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TABLE OF CONTENTS

1.0 Introduction...........................................................................................................................................4

1.2 Background of the problem ..................................................................................................................6

1.3 Statement of the problem.....................................................................................................................8

1.4 Objectives............................................................................................................................................10

1.5 Hypothesis..........................................................................................................................................10

1.6 Significance of the research.................................................................................................................12

1.7 Limitation............................................................................................................................................12

1.8 Literature review ................................................................................................................................13

1.9 Scope of the research.........................................................................................................................15

1.10 Research methodology......................................................................................................................16

                       ..........................................................................................................................................16

CHAPTER TWO ..........................................................................................................................................17

2.0 THE LEGAL FRAMEWORK ON THE PROTECTION OF CHILDREN’S RIGHTS IN SWAZILAND....................17

2.1 INTRODUCTION....................................................................................................................................17

2.3 INTERNATIONAL, REGIONAL AND NATIOAL LEGAL FRAMEWORK ON CHILD PROTECTION.................19

2.3.1 United Nations Convention on the Rights of the Child, 1989...........................................................19

2.3.1.1 The four pillars of the Convention on the rights of the child.........................................................20

2.3.2 The United Nations Charter, 1945....................................................................................................22

2.3.3 International Covenant on Civil and Political Rights, 1966................................................................22

2.2.4 ILO Minimum Age Convention (C138) in 1997 and the Worst Forms of Child Labour Convention . .23

2.3.5 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
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...................................................................................................................................24

2.3.6 Child protection under laws in Swaziland.........................................................................................24

                                        ........................................................................................................................26

   CHAPTER THREE.....................................................................................................................................26

3.0 DATA ANALYSIS, INTERPRETATION AND DISCUSSION..........................................................................26

3.1Introduction ........................................................................................................................................26

3.2 Area of Study.......................................................................................................................................27

3.3 Existing problems faced by children in Swaziland................................................................................29

3.3.1 Assessment of the law on Juvenile Justice System...........................................................................31

3.3.2 Corporal punishment as a way of correction....................................................................................33

3.3.3 Age of majority.................................................................................................................................35

3.3.4 Maintenance of children in Swaziland..............................................................................................36

3.3.5 Child and sexual Abuse.....................................................................................................................37

3.3.6 Succession or inheritance for illegitimate children ..........................................................................41

3.4 Swaziland’s obligation on the Rights of the Child Convention.............................................................42

3.5Conclusion remarks .............................................................................................................................44

Chapter four .............................................................................................................................................45

4.0Conclusion and Recommendations.......................................................................................................45

4.1Conclusion ...........................................................................................................................................45

4.2 Recommendations ..............................................................................................................................48

                              BIBLIOGRAPHY...........................................................................................................50

BOOKS.......................................................................................................................................................50

ARTICLES....................................................................................................................................................50

Newspapers...............................................................................................................................................51

                                                                               2
WEBSITES...................................................................................................................................................51

STATUTES...................................................................................................................................................51

CASES.........................................................................................................................................................52




                                                                               3
1.0 Introduction

Every child deprived of his/her liberty shall have the right to prompt access to legal and other

appropriate assistance, as well as the right to challenge the legality of the deprivation of his or

her liberty before court or other competent, independent and impartial authority and to a prompt

decision on such action.1Children are part of the national vulnerable populations that need

protection from harm through an effective and comprehensive law. Media reports of increasing

incidents of children being abused by relatives, by strangers, minders and even parents. The

harm 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, depends

on a global movement, in which everybody understands and respect their duties and

responsibilities to children and ac, upon them. The United Nations and its organs, the

International Labor Organization and other supra state organs have played a key role in the

promotion of children’s rights through national and international laws. Children’s rights are

recognized 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 the

Child (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 international

instrument giving independent human rights to children by putting into place international

children’s rights and standards. It is a universal and legally binding instrument to all the states

which 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 of

1
    Article 37 the United Nations Convention on the Right of the Child paragraph (d).
                                                           4
children, so far child laws are scattered in different statutes. This has resulted in some rights of

children being overlooked and infringed. The absence of a comprehensive national legal

instrument consistent with international conventions on child rights impacts directly on child

rights promotion and protection. When laws are arranged systematically in a written form, that is

codification, rule becomes distinct and easily ascertainable and it becomes easier for the courts

and tribunals to apply them2. This does not mean that problems on child rights can be solved

only 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 of

justice. 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. This

research report seeks to highlight the problems caused by the absence of a single comprehensive

children’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 elucidates

that child protection addresses every child’s right not to be subjected to harm. It completes other

rights that inter alia, ensure that children receive what they need in order to survive, develop and

thrive.




2
  Dr avtar Singh and Dr Harpreet Kaur; Introduction to jurisprudence,3rd ed,2009 pg 54
3
  Ibid pg55
4
  UNICEF 2004
                                                        5
1.2 Background of the problem

The concept of child rights dates back from the 1923 with the declaration on the Rights of the

child, 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 as

the basis of the Convention on the Rights of the Child 1989. Child rights are human rights of

children with particular attention to the rights of special protection and care afforded to the

young. A child is any human being below the age of eighteen, unless under the law applicable to

the child, majority is attained earlier5. Children are often in the frontline of vast change. The

breakdown of family structures due to several factors that include increase of divorce (one of the

evidences of changes that negatively impacts on the protection of children from harm), the

family is the first line of protection for children. In Swaziland the phenomena of child headed

household has emerged due to the impact of adult deaths through the HIV/AIDS epidemic and

the breakdown of the family structure. This has created problems in the ability of society and the

community to protect its children. In Swaziland so many children’s rights have been violated due

to the lack of a single comprehensive statute. There have been so many media reports on cases of

statutory rape of students by their teachers who later marry them (under customary law) because

under Swazi customary law puberty determines the age of marriage to girls. The Intestate

Succession Act6 regulates who is entitled to inherit the estate of a deceased person who has failed

to affect a valid will. This piece of legislation, in relation to children, is extremely discriminatory

as only legitimate children can inherit from the estate of a father. Illegitimate children are only

entitled to inherit from the estate of their mother.



5
    The Convention on the Rights of the Child 1989.
6
    3 of 1953
                                                      6
These problems are intensified by the absence of a strong and effective social protection system

including the lack of professional social work and protection services to support all vulnerable

children from abuse, neglect and exploitation. A coherent child protection system is needed,

including comprehensive legal and regulatory framework and a social welfare system to ensure

children 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 and

ratified the convention in 1995. However, Swaziland made a declaration at the time of

ratification of the convention that the implementation of its obligation in relation to the right to

education must be achieved progressively and that Swaziland would strive for full compliance as

soon as possible. By ratifying the convention Swaziland was expressing its commitment to

implement its provisions, this means that Swaziland has an obligation to fulfill under article 4 of

the convention,7 which provides that state parties shall undertake all appropriate legislative,

administrative and other measures to economic, social and cultural rights, state parties shall

undertake to the maximum extent of their available resources and where needed, within the

frame of international cooperation. Therefore Swaziland is obliged to domesticate the provisions

of the convention in compliance to article 4. Laws relating to children and child rights in

Swaziland are currently scattered in different statutes.      Swaziland has not yet fulfilled its

obligation to the convention. The existing laws’ relating to children violates the key provisions

of the convention, for example section 408 prescribes whipping as punishment.




7
    The Convention on the Rights of the Child 1989
8
    The Criminal and Evidence Act 2005
                                                     7
1.3 Statement of the problem

Swaziland is using two systems of laws these are Swazi customary laws (which is not codified

and 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 constitution

also protects the use and the existence of the Swazi customary law. The civil common law is

embedded in Statutes. Swaziland does not have a single comprehensive child statute regulating

on child laws that is, there are no specific statutes or case laws governing child protective

proceedings. National laws relating to children do not reflect the four pillars of the convention on

the 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 participate

in matters affecting them ( article 12).9 Laws relating to children are scattered and fragmented in

a number of statutes; the Constitution 2005, the Adoptions Act 1952, the Marriage Act, the

Age 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( which

is fluid) and other legislations.


Swaziland ratified the United Nations Convention on the Right of the Child, and its principles

incorporated in the National constitution but there is no national legislation that makes its effect

in Swaziland and therefore not applicable to Swazi courts. This creates problems in the

effectiveness and adequacy of children’s rights protection. International conventions do not

apply directly; international laws need to be ratified and introduced to the national legislation

before 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
Mngomezulu10 where the court held that unless international treaties are incorporated into local

law it confers no right to a citizen of Swaziland. The Convention has not been incorporated into

local law thus protection of the rights of the Swazi child is nothing when it comes to the

convention. The convention has not been fully implemented since its ratification fifteen years

ago. Most of the existing laws are old laws which were passed during colonial times and some of

them have not been repealed thus making them inconsistent with the convention. Swaziland has

not ratified the Palermo Protocol or the UN Optional Protocol to the CRC on the Sale of

Children, Child Prostitution and Child Pornography.


The absence of single comprehensive Act to protect the rights of children brings about problems

in the effectiveness of justice delivery. The absence of a single comprehensive child statute is

making protection of children’s rights difficult in Swaziland. Gallinetti and Kassan11 said “the

laws are fragmented and not easily accessible to those who are responsible for its

implementation.” 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 child

justice system. There are no legal processes for dealing with children in need of care and

protection arising from abuse, neglect or abandonment and therefore no legal oversight of the

interventions to undertake with them. There are no laws to combat child trafficking and child

pornography. There are no provisions in the penal law criminalizing child prostitution, with the

limited 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
1.4 Objectives

The 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 Hypothesis

The purpose of the study is to determine the negative impact in the implementation of justice in

the protection of children in Swaziland due to the absence of a comprehensive child law in

Swaziland. The hypothesis for the research is: -


Children are not able to receive adequate justice due to the absence of a single

comprehensive child law in Swaziland


Laws are the foundation of social order and central to the promotion, protection and defense of

child rights and welfare. They articulate the society’s vision and define individual rights and



                                                   10
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 five

techniques for the use of law, which are; i) remedy of grievances among the society, ii) they act

as a penal instrument, which prohibits and prosecute forbidden behavior, iii) promote certain

defined activities, iv) managing various governmental activities for public benefits and lastly to

give effect to certain private arrangements in the society. In the absence of reliable and

comprehensive information detailing with the scale, modes, strategies or impact of child rights in

Swaziland, the ratification of the two most critical international instruments governing the rights

of the child is useless. There is a need for Swaziland to enact a single comprehensive statute to

regulate on the rights of children which must comply with other international instruments. No

child should be left without care and protection.


This makes the protection of children ineffective. This study analysed the existing laws relating

to children in order to find out what are the problems that are caused by the absence of a single

comprehensive children’s Act in Swaziland. Although it is laudatory that Swaziland has a

constitution that pronounce on the rights of her citizens and particularly gives cognizance to the

fact that children have additional rights that seek to ensure their protection and well being, it is

unfortunate that the constitutional provisions do not give more substance to Swaziland’s

obligation under the Convention on the Right of the Child1989.13 There seems to be a problem

with the application of the Swazi law and customs since many Swazi people prefer this law more

than the common law. The Swazi customary law since it the commonly a used law affects the

rights and protection of the child. Under this law the definition of a child is very discriminatory

especially to girls; a girl can be married under customary law if she has reached puberty (which

12
     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
varies from child to child). Boys are allowed to get married when they have attained appropriate

maturity. 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 research

This study discusses at length the problems that are experienced by law enforcement agencies in

their duties to provide protection for children due to the absence of single comprehensive child

legislation. The study interrogates the content of laws in Swaziland that are established for the

purpose of protecting the Swazi child from harm, their compliance and adherence to the

principles of international law. In study further analyses the contradictions that exist between the

two sets of laws applicable in Swaziland. It examines the law, practice and at the end

recommends different methods for the effective promulgation and operationalisation of a single

comprehensive statute for children in Swaziland. The problems highlighted above, the

weaknesses and suggestions revealed in this study facilitate in the enlightenment of policy

makers that advice parliament of law reform and promulgation. This will help in guiding law

makers (senior government officials and elected officers) to make informed decisions in the field

of child rights. A coherent child protection system is needed, including comprehensive legal and

regulatory framework and a social welfare system to ensure children are being served at the

national and local level.


1.7 Limitation

Time and financial resource are the major limitations for the study. The researcher used personal

funds and resources to conduct the research. Swaziland has not digitalized its legal records so the

internet is not an effective tool for the excavation data in the form of literature, although it is

                                                12
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. Government

functionaries exercise self-censorship and caution in responding to questions that have policy

and political implications. This imposed some limitation in the soliciting of primary and

secondary data, informants were not open to frank assessment of their organisations and their

activities.


1.8 Literature review

The literature review on this research was based on the reading of primary and secondary

materials dealing with laws relating to children in Swaziland. These consist of statutes, law

reports, books, newspapers and the internet. The literature review is aimed at bringing out ideas

which could be taken into account in looking at the problems affecting child rights and child

protection in Swaziland. The Attorney General office and the Mbabane City officer provided

access to legal documents and statutes.


T .M Bennet14: discusses about the application of customary laws in its relevance in the African

societies. Swaziland is currently using dual systems of law that is customary law and common

law. The Swazi customary law is the mostly preferred law in the Swazi society especially when

it 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 the

importance of having laws in the society. He also provides a great deal in showing how laws

should be made and why we need to have laws. The book states how laws should change with

time and how they relate to the changing society.

14
     Bennet T.W Customary Law in South Africa,2004
15
     Dr avtar Singh and Dr Harpreet Kaur; Introduction to jurisprudence,3rd ed,2009.
                                                          13
Trevor Buck16 in his book helps in providing the concept of child law at international level. His

book provided a clear picture of the key issues of child law and its universality in international

law. He discussed the duties and obligations of states in the protection of child rights and the

relevance of international instruments which advocates for the protection of child rights, which

are 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 or

mechanisms to be used in the protection of child rights. He discusses on the appropriate legal and

administrative systems for the protection of the rights and welfare of the child. Children need

safeguards and protection separate from those of adults which has largely impacted both

domestic and international law. This has encouraged African governments to ratify numerous

international 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 their

domestic laws. The dualist theory provides that international law and domestic law are two

distinct laws. Whereas the monist theory provides that international law should be superior to

domestic law, this theory supposes that international law and national law are simply two

components of a single body of knowledge called law. International law cannot work without the

co-operation and support of the national legal system.


Buhle Dube and Alfred Magagula19 in their research they wrote on the systems of laws in

Swaziland and the application of laws, both the customary and the civil common law which are

used in the Swazi courts. They explained on how the arms of the government work in Swaziland.


16
    Trevor Buck, International Child Law,2005
17
   Richard powell, 2001, Waterside Press.
18
   Ian Brownlie, 6th edition,2003 Oxford University Press.
19
   The Law and Legal Research in Swaziland 2007.
                                                         14
Jacqui Gillinetti20 explains the concept of child rights in Swaziland and the need to harmonize

laws relating to children in Swaziland. He addressed the issues affecting children’s rights in

Swaziland and how the Swaziland government responds to child rights issues. He explored the

rights of the child in Swaziland and the obligation of Swaziland on the convention on the rights

of the child.


From the literature review above it is clear that many writers have expressedviews on child

rights, its importance and the issues affecting child rights. There a vivid silence on the problems

caused by the lack of a single statute that regulate on child laws in Swaziland. Swaziland has

government institutions that are responsible for offering and ensuring justice to the children.

They educate, create awareness and enforce the existing national, regional and international

laws. These institutions are not adequately guided by the laws of Swaziland due to the fact that

they are scatted and embedded in many pieces of legislations. This therefore means that these

institutions lack legal and policy guidance. There are no procedures to follow, which result

inefficient and inadequate justice delivery service to the children of Swaziland. This study

focused on the problems created by the lack of single comprehensive child statute and why it is

important for national laws to comply with international law.


 1.9 Scope of the research

This research focuses on documenting the processes and the outputs of efforts to develop a single

comprehensive child law in Swaziland. It makes use of electronically stored information and

telephone 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
1.10 Research methodology

The research approach was based on the social constructivism using a case study method. The

final 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 semi

structured questionnaire was a key data collection tool used. The questionnaire was disseminated

by 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 by

telephone and interviews by the telephone. One informant contacted by a social network services

facebook. Some informants were interviewed directly on a face to face interview. The data

collected is both qualitative and quantitative.




                                                  16
CHAPTER TWO


2.0 THE LEGAL FRAMEWORK ON THE PROTECTION OF CHILDREN’S RIGHTS

IN SWAZILAND


2.1 INTRODUCTION

This chapter confines itself on the legal system of Swaziland and the legal framework on the

protection of children at national and international level.

Child protection means protection from violence, abuse and exploitation. Child protection

addresses every child’s right not to be subjected to harm. It complements other rights that, inter

alia, 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 child

prostitution, are very closely linked to economic factors. Others, such as violence in the home or

in schools, may relate more closely to poverty, social values, norms and traditions.

Often criminality is involved, for example, with regard to child trafficking. Technological

advance 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 and

distributes through the new media. The laws and law enforcement development have not kept up

with the growth of this new forms abuse.

2.2 Swazi legal system

The Swazi legal system is a dual one in that common law – the law that binds everyone in the

country 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 been
recently put down and classified as law.
                                                        17
which applies only to indigenous Swazis. Customary law is not codified but it is used in the

Swazi 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 claim

in the forum appropriate to the nature of his/her claim. Even though the traditional courts do not

observe the comprehensive procedural rules of the common law courts many Swazis believe that

they are more efficient in dispensing justice, For example, the absence of legal representation 24

allows Swazi people to be at ease when presenting evidence. In the common law courts

discretion is exercised within defined parameters and in Swazi courts, which follow Swazi

customary rules, the court president carry out trials using imaginary discretion. 25 Such dilemmas

are aggravated by the fact that it is not clear whether the general common law or customary law

has superior status in Swaziland.



Until the introduction of the national constitution26 which began operating in 2006, the highest

court in Swaziland was the Court of appeal. However the new constitution brought the Supreme

Court. There are also regional Swazi national courts (referred as Swazi courts in this report) and

their highest structure is the judicial commissioner’s court. Swazi customary courts are

customary courts that follow Swazi traditional laws in court proceedings. These courts fall under

the jurisdiction of the judicial commissioner’s office and the language used is siSwati as all

participants are Swazis and use siSwati as a first language. There are no laid down rules as to

how these courts should operate, However they derive their procedure from Swazi customary

values and practices. Cases in these courts are tried faster and the modus operandi is flexible


23
   80/1950
24
   Section 23 of the Swazi National Courts Act 80/1950
25
   Alphane et al 2000
26
   2005
                                                         18
because it is designed by the court president.27 Court presidents have the platform of adjudicating

over disputes and in the process create the law.


2.3 INTERNATIONAL, REGIONAL AND NATIOAL LEGAL FRAMEWORK ON

CHILD PROTECTION


2.3.1 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 to

the Convention on the Rights of the Child; Swaziland signed the convention on 22nd August 1990

and ratified it on 7th September 1995. Ratification of international instruments creates obligations

on States Parties to take action to bring domestic policy, law and practice into line with the

relevant international instruments. Article 4 States Parties shall take all appropriate measures to

ensure that the child is protected against all forms of discrimination or punishment on the basis

of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or

family 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 or

mental 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 who

has the care of the child”. Such protective measures should, as appropriate, include effective

procedures for the establishment of social programs to provide necessary support for the child

and for those who have care of the child, as well as for the forms of prevention and
27
     A man considered to be an expert in Swazi customs.
                                                          19
identification, reporting, referral, investigation, treatment and follow-up of instances of child

treatment described heretofore, and, as appropriate, for judicial involvement. However this

instrument 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 child

States 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 (the

right to survival and development), and article 12 (the child’s right to participate in matters af-

fecting him or her).

Non- discrimination

In Swaziland there are many gaps relating to non-discrimination, for example as regards the

elimination 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 legal

provisions outlawing discrimination would be desirable.

Best interests of the child

As regards the best interests of the child as an overarching (i.e. paramount) principle governing

matters affecting children, a close scrutiny of the provisions in Swaziland law does not lead to

the conclusion that this principle is articulated clearly with regard to the best interests of the

Swazi child. In conventional statutory provisions, the best interest’s principle would be a major

determining criterion in regard to legal decision–making around children, such as with regard to

care and placement of abandoned children or those without families or caregivers. It can play an

important role in affecting decisions concerning diversion and sentencing of children in trouble



                                                 20
with the law, and is an obvious criterion affecting adoption placements. 28 Traditionally the best

interests of the child has played a role in determining the allocation of custody and access when

parents separate, and increasing it is used to underscore children’s rights to maintenance from

their 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 development

The 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 to

the developmental processes that all children undergo in the passage to adulthood. “Recognition

of this right expanded the range of positive measure to be adopted by States to further the health

of the growing child’.29

Participation rights

The fourth ‘pillar’ of the CRC is encompassed by Article 12, which has been described as giving

the children’s rights movement it’s soul. This is because it is recognizing that children are to be

consulted, and that they have the right to participate and express their views freely in all matters

affecting them, that the international human rights community has acknowledged children as true

bearers of human rights, rather than being mere objects of concern and charity, or recipients of

welfare benefits




28
   Child Law Issue Paper by Jacqui Gallinetti and Daksha Kassan on behalf of
Save the Children Swaziland
29
   J Sloth Nielsen ‘Ratification of the Convention on the Rights of the Child: Implications for South Africa’
                                                          21
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).31



This 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 the

participation of students in the affairs of education. Swaziland is still yet to hold the children’s

parliament


2.3.2 The United Nations Charter, 1945

Human rights are inherent by virtue of being a human being. They are usually defined in terms of

equality 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 all

without distinction as to race, sex, language or religion”.32


2.3.3 International Covenant on Civil and Political Rights, 1966

The ICCPR is the principal treaty setting out the fundamental civil and political rights for all

people, including children. It states unequivocally that every child shall have without

discrimination as to race, colour, sex, language, religion, national or social origin, property or
30
   Child Law Issue Paper by Jacqui Gallinetti and Daksha Kassan on behalf of
Save the Children Swaziland
31
   Article 12(2) provides for the child’s right to be heard in any judicial proceeding affecting the child, either
directly or through a representative
32
   article 1 paragraph 3
                                                           22
birth, the right to such measures of protection as are required by his status as a minor, on the part

of his family, society and the state.33 Article 10(2) (b), provides that accused juvenile persons

shall 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 1921

2.2.4 ILO Minimum Age Convention (C138) in 1997 and the Worst Forms of Child Labour

Convention


The 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 basic

education and the need to remove the children concerned from all such work and to provide for

their 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 lies

in sustained economic growth leading to social progress, in particular poverty alleviation and

universal education.34 The convention under article 2 provides that a child is a person under the

age 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 society

and that for the full and harmonious development of his personality. The child should grow up in

a family environment in an atmosphere of happiness, love and understanding.35




33
   Article 24 of the International Convention on Civil and political Rights, 1966
34
   Preamble of the ILO Minimum Age Convention and Worst Forms of Child Labour
35
   Preamble of 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 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 Swaziland

There is no single Act/ legislation for children in Swaziland; child related laws are found in

different legislations. The national Constitution of Swaziland is the supreme law of the land. The

Constitution contains provisions (article 30) relating to the protection of children but these

provisions does not give substance to Swaziland’s obligation to the Convention on the rights of

the child. Article 30(2)36 states that “a child shall not be subjected to abuse or torture or other

cruel inhuman and degrading treatment or punishment subject to lawful and moderate

chastisement for purposes of correction”. The Intestate Succession Act37 regulates which child is

entitled to inherit in the estate of a deceased father who has failed to affect a valid will. This

piece of legislation, in relation to children, is extremely discriminatory as only legitimate

children can inherit from the estate of both their father and mother. 38 Illegitimate children are

only entitled to inherit from the estate of their mother. The Criminal Procedure and Evidence

Act39 provides for provisions on criminal responsibility for minors. It also provides for the



36
   The Swaziland Constitution (2005)
37
   3 of 1953
38
   Section 56
39
   67 of 1938
                                                 24
procedures of hearing cases of crimes committed by children. The Marriage Act40 governs issues

of marriage in a way touching issues relating to children as they are usually directly affected by

disputes of marriages. This Act also provides for some provisions that relate to children. The

Adoption Act, 1952 governs issues of adoption but has nothing on inter-country adoption; it lacks

clarity on procedures. Swazi customary law is unwritten and varies from place to place in the

Swazi customary law courts. Swazi law is very strong in the area of family law and so directly

affects children. Swazi courts may send a child to the reformatory centre for non-payment of

fines without the child having legal representation as lawyers are not allowed in these courts. The

Swazi courts can send children to the reformatory centre for failure to pay fines.


 2.4 Concluding remarks

Despite these ratifications, Swaziland has not yet enacted laws to comply with its obligations

under these international documents. Child rights are recognized internationally as human rights

for children. The international community requires states to fulfil their human rights obligation

by protecting children and ensuring their rights are respected. Swaziland being a party to

international and regional conventions which suggest a commitment by the government to child

rights principles. Swaziland to fulfil her obligation adopted the Sexual Offences and Domestic

Violence Bill which is still at drafting stage from 2005 to date and National Programme of

Action for the Children of Swaziland 1993-2000, also in a draft form.




40
     47 of 1964
                                                25
CHAPTER THREE


3.0 DATA ANALYSIS, INTERPRETATION AND DISCUSSION


3.1Introduction

The key data collection method used was textual analysis. That is the research focused on the

study of laws of Swaziland and other international legal instruments. It also looked at the reports

that documented problems that are caused by the application and enforcement of the child law

legislation 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 not

very advanced in e-filling of its legislations and court records. There is vast literature of reports

made 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 views

and findings on child law status and issues in Swaziland. The research examines these

publications 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 electronic

library searches was utilized as critical tools and approaches for this research. The actual

conducting of the research deviated from the original plan due to several reasons. One of the

reasons 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
3.2 Area of Study

The study focused on Swaziland and looked at the existing national laws. International laws and

reports 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 2005

national constitution. The constitution reaffirmed the powers of the king as elucidated in the

April 12th, 1973 Decree that banned the Independent constitution42 and political parties. There is

a dual legal system in Swaziland; the non codified traditional laws are working concurrently with

the modern laws based on common law. The protection of the children of Swaziland needs to be

explored on this context of the Swaziland legal system. Issues like child maintenance,

inheritance, adoption, marriage, punishment, abandonment, family ties are much cultural than

legal in practice.



The children of Swaziland face several social and health issues that are exacerbated by the

structural collapse of the Swazi traditional family unit, the high HIV/AIDS prevalence. The

extended 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 and

benefactor of the children. When young couples are experiencing problems in their social and

economic life, they will always take the children to the grandparents.                        Currently that is not

being the case due to the dominance of selfish economic values that discourages extended family



42
  The 1968 independence constitution was repealed in 1973 by the then king Sobhuza the II a year after the 1972
elections, parliament dismissed and all parties banned. The king and his advisors felt that the constitution had failed
to 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 had
retained some of the old constitution’s provisions and new laws were gazetted and citizens had to abide by them.
                                                          27
ties, the increase of death incidence of adults specially young fathers and mothers), including

parents and grandparents, and the rapid urbanization of Swaziland.



The problems of the children of Swaziland have been documents and reported about in the local

and international media. The international community has risen concerned about the above

mentioned problems. The key problem to these issues is the inadequacies of the laws of

Swaziland in providing adequate protection for its children. The government has established

institutions and departments within ministries to deal with the issues. The Royal Swaziland

Police Force plays a pivotal role in the enforcement of the children rights. The constitution of

Swaziland has dedicated Sections 29 to 31 of the Constitution specifically focus on children’s

issues and rights. Unfortunately the processes of promulgating laws that translate the constitution

meaningful legislation are moving very slowly. The civil society under the leadership of the

Swaziland Save and Children Fund and UNICEF are trying to mitigate the effects of the short

fall of the legislation. There are other church based organizations like the Lutheran Development

Service (LDS), the Catholic Church (CARITAS) that provide service for the betterment of

children conditions. There is a focus on working for children’s comfort around the HIV/AIDS

responses. 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 is

very little funds for NGO’s and government programmes. This has dire negative impact on the

children of Swaziland.



They have been initiatives by the international community working with government and her

partners to resolve the legal problems by developing a new child law Act. The government


                                                28
promised the United Nations that the Act will be in place soon. As of today the government has

failed to promulgate the gate spite the adequate funding from a Swedish NGO.


3.3 Existing problems faced by children in Swaziland


Swaziland signed the Convention on the Rights of the Child in 1990 (ratified 1995), and in 1992

produced the "National Programme of Action for the Children of Swaziland 1993-2000." This

document 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 of

serious financial constraints cannot be ensured for the children of Swaziland during this planning

period.”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 are

threatening 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 and

Evidence 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 in

Swaziland against the sexual abuse of boys.3


The document also refers to customary law, noting that the fact that the husband does not have to

offer 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
vention, and that the custom of the father ‘buying’ an illegitimate child from the mother with or

without her consent can be traumatic.


There are several other aspects of both Roman-Dutch and customary law which do not sit well

with the convention. Eminent legal authorities have stated that "the system of juvenile justice in

Swaziland leaves a great deal to be desired. There is urgent need, therefore, to review the system

in its entirety. . . The United Nations has settled minimum rules for the administration of juvenile

justice which it is high time Swaziland applied"4 Further, "the application of any law operates

against a background of a tenacious cultural background whose claims are often stronger than the

common law imported in the colonial era."5


The 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 occurred

in Swaziland to anywhere near the same extent as some other developing countries. The problem

is increasing all the time, as population and unemployment pressures mount. Recent publicity

concerning the plight of street children - including physical and sexual abuse, and substance

abuse by the children themselves - preceded the provision of shelter and food by a private

concern in Mbabane. The Government of the Kingdom of Swaziland has produced a Draft

National Policy on Children Including Orphans and Vulnerable Children in Swaziland.44 In this

Policy, child protection is identified as a key-issue. It states that child protection initiatives will

be achieved by reviewing and where necessary creating legislative frameworks on the protection

of children and by placing emphasis on the protection of children from sexual abuse and

exploitation as well as pornography and trafficking. It is clear that Swaziland is acutely aware of


44
     2003
                                                  30
the difficulties facing children. However, as policy, the document still does not carry the weight

of law and, more particularly, is still a draft and not yet finalized.


3.3.1 Assessment of the law on Juvenile Justice System

International law gives substantial guidance to countries seeking to reform their legislation and

policies concerning children in trouble with the law. The chief instruments are the CRC (Articles

37 and 40),45 the Beijing Rules for the Administration of Juvenile Justice (1985) and the Riyadh

Guidelines for the Prevention of Juvenile Delinquency. Other relevant instruments include the

International Covenant on Civil and Political rights (1966), the Convention Against Torture

(1984) and the 1955 Standard Minimum Rules concerning the treatment of prisoners. The key

aims of a juvenile justice system are established by reference to article 40 of the CRC, which is

principally to ensure that the child is reintegrated into society and is able to assume a

constructive role in society. Additionally this must be achieved in manner which promotes the

child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and

fundamental freedoms of others, and which takes into account the child’s age. These aims

militate against a system which is solely punitive or retributive, and do not permit a system in

which a lack of respect for children’s human rights is allowed to continue. At present the

Swaziland criminal justice system as far as it pertains to children accused of committing crimes

sorely 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, inhumane
or degrading treatment or punishment. Neither capital punishment no life imprisonment without possibility of
release shall be imposed for offences committed by persons below eighteen years of age; b) no child shall be
deprived of his or her liberty unlawfully or arbitrarily. The arrest detention or imprisonment of a child shall be in
conformity
                                                           31
A juvenile justice system for children is essentially a management system for children in trouble

with 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, record

keeping, referral of children to welfare courts if necessary, protection of children used by adults

to 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 7

years) and juvenile adults (between 16 and 21 years)46 to be detained in reformatories in terms of

a court order. The sentence would be not less than 2 years and not more than 5 years.47

Furthermore, the period for which the juvenile would be detained in the reformatory expires on

or before the date on which he attains the age of 18 years, but this does not apply to juvenile

adults.



The Criminal Procedure and Evidence Act48 is the main piece of legislation dealing with children

in 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 in

certain limited respects, these relating to sentencing.



While the Act provides for the death penalty, it prohibits the imposition of this sentence on

children under the age of 18 years.49 In addition, the Act provides that no child under the age of

14 years shall be subject to a sentence of imprisonment. The Act also provides for certain


46
   Section 41
47
   Section 42
48
   Repealed in 2006.
49
   section
                                                  32
alternative sentences for children such as placing the child in the custody of a suitable person.50

In addition, it also provides for sentences to be suspended or postponed with certain conditions

attached thereto.



There is one juvenile facility in Swaziland, the Juvenile Industrial School. As of 10

September 2004, there were 38 children being held at the facility, either on remand or serving a

sentence. The children serve a maximum of two years at the facility after which they are released

back to the community. However it should be noted that this facility caters for only male

children. Female children offenders share the same facility with adults at Mawelawela



The Draft Sexual Offences and Domestic Violence Bill deals with certain aspects of juvenile

justice, For example, it deals with the minimum age of criminal capacity of a child to commit a

sexual offence. In addition, it also deals with assessment and diversion of a child who has

committed a sexual offence. The difficulty with this is that confusion may arise by having

different pieces of legislation dealing with children in trouble with the law based on the nature of

the offence committed.


3.3.2 Corporal punishment as a way of correction

At present Swazi law provides for corporal punishment to be used in schools, at home and as a

sentence to a criminal offence. The constitution states, “a child shall not be subjected to abuse or

torture or other cruel inhuman and degrading punishment subject to lawful and moderate

chastisement for the purposes of correction’. However, it appears that a High Court decision has




50
     Section 46
                                                33
placed a moratorium on whipping as a sentence and the courts are no longer applying it, although

it remains an option on the statute books.51



Article 29(2) of the Constitution provides that “a child shall not be subjected to abuse or torture

or other cruel inhuman and degrading treatment or punishment subject to lawful and moderate

chastisement for purposes of correction”. All provisions recognising the right to administer

“moderate chastisement” should be repealed and the law should explicitly prohibit all corporal

punishment and other cruel or degrading forms of punishment, in the home, schools and all other

settings where adults have parental authority over children.



Schools – Corporal punishment is lawful under the Education Act (1982) and the Education

Rules (1977).52 The provisions authorizing corporal punishment should be repealed and explicit

prohibition enacted in legislation relating to all education settings (public and private), in

addition to repeal of “moderate chastisement” provisions.



Penal system – Corporal punishment is lawful as a sentence for crime under the Criminal

Procedure and Evidence Act (1938).53 The Courts Act (1950) allows the court to impose any

punishment recognized by Swazi law and custom, provided it is not repugnant to natural justice

and humanity, but this is not interpreted as prohibiting corporal punishment. Corporal

punishment is lawful as a disciplinary measure for males in penal institutions under the Prisons

Act (1964) and possibly the Reformatories Act (1921). R v. Nhlanhla Dlamini54 the accused was


51
   Interview with Magistrate Gama, Manzini Magistrates Court, 14 September 2004
52
   Appendix B provides for the procedures for punishing students.
53
   Sections 307 and 307
54
   (1987-1995) SLR Vol 4.
                                                      34
convicted for robbery and sentenced to whipping at a Magistrate court in Nhlangano. The

provisions authorising corporal punishment should be repealed and explicit prohibition enacted

in legislation relating to all forms of justice and all institutions accommodating children in

conflict with the law.




Alternative care settings – Explicit prohibition should be enacted in legislation applicable to all

alternative care settings, including public and private day care, residential institutions, foster

care, etc, in addition to repeal of “moderate chastisement” provisions.


3.3.3 Age of majority

Section 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. The

proposed Sexual Offences and Domestic Violence Bill, in section 1, define a child as a person

under 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 of

practice in a very important area – the determination of childhood. However, a seemingly simple

determination 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 transition

from 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 and

55
     Article 1
56
     Article 2
                                                 35
the rights guaranteed by virtue of such status becomes a little more complicated. Age sets in

Africa is a common way of denoting human beings’ rights and duties, actual age is often difficult

to deduce. Cessation of childhood is often established through initiation programmes, when one

is thought to have acquired sufficient maturity. Each status carries with it various rights, duties

and 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 king

marrying young girls58


3.3.4 Maintenance of children in Swaziland

The maintenance of children is governed by the Maintenance Act 35 of 1970. This provides the

procedures to secure the payment of maintenance, which includes the appointment of

maintenance officers, investigations and also governs the payment of maintenance arising from

customary marriages.

A study was undertaken by WILSA into maintenance in Swaziland which indicated that although

maintenance of children problems are widespread most women do not do anything to solve the

problem.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 court


57
   55 Lloyd, ibid, p29
58
    Inkhosikati LaDube who was a Miss Teen Swaziland finalist at age 16, pupil at Mater Dolorosa High School in
2004 and Married the king 11 June 2005 and Inkhosikati Lankhambule who married the king at 17
59
    1992 ‘Maintenance in Swaziland’ Women and Law in Southern Africa Research and Educational Trust, January
1992, piii (hereafter referred to as WILSA Maintenance Report)
60
    At piii
                                                       36
•   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 stem

from a bad application of the law as well as a lack of knowledge and sensitization to the issues

that stem from failure to pay maintenance. In order to correct this it is suggested that a major

awareness 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. In

addition, the procedures and resources needed to ensure an effective maintenance system within

the courts is needed.




3.3.5 Child and sexual Abuse

Children are prioritized as one of the most vulnerable groups in society, in need of special

protection. This has been made evident through Swaziland’s ratification of the United Nations

Convention on the Rights of the Child (CRC) and the inclusion of a dedicated children’s rights

section in the national Constitution. As such when they are placed at risk of abuse or actually

abused, whether physically, sexually or psychologically, certain obligations are brought to bear

on the State through its various functionaries. However, the need to protect children has preceded

these new obligations and can be seen from Swaziland’s ordinary criminal law provisions that

derive from common and statutory law.


                                                37
There needs to be laws that form a protective mantel around children to ensure that where they

are 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 and

courts need to have specific duties and obligations to ensure that children are adequately

protected when in need of such protection and care. Swaziland has two pieces of legislation that

deal with the issue of sexual abuse of children. These are the Girl’s and Women’s Protection Act

39 of 1920 and the Crimes Act 1889. From the outset, it must be noted that these two laws are

very outdated. This has serious implications for the protection of children, particularly when we

live in an age when crimes against children have become more sophisticated and more brutal

than could ever have been imagined. Section 3(1) of the Girls and Women’s protection Act

provides that Every male person who has unlawful carnal connection with a girl under the age of

sixteen years or who commits with a girl under that age immoral or indecent acts or who solicits

or entices a girl under such age to the commission of such acts shall be guilty of an offence and

liable on conviction to imprisonment not exceeding 6 years with or without whipping not

exceeding 24 lashes and with or without a fine not exceeding one thousand Emalangeni in

addition to such imprisonment and lashes.



This section is discriminatory against boys. The provision goes further in section 3(3) to allow

the court deciding such a matter to determine a girls age from her appearance should there be

insufficient evidence to determine it. In R v. Makhanya61 the accused was convicted for raping a

12 years old girl and sentenced to 5 years term in prison, the magistrate since there was no

evidence to prove that the accused was 15 years nine months, estimated the accused age to be 18

years 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
provides defences to such an offence – one of which is that at the time of the commission of the

offence the girl was a prostitute. This therefore means that prostitution is allowed in Swaziland

especially 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 with

intent to cause grievous bodily harm, and criminal procedural protections ensue, such as the

refusal of bail or the application of a minimum sentence if the perpetrator is convicted of the

offence. In this instance the perpetrator can be known to the child (a parent or family member) or

a stranger.



The new Sexual Offences and Domestic Violence Bill provide the criminal and civil law

protections for children who are victims of abuse.



The proposed Domestic Violence section in the Sexual Offences and Domestic Violence Bill has

created a new civil law avenue for victims of domestic violence to seek protection. In terms of

the proposed Bill, the same protections that apply to adults apply to children who are victims of

domestic violence. As stated, this is more of a pure civil remedy than a welfare response. It is

premised on the fact that there is a definite perpetrator of domestic violence and that the child

and/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 of

such a nature that the child should be removed from the parent or caregiver’s care. However, this




                                                 39
may be occasionally necessary and then there is an overlap between the civil law and welfare

law.



The Crimes Act in Part V of the Crimes Act which criminalizes a parent or guardian for receiving

compensation in relation to the prostitution of his or her child;62 creates an offence for inveigling

or enticing a girl who is not a common prostitute for the purposes of prostitution63 and

criminalizes a person for procuring any girl to become a prostitute.64




The Government of the Kingdom of Swaziland has produced a Draft National Policy on Children

Including Orphans and Vulnerable Children in Swaziland.65 In this Policy, child protection is

identified as a key-issue. It states that child protection initiatives will be achieved by reviewing

and where necessary creating legislative frameworks on the protection of children and by placing

emphasis on the protection of children from sexual abuse and exploitation as well as

pornography and trafficking as, at present, Swaziland has no laws that criminalize child

pornography and trafficking. However, a policy document is not law and does not bind

government to anything nor hold her accountable for failure to deliver on the policy (Specially

since Swaziland in not a democracy, even the elections process cannot hold government

accountable to the electorate). It is for this reason that comprehensive laws protecting children

from 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
3.3.6 Succession or inheritance for illegitimate children

Thandeka, a fourteen-year-old girl, was orphaned in 2003 when her mother, an unmarried

woman who was living at her parental home with her children, died of AIDS. Thandeka’s mother

was an active member of the organization, Swazi Positive Living (SWAPOL). After her

mother’s death, Thandeka’s maternal uncles chased her and her sisters from their home and told

them to go to their father’s home. But the children did not know where he stayed. Eventually, the

children were “adopted” by one of the community members (Izumi 2006c: 16). This case reveals

the particular property and inheritance problems of orphans born to unmarried mothers in

societies that adhere to customary practices of patrilineal succession, like Swaziland. In such

Swaziland, unmarried women in Swaziland can be given a piece of land to build a house at their

birth homestead. But their do not have land rights only privileges that depend upon the

availability 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 a

son among their children who can claim land inheritance rights. Another interesting aspect of

this case is that Thandeka and her siblings were adopted by a community member rather than by

their own relatives. This case serves as a testament to the fact that community members often

intervene to care for orphans as well as to the associated argument that such community

members should be assisted with their efforts.

Wife inheritance (kungena)66 was a common traditional practice which was designed to ensure

that 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 popular
due to the HIV/AIDS epidemic and the spread of Christian and urban values
                                                        41
3.4 Swaziland’s obligation on the Rights of the Child Convention

As 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 the

Convention on the Rights of the Child are to provide fundamental human rights as appropriate to

children. The reports of the King’s 14-year-old son undergoing advanced military training67 in

Libya 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 Swaziland
68
   Section 13
69
   In 2003 the Swazi Observer reported a case of a high school teacher who impregnated two girls and later married
them (under customary law) to evade going to prison.
                                                        42
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. Existing

statutes relating to children in conflict with the law do not provide for a separate child justice

system. ‘Child victims and witnesses’ denote children and adolescents, under the age of 18, who

are 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.71



Access 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 from

abuse, neglect or abandonment and therefore no legal oversight of the interventions undertaken

with them.



70
     A Report by the US state department on trafficking in persons, June 2009.
71
     United Nations Guidelines
                                                           43
3.5Conclusion remarks

Legal systems are particular ways of establishing and maintaining social order. Law is a formal

mechanism of social control. The state must ensure that the protection of child rights is realized

and respected by all citizens; this can only be achieved by enacting proper legislation that will

guarantee child protection in the country. Child laws are enacted to recognize children”

developing beings whose moral status gradually changes” thus demanding a realistic

understanding of their interests within their families and the larger social context.72




It is evident that whilst there is legislation pertaining to children in Swaziland, a number of

problems can be identified. The laws are fragmented and not easily accessible to those charged

with their implementation. It should be noted that most of these laws are outdated therefore do

not cover some of the crimes affecting children for example child pornography and child

prostitution. The existing laws are very weak when it comes to child protection. There is a need

for 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 (David
Archard and Colin Macleod eds,2005)
                                                          44
Chapter four


4.0Conclusion and Recommendations


4.1Conclusion

The purpose of the research has been to look at the problems caused by the lack of a single

comprehensive statute relating to children in Swaziland. The motive was to see whether the

absence of a comprehensive statute for children.


It has been 11 years since Swaziland’s ratification of the CRC and while there have been certain

policies introduced, e.g. the Draft National Policy on Children including Orphans and Vulnerable

Children in Swaziland and the Children’s Unit, these have not even been implemented and the

former 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 the

domestication of the CRC. So until 2005, there is little movement towards the harmonization of

Swazi laws with the CRC. It is unclear why this passivity prevailed, but it is notable that none of

the international instruments ratified by Swaziland have been domesticated into national

legislation. Currently laws relating to child protection are scattered in different statutes and they

do not comply with international instruments. The country does not have a single comprehensive

statute that will provide procedures and guidelines as to the protection of children. This makes it

very 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
criminal system, the chiefdoms are responsible for the wellbeing of children who have been

abused or neglected. There are no specific statutes or case laws governing child protective

proceedings.

Failure to protect children undermines national development and has costs and negative effects

that continue beyond childhood into the individual’s adult life. While children continue to suffer

violence, abuse and exploitation, the world will fail in its obligations to children; it will also fail

to meet its development aspirations as laid out in such documents as the millennium agenda with

its millennium development goals. The dual system of law in Swaziland also makes it difficult to

comply with international instruments. Under civil common law, the laws are stipulated and

clear 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
                                                                                                         73
political upheaval and legal uncertainty, highlighted by a number of international reports.                   The

controversy 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 from

their 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 rights

are not fully protected by the state. The multiple legislations relating to children bring confusion

as to who is a child. The dual system of government also makes it difficult for the legislators as

73
  2003, 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 and Swaziland: Human rights at risk in a
climate of political and legal uncertainty Amnesty International, July 2004


                                                       46
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 Zakhele

Remand Centre was denied freedom despite the fact that he had obtained a liberation warrant

from 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 fully

protect 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 not

sufficiently 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 which

are 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-country

and inter-nationality adoption.
74
   The King is fond of marrying young woman
75
   Swaziland – Law, Custom and Politics March 2003 pg 57
76
   The Convention on the Rights of the Child of 19
                                                   47
• Inheritance rights reveal a potential conflict between customary law and civil law, the former

promoted 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 parents

had died.



The procedural system for dealing with children in trouble with the law is weak and does not

meet the standards set by Articles 37 and 40 of Convention on the Rights of the Child. Under the

Swazi courts where there is no legal representation and the procedure in these courts is that a

criminal suspect is guilty until proven innocent as opposed to modern common law courts where

the accused is innocent until proven guilty.77


4.2 Recommendations

Having seen that the Swazi government has realized that children have rights by signing the

different instruments which deals with issues affecting children the following recommendations

are 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 offenders


77
 Language, gender and power relations in Swazi National Courts: a discourse based analysis by Nkhosingphile
Dlamini
                                                      48
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.78




78
    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
BIBLIOGRAPHY


BOOKS

  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 2001




ARTICLES

  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
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 Observer


WEBSITES

  1. Retrieved on 20 January 2011: http://www.box.net./acpfpublications/1/4/7718778


  2. www.africanchildforum.org


  3. www.savethechildren.co.za


STATUTES

  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
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, 1924




CASES

  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
TUMAINI UNIVERSITY

              MAKUMIRA UNIVERSITY COLLEGE

                           FACULTY OF LAW

                           RESEARCH PAPER




TOPIC: THE ABSENCE OF A SINGLE COMPREHENSIVE CHILDREN’S ACT IN
THE EFFECTIVE DELIVERY OF JUSTICE AND THE PROTECTION OF CHILD
RIGHTS IN SWAZILAND.




RESEARCHER: KHANYISILE LUKHELE

REG, NO: TU/M/LLB/08/770

SUPERVISOR: DR MATHIAS SAHINKUYE




A COMPULSORY RESEARCH PAPER IN PARTIAL FULFILMENT OF THE
REQUIREMENT FOR THE BACHELOR OF LAWS AT TUMAINI UNIVERSITY.




                                 53

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Ingcamu 3

  • 1. TABLE OF CONTENTS 1.0 Introduction...........................................................................................................................................4 1.2 Background of the problem ..................................................................................................................6 1.3 Statement of the problem.....................................................................................................................8 1.4 Objectives............................................................................................................................................10 1.5 Hypothesis..........................................................................................................................................10 1.6 Significance of the research.................................................................................................................12 1.7 Limitation............................................................................................................................................12 1.8 Literature review ................................................................................................................................13 1.9 Scope of the research.........................................................................................................................15 1.10 Research methodology......................................................................................................................16 ..........................................................................................................................................16 CHAPTER TWO ..........................................................................................................................................17 2.0 THE LEGAL FRAMEWORK ON THE PROTECTION OF CHILDREN’S RIGHTS IN SWAZILAND....................17 2.1 INTRODUCTION....................................................................................................................................17 2.3 INTERNATIONAL, REGIONAL AND NATIOAL LEGAL FRAMEWORK ON CHILD PROTECTION.................19 2.3.1 United Nations Convention on the Rights of the Child, 1989...........................................................19 2.3.1.1 The four pillars of the Convention on the rights of the child.........................................................20 2.3.2 The United Nations Charter, 1945....................................................................................................22 2.3.3 International Covenant on Civil and Political Rights, 1966................................................................22 2.2.4 ILO Minimum Age Convention (C138) in 1997 and the Worst Forms of Child Labour Convention . .23 2.3.5 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...................................................................................................................................24 2.3.6 Child protection under laws in Swaziland.........................................................................................24 ........................................................................................................................26 CHAPTER THREE.....................................................................................................................................26 3.0 DATA ANALYSIS, INTERPRETATION AND DISCUSSION..........................................................................26 3.1Introduction ........................................................................................................................................26 3.2 Area of Study.......................................................................................................................................27 3.3 Existing problems faced by children in Swaziland................................................................................29 3.3.1 Assessment of the law on Juvenile Justice System...........................................................................31 3.3.2 Corporal punishment as a way of correction....................................................................................33 3.3.3 Age of majority.................................................................................................................................35 3.3.4 Maintenance of children in Swaziland..............................................................................................36 3.3.5 Child and sexual Abuse.....................................................................................................................37 3.3.6 Succession or inheritance for illegitimate children ..........................................................................41 3.4 Swaziland’s obligation on the Rights of the Child Convention.............................................................42 3.5Conclusion remarks .............................................................................................................................44 Chapter four .............................................................................................................................................45 4.0Conclusion and Recommendations.......................................................................................................45 4.1Conclusion ...........................................................................................................................................45 4.2 Recommendations ..............................................................................................................................48 BIBLIOGRAPHY...........................................................................................................50 BOOKS.......................................................................................................................................................50 ARTICLES....................................................................................................................................................50 Newspapers...............................................................................................................................................51 2
  • 4. 1.0 Introduction Every child deprived of his/her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before court or other competent, independent and impartial authority and to a prompt decision on such action.1Children are part of the national vulnerable populations that need protection from harm through an effective and comprehensive law. Media reports of increasing incidents of children being abused by relatives, by strangers, minders and even parents. The harm 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, depends on a global movement, in which everybody understands and respect their duties and responsibilities to children and ac, upon them. The United Nations and its organs, the International Labor Organization and other supra state organs have played a key role in the promotion of children’s rights through national and international laws. Children’s rights are recognized 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 the Child (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 international instrument giving independent human rights to children by putting into place international children’s rights and standards. It is a universal and legally binding instrument to all the states which 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 of 1 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 of children being overlooked and infringed. The absence of a comprehensive national legal instrument consistent with international conventions on child rights impacts directly on child rights promotion and protection. When laws are arranged systematically in a written form, that is codification, rule becomes distinct and easily ascertainable and it becomes easier for the courts and tribunals to apply them2. This does not mean that problems on child rights can be solved only 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 of justice. 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. This research report seeks to highlight the problems caused by the absence of a single comprehensive children’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 elucidates that child protection addresses every child’s right not to be subjected to harm. It completes other rights that inter alia, ensure that children receive what they need in order to survive, develop and thrive. 2 Dr avtar Singh and Dr Harpreet Kaur; Introduction to jurisprudence,3rd ed,2009 pg 54 3 Ibid pg55 4 UNICEF 2004 5
  • 6. 1.2 Background of the problem The concept of child rights dates back from the 1923 with the declaration on the Rights of the child, 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 as the basis of the Convention on the Rights of the Child 1989. Child rights are human rights of children with particular attention to the rights of special protection and care afforded to the young. A child is any human being below the age of eighteen, unless under the law applicable to the child, majority is attained earlier5. Children are often in the frontline of vast change. The breakdown of family structures due to several factors that include increase of divorce (one of the evidences of changes that negatively impacts on the protection of children from harm), the family is the first line of protection for children. In Swaziland the phenomena of child headed household has emerged due to the impact of adult deaths through the HIV/AIDS epidemic and the breakdown of the family structure. This has created problems in the ability of society and the community to protect its children. In Swaziland so many children’s rights have been violated due to the lack of a single comprehensive statute. There have been so many media reports on cases of statutory rape of students by their teachers who later marry them (under customary law) because under Swazi customary law puberty determines the age of marriage to girls. The Intestate Succession Act6 regulates who is entitled to inherit the estate of a deceased person who has failed to affect a valid will. This piece of legislation, in relation to children, is extremely discriminatory as only legitimate children can inherit from the estate of a father. Illegitimate children are only entitled 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 system including the lack of professional social work and protection services to support all vulnerable children from abuse, neglect and exploitation. A coherent child protection system is needed, including comprehensive legal and regulatory framework and a social welfare system to ensure children 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 and ratified the convention in 1995. However, Swaziland made a declaration at the time of ratification of the convention that the implementation of its obligation in relation to the right to education must be achieved progressively and that Swaziland would strive for full compliance as soon as possible. By ratifying the convention Swaziland was expressing its commitment to implement its provisions, this means that Swaziland has an obligation to fulfill under article 4 of the convention,7 which provides that state parties shall undertake all appropriate legislative, administrative and other measures to economic, social and cultural rights, state parties shall undertake to the maximum extent of their available resources and where needed, within the frame of international cooperation. Therefore Swaziland is obliged to domesticate the provisions of the convention in compliance to article 4. Laws relating to children and child rights in Swaziland are currently scattered in different statutes. Swaziland has not yet fulfilled its obligation to the convention. The existing laws’ relating to children violates the key provisions of the convention, for example section 408 prescribes whipping as punishment. 7 The Convention on the Rights of the Child 1989 8 The Criminal and Evidence Act 2005 7
  • 8. 1.3 Statement of the problem Swaziland is using two systems of laws these are Swazi customary laws (which is not codified and 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 constitution also protects the use and the existence of the Swazi customary law. The civil common law is embedded in Statutes. Swaziland does not have a single comprehensive child statute regulating on child laws that is, there are no specific statutes or case laws governing child protective proceedings. National laws relating to children do not reflect the four pillars of the convention on the 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 participate in matters affecting them ( article 12).9 Laws relating to children are scattered and fragmented in a number of statutes; the Constitution 2005, the Adoptions Act 1952, the Marriage Act, the Age 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( which is fluid) and other legislations. Swaziland ratified the United Nations Convention on the Right of the Child, and its principles incorporated in the National constitution but there is no national legislation that makes its effect in Swaziland and therefore not applicable to Swazi courts. This creates problems in the effectiveness and adequacy of children’s rights protection. International conventions do not apply directly; international laws need to be ratified and introduced to the national legislation before 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 local law it confers no right to a citizen of Swaziland. The Convention has not been incorporated into local law thus protection of the rights of the Swazi child is nothing when it comes to the convention. The convention has not been fully implemented since its ratification fifteen years ago. Most of the existing laws are old laws which were passed during colonial times and some of them have not been repealed thus making them inconsistent with the convention. Swaziland has not ratified the Palermo Protocol or the UN Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography. The absence of single comprehensive Act to protect the rights of children brings about problems in the effectiveness of justice delivery. The absence of a single comprehensive child statute is making protection of children’s rights difficult in Swaziland. Gallinetti and Kassan11 said “the laws are fragmented and not easily accessible to those who are responsible for its implementation.” 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 child justice system. There are no legal processes for dealing with children in need of care and protection arising from abuse, neglect or abandonment and therefore no legal oversight of the interventions to undertake with them. There are no laws to combat child trafficking and child pornography. There are no provisions in the penal law criminalizing child prostitution, with the limited 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 Objectives The 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 Hypothesis The purpose of the study is to determine the negative impact in the implementation of justice in the protection of children in Swaziland due to the absence of a comprehensive child law in Swaziland. The hypothesis for the research is: - Children are not able to receive adequate justice due to the absence of a single comprehensive child law in Swaziland Laws are the foundation of social order and central to the promotion, protection and defense of child 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 five techniques for the use of law, which are; i) remedy of grievances among the society, ii) they act as a penal instrument, which prohibits and prosecute forbidden behavior, iii) promote certain defined activities, iv) managing various governmental activities for public benefits and lastly to give effect to certain private arrangements in the society. In the absence of reliable and comprehensive information detailing with the scale, modes, strategies or impact of child rights in Swaziland, the ratification of the two most critical international instruments governing the rights of the child is useless. There is a need for Swaziland to enact a single comprehensive statute to regulate on the rights of children which must comply with other international instruments. No child should be left without care and protection. This makes the protection of children ineffective. This study analysed the existing laws relating to children in order to find out what are the problems that are caused by the absence of a single comprehensive children’s Act in Swaziland. Although it is laudatory that Swaziland has a constitution that pronounce on the rights of her citizens and particularly gives cognizance to the fact that children have additional rights that seek to ensure their protection and well being, it is unfortunate that the constitutional provisions do not give more substance to Swaziland’s obligation under the Convention on the Right of the Child1989.13 There seems to be a problem with the application of the Swazi law and customs since many Swazi people prefer this law more than the common law. The Swazi customary law since it the commonly a used law affects the rights and protection of the child. Under this law the definition of a child is very discriminatory especially to girls; a girl can be married under customary law if she has reached puberty (which 12 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 appropriate maturity. 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 research This study discusses at length the problems that are experienced by law enforcement agencies in their duties to provide protection for children due to the absence of single comprehensive child legislation. The study interrogates the content of laws in Swaziland that are established for the purpose of protecting the Swazi child from harm, their compliance and adherence to the principles of international law. In study further analyses the contradictions that exist between the two sets of laws applicable in Swaziland. It examines the law, practice and at the end recommends different methods for the effective promulgation and operationalisation of a single comprehensive statute for children in Swaziland. The problems highlighted above, the weaknesses and suggestions revealed in this study facilitate in the enlightenment of policy makers that advice parliament of law reform and promulgation. This will help in guiding law makers (senior government officials and elected officers) to make informed decisions in the field of child rights. A coherent child protection system is needed, including comprehensive legal and regulatory framework and a social welfare system to ensure children are being served at the national and local level. 1.7 Limitation Time and financial resource are the major limitations for the study. The researcher used personal funds and resources to conduct the research. Swaziland has not digitalized its legal records so the internet 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. Government functionaries exercise self-censorship and caution in responding to questions that have policy and political implications. This imposed some limitation in the soliciting of primary and secondary data, informants were not open to frank assessment of their organisations and their activities. 1.8 Literature review The literature review on this research was based on the reading of primary and secondary materials dealing with laws relating to children in Swaziland. These consist of statutes, law reports, books, newspapers and the internet. The literature review is aimed at bringing out ideas which could be taken into account in looking at the problems affecting child rights and child protection in Swaziland. The Attorney General office and the Mbabane City officer provided access to legal documents and statutes. T .M Bennet14: discusses about the application of customary laws in its relevance in the African societies. Swaziland is currently using dual systems of law that is customary law and common law. The Swazi customary law is the mostly preferred law in the Swazi society especially when it 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 the importance of having laws in the society. He also provides a great deal in showing how laws should be made and why we need to have laws. The book states how laws should change with time and how they relate to the changing society. 14 Bennet T.W Customary Law in South Africa,2004 15 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. His book provided a clear picture of the key issues of child law and its universality in international law. He discussed the duties and obligations of states in the protection of child rights and the relevance of international instruments which advocates for the protection of child rights, which are 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 or mechanisms to be used in the protection of child rights. He discusses on the appropriate legal and administrative systems for the protection of the rights and welfare of the child. Children need safeguards and protection separate from those of adults which has largely impacted both domestic and international law. This has encouraged African governments to ratify numerous international 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 their domestic laws. The dualist theory provides that international law and domestic law are two distinct laws. Whereas the monist theory provides that international law should be superior to domestic law, this theory supposes that international law and national law are simply two components of a single body of knowledge called law. International law cannot work without the co-operation and support of the national legal system. Buhle Dube and Alfred Magagula19 in their research they wrote on the systems of laws in Swaziland and the application of laws, both the customary and the civil common law which are used in the Swazi courts. They explained on how the arms of the government work in Swaziland. 16 Trevor Buck, International Child Law,2005 17 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 harmonize laws relating to children in Swaziland. He addressed the issues affecting children’s rights in Swaziland and how the Swaziland government responds to child rights issues. He explored the rights of the child in Swaziland and the obligation of Swaziland on the convention on the rights of the child. From the literature review above it is clear that many writers have expressedviews on child rights, its importance and the issues affecting child rights. There a vivid silence on the problems caused by the lack of a single statute that regulate on child laws in Swaziland. Swaziland has government institutions that are responsible for offering and ensuring justice to the children. They educate, create awareness and enforce the existing national, regional and international laws. These institutions are not adequately guided by the laws of Swaziland due to the fact that they are scatted and embedded in many pieces of legislations. This therefore means that these institutions lack legal and policy guidance. There are no procedures to follow, which result inefficient and inadequate justice delivery service to the children of Swaziland. This study focused on the problems created by the lack of single comprehensive child statute and why it is important for national laws to comply with international law. 1.9 Scope of the research This research focuses on documenting the processes and the outputs of efforts to develop a single comprehensive child law in Swaziland. It makes use of electronically stored information and telephone 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 methodology The research approach was based on the social constructivism using a case study method. The final 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 semi structured questionnaire was a key data collection tool used. The questionnaire was disseminated by 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 by telephone and interviews by the telephone. One informant contacted by a social network services facebook. Some informants were interviewed directly on a face to face interview. The data collected is both qualitative and quantitative. 16
  • 17. CHAPTER TWO 2.0 THE LEGAL FRAMEWORK ON THE PROTECTION OF CHILDREN’S RIGHTS IN SWAZILAND 2.1 INTRODUCTION This chapter confines itself on the legal system of Swaziland and the legal framework on the protection of children at national and international level. Child protection means protection from violence, abuse and exploitation. Child protection addresses every child’s right not to be subjected to harm. It complements other rights that, inter alia, 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 child prostitution, are very closely linked to economic factors. Others, such as violence in the home or in schools, may relate more closely to poverty, social values, norms and traditions. Often criminality is involved, for example, with regard to child trafficking. Technological advance 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 and distributes through the new media. The laws and law enforcement development have not kept up with the growth of this new forms abuse. 2.2 Swazi legal system The Swazi legal system is a dual one in that common law – the law that binds everyone in the country 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 been recently put down and classified as law. 17
  • 18. which applies only to indigenous Swazis. Customary law is not codified but it is used in the Swazi 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 claim in the forum appropriate to the nature of his/her claim. Even though the traditional courts do not observe the comprehensive procedural rules of the common law courts many Swazis believe that they are more efficient in dispensing justice, For example, the absence of legal representation 24 allows Swazi people to be at ease when presenting evidence. In the common law courts discretion is exercised within defined parameters and in Swazi courts, which follow Swazi customary rules, the court president carry out trials using imaginary discretion. 25 Such dilemmas are aggravated by the fact that it is not clear whether the general common law or customary law has superior status in Swaziland. Until the introduction of the national constitution26 which began operating in 2006, the highest court in Swaziland was the Court of appeal. However the new constitution brought the Supreme Court. There are also regional Swazi national courts (referred as Swazi courts in this report) and their highest structure is the judicial commissioner’s court. Swazi customary courts are customary courts that follow Swazi traditional laws in court proceedings. These courts fall under the jurisdiction of the judicial commissioner’s office and the language used is siSwati as all participants are Swazis and use siSwati as a first language. There are no laid down rules as to how these courts should operate, However they derive their procedure from Swazi customary values and practices. Cases in these courts are tried faster and the modus operandi is flexible 23 80/1950 24 Section 23 of the Swazi National Courts Act 80/1950 25 Alphane et al 2000 26 2005 18
  • 19. because it is designed by the court president.27 Court presidents have the platform of adjudicating over disputes and in the process create the law. 2.3 INTERNATIONAL, REGIONAL AND NATIOAL LEGAL FRAMEWORK ON CHILD PROTECTION 2.3.1 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 to the Convention on the Rights of the Child; Swaziland signed the convention on 22nd August 1990 and ratified it on 7th September 1995. Ratification of international instruments creates obligations on States Parties to take action to bring domestic policy, law and practice into line with the relevant international instruments. Article 4 States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family 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 or mental 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 who has the care of the child”. Such protective measures should, as appropriate, include effective procedures for the establishment of social programs to provide necessary support for the child and for those who have care of the child, as well as for the forms of prevention and 27 A man considered to be an expert in Swazi customs. 19
  • 20. identification, reporting, referral, investigation, treatment and follow-up of instances of child treatment described heretofore, and, as appropriate, for judicial involvement. However this instrument 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 child States 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 (the right to survival and development), and article 12 (the child’s right to participate in matters af- fecting him or her). Non- discrimination In Swaziland there are many gaps relating to non-discrimination, for example as regards the elimination 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 legal provisions outlawing discrimination would be desirable. Best interests of the child As regards the best interests of the child as an overarching (i.e. paramount) principle governing matters affecting children, a close scrutiny of the provisions in Swaziland law does not lead to the conclusion that this principle is articulated clearly with regard to the best interests of the Swazi child. In conventional statutory provisions, the best interest’s principle would be a major determining criterion in regard to legal decision–making around children, such as with regard to care and placement of abandoned children or those without families or caregivers. It can play an important 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 best interests of the child has played a role in determining the allocation of custody and access when parents separate, and increasing it is used to underscore children’s rights to maintenance from their 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 development The 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 to the developmental processes that all children undergo in the passage to adulthood. “Recognition of this right expanded the range of positive measure to be adopted by States to further the health of the growing child’.29 Participation rights The fourth ‘pillar’ of the CRC is encompassed by Article 12, which has been described as giving the children’s rights movement it’s soul. This is because it is recognizing that children are to be consulted, and that they have the right to participate and express their views freely in all matters affecting them, that the international human rights community has acknowledged children as true bearers of human rights, rather than being mere objects of concern and charity, or recipients of welfare benefits 28 Child Law Issue Paper by Jacqui Gallinetti and Daksha Kassan on behalf of Save the Children Swaziland 29 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).31 This 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 the participation of students in the affairs of education. Swaziland is still yet to hold the children’s parliament 2.3.2 The United Nations Charter, 1945 Human rights are inherent by virtue of being a human being. They are usually defined in terms of equality 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 all without distinction as to race, sex, language or religion”.32 2.3.3 International Covenant on Civil and Political Rights, 1966 The ICCPR is the principal treaty setting out the fundamental civil and political rights for all people, including children. It states unequivocally that every child shall have without discrimination as to race, colour, sex, language, religion, national or social origin, property or 30 Child Law Issue Paper by Jacqui Gallinetti and Daksha Kassan on behalf of Save the Children Swaziland 31 Article 12(2) provides for the child’s right to be heard in any judicial proceeding affecting the child, either directly or through a representative 32 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 part of his family, society and the state.33 Article 10(2) (b), provides that accused juvenile persons shall 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 1921 2.2.4 ILO Minimum Age Convention (C138) in 1997 and the Worst Forms of Child Labour Convention The 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 basic education and the need to remove the children concerned from all such work and to provide for their 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 lies in sustained economic growth leading to social progress, in particular poverty alleviation and universal education.34 The convention under article 2 provides that a child is a person under the age 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 society and that for the full and harmonious development of his personality. The child should grow up in a family environment in an atmosphere of happiness, love and understanding.35 33 Article 24 of the International Convention on Civil and political Rights, 1966 34 Preamble of the ILO Minimum Age Convention and Worst Forms of Child Labour 35 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 Swaziland There is no single Act/ legislation for children in Swaziland; child related laws are found in different legislations. The national Constitution of Swaziland is the supreme law of the land. The Constitution contains provisions (article 30) relating to the protection of children but these provisions does not give substance to Swaziland’s obligation to the Convention on the rights of the child. Article 30(2)36 states that “a child shall not be subjected to abuse or torture or other cruel inhuman and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction”. The Intestate Succession Act37 regulates which child is entitled to inherit in the estate of a deceased father who has failed to affect a valid will. This piece of legislation, in relation to children, is extremely discriminatory as only legitimate children can inherit from the estate of both their father and mother. 38 Illegitimate children are only entitled to inherit from the estate of their mother. The Criminal Procedure and Evidence Act39 provides for provisions on criminal responsibility for minors. It also provides for the 36 The Swaziland Constitution (2005) 37 3 of 1953 38 Section 56 39 67 of 1938 24
  • 25. procedures of hearing cases of crimes committed by children. The Marriage Act40 governs issues of marriage in a way touching issues relating to children as they are usually directly affected by disputes of marriages. This Act also provides for some provisions that relate to children. The Adoption Act, 1952 governs issues of adoption but has nothing on inter-country adoption; it lacks clarity on procedures. Swazi customary law is unwritten and varies from place to place in the Swazi customary law courts. Swazi law is very strong in the area of family law and so directly affects children. Swazi courts may send a child to the reformatory centre for non-payment of fines without the child having legal representation as lawyers are not allowed in these courts. The Swazi courts can send children to the reformatory centre for failure to pay fines. 2.4 Concluding remarks Despite these ratifications, Swaziland has not yet enacted laws to comply with its obligations under these international documents. Child rights are recognized internationally as human rights for children. The international community requires states to fulfil their human rights obligation by protecting children and ensuring their rights are respected. Swaziland being a party to international and regional conventions which suggest a commitment by the government to child rights principles. Swaziland to fulfil her obligation adopted the Sexual Offences and Domestic Violence Bill which is still at drafting stage from 2005 to date and National Programme of Action for the Children of Swaziland 1993-2000, also in a draft form. 40 47 of 1964 25
  • 26. CHAPTER THREE 3.0 DATA ANALYSIS, INTERPRETATION AND DISCUSSION 3.1Introduction The key data collection method used was textual analysis. That is the research focused on the study of laws of Swaziland and other international legal instruments. It also looked at the reports that documented problems that are caused by the application and enforcement of the child law legislation 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 not very advanced in e-filling of its legislations and court records. There is vast literature of reports made 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 views and findings on child law status and issues in Swaziland. The research examines these publications 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 electronic library searches was utilized as critical tools and approaches for this research. The actual conducting of the research deviated from the original plan due to several reasons. One of the reasons 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 Study The study focused on Swaziland and looked at the existing national laws. International laws and reports 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 2005 national constitution. The constitution reaffirmed the powers of the king as elucidated in the April 12th, 1973 Decree that banned the Independent constitution42 and political parties. There is a dual legal system in Swaziland; the non codified traditional laws are working concurrently with the modern laws based on common law. The protection of the children of Swaziland needs to be explored on this context of the Swaziland legal system. Issues like child maintenance, inheritance, adoption, marriage, punishment, abandonment, family ties are much cultural than legal in practice. The children of Swaziland face several social and health issues that are exacerbated by the structural collapse of the Swazi traditional family unit, the high HIV/AIDS prevalence. The extended 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 and benefactor of the children. When young couples are experiencing problems in their social and economic life, they will always take the children to the grandparents. Currently that is not being the case due to the dominance of selfish economic values that discourages extended family 42 The 1968 independence constitution was repealed in 1973 by the then king Sobhuza the II a year after the 1972 elections, parliament dismissed and all parties banned. The king and his advisors felt that the constitution had failed to 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 had retained 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), including parents and grandparents, and the rapid urbanization of Swaziland. The problems of the children of Swaziland have been documents and reported about in the local and international media. The international community has risen concerned about the above mentioned problems. The key problem to these issues is the inadequacies of the laws of Swaziland in providing adequate protection for its children. The government has established institutions and departments within ministries to deal with the issues. The Royal Swaziland Police Force plays a pivotal role in the enforcement of the children rights. The constitution of Swaziland has dedicated Sections 29 to 31 of the Constitution specifically focus on children’s issues and rights. Unfortunately the processes of promulgating laws that translate the constitution meaningful legislation are moving very slowly. The civil society under the leadership of the Swaziland Save and Children Fund and UNICEF are trying to mitigate the effects of the short fall of the legislation. There are other church based organizations like the Lutheran Development Service (LDS), the Catholic Church (CARITAS) that provide service for the betterment of children conditions. There is a focus on working for children’s comfort around the HIV/AIDS responses. 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 is very little funds for NGO’s and government programmes. This has dire negative impact on the children of Swaziland. They have been initiatives by the international community working with government and her partners 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 has failed to promulgate the gate spite the adequate funding from a Swedish NGO. 3.3 Existing problems faced by children in Swaziland Swaziland signed the Convention on the Rights of the Child in 1990 (ratified 1995), and in 1992 produced the "National Programme of Action for the Children of Swaziland 1993-2000." This document 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 of serious financial constraints cannot be ensured for the children of Swaziland during this planning period.”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 are threatening 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 and Evidence 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 in Swaziland against the sexual abuse of boys.3 The document also refers to customary law, noting that the fact that the husband does not have to offer 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 or without her consent can be traumatic. There are several other aspects of both Roman-Dutch and customary law which do not sit well with the convention. Eminent legal authorities have stated that "the system of juvenile justice in Swaziland leaves a great deal to be desired. There is urgent need, therefore, to review the system in its entirety. . . The United Nations has settled minimum rules for the administration of juvenile justice which it is high time Swaziland applied"4 Further, "the application of any law operates against a background of a tenacious cultural background whose claims are often stronger than the common law imported in the colonial era."5 The 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 occurred in Swaziland to anywhere near the same extent as some other developing countries. The problem is increasing all the time, as population and unemployment pressures mount. Recent publicity concerning the plight of street children - including physical and sexual abuse, and substance abuse by the children themselves - preceded the provision of shelter and food by a private concern in Mbabane. The Government of the Kingdom of Swaziland has produced a Draft National Policy on Children Including Orphans and Vulnerable Children in Swaziland.44 In this Policy, child protection is identified as a key-issue. It states that child protection initiatives will be achieved by reviewing and where necessary creating legislative frameworks on the protection of children and by placing emphasis on the protection of children from sexual abuse and exploitation as well as pornography and trafficking. It is clear that Swaziland is acutely aware of 44 2003 30
  • 31. the difficulties facing children. However, as policy, the document still does not carry the weight of law and, more particularly, is still a draft and not yet finalized. 3.3.1 Assessment of the law on Juvenile Justice System International law gives substantial guidance to countries seeking to reform their legislation and policies concerning children in trouble with the law. The chief instruments are the CRC (Articles 37 and 40),45 the Beijing Rules for the Administration of Juvenile Justice (1985) and the Riyadh Guidelines for the Prevention of Juvenile Delinquency. Other relevant instruments include the International Covenant on Civil and Political rights (1966), the Convention Against Torture (1984) and the 1955 Standard Minimum Rules concerning the treatment of prisoners. The key aims of a juvenile justice system are established by reference to article 40 of the CRC, which is principally to ensure that the child is reintegrated into society and is able to assume a constructive role in society. Additionally this must be achieved in manner which promotes the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others, and which takes into account the child’s age. These aims militate against a system which is solely punitive or retributive, and do not permit a system in which a lack of respect for children’s human rights is allowed to continue. At present the Swaziland criminal justice system as far as it pertains to children accused of committing crimes sorely 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, inhumane or degrading treatment or punishment. Neither capital punishment no life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; b) no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest detention or imprisonment of a child shall be in conformity 31
  • 32. A juvenile justice system for children is essentially a management system for children in trouble with 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, record keeping, referral of children to welfare courts if necessary, protection of children used by adults to 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 7 years) and juvenile adults (between 16 and 21 years)46 to be detained in reformatories in terms of a court order. The sentence would be not less than 2 years and not more than 5 years.47 Furthermore, the period for which the juvenile would be detained in the reformatory expires on or before the date on which he attains the age of 18 years, but this does not apply to juvenile adults. The Criminal Procedure and Evidence Act48 is the main piece of legislation dealing with children in 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 in certain limited respects, these relating to sentencing. While the Act provides for the death penalty, it prohibits the imposition of this sentence on children under the age of 18 years.49 In addition, the Act provides that no child under the age of 14 years shall be subject to a sentence of imprisonment. The Act also provides for certain 46 Section 41 47 Section 42 48 Repealed in 2006. 49 section 32
  • 33. alternative sentences for children such as placing the child in the custody of a suitable person.50 In addition, it also provides for sentences to be suspended or postponed with certain conditions attached thereto. There is one juvenile facility in Swaziland, the Juvenile Industrial School. As of 10 September 2004, there were 38 children being held at the facility, either on remand or serving a sentence. The children serve a maximum of two years at the facility after which they are released back to the community. However it should be noted that this facility caters for only male children. Female children offenders share the same facility with adults at Mawelawela The Draft Sexual Offences and Domestic Violence Bill deals with certain aspects of juvenile justice, For example, it deals with the minimum age of criminal capacity of a child to commit a sexual offence. In addition, it also deals with assessment and diversion of a child who has committed a sexual offence. The difficulty with this is that confusion may arise by having different pieces of legislation dealing with children in trouble with the law based on the nature of the offence committed. 3.3.2 Corporal punishment as a way of correction At present Swazi law provides for corporal punishment to be used in schools, at home and as a sentence to a criminal offence. The constitution states, “a child shall not be subjected to abuse or torture or other cruel inhuman and degrading punishment subject to lawful and moderate chastisement for the purposes of correction’. However, it appears that a High Court decision has 50 Section 46 33
  • 34. placed a moratorium on whipping as a sentence and the courts are no longer applying it, although it remains an option on the statute books.51 Article 29(2) of the Constitution provides that “a child shall not be subjected to abuse or torture or other cruel inhuman and degrading treatment or punishment subject to lawful and moderate chastisement for purposes of correction”. All provisions recognising the right to administer “moderate chastisement” should be repealed and the law should explicitly prohibit all corporal punishment and other cruel or degrading forms of punishment, in the home, schools and all other settings where adults have parental authority over children. Schools – Corporal punishment is lawful under the Education Act (1982) and the Education Rules (1977).52 The provisions authorizing corporal punishment should be repealed and explicit prohibition enacted in legislation relating to all education settings (public and private), in addition to repeal of “moderate chastisement” provisions. Penal system – Corporal punishment is lawful as a sentence for crime under the Criminal Procedure and Evidence Act (1938).53 The Courts Act (1950) allows the court to impose any punishment recognized by Swazi law and custom, provided it is not repugnant to natural justice and humanity, but this is not interpreted as prohibiting corporal punishment. Corporal punishment is lawful as a disciplinary measure for males in penal institutions under the Prisons Act (1964) and possibly the Reformatories Act (1921). R v. Nhlanhla Dlamini54 the accused was 51 Interview with Magistrate Gama, Manzini Magistrates Court, 14 September 2004 52 Appendix B provides for the procedures for punishing students. 53 Sections 307 and 307 54 (1987-1995) SLR Vol 4. 34
  • 35. convicted for robbery and sentenced to whipping at a Magistrate court in Nhlangano. The provisions authorising corporal punishment should be repealed and explicit prohibition enacted in legislation relating to all forms of justice and all institutions accommodating children in conflict with the law. Alternative care settings – Explicit prohibition should be enacted in legislation applicable to all alternative care settings, including public and private day care, residential institutions, foster care, etc, in addition to repeal of “moderate chastisement” provisions. 3.3.3 Age of majority Section 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. The proposed Sexual Offences and Domestic Violence Bill, in section 1, define a child as a person under 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 of practice in a very important area – the determination of childhood. However, a seemingly simple determination 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 transition from 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 and 55 Article 1 56 Article 2 35
  • 36. the rights guaranteed by virtue of such status becomes a little more complicated. Age sets in Africa is a common way of denoting human beings’ rights and duties, actual age is often difficult to deduce. Cessation of childhood is often established through initiation programmes, when one is thought to have acquired sufficient maturity. Each status carries with it various rights, duties and 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 king marrying young girls58 3.3.4 Maintenance of children in Swaziland The maintenance of children is governed by the Maintenance Act 35 of 1970. This provides the procedures to secure the payment of maintenance, which includes the appointment of maintenance officers, investigations and also governs the payment of maintenance arising from customary marriages. A study was undertaken by WILSA into maintenance in Swaziland which indicated that although maintenance of children problems are widespread most women do not do anything to solve the problem.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 court 57 55 Lloyd, ibid, p29 58 Inkhosikati LaDube who was a Miss Teen Swaziland finalist at age 16, pupil at Mater Dolorosa High School in 2004 and Married the king 11 June 2005 and Inkhosikati Lankhambule who married the king at 17 59 1992 ‘Maintenance in Swaziland’ Women and Law in Southern Africa Research and Educational Trust, January 1992, 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 stem from a bad application of the law as well as a lack of knowledge and sensitization to the issues that stem from failure to pay maintenance. In order to correct this it is suggested that a major awareness 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. In addition, the procedures and resources needed to ensure an effective maintenance system within the courts is needed. 3.3.5 Child and sexual Abuse Children are prioritized as one of the most vulnerable groups in society, in need of special protection. This has been made evident through Swaziland’s ratification of the United Nations Convention on the Rights of the Child (CRC) and the inclusion of a dedicated children’s rights section in the national Constitution. As such when they are placed at risk of abuse or actually abused, whether physically, sexually or psychologically, certain obligations are brought to bear on the State through its various functionaries. However, the need to protect children has preceded these new obligations and can be seen from Swaziland’s ordinary criminal law provisions that derive from common and statutory law. 37
  • 38. There needs to be laws that form a protective mantel around children to ensure that where they are 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 and courts need to have specific duties and obligations to ensure that children are adequately protected when in need of such protection and care. Swaziland has two pieces of legislation that deal with the issue of sexual abuse of children. These are the Girl’s and Women’s Protection Act 39 of 1920 and the Crimes Act 1889. From the outset, it must be noted that these two laws are very outdated. This has serious implications for the protection of children, particularly when we live in an age when crimes against children have become more sophisticated and more brutal than could ever have been imagined. Section 3(1) of the Girls and Women’s protection Act provides that Every male person who has unlawful carnal connection with a girl under the age of sixteen years or who commits with a girl under that age immoral or indecent acts or who solicits or entices a girl under such age to the commission of such acts shall be guilty of an offence and liable on conviction to imprisonment not exceeding 6 years with or without whipping not exceeding 24 lashes and with or without a fine not exceeding one thousand Emalangeni in addition to such imprisonment and lashes. This section is discriminatory against boys. The provision goes further in section 3(3) to allow the court deciding such a matter to determine a girls age from her appearance should there be insufficient evidence to determine it. In R v. Makhanya61 the accused was convicted for raping a 12 years old girl and sentenced to 5 years term in prison, the magistrate since there was no evidence to prove that the accused was 15 years nine months, estimated the accused age to be 18 years 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 the offence the girl was a prostitute. This therefore means that prostitution is allowed in Swaziland especially 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 with intent to cause grievous bodily harm, and criminal procedural protections ensue, such as the refusal of bail or the application of a minimum sentence if the perpetrator is convicted of the offence. In this instance the perpetrator can be known to the child (a parent or family member) or a stranger. The new Sexual Offences and Domestic Violence Bill provide the criminal and civil law protections for children who are victims of abuse. The proposed Domestic Violence section in the Sexual Offences and Domestic Violence Bill has created a new civil law avenue for victims of domestic violence to seek protection. In terms of the proposed Bill, the same protections that apply to adults apply to children who are victims of domestic violence. As stated, this is more of a pure civil remedy than a welfare response. It is premised on the fact that there is a definite perpetrator of domestic violence and that the child and/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 of such 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 welfare law. The Crimes Act in Part V of the Crimes Act which criminalizes a parent or guardian for receiving compensation in relation to the prostitution of his or her child;62 creates an offence for inveigling or enticing a girl who is not a common prostitute for the purposes of prostitution63 and criminalizes a person for procuring any girl to become a prostitute.64 The Government of the Kingdom of Swaziland has produced a Draft National Policy on Children Including Orphans and Vulnerable Children in Swaziland.65 In this Policy, child protection is identified as a key-issue. It states that child protection initiatives will be achieved by reviewing and where necessary creating legislative frameworks on the protection of children and by placing emphasis on the protection of children from sexual abuse and exploitation as well as pornography and trafficking as, at present, Swaziland has no laws that criminalize child pornography and trafficking. However, a policy document is not law and does not bind government to anything nor hold her accountable for failure to deliver on the policy (Specially since Swaziland in not a democracy, even the elections process cannot hold government accountable to the electorate). It is for this reason that comprehensive laws protecting children from 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 children Thandeka, a fourteen-year-old girl, was orphaned in 2003 when her mother, an unmarried woman who was living at her parental home with her children, died of AIDS. Thandeka’s mother was an active member of the organization, Swazi Positive Living (SWAPOL). After her mother’s death, Thandeka’s maternal uncles chased her and her sisters from their home and told them to go to their father’s home. But the children did not know where he stayed. Eventually, the children were “adopted” by one of the community members (Izumi 2006c: 16). This case reveals the particular property and inheritance problems of orphans born to unmarried mothers in societies that adhere to customary practices of patrilineal succession, like Swaziland. In such Swaziland, unmarried women in Swaziland can be given a piece of land to build a house at their birth homestead. But their do not have land rights only privileges that depend upon the availability 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 a son among their children who can claim land inheritance rights. Another interesting aspect of this case is that Thandeka and her siblings were adopted by a community member rather than by their own relatives. This case serves as a testament to the fact that community members often intervene to care for orphans as well as to the associated argument that such community members should be assisted with their efforts. Wife inheritance (kungena)66 was a common traditional practice which was designed to ensure that 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 popular due 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 Convention As 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 the Convention on the Rights of the Child are to provide fundamental human rights as appropriate to children. The reports of the King’s 14-year-old son undergoing advanced military training67 in Libya 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 Swaziland 68 Section 13 69 In 2003 the Swazi Observer reported a case of a high school teacher who impregnated two girls and later married them (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. Existing statutes relating to children in conflict with the law do not provide for a separate child justice system. ‘Child victims and witnesses’ denote children and adolescents, under the age of 18, who are 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.71 Access 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 from abuse, neglect or abandonment and therefore no legal oversight of the interventions undertaken with them. 70 A Report by the US state department on trafficking in persons, June 2009. 71 United Nations Guidelines 43
  • 44. 3.5Conclusion remarks Legal systems are particular ways of establishing and maintaining social order. Law is a formal mechanism of social control. The state must ensure that the protection of child rights is realized and respected by all citizens; this can only be achieved by enacting proper legislation that will guarantee child protection in the country. Child laws are enacted to recognize children” developing beings whose moral status gradually changes” thus demanding a realistic understanding of their interests within their families and the larger social context.72 It is evident that whilst there is legislation pertaining to children in Swaziland, a number of problems can be identified. The laws are fragmented and not easily accessible to those charged with their implementation. It should be noted that most of these laws are outdated therefore do not cover some of the crimes affecting children for example child pornography and child prostitution. The existing laws are very weak when it comes to child protection. There is a need for 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 (David Archard and Colin Macleod eds,2005) 44
  • 45. Chapter four 4.0Conclusion and Recommendations 4.1Conclusion The purpose of the research has been to look at the problems caused by the lack of a single comprehensive statute relating to children in Swaziland. The motive was to see whether the absence of a comprehensive statute for children. It has been 11 years since Swaziland’s ratification of the CRC and while there have been certain policies introduced, e.g. the Draft National Policy on Children including Orphans and Vulnerable Children in Swaziland and the Children’s Unit, these have not even been implemented and the former 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 the domestication of the CRC. So until 2005, there is little movement towards the harmonization of Swazi laws with the CRC. It is unclear why this passivity prevailed, but it is notable that none of the international instruments ratified by Swaziland have been domesticated into national legislation. Currently laws relating to child protection are scattered in different statutes and they do not comply with international instruments. The country does not have a single comprehensive statute that will provide procedures and guidelines as to the protection of children. This makes it very 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 been abused or neglected. There are no specific statutes or case laws governing child protective proceedings. Failure to protect children undermines national development and has costs and negative effects that continue beyond childhood into the individual’s adult life. While children continue to suffer violence, abuse and exploitation, the world will fail in its obligations to children; it will also fail to meet its development aspirations as laid out in such documents as the millennium agenda with its millennium development goals. The dual system of law in Swaziland also makes it difficult to comply with international instruments. Under civil common law, the laws are stipulated and clear 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 73 political upheaval and legal uncertainty, highlighted by a number of international reports. The controversy 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 from their 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 rights are not fully protected by the state. The multiple legislations relating to children bring confusion as to who is a child. The dual system of government also makes it difficult for the legislators as 73 2003, 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 and Swaziland: Human rights at risk in a climate 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 Zakhele Remand Centre was denied freedom despite the fact that he had obtained a liberation warrant from 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 fully protect 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 not sufficiently 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 which are 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-country and inter-nationality adoption. 74 The King is fond of marrying young woman 75 Swaziland – Law, Custom and Politics March 2003 pg 57 76 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 former promoted 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 parents had died. The procedural system for dealing with children in trouble with the law is weak and does not meet the standards set by Articles 37 and 40 of Convention on the Rights of the Child. Under the Swazi courts where there is no legal representation and the procedure in these courts is that a criminal suspect is guilty until proven innocent as opposed to modern common law courts where the accused is innocent until proven guilty.77 4.2 Recommendations Having seen that the Swazi government has realized that children have rights by signing the different instruments which deals with issues affecting children the following recommendations are 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 offenders 77 Language, gender and power relations in Swazi National Courts: a discourse based analysis by Nkhosingphile Dlamini 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.78 78 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. BIBLIOGRAPHY BOOKS 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 2001 ARTICLES 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 Observer WEBSITES 1. Retrieved on 20 January 2011: http://www.box.net./acpfpublications/1/4/7718778 2. www.africanchildforum.org 3. www.savethechildren.co.za STATUTES 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, 1924 CASES 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 PAPER TOPIC: THE ABSENCE OF A SINGLE COMPREHENSIVE CHILDREN’S ACT IN THE EFFECTIVE DELIVERY OF JUSTICE AND THE PROTECTION OF CHILD RIGHTS IN SWAZILAND. RESEARCHER: KHANYISILE LUKHELE REG, NO: TU/M/LLB/08/770 SUPERVISOR: DR MATHIAS SAHINKUYE A COMPULSORY RESEARCH PAPER IN PARTIAL FULFILMENT OF THE REQUIREMENT FOR THE BACHELOR OF LAWS AT TUMAINI UNIVERSITY. 53