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Ingcamu 3 Document Transcript

  • 1. TABLE OF CONTENTS1.0 Introduction...........................................................................................................................................41.2 Background of the problem ..................................................................................................................61.3 Statement of the problem.....................................................................................................................81.4 Objectives............................................................................................................................................101.5 Hypothesis..........................................................................................................................................101.6 Significance of the research.................................................................................................................121.7 Limitation............................................................................................................................................121.8 Literature review ................................................................................................................................131.9 Scope of the research.........................................................................................................................151.10 Research methodology......................................................................................................................16 ..........................................................................................................................................16CHAPTER TWO ..........................................................................................................................................172.0 THE LEGAL FRAMEWORK ON THE PROTECTION OF CHILDREN’S RIGHTS IN SWAZILAND....................172.1 INTRODUCTION....................................................................................................................................172.3 INTERNATIONAL, REGIONAL AND NATIOAL LEGAL FRAMEWORK ON CHILD PROTECTION.................192.3.1 United Nations Convention on the Rights of the Child, 1989...........................................................192.3.1.1 The four pillars of the Convention on the rights of the child.........................................................202.3.2 The United Nations Charter, 1945....................................................................................................222.3.3 International Covenant on Civil and Political Rights, 1966................................................................222.2.4 ILO Minimum Age Convention (C138) in 1997 and the Worst Forms of Child Labour Convention . .232.3.5 The African Charter on the Rights and Welfare of the Child.............................................................23 Article 1 of the charter provides that “Member States of the Organization of African Unity Parties to the present Charter shall recognize the rights, freedoms and duties enshrined in this Charter and shall undertake to the necessary steps, in accordance with their Constitutional processes and with the 1
  • 2. provisions of the present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter.” The charter recognizes regional and international human rights of the child...................................................................................................................................242.3.6 Child protection under laws in Swaziland.........................................................................................24 ........................................................................................................................26 CHAPTER THREE.....................................................................................................................................263.0 DATA ANALYSIS, INTERPRETATION AND DISCUSSION..........................................................................263.1Introduction ........................................................................................................................................263.2 Area of Study.......................................................................................................................................273.3 Existing problems faced by children in Swaziland................................................................................293.3.1 Assessment of the law on Juvenile Justice System...........................................................................313.3.2 Corporal punishment as a way of correction....................................................................................333.3.3 Age of majority.................................................................................................................................353.3.4 Maintenance of children in Swaziland..............................................................................................363.3.5 Child and sexual Abuse.....................................................................................................................373.3.6 Succession or inheritance for illegitimate children ..........................................................................413.4 Swaziland’s obligation on the Rights of the Child Convention.............................................................423.5Conclusion remarks .............................................................................................................................44Chapter four .............................................................................................................................................454.0Conclusion and Recommendations.......................................................................................................454.1Conclusion ...........................................................................................................................................454.2 Recommendations ..............................................................................................................................48 BIBLIOGRAPHY...........................................................................................................50BOOKS.......................................................................................................................................................50ARTICLES....................................................................................................................................................50Newspapers...............................................................................................................................................51 2
  • 3. WEBSITES...................................................................................................................................................51STATUTES...................................................................................................................................................51CASES.........................................................................................................................................................52 3
  • 4. 1.0 IntroductionEvery child deprived of his/her liberty shall have the right to prompt access to legal and otherappropriate assistance, as well as the right to challenge the legality of the deprivation of his orher liberty before court or other competent, independent and impartial authority and to a promptdecision on such action.1Children are part of the national vulnerable populations that needprotection from harm through an effective and comprehensive law. Media reports of increasingincidents of children being abused by relatives, by strangers, minders and even parents. Theharm caused to children takes place in the streets, schools, recreational places, foster homes,homes, churches etc. The fulfillment of children’s rights, including those to protection, dependson a global movement, in which everybody understands and respect their duties andresponsibilities to children and ac, upon them. The United Nations and its organs, theInternational Labor Organization and other supra state organs have played a key role in thepromotion of children’s rights through national and international laws. Children’s rights arerecognized globally and regionally as separate and distinct from general human rights.Children’s rights are now defined and enshrined in the 1989 Convention on the Rights of theChild (internationally), The African Charter on the Rights and Welfare of the Child (regionally)and other instruments. The 1989 Convention on the Rights of the Child is an internationalinstrument giving independent human rights to children by putting into place internationalchildren’s rights and standards. It is a universal and legally binding instrument to all the stateswhich have ratified it. Swaziland is among the countries which have ratified the convention.Currently Swaziland does not have a single comprehensive statute that enshrines all the rights of1 Article 37 the United Nations Convention on the Right of the Child paragraph (d). 4
  • 5. children, so far child laws are scattered in different statutes. This has resulted in some rights ofchildren being overlooked and infringed. The absence of a comprehensive national legalinstrument consistent with international conventions on child rights impacts directly on childrights promotion and protection. When laws are arranged systematically in a written form, that iscodification, rule becomes distinct and easily ascertainable and it becomes easier for the courtsand tribunals to apply them2. This does not mean that problems on child rights can be solvedonly by laws, but they are the most powerful instruments for the protection of human rights,especially child rights. Laws should be certain and should bring about effective delivery ofjustice. Law is not a branding omnipotence in the sky but a flexible instrument of social order,dependant on the political and other values of the society which it purports to regulate 3. Thisresearch report seeks to highlight the problems caused by the absence of a single comprehensivechildren’s Act in Swaziland, and the compliance to the principles of international law. Child protection means protection from violence, abuse and exploitation.4 It further elucidatesthat child protection addresses every child’s right not to be subjected to harm. It completes otherrights that inter alia, ensure that children receive what they need in order to survive, develop andthrive.2 Dr avtar Singh and Dr Harpreet Kaur; Introduction to jurisprudence,3rd ed,2009 pg 543 Ibid pg554 UNICEF 2004 5
  • 6. 1.2 Background of the problemThe concept of child rights dates back from the 1923 with the declaration on the Rights of thechild, drafted by Englanty Jebb and her sister Dorothy Boxton in London England in 1919.Endorsed by the League of Nations and adopted by the United Nations in 1964. It later served asthe basis of the Convention on the Rights of the Child 1989. Child rights are human rights ofchildren with particular attention to the rights of special protection and care afforded to theyoung. A child is any human being below the age of eighteen, unless under the law applicable tothe child, majority is attained earlier5. Children are often in the frontline of vast change. Thebreakdown of family structures due to several factors that include increase of divorce (one of theevidences of changes that negatively impacts on the protection of children from harm), thefamily is the first line of protection for children. In Swaziland the phenomena of child headedhousehold has emerged due to the impact of adult deaths through the HIV/AIDS epidemic andthe breakdown of the family structure. This has created problems in the ability of society and thecommunity to protect its children. In Swaziland so many children’s rights have been violated dueto the lack of a single comprehensive statute. There have been so many media reports on cases ofstatutory rape of students by their teachers who later marry them (under customary law) becauseunder Swazi customary law puberty determines the age of marriage to girls. The IntestateSuccession Act6 regulates who is entitled to inherit the estate of a deceased person who has failedto affect a valid will. This piece of legislation, in relation to children, is extremely discriminatoryas only legitimate children can inherit from the estate of a father. Illegitimate children are onlyentitled to inherit from the estate of their mother.5 The Convention on the Rights of the Child 1989.6 3 of 1953 6
  • 7. These problems are intensified by the absence of a strong and effective social protection systemincluding the lack of professional social work and protection services to support all vulnerablechildren from abuse, neglect and exploitation. A coherent child protection system is needed,including comprehensive legal and regulatory framework and a social welfare system to ensurechildren are being served at the local level. No child should be left without care and protection.Swaziland is party to the Convention on the Rights of the Child, after having signed andratified the convention in 1995. However, Swaziland made a declaration at the time ofratification of the convention that the implementation of its obligation in relation to the right toeducation must be achieved progressively and that Swaziland would strive for full compliance assoon as possible. By ratifying the convention Swaziland was expressing its commitment toimplement its provisions, this means that Swaziland has an obligation to fulfill under article 4 ofthe convention,7 which provides that state parties shall undertake all appropriate legislative,administrative and other measures to economic, social and cultural rights, state parties shallundertake to the maximum extent of their available resources and where needed, within theframe of international cooperation. Therefore Swaziland is obliged to domesticate the provisionsof the convention in compliance to article 4. Laws relating to children and child rights inSwaziland are currently scattered in different statutes. Swaziland has not yet fulfilled itsobligation to the convention. The existing laws’ relating to children violates the key provisionsof the convention, for example section 408 prescribes whipping as punishment.7 The Convention on the Rights of the Child 19898 The Criminal and Evidence Act 2005 7
  • 8. 1.3 Statement of the problemSwaziland is using two systems of laws these are Swazi customary laws (which is not codifiedand varies from place to place, chieftaincy by chieftaincy, clan by clan ) and civil common law.The Swazi customary laws are widely used and have real effect to all the people of Swaziland.They are not codified and are understood differently by people and authorities. The constitutionalso protects the use and the existence of the Swazi customary law. The civil common law isembedded in Statutes. Swaziland does not have a single comprehensive child statute regulatingon child laws that is, there are no specific statutes or case laws governing child protectiveproceedings. National laws relating to children do not reflect the four pillars of the convention onthe rights of the child, which are Non-discrimination (article 2), the best interest of the child(article 3), the right to survival and development (article 6) and the child’s rights to participatein matters affecting them ( article 12).9 Laws relating to children are scattered and fragmented ina number of statutes; the Constitution 2005, the Adoptions Act 1952, the Marriage Act, theAge of Majority Act 1853, the Girls and Woman’s Act, Maintenance Act 35 of 1970,Administration of Estates Act 14, the intestate succession Act and Customary laws( whichis fluid) and other legislations.Swaziland ratified the United Nations Convention on the Right of the Child, and its principlesincorporated in the National constitution but there is no national legislation that makes its effectin Swaziland and therefore not applicable to Swazi courts. This creates problems in theeffectiveness and adequacy of children’s rights protection. International conventions do notapply directly; international laws need to be ratified and introduced to the national legislationbefore they can be applicable to the Swazi courts. This was made clear in the case of R V.9 The Convention on the Rights of the Child of 1989. 8
  • 9. Mngomezulu10 where the court held that unless international treaties are incorporated into locallaw it confers no right to a citizen of Swaziland. The Convention has not been incorporated intolocal law thus protection of the rights of the Swazi child is nothing when it comes to theconvention. The convention has not been fully implemented since its ratification fifteen yearsago. Most of the existing laws are old laws which were passed during colonial times and some ofthem have not been repealed thus making them inconsistent with the convention. Swaziland hasnot ratified the Palermo Protocol or the UN Optional Protocol to the CRC on the Sale ofChildren, Child Prostitution and Child Pornography.The absence of single comprehensive Act to protect the rights of children brings about problemsin the effectiveness of justice delivery. The absence of a single comprehensive child statute ismaking protection of children’s rights difficult in Swaziland. Gallinetti and Kassan11 said “thelaws are fragmented and not easily accessible to those who are responsible for itsimplementation.” There is an absence of a clear definition of child conforming to the CRC.Existing statutes relating to children in conflict with the law do not provide a separate childjustice system. There are no legal processes for dealing with children in need of care andprotection arising from abuse, neglect or abandonment and therefore no legal oversight of theinterventions to undertake with them. There are no laws to combat child trafficking and childpornography. There are no provisions in the penal law criminalizing child prostitution, with thelimited exception where parents facilitate the prostitution of their child.10 1977/78 SLR at 159.11 Writing in the issue paper on a proposed new child law in Swaziland 2005 9
  • 10. 1.4 ObjectivesThe main objectives of the study are; 1. To analyze the existing legislations on child laws in view of the effectiveness and broadness of justice delivery and the protection of child rights in Swaziland. 2. To determine the problems caused by the absence of a single comprehensive statute on children laws and their rights. 3. To demonstrate how the existing legal provisions on the protection of the rights of the child do not fully protect the rights of children and if they comply with international child rights instruments, especially the Convention on the Right of the child. 4. To document how child rights can be protected through the enactment of a single comprehensive children’s Act so as to avoid poor implementation of the Convention.1.5 HypothesisThe purpose of the study is to determine the negative impact in the implementation of justice inthe protection of children in Swaziland due to the absence of a comprehensive child law inSwaziland. The hypothesis for the research is: -Children are not able to receive adequate justice due to the absence of a singlecomprehensive child law in SwazilandLaws are the foundation of social order and central to the promotion, protection and defense ofchild rights and welfare. They articulate the society’s vision and define individual rights and 10
  • 11. obligations on the one hand and the nature and limits of state action on the other.12 In our society,laws play an important part in the creation of social order. Robert Summers identify fivetechniques for the use of law, which are; i) remedy of grievances among the society, ii) they actas a penal instrument, which prohibits and prosecute forbidden behavior, iii) promote certaindefined activities, iv) managing various governmental activities for public benefits and lastly togive effect to certain private arrangements in the society. In the absence of reliable andcomprehensive information detailing with the scale, modes, strategies or impact of child rights inSwaziland, the ratification of the two most critical international instruments governing the rightsof the child is useless. There is a need for Swaziland to enact a single comprehensive statute toregulate on the rights of children which must comply with other international instruments. Nochild should be left without care and protection.This makes the protection of children ineffective. This study analysed the existing laws relatingto children in order to find out what are the problems that are caused by the absence of a singlecomprehensive children’s Act in Swaziland. Although it is laudatory that Swaziland has aconstitution that pronounce on the rights of her citizens and particularly gives cognizance to thefact that children have additional rights that seek to ensure their protection and well being, it isunfortunate that the constitutional provisions do not give more substance to Swaziland’sobligation under the Convention on the Right of the Child1989.13 There seems to be a problemwith the application of the Swazi law and customs since many Swazi people prefer this law morethan the common law. The Swazi customary law since it the commonly a used law affects therights and protection of the child. Under this law the definition of a child is very discriminatoryespecially to girls; a girl can be married under customary law if she has reached puberty (which12 Harmonization of Laws on Children Eastern and Southern Africa, report of 2000.13 Harmonization of laws relating to children Swaziland by Jaqui Gallinetti 2005 11
  • 12. varies from child to child). Boys are allowed to get married when they have attained appropriatematurity. There is a general problem with the protection of reproductive rights on the girl’s child.Customary law creates a clear discrimination between the boy and girl child.1.6 Significance of the researchThis study discusses at length the problems that are experienced by law enforcement agencies intheir duties to provide protection for children due to the absence of single comprehensive childlegislation. The study interrogates the content of laws in Swaziland that are established for thepurpose of protecting the Swazi child from harm, their compliance and adherence to theprinciples of international law. In study further analyses the contradictions that exist between thetwo sets of laws applicable in Swaziland. It examines the law, practice and at the endrecommends different methods for the effective promulgation and operationalisation of a singlecomprehensive statute for children in Swaziland. The problems highlighted above, theweaknesses and suggestions revealed in this study facilitate in the enlightenment of policymakers that advice parliament of law reform and promulgation. This will help in guiding lawmakers (senior government officials and elected officers) to make informed decisions in the fieldof child rights. A coherent child protection system is needed, including comprehensive legal andregulatory framework and a social welfare system to ensure children are being served at thenational and local level.1.7 LimitationTime and financial resource are the major limitations for the study. The researcher used personalfunds and resources to conduct the research. Swaziland has not digitalized its legal records so theinternet is not an effective tool for the excavation data in the form of literature, although it is 12
  • 13. used for the dissemination and as data collection tool. Swaziland is not a democratic state;information is restricted by regulations, legislation and self censorship of citizens. Governmentfunctionaries exercise self-censorship and caution in responding to questions that have policyand political implications. This imposed some limitation in the soliciting of primary andsecondary data, informants were not open to frank assessment of their organisations and theiractivities.1.8 Literature reviewThe literature review on this research was based on the reading of primary and secondarymaterials dealing with laws relating to children in Swaziland. These consist of statutes, lawreports, books, newspapers and the internet. The literature review is aimed at bringing out ideaswhich could be taken into account in looking at the problems affecting child rights and childprotection in Swaziland. The Attorney General office and the Mbabane City officer providedaccess to legal documents and statutes.T .M Bennet14: discusses about the application of customary laws in its relevance in the Africansocieties. Swaziland is currently using dual systems of law that is customary law and commonlaw. The Swazi customary law is the mostly preferred law in the Swazi society especially whenit comes to marriage and generally family law (Children aspects).Dr Avtar Sigh15 writing in the book Introduction to jurisprudence; explains on what is law and theimportance of having laws in the society. He also provides a great deal in showing how lawsshould be made and why we need to have laws. The book states how laws should change withtime and how they relate to the changing society.14 Bennet T.W Customary Law in South Africa,200415 Dr avtar Singh and Dr Harpreet Kaur; Introduction to jurisprudence,3rd ed,2009. 13
  • 14. Trevor Buck16 in his book helps in providing the concept of child law at international level. Hisbook provided a clear picture of the key issues of child law and its universality in internationallaw. He discussed the duties and obligations of states in the protection of child rights and therelevance of international instruments which advocates for the protection of child rights, whichare the backbone in the making and application of national laws for the protection of child rights.Richard Powell17 explains on the clear concepts of child protection in general and the laws ormechanisms to be used in the protection of child rights. He discusses on the appropriate legal andadministrative systems for the protection of the rights and welfare of the child. Children needsafeguards and protection separate from those of adults which has largely impacted bothdomestic and international law. This has encouraged African governments to ratify numerousinternational and regional instruments for example the Convention on the Right of the Child.Ian Brownlie18 explains on how states should apply the rules of international law to theirdomestic laws. The dualist theory provides that international law and domestic law are twodistinct laws. Whereas the monist theory provides that international law should be superior todomestic law, this theory supposes that international law and national law are simply twocomponents of a single body of knowledge called law. International law cannot work without theco-operation and support of the national legal system.Buhle Dube and Alfred Magagula19 in their research they wrote on the systems of laws inSwaziland and the application of laws, both the customary and the civil common law which areused in the Swazi courts. They explained on how the arms of the government work in Swaziland.16 Trevor Buck, International Child Law,200517 Richard powell, 2001, Waterside Press.18 Ian Brownlie, 6th edition,2003 Oxford University Press.19 The Law and Legal Research in Swaziland 2007. 14
  • 15. Jacqui Gillinetti20 explains the concept of child rights in Swaziland and the need to harmonizelaws relating to children in Swaziland. He addressed the issues affecting children’s rights inSwaziland and how the Swaziland government responds to child rights issues. He explored therights of the child in Swaziland and the obligation of Swaziland on the convention on the rightsof the child.From the literature review above it is clear that many writers have expressedviews on childrights, its importance and the issues affecting child rights. There a vivid silence on the problemscaused by the lack of a single statute that regulate on child laws in Swaziland. Swaziland hasgovernment institutions that are responsible for offering and ensuring justice to the children.They educate, create awareness and enforce the existing national, regional and internationallaws. These institutions are not adequately guided by the laws of Swaziland due to the fact thatthey are scatted and embedded in many pieces of legislations. This therefore means that theseinstitutions lack legal and policy guidance. There are no procedures to follow, which resultinefficient and inadequate justice delivery service to the children of Swaziland. This studyfocused on the problems created by the lack of single comprehensive child statute and why it isimportant for national laws to comply with international law. 1.9 Scope of the researchThis research focuses on documenting the processes and the outputs of efforts to develop a singlecomprehensive child law in Swaziland. It makes use of electronically stored information andtelephone and email interviews. Swaziland will provide the physical limit of the research.20 Harmonization of laws relating to children in Swaziland, the African Child Policy Forum 2004. 15
  • 16. 1.10 Research methodologyThe research approach was based on the social constructivism using a case study method. Thefinal output is a case writing of Swaziland deliberate effort in developing a single children’s Act.The research method was a combination of deep literature review and textual analysis. A semistructured questionnaire was a key data collection tool used. The questionnaire was disseminatedby email and hand post and collected through the same method.Research informants were contacted by phone, email or face to face visits. Some were called bytelephone and interviews by the telephone. One informant contacted by a social network servicesfacebook. Some informants were interviewed directly on a face to face interview. The datacollected is both qualitative and quantitative. 16
  • 17. CHAPTER TWO2.0 THE LEGAL FRAMEWORK ON THE PROTECTION OF CHILDREN’S RIGHTSIN SWAZILAND2.1 INTRODUCTIONThis chapter confines itself on the legal system of Swaziland and the legal framework on theprotection of children at national and international level.Child protection means protection from violence, abuse and exploitation. Child protectionaddresses every child’s right not to be subjected to harm. It complements other rights that, interalia, ensure that children receive that which they need in order to survive, develop and thrive.Child protection covers a wide range of important, diverse and urgent issues. Many, such as childprostitution, are very closely linked to economic factors. Others, such as violence in the home orin schools, may relate more closely to poverty, social values, norms and traditions.Often criminality is involved, for example, with regard to child trafficking. Technologicaladvance has brought about a new array of children exposure to new abuses and rights violations.There is an increase of child pornography21 and the making of pornographic video material anddistributes through the new media. The laws and law enforcement development have not kept upwith the growth of this new forms abuse.2.2 Swazi legal systemThe Swazi legal system is a dual one in that common law – the law that binds everyone in thecountry regardless of the person’s country of origin- operates side by side with customary law22-21 Child Protection (a hand book for parliamentarians)22 Swazi law and custom is old aged tradition and customs validated by the ideology of traditionalism that has beenrecently put down and classified as law. 17
  • 18. which applies only to indigenous Swazis. Customary law is not codified but it is used in theSwazi National courts under the Swazi National Court Act23 is enforced and held supreme.Subject to certain limitations the Swazi legal system allows the plaintiff to institute a civil claimin the forum appropriate to the nature of his/her claim. Even though the traditional courts do notobserve the comprehensive procedural rules of the common law courts many Swazis believe thatthey are more efficient in dispensing justice, For example, the absence of legal representation 24allows Swazi people to be at ease when presenting evidence. In the common law courtsdiscretion is exercised within defined parameters and in Swazi courts, which follow Swazicustomary rules, the court president carry out trials using imaginary discretion. 25 Such dilemmasare aggravated by the fact that it is not clear whether the general common law or customary lawhas superior status in Swaziland.Until the introduction of the national constitution26 which began operating in 2006, the highestcourt in Swaziland was the Court of appeal. However the new constitution brought the SupremeCourt. There are also regional Swazi national courts (referred as Swazi courts in this report) andtheir highest structure is the judicial commissioner’s court. Swazi customary courts arecustomary courts that follow Swazi traditional laws in court proceedings. These courts fall underthe jurisdiction of the judicial commissioner’s office and the language used is siSwati as allparticipants are Swazis and use siSwati as a first language. There are no laid down rules as tohow these courts should operate, However they derive their procedure from Swazi customaryvalues and practices. Cases in these courts are tried faster and the modus operandi is flexible23 80/195024 Section 23 of the Swazi National Courts Act 80/195025 Alphane et al 200026 2005 18
  • 19. because it is designed by the court president.27 Court presidents have the platform of adjudicatingover disputes and in the process create the law.2.3 INTERNATIONAL, REGIONAL AND NATIOAL LEGAL FRAMEWORK ONCHILD PROTECTION2.3.1 United Nations Convention on the Rights of the Child, 1989 The convention on the rights of the child was adopted by the UN General Assembly in 1989.The convention has direct implications for the human rights of the child. Swaziland is a party tothe Convention on the Rights of the Child; Swaziland signed the convention on 22nd August 1990and ratified it on 7th September 1995. Ratification of international instruments creates obligationson States Parties to take action to bring domestic policy, law and practice into line with therelevant international instruments. Article 4 States Parties shall take all appropriate measures toensure that the child is protected against all forms of discrimination or punishment on the basisof the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, orfamily members.Article 19 of the CRC requires States Parties to “undertake all appropriate legislative,administrative, social and educational measures to protect the child from all forms of physical ormental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation,including sexual abuse, while in the care of parent(s), legal guardian(s), or any other person whohas the care of the child”. Such protective measures should, as appropriate, include effectiveprocedures for the establishment of social programs to provide necessary support for the childand for those who have care of the child, as well as for the forms of prevention and27 A man considered to be an expert in Swazi customs. 19
  • 20. identification, reporting, referral, investigation, treatment and follow-up of instances of childtreatment described heretofore, and, as appropriate, for judicial involvement. However thisinstrument has no direct effect under domestic law, since it has not been implemented.2.3.1.1 The four pillars of the Convention on the rights of the childStates must be mindful of ensuring that national laws reflect the four “pillars” of the Conven-tion. The four “pillars” of CRC around which all other rights are to be adjudged are the rights en-shrined in article 2 (non discrimination), article 3 (the best interests of the child), article 6 (theright to survival and development), and article 12 (the child’s right to participate in matters af-fecting him or her).Non- discriminationIn Swaziland there are many gaps relating to non-discrimination, for example as regards theelimination of discrimination against girl children (e.g. regarding inheritance rights under cus-tomary law), and against children infected or affected by HIV/AIDS, in respect of whom legalprovisions outlawing discrimination would be desirable.Best interests of the childAs regards the best interests of the child as an overarching (i.e. paramount) principle governingmatters affecting children, a close scrutiny of the provisions in Swaziland law does not lead tothe conclusion that this principle is articulated clearly with regard to the best interests of theSwazi child. In conventional statutory provisions, the best interest’s principle would be a majordetermining criterion in regard to legal decision–making around children, such as with regard tocare and placement of abandoned children or those without families or caregivers. It can play animportant role in affecting decisions concerning diversion and sentencing of children in trouble 20
  • 21. with the law, and is an obvious criterion affecting adoption placements. 28 Traditionally the bestinterests of the child has played a role in determining the allocation of custody and access whenparents separate, and increasing it is used to underscore children’s rights to maintenance fromtheir parents and extended family. Consequently, the absence of the incorporation of the best in-terests’ principle as central to all other child law represents a significant gap.Right to survival and developmentThe CRC includes a number of rights relevant to survival and development in addition to the‘pillar’ constituted by article 6. As pointed out by academic commentators, article 6 must be in-terpreted to extend beyond the mere right to life and must be interpreted dynamically to refer tothe developmental processes that all children undergo in the passage to adulthood. “Recognitionof this right expanded the range of positive measure to be adopted by States to further the healthof the growing child’.29Participation rightsThe fourth ‘pillar’ of the CRC is encompassed by Article 12, which has been described as givingthe children’s rights movement it’s soul. This is because it is recognizing that children are to beconsulted, and that they have the right to participate and express their views freely in all mattersaffecting them, that the international human rights community has acknowledged children as truebearers of human rights, rather than being mere objects of concern and charity, or recipients ofwelfare benefits28 Child Law Issue Paper by Jacqui Gallinetti and Daksha Kassan on behalf ofSave the Children Swaziland29 J Sloth Nielsen ‘Ratification of the Convention on the Rights of the Child: Implications for South Africa’ 21
  • 22. Children’s participation rights are not recognized eo nomine in Swazi law.30 This assertion cov-ers both the provisions of Article 12(1) and the narrower provisions of Article 12(2).31This should be addressed not only in the overall context of child law, but more particularly parti-cipation rights in areas like adoption and court proceedings (civil, welfare and criminal proceed-ings) should be carefully articulated.Students at at primary and high school are not allowed to form Student Representative Council.The Swaziland Union of Students (SNUS) is an illegal organisation that attempts to increase theparticipation of students in the affairs of education. Swaziland is still yet to hold the children’sparliament2.3.2 The United Nations Charter, 1945Human rights are inherent by virtue of being a human being. They are usually defined in terms ofequality for all people. One of the purposes of the human rights charter is: “To achieve interna-tional co-operation in solving international problems of economic, social or humanitarian charac-ter and in promoting and encouraging respect for human rights and Fundamental freedoms for allwithout distinction as to race, sex, language or religion”.322.3.3 International Covenant on Civil and Political Rights, 1966The ICCPR is the principal treaty setting out the fundamental civil and political rights for allpeople, including children. It states unequivocally that every child shall have withoutdiscrimination as to race, colour, sex, language, religion, national or social origin, property or30 Child Law Issue Paper by Jacqui Gallinetti and Daksha Kassan on behalf ofSave the Children Swaziland31 Article 12(2) provides for the child’s right to be heard in any judicial proceeding affecting the child, eitherdirectly or through a representative32 article 1 paragraph 3 22
  • 23. birth, the right to such measures of protection as are required by his status as a minor, on the partof his family, society and the state.33 Article 10(2) (b), provides that accused juvenile personsshall be separated from adults and brought as speedily as possible for adjudication. 1. Swaziland has the Mdutshane Juvenile Reformatory Centre, established under the Refor- matories Act of 19212.2.4 ILO Minimum Age Convention (C138) in 1997 and the Worst Forms of Child LabourConventionThe convention considers that the effective elimination of the worst forms of child labour re-quires immediate and comprehensive action, taking into account the importance of free basiceducation and the need to remove the children concerned from all such work and to provide fortheir rehabilitation and social integration while addressing the needs of their families, and Recog-nizing that child labour is to a great extent caused by poverty and that the long-term solution liesin sustained economic growth leading to social progress, in particular poverty alleviation anduniversal education.34 The convention under article 2 provides that a child is a person under theage of 18 years.2.3.5 The African Charter on the Rights and Welfare of the Child It is recognized that the child occupies a unique and privileged position in the African societyand that for the full and harmonious development of his personality. The child should grow up ina family environment in an atmosphere of happiness, love and understanding.3533 Article 24 of the International Convention on Civil and political Rights, 196634 Preamble of the ILO Minimum Age Convention and Worst Forms of Child Labour35 Preamble of the African charter on the rights and welfare of the child. 23
  • 24. Article 1 of the charter provides that “Member States of the Organization of African Unity Parties to the present Charter shall recognize the rights, freedoms and duties enshrined in this Charter and shall undertake to the necessary steps, in accordance with their Constitutional processes and with the provisions of the present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter.” The charter recognizes regional and international human rights of the child.2.3.6 Child protection under laws in SwazilandThere is no single Act/ legislation for children in Swaziland; child related laws are found indifferent legislations. The national Constitution of Swaziland is the supreme law of the land. TheConstitution contains provisions (article 30) relating to the protection of children but theseprovisions does not give substance to Swaziland’s obligation to the Convention on the rights ofthe child. Article 30(2)36 states that “a child shall not be subjected to abuse or torture or othercruel inhuman and degrading treatment or punishment subject to lawful and moderatechastisement for purposes of correction”. The Intestate Succession Act37 regulates which child isentitled to inherit in the estate of a deceased father who has failed to affect a valid will. Thispiece of legislation, in relation to children, is extremely discriminatory as only legitimatechildren can inherit from the estate of both their father and mother. 38 Illegitimate children areonly entitled to inherit from the estate of their mother. The Criminal Procedure and EvidenceAct39 provides for provisions on criminal responsibility for minors. It also provides for the36 The Swaziland Constitution (2005)37 3 of 195338 Section 5639 67 of 1938 24
  • 25. procedures of hearing cases of crimes committed by children. The Marriage Act40 governs issuesof marriage in a way touching issues relating to children as they are usually directly affected bydisputes of marriages. This Act also provides for some provisions that relate to children. TheAdoption Act, 1952 governs issues of adoption but has nothing on inter-country adoption; it lacksclarity on procedures. Swazi customary law is unwritten and varies from place to place in theSwazi customary law courts. Swazi law is very strong in the area of family law and so directlyaffects children. Swazi courts may send a child to the reformatory centre for non-payment offines without the child having legal representation as lawyers are not allowed in these courts. TheSwazi courts can send children to the reformatory centre for failure to pay fines. 2.4 Concluding remarksDespite these ratifications, Swaziland has not yet enacted laws to comply with its obligationsunder these international documents. Child rights are recognized internationally as human rightsfor children. The international community requires states to fulfil their human rights obligationby protecting children and ensuring their rights are respected. Swaziland being a party tointernational and regional conventions which suggest a commitment by the government to childrights principles. Swaziland to fulfil her obligation adopted the Sexual Offences and DomesticViolence Bill which is still at drafting stage from 2005 to date and National Programme ofAction for the Children of Swaziland 1993-2000, also in a draft form.40 47 of 1964 25
  • 26. CHAPTER THREE3.0 DATA ANALYSIS, INTERPRETATION AND DISCUSSION3.1IntroductionThe key data collection method used was textual analysis. That is the research focused on thestudy of laws of Swaziland and other international legal instruments. It also looked at the reportsthat documented problems that are caused by the application and enforcement of the child lawlegislation in the study area. It looked at the problems arising due to the inadequacy of the laws.Data was mainly collected from electronic achieves and hardcopy publications. Swaziland is notvery advanced in e-filling of its legislations and court records. There is vast literature of reportsmade by the country to international bodies that had to account on several aspects of child law.Several local and international NGO’s have also written and published to the internet their viewsand findings on child law status and issues in Swaziland. The research examines thesepublications for the purpose of creating an issue matrix.A structured questionnaire was used to direct the search of data in books, academic articles,newspaper publications, reports and in interviewing informants. The internet and electroniclibrary searches was utilized as critical tools and approaches for this research. The actualconducting of the research deviated from the original plan due to several reasons. One of thereasons was the unwillingness of state institutions to offer information41.41 Swaziland is undergoing political upheavals and the government is weary of bad international press. 26
  • 27. 3.2 Area of StudyThe study focused on Swaziland and looked at the existing national laws. International laws andreports were used only if they had a direct bearing on the Swaziland context.Swaziland is Monarch, with King Mswati 111 having absolute political power under the 2005national constitution. The constitution reaffirmed the powers of the king as elucidated in theApril 12th, 1973 Decree that banned the Independent constitution42 and political parties. There isa dual legal system in Swaziland; the non codified traditional laws are working concurrently withthe modern laws based on common law. The protection of the children of Swaziland needs to beexplored on this context of the Swaziland legal system. Issues like child maintenance,inheritance, adoption, marriage, punishment, abandonment, family ties are much cultural thanlegal in practice.The children of Swaziland face several social and health issues that are exacerbated by thestructural collapse of the Swazi traditional family unit, the high HIV/AIDS prevalence. Theextended family structure has always been the social safety net for the children of Swaziland;every homestead had the grandparents, specially the grandmother (Gogo) as the protector andbenefactor of the children. When young couples are experiencing problems in their social andeconomic life, they will always take the children to the grandparents. Currently that is notbeing the case due to the dominance of selfish economic values that discourages extended family42 The 1968 independence constitution was repealed in 1973 by the then king Sobhuza the II a year after the 1972elections, parliament dismissed and all parties banned. The king and his advisors felt that the constitution had failedto provide “good governance, maintenance of peace and order”( constitutional framework of Swaziland 1998: 50).Between 1973 and the commencement of the new constitution in 2006 did not have a working constitutionbut hadretained some of the old constitution’s provisions and new laws were gazetted and citizens had to abide by them. 27
  • 28. ties, the increase of death incidence of adults specially young fathers and mothers), includingparents and grandparents, and the rapid urbanization of Swaziland.The problems of the children of Swaziland have been documents and reported about in the localand international media. The international community has risen concerned about the abovementioned problems. The key problem to these issues is the inadequacies of the laws ofSwaziland in providing adequate protection for its children. The government has establishedinstitutions and departments within ministries to deal with the issues. The Royal SwazilandPolice Force plays a pivotal role in the enforcement of the children rights. The constitution ofSwaziland has dedicated Sections 29 to 31 of the Constitution specifically focus on children’sissues and rights. Unfortunately the processes of promulgating laws that translate the constitutionmeaningful legislation are moving very slowly. The civil society under the leadership of theSwaziland Save and Children Fund and UNICEF are trying to mitigate the effects of the shortfall of the legislation. There are other church based organizations like the Lutheran DevelopmentService (LDS), the Catholic Church (CARITAS) that provide service for the betterment ofchildren conditions. There is a focus on working for children’s comfort around the HIV/AIDSresponses. The problem being that NGO’s are more focuses to the issues that have funding.Currently Swaziland due to its political context and the general economic meltdown, there isvery little funds for NGO’s and government programmes. This has dire negative impact on thechildren of Swaziland.They have been initiatives by the international community working with government and herpartners to resolve the legal problems by developing a new child law Act. The government 28
  • 29. promised the United Nations that the Act will be in place soon. As of today the government hasfailed to promulgate the gate spite the adequate funding from a Swedish NGO.3.3 Existing problems faced by children in SwazilandSwaziland signed the Convention on the Rights of the Child in 1990 (ratified 1995), and in 1992produced the "National Programme of Action for the Children of Swaziland 1993-2000." Thisdocument addresses most articles of the convention either directly or indirectly, “the only excep-tion in this regard [being] the right to free or compulsory primary education which because ofserious financial constraints cannot be ensured for the children of Swaziland during this planningperiod.”43 Free education at lower primary is a fact now in Swaziland, unfortunately in the finan-cial year of 2011/12 the government has run out of funds for this programme and teachers arethreatening to close schools due to the lack of money.The document also refers to thirteen statutes which have a bearing on child rights and protection,and while covering many aspects of the convention they were found to be deficient in certain re-spects. For example, whipping is prescribed as a punishment in the Criminal Procedure andEvidence Act (article 40), and the Adoption Act is deficient in terms of article 21 in terms of reg-ulating inter-country and inter-nationality adoption. Moreover, there is no statutory provision inSwaziland against the sexual abuse of boys.3The document also refers to customary law, noting that the fact that the husband does not have tooffer a home to his wife’s children from other men is contrary to articles 2, 18 and 27 of the con-43 The National Programme of Action for the Children of Swaziland 1993-2000. Mbabane. p.17. 29
  • 30. vention, and that the custom of the father ‘buying’ an illegitimate child from the mother with orwithout her consent can be traumatic.There are several other aspects of both Roman-Dutch and customary law which do not sit wellwith the convention. Eminent legal authorities have stated that "the system of juvenile justice inSwaziland leaves a great deal to be desired. There is urgent need, therefore, to review the systemin its entirety. . . The United Nations has settled minimum rules for the administration of juvenilejustice which it is high time Swaziland applied"4 Further, "the application of any law operatesagainst a background of a tenacious cultural background whose claims are often stronger than thecommon law imported in the colonial era."5The emergence of street children is a comparatively recent phenomenon, still puzzling to many.This is because the breakdown in social structures, including landlessness, has not yet occurredin Swaziland to anywhere near the same extent as some other developing countries. The problemis increasing all the time, as population and unemployment pressures mount. Recent publicityconcerning the plight of street children - including physical and sexual abuse, and substanceabuse by the children themselves - preceded the provision of shelter and food by a privateconcern in Mbabane. The Government of the Kingdom of Swaziland has produced a DraftNational Policy on Children Including Orphans and Vulnerable Children in Swaziland.44 In thisPolicy, child protection is identified as a key-issue. It states that child protection initiatives willbe achieved by reviewing and where necessary creating legislative frameworks on the protectionof children and by placing emphasis on the protection of children from sexual abuse andexploitation as well as pornography and trafficking. It is clear that Swaziland is acutely aware of44 2003 30
  • 31. the difficulties facing children. However, as policy, the document still does not carry the weightof law and, more particularly, is still a draft and not yet finalized.3.3.1 Assessment of the law on Juvenile Justice SystemInternational law gives substantial guidance to countries seeking to reform their legislation andpolicies concerning children in trouble with the law. The chief instruments are the CRC (Articles37 and 40),45 the Beijing Rules for the Administration of Juvenile Justice (1985) and the RiyadhGuidelines for the Prevention of Juvenile Delinquency. Other relevant instruments include theInternational Covenant on Civil and Political rights (1966), the Convention Against Torture(1984) and the 1955 Standard Minimum Rules concerning the treatment of prisoners. The keyaims of a juvenile justice system are established by reference to article 40 of the CRC, which isprincipally to ensure that the child is reintegrated into society and is able to assume aconstructive role in society. Additionally this must be achieved in manner which promotes thechild’s sense of dignity and worth, which reinforces the child’s respect for the human rights andfundamental freedoms of others, and which takes into account the child’s age. These aimsmilitate against a system which is solely punitive or retributive, and do not permit a system inwhich a lack of respect for children’s human rights is allowed to continue. At present theSwaziland criminal justice system as far as it pertains to children accused of committing crimessorely lacks a child rights centred approach as required by international instruments.45 Article 37 provides “state parties shall ensure that: no child shall be subjected to torture or other cruel, inhumaneor degrading treatment or punishment. Neither capital punishment no life imprisonment without possibility ofrelease shall be imposed for offences committed by persons below eighteen years of age; b) no child shall bedeprived of his or her liberty unlawfully or arbitrarily. The arrest detention or imprisonment of a child shall be inconformity 31
  • 32. A juvenile justice system for children is essentially a management system for children in troublewith the law that deals with issues such as age of criminal capacity, establishing age of a child,assessment, diversion, alternative sentences, legal representation, specialized courts, recordkeeping, referral of children to welfare courts if necessary, protection of children used by adultsto commit crimes, regulation of detention of children in institutions or prison.In Swaziland the Reformatories Act provides for juveniles (younger than 16 years and above 7years) and juvenile adults (between 16 and 21 years)46 to be detained in reformatories in terms ofa court order. The sentence would be not less than 2 years and not more than 5 years.47Furthermore, the period for which the juvenile would be detained in the reformatory expires onor before the date on which he attains the age of 18 years, but this does not apply to juvenileadults.The Criminal Procedure and Evidence Act48 is the main piece of legislation dealing with childrenin trouble with the law. However, it should be noted that this is not a separate child specific law,but rather applies to adults and children alike. It does distinguish between adults and children incertain limited respects, these relating to sentencing.While the Act provides for the death penalty, it prohibits the imposition of this sentence onchildren under the age of 18 years.49 In addition, the Act provides that no child under the age of14 years shall be subject to a sentence of imprisonment. The Act also provides for certain46 Section 4147 Section 4248 Repealed in 2006.49 section 32
  • 33. alternative sentences for children such as placing the child in the custody of a suitable person.50In addition, it also provides for sentences to be suspended or postponed with certain conditionsattached thereto.There is one juvenile facility in Swaziland, the Juvenile Industrial School. As of 10September 2004, there were 38 children being held at the facility, either on remand or serving asentence. The children serve a maximum of two years at the facility after which they are releasedback to the community. However it should be noted that this facility caters for only malechildren. Female children offenders share the same facility with adults at MawelawelaThe Draft Sexual Offences and Domestic Violence Bill deals with certain aspects of juvenilejustice, For example, it deals with the minimum age of criminal capacity of a child to commit asexual offence. In addition, it also deals with assessment and diversion of a child who hascommitted a sexual offence. The difficulty with this is that confusion may arise by havingdifferent pieces of legislation dealing with children in trouble with the law based on the nature ofthe offence committed.3.3.2 Corporal punishment as a way of correctionAt present Swazi law provides for corporal punishment to be used in schools, at home and as asentence to a criminal offence. The constitution states, “a child shall not be subjected to abuse ortorture or other cruel inhuman and degrading punishment subject to lawful and moderatechastisement for the purposes of correction’. However, it appears that a High Court decision has50 Section 46 33
  • 34. placed a moratorium on whipping as a sentence and the courts are no longer applying it, althoughit remains an option on the statute books.51Article 29(2) of the Constitution provides that “a child shall not be subjected to abuse or tortureor other cruel inhuman and degrading treatment or punishment subject to lawful and moderatechastisement for purposes of correction”. All provisions recognising the right to administer“moderate chastisement” should be repealed and the law should explicitly prohibit all corporalpunishment and other cruel or degrading forms of punishment, in the home, schools and all othersettings where adults have parental authority over children.Schools – Corporal punishment is lawful under the Education Act (1982) and the EducationRules (1977).52 The provisions authorizing corporal punishment should be repealed and explicitprohibition enacted in legislation relating to all education settings (public and private), inaddition to repeal of “moderate chastisement” provisions.Penal system – Corporal punishment is lawful as a sentence for crime under the CriminalProcedure and Evidence Act (1938).53 The Courts Act (1950) allows the court to impose anypunishment recognized by Swazi law and custom, provided it is not repugnant to natural justiceand humanity, but this is not interpreted as prohibiting corporal punishment. Corporalpunishment is lawful as a disciplinary measure for males in penal institutions under the PrisonsAct (1964) and possibly the Reformatories Act (1921). R v. Nhlanhla Dlamini54 the accused was51 Interview with Magistrate Gama, Manzini Magistrates Court, 14 September 200452 Appendix B provides for the procedures for punishing students.53 Sections 307 and 30754 (1987-1995) SLR Vol 4. 34
  • 35. convicted for robbery and sentenced to whipping at a Magistrate court in Nhlangano. Theprovisions authorising corporal punishment should be repealed and explicit prohibition enactedin legislation relating to all forms of justice and all institutions accommodating children inconflict with the law.Alternative care settings – Explicit prohibition should be enacted in legislation applicable to allalternative care settings, including public and private day care, residential institutions, fostercare, etc, in addition to repeal of “moderate chastisement” provisions.3.3.3 Age of majoritySection 2 of the Age of Majority Act, 1853, establishes the age of majority as 21 years of age.Both the CRC55 and the ACRWC56 set the upper age of childhood at 18 years of age. Theproposed Sexual Offences and Domestic Violence Bill, in section 1, define a child as a personunder the age of 18 years. Internationally there is a move towards setting this age at 18 years.Again one needs to have regard to universally accepted norms especially to ensure consistency ofpractice in a very important area – the determination of childhood. However, a seemingly simpledetermination of the age of majority is clouded by the application of culture and customary law.Lloyd states as follows in this regard:‘It would seem that the definition of a child differs from one culture to another. In literate societ-ies adulthood is usually ascribed when a person reaches a predetermined age. The transitionfrom childhood is therefore fixed at an age when a person is presumed to be capable of conduct-ing himself as an adult. In preliterate societies, such as Africa, the definition of childhood and55 Article 156 Article 2 35
  • 36. the rights guaranteed by virtue of such status becomes a little more complicated. Age sets inAfrica is a common way of denoting human beings’ rights and duties, actual age is often difficultto deduce. Cessation of childhood is often established through initiation programmes, when oneis thought to have acquired sufficient maturity. Each status carries with it various rights, dutiesand privileges.”57However, again one needs to have regard to universally accepted norms espe-cially to ensure consistency of practice in a very important area – the determination of childhood.There is a conflict between the provision of the Age Majority Act and customary, as under cus-tomary law puberty is considered the age of marriage. The trend has been seen with the kingmarrying young girls583.3.4 Maintenance of children in SwazilandThe maintenance of children is governed by the Maintenance Act 35 of 1970. This provides theprocedures to secure the payment of maintenance, which includes the appointment ofmaintenance officers, investigations and also governs the payment of maintenance arising fromcustomary marriages.A study was undertaken by WILSA into maintenance in Swaziland which indicated that althoughmaintenance of children problems are widespread most women do not do anything to solve theproblem.59 The Report goes on to give reasons for this inaction:60 • Lack of knowledge of the law • Practical difficulties in bringing a case to court57 55 Lloyd, ibid, p2958 Inkhosikati LaDube who was a Miss Teen Swaziland finalist at age 16, pupil at Mater Dolorosa High School in2004 and Married the king 11 June 2005 and Inkhosikati Lankhambule who married the king at 1759 1992 ‘Maintenance in Swaziland’ Women and Law in Southern Africa Research and Educational Trust, January1992, piii (hereafter referred to as WILSA Maintenance Report)60 At piii 36
  • 37. • Attitudes that influence maintenance law- social pressures against bringing a man to court, fear of violence, fear that the man will take the child, fear of witchcraft that will harm the child and a lack of confidence in the court system There is no law that compels the husband to maintain the wife’s children from a previous relationship.It would appear therefore that the problems in relation to maintenance of children generally stemfrom a bad application of the law as well as a lack of knowledge and sensitization to the issuesthat stem from failure to pay maintenance. In order to correct this it is suggested that a majorawareness campaign aimed at all Swazi citizens be initiated in order to explain the law,procedures and the implications of a failure to claim and pay maintenance for the child. Inaddition, the procedures and resources needed to ensure an effective maintenance system withinthe courts is needed.3.3.5 Child and sexual AbuseChildren are prioritized as one of the most vulnerable groups in society, in need of specialprotection. This has been made evident through Swaziland’s ratification of the United NationsConvention on the Rights of the Child (CRC) and the inclusion of a dedicated children’s rightssection in the national Constitution. As such when they are placed at risk of abuse or actuallyabused, whether physically, sexually or psychologically, certain obligations are brought to bearon the State through its various functionaries. However, the need to protect children has precededthese new obligations and can be seen from Swaziland’s ordinary criminal law provisions thatderive from common and statutory law. 37
  • 38. There needs to be laws that form a protective mantel around children to ensure that where theyare at risk of abuse or being abused, there are sufficient mechanisms to protect them. However,these mechanisms need to be enforced and thus various state officials, such as the police andcourts need to have specific duties and obligations to ensure that children are adequatelyprotected when in need of such protection and care. Swaziland has two pieces of legislation thatdeal with the issue of sexual abuse of children. These are the Girl’s and Women’s Protection Act39 of 1920 and the Crimes Act 1889. From the outset, it must be noted that these two laws arevery outdated. This has serious implications for the protection of children, particularly when welive in an age when crimes against children have become more sophisticated and more brutalthan could ever have been imagined. Section 3(1) of the Girls and Women’s protection Actprovides that Every male person who has unlawful carnal connection with a girl under the age ofsixteen years or who commits with a girl under that age immoral or indecent acts or who solicitsor entices a girl under such age to the commission of such acts shall be guilty of an offence andliable on conviction to imprisonment not exceeding 6 years with or without whipping notexceeding 24 lashes and with or without a fine not exceeding one thousand Emalangeni inaddition to such imprisonment and lashes.This section is discriminatory against boys. The provision goes further in section 3(3) to allowthe court deciding such a matter to determine a girls age from her appearance should there beinsufficient evidence to determine it. In R v. Makhanya61 the accused was convicted for raping a12 years old girl and sentenced to 5 years term in prison, the magistrate since there was noevidence to prove that the accused was 15 years nine months, estimated the accused age to be 18years even though a relative testified that the accused was 15 years. Furthermore, section 3(3)61 Criminal case no 7/1994 Nhlangano Margistrate Court 38
  • 39. provides defences to such an offence – one of which is that at the time of the commission of theoffence the girl was a prostitute. This therefore means that prostitution is allowed in Swazilandespecially for girls under the age of sixteen.Where a child has suffered a physical or sexual assault, the criminal law comes into play.The perpetrator is charged with the commission of the particular offence e.g. rape or assault withintent to cause grievous bodily harm, and criminal procedural protections ensue, such as therefusal of bail or the application of a minimum sentence if the perpetrator is convicted of theoffence. In this instance the perpetrator can be known to the child (a parent or family member) ora stranger.The new Sexual Offences and Domestic Violence Bill provide the criminal and civil lawprotections for children who are victims of abuse.The proposed Domestic Violence section in the Sexual Offences and Domestic Violence Bill hascreated a new civil law avenue for victims of domestic violence to seek protection. In terms ofthe proposed Bill, the same protections that apply to adults apply to children who are victims ofdomestic violence. As stated, this is more of a pure civil remedy than a welfare response. It ispremised on the fact that there is a definite perpetrator of domestic violence and that the childand/or one of its parents is the victim, but that the child does not have to be removed from the“victim” parent’s care. It does not contemplate that the situation of domestic violence may be ofsuch a nature that the child should be removed from the parent or caregiver’s care. However, this 39
  • 40. may be occasionally necessary and then there is an overlap between the civil law and welfarelaw.The Crimes Act in Part V of the Crimes Act which criminalizes a parent or guardian for receivingcompensation in relation to the prostitution of his or her child;62 creates an offence for inveiglingor enticing a girl who is not a common prostitute for the purposes of prostitution63 andcriminalizes a person for procuring any girl to become a prostitute.64The Government of the Kingdom of Swaziland has produced a Draft National Policy on ChildrenIncluding Orphans and Vulnerable Children in Swaziland.65 In this Policy, child protection isidentified as a key-issue. It states that child protection initiatives will be achieved by reviewingand where necessary creating legislative frameworks on the protection of children and by placingemphasis on the protection of children from sexual abuse and exploitation as well aspornography and trafficking as, at present, Swaziland has no laws that criminalize childpornography and trafficking. However, a policy document is not law and does not bindgovernment to anything nor hold her accountable for failure to deliver on the policy (Speciallysince Swaziland in not a democracy, even the elections process cannot hold governmentaccountable to the electorate). It is for this reason that comprehensive laws protecting childrenfrom abuse, particularly sexual, emotional and physical abuse, are so necessary and urgent.62 Section 41(1) (b)63 Section 42 (b)64 Section 42 (c)65 2003 40
  • 41. 3.3.6 Succession or inheritance for illegitimate childrenThandeka, a fourteen-year-old girl, was orphaned in 2003 when her mother, an unmarriedwoman who was living at her parental home with her children, died of AIDS. Thandeka’s motherwas an active member of the organization, Swazi Positive Living (SWAPOL). After hermother’s death, Thandeka’s maternal uncles chased her and her sisters from their home and toldthem to go to their father’s home. But the children did not know where he stayed. Eventually, thechildren were “adopted” by one of the community members (Izumi 2006c: 16). This case revealsthe particular property and inheritance problems of orphans born to unmarried mothers insocieties that adhere to customary practices of patrilineal succession, like Swaziland. In suchSwaziland, unmarried women in Swaziland can be given a piece of land to build a house at theirbirth homestead. But their do not have land rights only privileges that depend upon theavailability of land/houses and the good-will and generosity of the male homestead members(their father, uncles, and brothers). These women’s land rights also depend on the presence of ason among their children who can claim land inheritance rights. Another interesting aspect ofthis case is that Thandeka and her siblings were adopted by a community member rather than bytheir own relatives. This case serves as a testament to the fact that community members oftenintervene to care for orphans as well as to the associated argument that such communitymembers should be assisted with their efforts.Wife inheritance (kungena)66 was a common traditional practice which was designed to ensurethat a widow and her children continue to have access to the family resources. This was to cir-cumvent difficult inheritance issues and to ensure that there is male figure that promotes and pro-tect the widow’s interest.66 A brother or cousin can take as wife the wife of deceased brother or cousin. A practice that is no longer populardue to the HIV/AIDS epidemic and the spread of Christian and urban values 41
  • 42. 3.4 Swaziland’s obligation on the Rights of the Child ConventionAs a party to the CRC Swaziland needs to make sure that laws relating to child’s rights are com-patible with the CRC. Laws relating to children’s rights are reflected in various pieces of legisla-tion, thus making it very hard to recognize rights for children. Swaziland’s obligations under theConvention on the Rights of the Child are to provide fundamental human rights as appropriate tochildren. The reports of the King’s 14-year-old son undergoing advanced military training67 inLibya may be a breach of Article 38 of the Convention if this training is a form of military re-cruitment.3.5 The sentencing of offenders by the authorities The absence of a clear definition of a child conforming to the Convention on the Rights of the Child brings about a problem as to who is a child. All the existing statutes relating to children define a child differently. The 1964 Marriage Act: sets the marriageable age for men at 18 years, and women at 16,68 this means that According to Swazi customary law if a girl has reached puberty she can be married. Puberty has no age thus a fifteen years old girl can be married. It has become a practice that Swazi man will impregnate young girls (below the age of sexual consent) and later marry them or pay a fine in form of cattle for the offence under customary law.69 Rape is common in Swaziland, though punishable by law most men take it as a minor offence. Children are also victims of rape and perpetrators are punished by the law if the case is reported. There have been so many incidents of statutory rape which in most cases are not reported to the police as parents will negotiate with the perpetrator to pay a stipulated fine in form of cattle or equivalent cash as per the Swazi custom.67 Times of Swaziland68 Section 1369 In 2003 the Swazi Observer reported a case of a high school teacher who impregnated two girls and later marriedthem (under customary law) to evade going to prison. 42
  • 43. There is an absence of laws to combat child trafficking. Swaziland does not have a legislation that prohibits trafficking; however it is punishable as abduction. As party to the convention on the right of the child Swaziland needs to enact legislation that will combat child trafficking since it’s a global problem and prohibited by the convention. Children are trafficked from Swaziland to South Africa mostly to work in the farms and for prostitution. Swaziland is a source, destination, and transit country for woman and children trafficked nationally and transnational for the purposes of commercial sexual exploitation, domestic servitude, and forced labour in agriculture. 70 There are no provisions in the penal law criminalizing child prostitution, with the limited exception where parents facilitate the prostitution of their child. There are no laws on child pornography. Minimum standards of care for children in institutions are lacking.There is no law protecting children from stigma and discrimination due to HIV/AIDS. Existingstatutes relating to children in conflict with the law do not provide for a separate child justicesystem. ‘Child victims and witnesses’ denote children and adolescents, under the age of 18, whoare victims of crime or witnesses to crime regardless of their role in the offence or in the prosec-ution of the alleged offender or groups of offenders.71Access to basic services for orphans and vulnerable children is not provided for in legislation.There are no legal processes for dealing with children in need of care and protection arising fromabuse, neglect or abandonment and therefore no legal oversight of the interventions undertakenwith them.70 A Report by the US state department on trafficking in persons, June 2009.71 United Nations Guidelines 43
  • 44. 3.5Conclusion remarksLegal systems are particular ways of establishing and maintaining social order. Law is a formalmechanism of social control. The state must ensure that the protection of child rights is realizedand respected by all citizens; this can only be achieved by enacting proper legislation that willguarantee child protection in the country. Child laws are enacted to recognize children”developing beings whose moral status gradually changes” thus demanding a realisticunderstanding of their interests within their families and the larger social context.72It is evident that whilst there is legislation pertaining to children in Swaziland, a number ofproblems can be identified. The laws are fragmented and not easily accessible to those chargedwith their implementation. It should be noted that most of these laws are outdated therefore donot cover some of the crimes affecting children for example child pornography and childprostitution. The existing laws are very weak when it comes to child protection. There is a needfor Swaziland to enact laws which will fully protect the rights of children.72 Introduction to philosophical views of children: a brief history in the moral and political status of children (DavidArchard and Colin Macleod eds,2005) 44
  • 45. Chapter four4.0Conclusion and Recommendations4.1ConclusionThe purpose of the research has been to look at the problems caused by the lack of a singlecomprehensive statute relating to children in Swaziland. The motive was to see whether theabsence of a comprehensive statute for children.It has been 11 years since Swaziland’s ratification of the CRC and while there have been certainpolicies introduced, e.g. the Draft National Policy on Children including Orphans and VulnerableChildren in Swaziland and the Children’s Unit, these have not even been implemented and theformer is still in draft form. There are some serious difficulties with the Swazi Constitution –although including a separate section on children it fails to form the constitutional basis for thedomestication of the CRC. So until 2005, there is little movement towards the harmonization ofSwazi laws with the CRC. It is unclear why this passivity prevailed, but it is notable that none ofthe international instruments ratified by Swaziland have been domesticated into nationallegislation. Currently laws relating to child protection are scattered in different statutes and theydo not comply with international instruments. The country does not have a single comprehensivestatute that will provide procedures and guidelines as to the protection of children. This makes itvery hard to deliver effective justice in dealing with issues relating to child protection.Swaziland’s formal way of dealing with child abuse occurs in the criminal system. Outside the 45
  • 46. criminal system, the chiefdoms are responsible for the wellbeing of children who have beenabused or neglected. There are no specific statutes or case laws governing child protectiveproceedings.Failure to protect children undermines national development and has costs and negative effectsthat continue beyond childhood into the individual’s adult life. While children continue to sufferviolence, abuse and exploitation, the world will fail in its obligations to children; it will also failto meet its development aspirations as laid out in such documents as the millennium agenda withits millennium development goals. The dual system of law in Swaziland also makes it difficult tocomply with international instruments. Under civil common law, the laws are stipulated andclear whereas under Swazi customary law, the laws are fluid they are not codified.Apart from this failure to comply with international obligations, Swaziland has experienced great 73political upheaval and legal uncertainty, highlighted by a number of international reports. Thecontroversy has involved a range of issues such as government failure to respect court rulings,the resignation of the Court of Appeal and forced evictions of two Chiefs and their families fromtheir homesteads to be replaced by one of King Mswati III’s brother.From the problems which were identified in the study it is obvious that the Swazi child’s rightsare not fully protected by the state. The multiple legislations relating to children bring confusionas to who is a child. The dual system of government also makes it difficult for the legislators as73 2003, Swaziland: Law Custom and Politics: Constitutional Crisis and the Breakdown in the Rule of Law, AnInternational Bar Association Human Rights Institute Report, March 2003 and Swaziland: Human rights at risk in aclimate of political and legal uncertainty Amnesty International, July 2004 46
  • 47. some customary law issues are too sensitive to be discussed.74 Swaziland has no better opportun-ity to do this than now. If it does not tackle these problems it will not only continue to face re-gional and international disapproval; its people will suffer. In March 2003, a suspect at ZakheleRemand Centre was denied freedom despite the fact that he had obtained a liberation warrantfrom a court of law. That suspect was 15 years old. There should be a clear constitutional or stat-utory provision acknowledging and clarifying the relationship between, and the status of, Ro-man-Dutch common law and customary law in Swaziland.75 This should be done with an under-standing that both sources of law are dynamic.The research finding shows that the existing laws on child protection and child rights do not fullyprotect the Swazi child. In relation to the commission of offences against children – laws to pro-tect children from exploitation, domestic violence and abuse are not well articulated and do notsufficiently protect children as victims and witnesses. Definitions of the range of offences (e.g.indecent assault, sexual abuse, and abuse and neglect generally require more substantive defini-tion to give effect to Articles 19 and 34 of the convention76. In the field of child labour, legisla-tion exists, but does not define what hazardous labour is nor does it list those occupations whichare regarded as the worst forms of child labour. In addition, new International Labour Organiza-tion treaties, which Swaziland has ratified, need to be given effect to in Swazi law.• Inter country adoption needs to be legislated on if for no other reason than to strengthen traf-ficking laws. Adoption Act is deficient in terms of article 21 in terms of regulating inter-countryand inter-nationality adoption.74 The King is fond of marrying young woman75 Swaziland – Law, Custom and Politics March 2003 pg 5776 The Convention on the Rights of the Child of 19 47
  • 48. • Inheritance rights reveal a potential conflict between customary law and civil law, the formerpromoted inheritance by adult family members instead of descendant children. As a result chil-dren find themselves homeless and their homes taken by greedy uncles, especially if both parentshad died.The procedural system for dealing with children in trouble with the law is weak and does notmeet the standards set by Articles 37 and 40 of Convention on the Rights of the Child. Under theSwazi courts where there is no legal representation and the procedure in these courts is that acriminal suspect is guilty until proven innocent as opposed to modern common law courts wherethe accused is innocent until proven guilty.774.2 RecommendationsHaving seen that the Swazi government has realized that children have rights by signing thedifferent instruments which deals with issues affecting children the following recommendationsare made; 1. There is a need for Swaziland to conduct a thorough analysis of all child law regime and then harmonize them to the international conventions and also for the country to signed and ratified some of the international conventions 2. Swaziland need a detention facility for juveniles, in particular girls, are detained together with adults; 3. Swaziland needs to develop a specific criminal procedure act for child offenders77 Language, gender and power relations in Swazi National Courts: a discourse based analysis by NkhosingphileDlamini 48
  • 49. 4. There is a need for the develop further development of the children courts, that is ad- equately resourced and run by trained professionals 5. The divorce act need to be relooked and the protection of the rights and well being chil- dren be firmly enshrined 6. The birth registration law should expand the definition of a birth to cover the new phe- nomena of artificial semination and other modern artificial births 7. The customary laws that are not for the good of the child, must be specifically prohibited by law 8. The rights of children must be protected by a comprehensive children Act 9. Swaziland needs to take practical steps to respond to the concerns of the international community on some of the laws, especially the corporal punishment and evolving. Ideally, neither ought to be superior to the other.7878 Swaziland Law, Custom and Politics: Constitutional Crisis and the Breakdown in the Rule of Law, An Interna-tional Bar Association Human Rights Institute Report March 2003.pg 57 49
  • 50. BIBLIOGRAPHYBOOKS 1. Argawal Dr H.O, international law and Human Rights, 16th edition, Central Law Publications 2001 2. Bennet T.M, Customary Law in South Africa, MSP Printers 2004 3. Brownlie Ian, Principles of Public International Law, 6th edition, Oxford University Press 2003 4. Buck Trevor, International Child Law, Cavendish Publishing 2005 5. Powell Richard, Child Law, Waterside Press 2001ARTICLES 1. Gallinetti Jacqui, Harmonization of laws relating to children in Swaziland, African Child Policy Forum 2004 2. Mzizi Joshua, Human Rights in Swaziland, 2003 3. Swaziland Law, Custom and Politics: Constitutional Crisis and the Breakdown in the Rule of Law, An International Bar Association Human Rights Institute Report March 2003. 50
  • 51. 4. Introduction to philosophical views of children: a brief history in the moral and political status of children (David Archard and Colin Macleod eds,2005) 5. 1992 ‘Maintenance in Swaziland’ Women and Law in Southern Africa Research and Educational Trust, January 6. J Sloth Nielsen ‘Ratification of the Convention on the Rights of the Child: Implications for South Africa’Newspapers 1. Times of Swaziland 2. Swazi ObserverWEBSITES 1. Retrieved on 20 January 2011: http://www.box.net./acpfpublications/1/4/7718778 2. www.africanchildforum.org 3. www.savethechildren.co.zaSTATUTES 1. The United Nations Convention on the Rights of the Child 1989 2. The United Nations Charter, 1945 3. Constitution of Swaziland 2005, 4. The Age of Majority Act 1853, 5. The Criminal Procedure and Evidence Act (1938) [R.E 2005] 6. Child care service Order no 30, of 1977 51
  • 52. 7. Concealment of Birth Act no 5 of 1943 8. Interstate succession Act no3, of 1953 9. Maintenance Act no 35, of 1970 10. Maintenance Orders Act no 77, of 1921 11. Maintenance Orders Reciprocal Enforcement no 77, 1921 12. Marriage Act no 47, of 1964 13. Police Act no 29, of 1957 14. Prison Act no 40, of 1964 15. Public Act no 12, of 1955 16. Windows and orphans Pension Act no 35, of 1966 17. Wills Act no 12, of 1955 18. The Reformatories Act of 1921 19. Adoption of Children Act 1952 20. Girls and Women’s Protection Act no 31, 1924CASES 1. R v. Mngomezulu 1977/78 SLR at 159. 2. R v. Nhlanhla Dlamini (1987-1995) SLR Vol 4 3. R v. Makhanya criminal case 7/1994 Nhlangano Margistrate Court (unreported). 52
  • 53. TUMAINI UNIVERSITY MAKUMIRA UNIVERSITY COLLEGE FACULTY OF LAW RESEARCH PAPERTOPIC: THE ABSENCE OF A SINGLE COMPREHENSIVE CHILDREN’S ACT INTHE EFFECTIVE DELIVERY OF JUSTICE AND THE PROTECTION OF CHILDRIGHTS IN SWAZILAND.RESEARCHER: KHANYISILE LUKHELEREG, NO: TU/M/LLB/08/770SUPERVISOR: DR MATHIAS SAHINKUYEA COMPULSORY RESEARCH PAPER IN PARTIAL FULFILMENT OF THEREQUIREMENT FOR THE BACHELOR OF LAWS AT TUMAINI UNIVERSITY. 53