law and Health Initiative).

     Regardless of age, women in Swaziland are considered as perpetual minors. This situation, which infiltrates every aspect of life, has particular significance in the area of inheritance law. Depending on the legal regime governing, women either cannot inherit property at all, or can inherit no more than a child's share of their husband's estate. The law of succession is governed by both civil law and customary law in Swaziland. Within this dual system, widows and female children have nowhere to turn. Customary law grants no right to women to inherit property from their deceased husbands and fathers whatsoever. Within the civil framework, the statutes related to succession, administration of estates, and marriage law contain provisions which force most Swazi women back into the customary system where they are discriminated against based on gender and cannot claim the inheritances sorely needed for survival. For those women who contract out of the pass through provision and are governed entirely under the civil system, they are entitled only to divide their husband's estate up equally with his children. This often does not leave a sufficient amount for a woman to live on and support her dependents.
     Rampant poverty and staggering numbers of deaths due to the HIV/AIDS crisis have brought inheritance issues to the forefront. Now, more than ever, women and children must be able to vindicate their fundamental human rights to equality before the law, non-discrimination, inheritance and property. Regardless, the Swazi Parliament has been slow to enact laws which would effectually guarantee these rights in accordance with Swaziland's new Constitution and the several international treaties to which Swaziland is a state party. This report will highlight the dire situation in Swaziland, which can be seen most clearly within the sphere of women's rights and the inability to correct persistent inequality and discrimination in the realm of succession and inheritance.
     Currently in Swaziland, violations of Swazi law and custom are prevalent which help to maintain the status quo. This can be seen specifically in the areas of property grabbing, forced evictions and cases of coerced mourning rituals, all of which have become pervasive throughout the region. Strong community support for these practices, which pervert the original intentions of customary law, function to hold women hostage in a system devoid of protection. Therefore, women need increased rights to inheritance and access to remedies in support of those rights. In a country with no legal aid or pro bono system, where women cannot afford to hire private lawyers, increasing such avenues for redress is crucial. The government of Swaziland must act now to implement the statutory and educational reforms necessary to bring an end to a regime that treats widows as less than equal to men in the same situation and which discriminates against them at every turn.

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