The Sexual Offences & Domestic Violence Act Analysis

By Zethu Shongwe-Thring

Mbabane, 24 September : Last week Gender Links participated in a training conducted by Swaziland Action Group Against Abuse (SWAGAA) in conjunction with Eswatini Gender Consortium in Manzini (FLAS) Family Life Association conference room.  This training attended by about thirty people from different civil society organisations and (NGO) non-governmental Organisations sought to strengthen the capacity of the Gender Consortium members on the Sexual Offence and Domestic Violence Act, (SODV).

For almost a decade, civil society and women’s rights organisations have been advocating for legislation that better protects people from domestic and sexual violence in Eswatini. With alarmingly high rates of Gender-Based Violence (GBV) in Eswatini, nearly half of Swazi women experience some sort of sexual violence over their lifetime according to SWAGAA- Communications Office, Slindelo Nkosi. Approximately one in four females in Swaziland experienced physical violence as a child, with almost 18.8% of youth aged between 18-24 years having been coerced into sexual intercourse before they turned 18. Swaziland Action Group Against Abuse (SWAGAA) reported that parents were the main perpetrators of violence in the home. It said that of 332 cases reported in March and April 2018, 43 percent involved mothers or fathers. It added, females continued to be more vulnerable and exposed to abuse. There is no routine screening for gender-based violence (GBV) by health providers in Swaziland to provide statistical data relating to the incidence or prevalence of GBV. Annual Police Reports in the country show an increase in Domestic Violence cases over the years. lThe SODV Bill was first introduced to Parliament in 2009.  It was tabled and debated in both the House of Assembly and the Senate and was eventually passed in October 2011. Unfortunately, the SODV Bill of 2009 did not receive Royal Assent from the King, which is required as the final step for any bill to be enacted into law in Eswatini, before Parliament was dissolved for the general elections in 2013. As is customary in Swazi governing structures, the newly elected government had to be re-introduced to the SODV Bill and the procedure of enacting the bill into law had to start over again in 2015. Finally, on the 17^th July 2018 the SODV Bill received Royal Assent from His Majesty King Mswati III. It was then passed into law and now known as The Sexual Offences & Domestic Violent Act.

The Gender Consortium in the lead of SWAGAA lobbied the government to enact the Sexual Offences and Domestic Violence Bill, dating back to as early as 2001. Over the years, they have participated in countless meetings with Parliamentarians, Senators, international institutions, lawmakers, magistrates, non-profit organizations, traditional leaders, local community members and survivors of gender-based violence and sexual abuse to champion this cause.

There was no comprehensive legal framework in place to protect people from domestic violence or sexual assault prior to the enactment of the SODV Bill. The legislation that was in place, some of it dating back over 100 years, was simply insufficient and hopeless at protecting people, especially women and children, from sexual and gender-based violence. As outlined in the Sexual Offences and Domestic Violence Bill, its goals are as follows:

• Give effect to certain rights which are enshrined in the Constitution of Swaziland Act of 2005, including the right to equal protection from the law, the right to privacy, the right to protection from inhumane and degrading treatment.
• Strengthen and consolidate certain common law and statutory provisions so as to adequately provide for the successful dealing, in a non-discriminatory manner, with sexual offences and domestic violence and to provide adequate protection to complainants
• Provide protection to society’s most vulnerable, including women and children
• End impunity for perpetrators by imposing terms of imprisonment on convicted persons that are proportionate to the crimes committed
• Give effect to several international legal instruments, including The Universal Declaration of Human Rights, 1948;

• The African Charter on Human Rights and People’s Rights, 1986 and the Protocol to that charter on the Rights of Women in Africa, 2003;
• The United Nations Convention on the Elimination of All Forms of Discrimination Against Women, 1979

These previous legal instruments failed to meet the international and human rights standards demanded today in a modern society. For example, the definition of rape within this legal framework was only described as a male perpetrator and female victim. There was no definition of rape that included a male perpetrator and a male victim or a female perpetrator and a male victim. As such, these types of sexual assault would be considered cases of ‘indecent assault’ rather than rape in the previous legal system. This weak legal system, instead of safeguarding the most vulnerable, fostered a culture of violence and immunity within Eswatini whereby perpetrators were often never convicted of their crime. Whereas Section 50 of the SODV Bill stipulates that the court is not to draw any inference from any delay in reporting or from previous inconsistent statements.

The new law (the SODV Act) makes the act of rape gender neutral whereas the previous laws narrowly defined rape as a forced sexual act of a male perpetrator and female victim. All other forms of rape were considered “indecent assault”. A delay in reporting of an incident of sexual and domestic violence was held against the victim whereas in the previous law the burden of proof required in a sexual assault case was high.

The SODV Act for the first time criminalizes marital rape and other domestic violence offences; makes provision for Specialised Domestic Violence Courts; creates mechanisms and avenues for reporting of offences; and requires medical examination and treatment of victims. These are issues that had not been previously provided for.

Enactment of the law is significant, incorporating into domestic law a very large part of Eswatini’s international human rights obligations, including those arising from the Africa region, to criminalize and sanction the perpetrators of SGBV. It also discharges commitments made by His Majesty’s Government during the 2016 Universal Periodic Review.

Just as important will be the effective implementation of the new law to combat SGBV (sexual and gender-based violence crimes) by bringing perpetrators to account and providing victims with access to justice.

With a view to enhancing the prospects of an effective and comprehensive approach to that end, the ICJ’s Commissioner, and Principal Judge of the High Court, Justice Qinsile Mabuza, will be coordinating a meeting of governmental justice sector stakeholders involved in combatting SGBV in the country. This first coordinated meeting of governmental actors will focus on issues of investigation, prosecution and sanctioning of sexual and gender-based violence crimes, including the role of social and medical services.

The Swaziland gender consortium members formed a five people committee to meet with the Chief Justice to deliberate on a case of a 12year old girl who was raped and denied to abort the foetus since abortion is still illegal here in Swaziland. During the meeting it was noted that there is still a poor coordination between the clinical and social structures in dealing with crimes of GBV and there is a need for training service providers in terms of attitude and timely, the need for strengthening referral networks and have focal persons to cater for such cases.

On the case of marital rape, we found out that there is a need for communication between spouses, women can report marital rape and also apply for protection order when need be. Women should be empowered, educated that this is applicable to them. When it comes to the case of stalking it was discovered that unlawful stalking can be penalised while unlawful stalking done with the intention to solve a case is not a crime. However, when it comes to flashing it became a challenge when it comes to public places where the reason for dressing would be different, in most cases, it clashes with the Swazi culture because body parts are exposed during the reed dance, umtsimba, incwala etc. A concern was raised for young girls especially school going children who dress revealing clothing or uniforms. In the case of abduction; even if abduction on purposes of marriage it remains a crime if the girl is less than 18 years because the child is going to be violated sexually. It was then agreed that there should be a training of trainers for the team to educate the communities and the member of civil society on the implementation of the SODV Act.