Women's equality in theory, but not in practice

A groundbreaking legal action in Swaziland's High Court is testing the new Constitution and its recognition of equal rights for women.

King Mswati III, sub-Saharan Africa's last absolute monarch, approved the Constitution in 2005 - on the back of centuries of discrimination against women that accorded them second class status - ending customary and institutional discrimination based on gender.

Although the Constitution recognizes the equality of women, in practice much legislation remains unchanged and discriminatory.

Mary-Joyce Doo Aphane, an attorney, filed the lawsuit to compel government to overturn Section 16 (3) of the Deeds of Registry Act, which forbids women to register property in their own names.

"This is the first test case, for women and for the Constitution," Fikile Mtembu, an attorney and the country's first female mayor, told IRIN.

Section 28 of the Constitution stipulates: "Women have the right to equal treatment with men, and the right shall include equal opportunities in political, economic and social activities."

Aphane's court action stems from her attempts to jointly register a property, using her maiden name, Aphane, with her husband, Michael Zulu.

The deed's office refused to register her as independent of her husband. "The property had to be registered in the name of my husband. The Deeds Registry Office will not accept the registration of the property in our joint names," Aphane said in papers filed with the High Court.

The Constitution specifies that all laws prior to its promulgation are void if they conflict with constitutional clauses. However, to date no laws - some of which hark back to the British colonial era - have been amended or suspended.

"All the laws in the country are so discriminatory - they reflect the attitude towards women of a patriarchal society," Mtembu said.

"Banks still turn down women for loans if they don't have husbands to co-sign. Some of the comments broadcast over the radio show the mindset of the country's authority - they refer to 'accepted law' when it comes to women," she said.

"Accepted law" is a euphemism for Swaziland's customary law, which classifies women as minors. Traditionalists argue that customary law takes precedence over the Constitution.

"There is a lack of political will to carry out what is called for in the Constitution," said Aphane, a founding director of Women in Law in Southern Africa, a non-governmental organization advocating the rights of women.

"You find this in all quarters of government and traditional authority. In parliament, MPs understand nothing of this case. The person who should ferret out old laws and discard them is the attorney-general, but he is not interested. He is part of the system, part of the status quo."

When the Constitution came into force, Swazi authorities decided against establishing a Constitutional Court to deliberate on constitutional matters, delaying implementation of its provisions.

"Instead, we as taxpayers must foot the bill as government hires one lawyer after another to argue against the people of Swaziland who want their rights," Aphane told IRIN.

The success or failure of Aphane's case will determine whether women's equality is a reality or, as one legal professional who declined to be identified, said, "the truth is rather that the constitution's human rights guarantees were simply put there to indicate to the world that we are something that in fact we are not."

Publica mercatrix

Gigi Reid, a lawyer who has worked to gain title deeds for Swazi women in traditional, polygamous as well as civil marriage unions, told IRIN: "I am headily excited about having our rights as women upheld, as embodied in the Constitution under sections 20 and more specifically Section 28, which both envisage economic emancipation of women away from the concept of a publica mercatrix."

Publica mercatrix is a concept that can be traced to ancient Rome, which states a woman cannot trade without the consent of her husband.

"This is a long overdue freedom, especially in the context of the fast-growing 'career woman' phenomenon and the single [parent] family entity," Reid said.

''It is outrageous that even after three years since the inception of the constitution, women are still unable to sign sureties without the expressed consent of their husbands''

"It is outrageous that even after three years since the inception of the constitution, women are still unable to sign sureties without the expressed consent of their husbands," she said.

Reid hopes the constitution's human rights provisions will be upheld by the High Court, and that government will honour the court's decision.

But human rights activists are concerned that Swazis might have to spend years and a fortune on legal fees in forcing the government to shelve discriminatory laws and practices.

"I fear this will set a precedent in respect of all other rights under the Constitution; that citizens will have to spend not only monetarily but also emotionally and otherwise in order to enforce their rights. This is definitely not within the spirit of our Constitution," Reid commented.

Aphane said her case would be an opportunity to educate both men and women in the social and economic value of emancipating Swazi women. "I will not win this case, personally," Aphane said, predicting victory in the courts. "The women of Swaziland will win this case."