Customary laws and practices relating to land property and the right to equality in Swaziland's Constitution

• Jurisdiction: South Africa
• Date: 01 January 2013
• Published date: 01 January 2013
• DOI: 10.10520/EJC153137
• Pages: 329-345
• Published By: UNISA Press
• Author: Nonhlanhla F. Dlamini-Ndwandwe

Customary laws and practices relating to

land property and the right to equality in

Swaziland’s Constitution

Non hlanhla F Dlamin i-Nd wan dwe *

1 Introduction

This article aims to reveal that the guarantees of f undamental rights to equality

and non-discrimination upheld in Swaziland’s Constitution as well as the

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international human rights instruments to which Swaziland is a party are not as

secure in the way in which they are currently provided. The equality rights and the

right to non-discriminat ion provided for in this Constitution are not absolute.

Examples of the manner in which customary laws and practices pertaining to land

ownership and access are int erpreted illustrate the how the right to equality is

compromised, resulting in gender discrimination in Swaziland. These

discriminatory practices degrad e women and place them in dehumanising

situations that serve to keep them from effective participation in their own

development and the development of the communities to which they belong. As

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the most important property resource, land is used as a tool to perpetuate

discrimination against women. Traditional ownership rights are often interpreted

through customary laws and practices to ensure unequal access between men

and women to the use of land.

It will be established that, as in the rest of Africa, the violation of women’s

property rights has its origins in historical Swazi customary land tenure systems

of ownership that are patriarchal and do not recognise women’s claim over land

except through their ties with men. In Swaziland, changes to the traditional

restriction of women’s access to and control over land is markedly resisted, even

though the new Constitution guarantees everyone equal rights to property. Even

3

Senior lecturer, College of Law, University of South Africa.

*

The Constitution of the Kingdom of Swaziland Act 1 of 2005 which became operational in 2006.

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Franciska et al, Realizing women’s equality rights in Africa: The delicate balance between culture

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and universality of rights (unpublished ) 3.

See ss 19(1), 28(1) and 211(2).

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330 (20 13) 28 SAPL

in those communities where women are permitted access to land rights in

response to the new constitutional guarantees, women still do not enjoy full rights

in the sam e manner as men. For instance, unmarried women with children

fathered by earlier partners may potentially be allowed grants of land by a chief.

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However this is done only through their maiden family. This may result in a lack

of capacity to alienate the property in their own right, including passing it on as

an inheritance for their children. Besides the exclusion of women from inheriting

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land, the inability to access land ownership has resulted in new difficulties for

women, culminating in discriminatory practices and attitudes towards granting

women the same rights as men when they need to utilise land for customary

rituals such as burial whether for themselves or their children.

Following the introduction, the paper will bring into focus the conceptual

framework of the protection of the right to equality in Swaziland’s laws. The next

section will outline the background to customary land law in Swaziland. Thereafter,

a case will be made for justifying the assertion that inequality continues to exist in

land ownership and access rights as shown by violations against women sanctioned

by Swazi customary practices. These struggles include the inability, particularly for

women in households headed by single women, to pass ownership of land rights

to their heirs; the subtle coercion of women to widowhood status as well as

customary law interpretations used in the burial rites of children born of women in

households headed by single women. A conclusion will follow, where it will be

argued that the perpetuation of the inferior status of women in relation to land rights

despite the basic constitutional guarantees of non-discrimination against women is

due to the persistent attitude of neglect by politicians of their duty to enact decisive

laws to address this inequality.

2 Customary law and land resources

2.1 The constitutional framework on customary law

While the constitutional provisions assert fundamental rights including protection

of the right to equality, the Constitution equally provides for and recognises

customary law and traditional institutions. Section 252 provides for the recognition

of customary law as one of the legal systems in the country. In particular, this

section provides for the application of customary laws when it states that:

Sub ject t o the provis ions of this Con stitutio n, the princ iples of Sw azi cu stoma ry

law (Sw azi la w an d c ustom ) a re h ereby reco gnised and ado pted and shal l be

app lied an d enf orced as pa rt of th e law of Swa ziland .

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Such children are referred to in a derogatory way as ‘crayons’, comparing them to the different

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colours typically found in a box of colouring pencil s, commonly referred to as crayons.

‘Mother of “crayons” wants rights over land’ (2013-06-15) Weekend Observer 15-16.

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Section 252 (2).

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