C

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
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3. WEBSITES...................................................................................................................................................51
STATUTES...................................................................................................................................................51
CASES.........................................................................................................................................................52
3

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