UPR Sexual Rights Database

Stakeholder Summary:
Para 17) JS5 stated that Swaziland still had to enact ... the Domestic Violence and Sexual Offences Bill of 2009.

National Report:
Para 9) Since the last review, Eswatini has enacted several legislations that domesticate the various human rights conventions ratified by the country. Some of the enacted legislations include inter alia: - the Sexual Offences and Domestic Violence Act 2018,
Para 11) During the period under review, Eswatini’s jurisprudence on the elimination of discrimination and inequality has made positive strides, thereby protecting and promoting the rights of women in accordance with Sections 20 and 28 of the Constitution and further giving effect to the provisions of the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and other instruments that the country has ratified.
Para 12) In this regard, reference is made to the case of Makhosazane Eunice Sacolo (nee Dlamini) and Another vs. Jukhi Justice Sacolo and 2 Others (1403/16) [2019] SZHC (166) 30th August 2019 wherein the Court declared the common law doctrine of marital power invalid in that it is discriminatory against married women and offends against the Constitutional right to equality before the law and the right to dignity. The Court further declared that spouses married in terms of the Marriage Act 1964 and in Community of Property have equal capacity and authority to administer marital property. Women in Eswatini are now able to buy and sell property, sign contracts, and conduct legal proceedings without their husbands’ consent.
Para 35) The Kingdom of Eswatini has undertaken various approaches and strategies towards ending all forms of discrimination and violence against women and girls. Women and girls are discriminated in many ways often disguised as tradition, customs as well as patriarchal norms and values which society has held on to in the name of indigenous culture (way of life).
Para 36) The Kingdom enacted the Sexual Offences and Domestic Violence (SODV) Act No. 15 of 2018. This Act makes provision concerning sexual offences and domestic violence, prevention and the protection of all persons from harm and acts of domestic violence amongst others. It serves as deterrent to a lot of discrimination, exploitation and mainly violence against women and girls who are considered as the most vulnerable groups of society. Regulations have been recently developed to facilitate holistic implementation of the SODV Act which include the establishment of specific institutions to further enhance the protection of women and children.
Para 37) During the period under review, Government has developed and is implementing a National Strategy and Action Plan to End Violence (2017-2022). This undertaking was in response to the realization of the lack of a multisectoral framework that will guide the prevention and response agenda to violence in the country. This framework has been very instrumental in the programming for prevention, social and behavioural change as well as protection of all vulnerable groups from violence. As such, this has seen the advancement of the Male involvement agenda being formed into a Men Engage Network to engage men and boys on gender equality, prevention of violence and abuse in all settings. There are Non Governmental Organisations like Kwakha Indvodza (KI), Swatini Action Group against Abuse (SWAGAA) among others that are leading these initiatives to eliminate violence in our societies.
Para 38) Eswatini has further developed a National Strategy and Plan of Action on Positive Parenting (2019-2023) currently at advanced stage of endorsement. The plan provides a blueprint and national roadmap towards achieving holistic child development through empowering and supporting parents to discharge their parenting roles. This plan seeks to instil principles that discourage violence and promote positive discipline, to assist eliminate all forms of violence including those appearing as child discipline.
Para 46) Eswatini is currently using the definition of discrimination in terms of section 20 of the Constitution read together with the reviewed Gender policy which has aligned the definition of discrimination with that in CEDAW. A legislation that will comprehensively domesticate CEDAW is yet to be developed. Further, a pack of family law bills have been developed that seek to domesticate certain parts of CEDAW and are currently undergoing stakeholder consultation processes.
Para 47) Section 211(2) of the Constitution of the Kingdom of Eswatini provides that all citizens of Eswatini have access to land regardless of gender. However, post the Constitution, some Chiefdoms followed the traditional system of land allocation. This meant that women only accessed land through males which could either be their husbands, male relative or male child. For some women who were unmarried or widowed, access to land remained a struggle. However, it is worth mentioning that there is now a paradigm shift from the patronage system as most Chiefs are aware of the Constitutional rights of women, thus land is accessible to women without the assistance of a male. Efforts are being made to develop an information management system that will provide statistical data on this development.
Para 112) The enactment of the Sexual Offences and Domestic Violence Act, 2018 and the development of regulations for the implementation of the act: This legislation aims to address the high rates of sexual and gender-based violence in the Kingdom. It makes provision concerning sexual offences and domestic violence, prevention and the protection of all persons from harm and acts of domestic violence amongst others. The development of Regulations is to realise the holistic implementation of the SODV Act which include the establishment of specific institutions aimed at providing protection for the most vulnerable groups such as women and children.
114) Despite the progress made, Eswatini continues to experience a number of challenges in the promotion and protection of human rights. Some of the notable challenges include: • High number of gender-based violence cases disproportionately affecting women and girls; approximately 1 in 3 females having experienced some form of sexual abuse by age of 18 years and 48% of women reporting to have experienced some form of sexual violence in their life time. This is despite the policies and legislation enacted to address this scourge.

UN Compilation:
Para 52) The HR Committee was concerned about reports of widespread violence against women and children, in particular pervasive sexual violence, including rape and marital rape, and that relevant officials lacked specific training on gender-based violence. It was also concerned that the national strategy and action plan to end violence for the period 2013–2018 had not yet been implemented.
Para 53) In its replies to the CRC Eswatini stated that, according to the 2016 study on violence against children, nearly three quarters of children experienced routine violence in the form of violent discipline. Over a third of all girls reported experiencing some form of sexual violence during childhood. Nearly 3 in 10 girls reported experiencing emotional violence during childhood, mostly from family members.
Para 55) The United Nations country office in Eswatini indicated that the State had made significant strides in addressing gender inequalities. However, pervasive structural disparities, deep-rooted harmful gender stereotypes and patriarchal attitudes had led to gender inequalities that disadvantaged women, while the country’s dual legal system – which was based on a constitutional legal framework and traditional and customary laws – provided women and girls with limited protection.
Para 56) The HR Committee noted with concern that several domestic laws contained discriminatory provisions towards women, such as the Marriage Act, and chapter 4 of the Constitution, which differentiated between men and women in the acquisition and transfer of citizenship. The Committee was also concerned that customary law and practices perpetuated inequality between men and women, in particular with regard to inheritance and property rights, and that cultural practices such as polygamy, forced marriage and bride inheritance continued to exist. The lack of equal representation of women in the public and private sectors, in particular in decision-making positions, was also a matter of concern.
Para 59) The United Nations country team noted with satisfaction that, in 2018, Eswatini had passed the Sexual Offences and Domestic Violence Act into law, and welcomed the strategy, plan of action and guidelines to address gender-based violence. However, the country team regretted the lack of resources for their full implementation. In particular, the country team noted that the Department of Gender and Family Issues remained challenged in terms of human resources and financial resources, and weak coordination of gender issues in the country.

Stakeholder Summary:
Para 9) JS2 noted that Eswatini operated a dual legal system with a component on not codified patriarchal systems of traditional norms, which was often in conflict with common law, the constitution and human rights standards, and had resulted in conflicts leading to numerous violations of rights, in particular, women's rights.
Para 52) While welcoming the enactment of the Sexual Offences Domestic Violence Act in 2018, several stakeholders were concerned that Eswatini’s customary norms and practices continued to undermine the rights of women. In JS7’s view, the fact that Swazi Law and Customary law was not codified, it left women vulnerable to abuse.
Para 53) JS6 regretted that the Constitution denied to women the right to transmit citizenship to their children and foreign spouse-a right reserved for men, and that gender discrimination in Eswatini’s nationality law had resulted in wide-ranging human rights violations, including with regard to inheritance, property rights and freedom of movement. JS7 moreover stated that women did not enjoy the same rights as men to seek separation, divorce or annulment of marriage, and were politically marginalised. The authorities have not met the goal of having 30 representatives of Parliament being women.
Para 54) JS10 also noted with concern that women were very often unlawfully subjected to land grabbing, evictions and disinheritance, situation that had been heightened by the Covid-19 lockdown where victims have had very limited options to seek redress for rights violations.
Para 58) HRW was concerned at the high rates of gender-based violence and that women and girls, especially those living in rural areas under traditional leaders and governed by highly patriarchal Swazi law and custom, were often subjected to discrimination and harmful practices such as the “inhlanti” and “kwendzisa”, and “kungenwa”. According to some stakeholders, married women remain “perpetual minors” and are subject to their husbands, who make key decisions for them as their “guardians.” Young women are forced to take part in highly-stereotyped cultural activities and may be punished or fined by traditional leaders if they resist.
Para 59) Several stakeholders also noted with concern that, according to statistics available, 1 in 3 women in Eswatini experienced some form of sexual violence by the time they were 18 and almost one in 2 women experienced some form of sexual violence in their lifetime, with boyfriends and husbands being the most frequent perpetrators. Only 3% of these incidents are reported to the police, only 7% of victims have access to counselling services, and 2.1% utilize a clinic or hospital.
Para 60) According to JS10 and HKCIJ, the prevalence of gender-based violence increased with the emergence of the COVID-19 pandemic, and domestic violence increased during the lockdowns.
Para 66) In HKCIJ’s opinion, the ongoing prevalence and acceptance of gender-based violence against children was also extremely concerning, as well as insufficient assistance or support provided to victims. JS6 added that domestic and gender-based violence were among the issues children and adolescent girls faced as they stayed home during the COVID-19 pandemic. The pandemic has also increased children’s vulnerability to exploitation, abuse, neglect and violence by directly affecting their caregivers or causing the loss of their families’ and communities’ livelihoods.

National Report:
Para 9) Since the last review, Eswatini has enacted several legislations that domesticate the various human rights conventions ratified by the country. Some of the enacted legislations include inter alia: - the Sexual Offences and Domestic Violence Act 2018,
Para 36) The Kingdom enacted the Sexual Offences and Domestic Violence (SODV) Act No. 15 of 2018. This Act makes provision concerning sexual offences and domestic violence, prevention and the protection of all persons from harm and acts of domestic violence amongst others. It serves as deterrent to a lot of discrimination, exploitation and mainly violence against women and girls who are considered as the most vulnerable groups of society. Regulations have been recently developed to facilitate holistic implementation of the SODV Act which include the establishment of specific institutions to further enhance the protection of women and children.
Para 112) The enactment of the Sexual Offences and Domestic Violence Act, 2018 and the development of regulations for the implementation of the act: This legislation aims to address the high rates of sexual and gender-based violence in the Kingdom. It makes provision concerning sexual offences and domestic violence, prevention and the protection of all persons from harm and acts of domestic violence amongst others. The development of Regulations is to realise the holistic implementation of the SODV Act which include the establishment of specific institutions aimed at providing protection for the most vulnerable groups such as women and children.

UN Compilation:
Para 59) The United Nations country team noted with satisfaction that, in 2018, Eswatini had passed the Sexual Offences and Domestic Violence Act into law, and welcomed the strategy, plan of action and guidelines to address gender-based violence. However, the country team regretted the lack of resources for their full implementation. In particular, the country team noted that the Department of Gender and Family Issues remained challenged in terms of human resources and financial resources, and weak coordination of gender issues in the country.

National Report:
Para 51) The Constitution protects women and girls from being forced to contract marriages without their consent and being subjected to customs they are opposed to in conscience. Therefore, customary practices of kungenwa, kwendziswa and others are no longer practised against the free and full consent of the intending spouses. At a Customary marriage ceremony, the presence of a Chief’s representative plays an important role of witnessing the proceedings of the ceremony including if the woman is a consenting party to the marriage.
Para 52) With regards to the fixed legal age to marry, the country is reviewing the Marriage Act of 1964 which will fix the marriageable age to 18 for both males and females. A draft Marriages Bill is currently undergoing legislative processes.
Para 53) There are on-going community dialogues, sensitisation campaigns, media advocacy on the adherence to laws protecting children, in particular the girl child, against harmful practices that hinder their full development. Where there are suspected reported cases of child marriages, the office of the Deputy Prime Minister attends to the cases and as a result several children have been removed from forced marriages and cases referred to the criminal justice system for investigations and prosecution.
Para 85) With regards to Persons with Albinism (PWA), Eswatini has designed and is implementing programs to support PWA, which include amongst others community dialogues to change the stereotypical negative thinking and myths about PWA as well as protecting them from harmful practices.
Para 89) Further, the general principles of criminal and statutory law apply with same effect in cases of harmful practices such as ritual killings, “mercy killings”, mutilations, trafficking of organs and body parts, infanticide, or premeditated killing of PWA. During trial the Court considers crimes committed against PWD as aggravated, in particular if there is proof that the victim lived with disabilities.

UN Compilation:
Para 11) The United Nations country team indicated that, although Eswatini had supported six recommendations regarding the protection of persons with albinism during its second universal periodic review, those persons continued to face discrimination and violence, including killings and murders for ritual purposes. The country team regretted that Eswatini had not yet accepted the request of the Independent Expert on the enjoyment of human rights by persons with albinism to visit the country.
Para 56) The HR Committee … was also concerned that customary law and practices perpetuated inequality between men and women, in particular with regard to inheritance and property rights, and that cultural practices such as polygamy, forced marriage and bride inheritance continued to exist.

Stakeholder Summary:
Para 58) HRW was concerned at the high rates of gender-based violence and that women and girls, especially those living in rural areas under traditional leaders and governed by highly patriarchal Swazi law and custom, were often subjected to discrimination and harmful practices such as the “inhlanti” and “kwendzisa”, and “kungenwa”. According to some stakeholders, married women remain “perpetual minors” and are subject to their husbands, who make key decisions for them as their “guardians.” Young women are forced to take part in highly-stereotyped cultural activities and may be punished or fined by traditional leaders if they resist.
Para 63) While noticing that Eswatini had progress in combatting child marriages and as a result it had one of the lowest rates of child marriages in Africa, ECLJ was concerned that this practice was still high in certain parts of the country such as Lubombo and Hhohho.