ABUSE OF WOMEN IS AN INHERENT FEATURE OF THE TINKHUNDLA SYSTEM
If you’re a Swazi woman, it might be time for you to ponder on these shocking facts for some moment. Until just nine years ago, Swazi women, whether in gainful employment or an active player in the economy, could not have any property—land and other immovable assets—registered in their names or jointly with their husbands once they were married.
Up to less than three years ago married women could not legally lay charges against their husband for sexual crimes such as rape and harassment. Women could not file charges of stalking against an overzealous suitor even if this bordered on infringement of our rights to privacy because this was considered culturally appropriate for a man to use all means possible to gain access to a woman he was proposing love to.
Up to this day as a Swazi woman you certainly do not own the full rights to your sexual reproduction because the public health system bestows to the the man the right to decide on our behalf how many children we can have. The only conditions for a woman to be afforded the right to fertility sterilization is when she has reached the age of 35 and has a child. Whether single or married, the husband’s consent has to be sought and signed for. It sounds crazy right, but it actually is the current reality for a Swazi woman.
It is these thoughts that came rushing back as I tried to find the best way of describing what Gender Based Violence for what it actually is in our society. For the purposes of this article, GBV is used synonymously with Women Abuse for the sole reason that the survivors of GBV in our society are invariably women.
According to the UNHCR, Gender based violence refers to harmful acts directed at an individual based on their gender. The operative words being ‘harmful acts’. It is important to note that this definition indicates a broad spectrum. As the country and world at large ended the 16 Days of Activism on the 10th December 2021, I realised the gaping need for a balanced social discussion of the issue.
The widely understood and accepted notion of what GBV in most Southern African societies is that of Sexual and Physical violence against women and sometimes a minority of men. The universal definition however indicates gender based violence as sexual, physical, mental and economic harm inflicted either in public or privately (UNHCR).
It manifests in a variety of forms for different societies such as Intimate Partner Violence (IPV), Sexual violence such as rape and harassment, child marriage, female genital mutilations as well as the institutionalization of gender discrimination.
Gender based violence is deeply rooted in the social notion of gender inequality and the age old patriarchal social order. Though modernization and the wake of feminism in the early 1900s has seen most modern societies bridge the gender equality gap, developing countries seem to want to hold on to the archaic practice of gender inequality.
Now, the less noticed harmful acts of GBV are those that are usually veiled in the forms of cultural and religious norms and intricately woven into the social fibre if our lives and then legislated into law. The root causes of gender inequality are gender stereotypes and social and cultural norms that invariably place males at a higher social standing than women. Those that cause economic, mental and emotional harm are hardly given as much attention as sexual and physical violence.
Tinkhundla and GBV
The current system of governance in eSwatini has been very instrumental in facilitating and sustaining the systematic oppression and discrimination of women. Even though a lot of activism has been done in creating awareness on issues such as sexual and physical violence against women, the economic oppression of women through traditional courts and oppressive civil laws is still not completely done with.
The constitution of the Kindgom of eSwatini of 2005 makes provisions for equality of all individuals before the law (Section 20) and further prescribes the protection of women’s rights in line with universal human rights and standards.
Inconsistencies in the available legislations have required lobbying and challenging of some of the laws by civil society groups and activists. Governance in eSwatini has been deeply interwoven with the culture of our society. Culturally women are subservient to men and these deep cultural beliefs have been embedded in the legal system.
Even though eSwatini is not unique from most Sub-Saharan states in its legal pluralism, the dual nature of our legal system faces one major criticism: that Swazi Law and Custom is neither documented nor equally administered. It is a very subjective and immeasurable.
It is not unheard of that up to this day many chiefs in the rural areas still refuse the settlement of women without the representation by a male relative, even if need be their male child. The SODV act of 2018 is a ground breaking piece of legislation that was the outcome of almost two decades of lobbying by CSOs. The continuous stalling of this legislation by cultural leadership was because it was widely seen as ‘un-cultural’. The presence of the cultural leadership’s influence in public governance has ensured that eSwatini’s drive for the protection of women’s rights is always lagging miles behind.
Numerous reports on the protection of women and children’s rights in eSwatini have concurrently found the structure of the justice system as a major hindrance for access to justice by victims and survivors of sexual and gender based violence.
In one 2020 report on Access to Justice Challenges Faced by Victims and Survivors of Sexual Violence in eSwatini by the CEDAW Committee cited the traditional courts as an obstacle to the attainment of justice for women who suffered abuse at the hands of their spouses.
Rulings often favoured the men with the courts using a woman’s sexual reputation as a basis for leniency towards the perpetrators and further disenfranchised the vulnerable women.
Another manifestation of gender based violence prevalent in eSwatini is child marriage and the culturally inclined intergenerational sexual-relationships. Traditional structures are still very accommodating to marriage of girls younger than the age of 18 especially when the man has impregnated the child.
As a society we seem to be blind to the depth of the problem where governance and the protection of women’s rights are concerned. The Child Protection Act of 2012 criminalised sexual acts with children under the age of 18years but a common cultural debate has always been that the girls are matured much earlier than that and ready for marriage.
Our society values more the prospect of marrying off a girl than if it is legally right to do so. It has been open secret that the head of state himself has initiated age inappropriate relationships with some of the women who ended up as his wives.
The current heated political polirisation that resulted in the civil unrest has been on the arguments that culture and traditions, on which royalty is anchored, should be separated from modern governance. The politicalizing of culture has resulted in a very frustrating social marginalisation of women.
The reality of every Swazi woman is that we face better prospects with an independent system of governance unlike the tinkhundla system. The traditional system of governance suffers from unconstitutionality and sadly the very constitution had been strategically drafted to assign legal superiority to the traditional structures and males in particular.
Women’s rights, just like all other human rights, have been subject to deliberate limitation under the Tinkhundla form of governance to advance the interests of cultural preservation, to the detriment of women’s wellbeing and overall society.
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