Feature on women's rights and the new constitution

Women lawyers in Swaziland have embarked on a campaign to alert both genders to the need for women's rights in a proposed new national constitution. "When the constitution is presented, we would like our education campaign to have done its work, so that people can compare what is in the constitution to what we say modern societies require," Zakhe Hlanze, research director for the Swaziland branch of Women and Law for Southern Africa, told IRIN. The campaign kicked off this week, coincidentally at a time when a landmark legal battle was playing out at the High Court. The mother of an 18-year-old taken from her school by palace aides to potentially become King Mswati III's 12th wife without her consent is suing for the return of her daughter. The young woman is currently being held at a royal guesthouse, where palace envoys report she is engaged in "royal duties". When lawyers seeking her return asked the court to compel King Mswati to produce her, Chief Justice Stanley Sapire, who is leading a three-judge panel hearing the case, noted that no Swazi court had jurisdiction over the king. Mswati inherited the governing powers of his father King Sobhuza, who abrogated the independence constitution and assumed ultimate judicial, executive and legislative authority. He and the Queen Mother cannot be arrested or named in a legal action. "This case will show whether the king is indeed above the law," Mario Masuku, president of the banned political opposition party the People's United Democratic Movement, told IRIN. However, if the court rules against the king, it has no authority to impose its will upon the palace. Mswati's older brother, senior Prince Masitsela Dlamini, told the press that it was laughable that a woman would presume to challenge the king, in particular on the way a king chooses his wives. Women and Law in Southern Africa contend that a "real" constitution would forbid future abductions of schoolgirls to become royal wives. "A real constitution is the ultimate power, and no one is above it," said Hlanze. Masuku agreed. "It makes no sense to have a constitution subordinate to a traditional structure. There would be no guarantee that the bill of rights would be honoured, or other matters would be respected." Swaziland has two court systems with their own realms of influence that operate independently of each other. Magistrates' courts, the High Court and the Industrial Court follow Roman Dutch law. Judges are appointed by royal authorities, but have shown independence in their decisions, such as the finding of opposition leader Masuku innocent of sedition charges in July. Swazi National Courts handle traditional matters and local petty crimes. Judges make their decision based on their intuitive knowledge of Swazi Law and Custom, which has never been written down. "The dual legal system negatively affects women because it treats women as unequal before the law," Women and Law said in a newspaper advert run in local newspapers. "It entrenches women's subordinate status and it compromises women's legal capacity." "The problem is that even if a woman is an adult she is still a minor in the eyes of the law. If women were not minors, they could not be abducted to become royal wives," said Hlanze. Of the new constitution, Hlanze said: "We are hoping against hope that it will be gender sensitive. We want women to be able to acquire land and property, sign contracts, access credit directly from banks, things they can't do now." King Mswati has insisted any new constitution has to be based on Swazi law and custom. Politically, this will ensure that the royal household stays in power. Efforts to draft a constitution began in 1996. A final document was promised for this month, but the deadline is likely to pass like previous ones. When a constitution is finished, Women and Law want it to be judged by international standards. "A constitution must affirm its supremacy as the highest law in Swaziland, and include a bill of rights enshrining the principles of equality before the law and non-discrimination on any grounds," said the organisation's statement.