Times Of Swaziland: MAN SENTENCED TO 15YRS NO FINE CHALLENGES SODV ACT

MAN SENTENCED TO 15YRS NO FINE CHALLENGES SODV ACT
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Mbongiseni Ndzimandze on 04/10/2022 08:55:00


MBABANE – Another court challenge on the constitutionality of the Sexual
Offences and Domestic Violence (SODV) Act of 2018 in its entirety has been filed
at the High Court.
This time around, a 34-year-old man of Lushikishikini, who has been sentenced to
15 years without an option of a fine for maintaining a sexual relationship with
a 16-year-old teenage girl, wants the High Court to declare the SODV Act of 2018
unconstitutional. His contention, among others, is that the Act was not made in
the manner and form stipulated by Section 115 of the Constitution, which
includes taking it to the council of chiefs before it was enacted. He argued
that the Bill should not have been enrolled and adopted in Parliament before the
council of chiefs made its input. Machawe Lindokuhle Xaba (34) also argued that
the Act introduced several modifications and significant changes which go
against Swazi Law and Custom.
Criminalisation
The modifications, according to the applicant, include among others, the
criminalisation of the custom of kwendzisa for girls below 18 years, limitation
of sexual activity below the age of 18, redefinition of the crime of rape and
widening same to include women as potential rapists, introduction of the crime
of rape between husband and wife, criminalisation of the custom of kukhuzela,
stalking of women by men  and redefinition of such customs of relentlessly
pursuing women for marriage as harassment  and redefinition of  abduction.
“All the above species of conduct needed a national dialogue, through a
council of chiefs, before it was made into law. As we speak, the SODV Act was
imposed onto the nation and this is despite the legislative safety valve put in
place to ensure some degree of involvement of the people in the enactment of
laws designed to affect them,” he argued.
He averred that the law was passed prematurely before the establishment of the
council of chiefs, let alone securing their opinion on the then SODV Bill.
Respondents in the matters are the director of public prosecutions (DPP),
Speaker in the House of Assembly, Senate president, deputy prime minister,
commissioner general of His Majesty’s Correctional Services (HMCS) and the
attorney general (AG). Under matters regulated by Swazi Law and Custom, Section
115 provides that: Where a Bill, in terms of this section, is duly introduced,
the Senate shall not proceed to the second reading of that Bill until - a copy
of that Bill has been sent by the president to the council of chiefs, and a
period of 60 days has elapsed since the copy was sent to the council.
Section 25 of the Constitution stipulates that, there shall be a council of
chiefs, which shall be composed of 12 chiefs drawn from the four regions of the
kingdom, appointed by the Ingwenyama on a rotational basis. The council of
chiefs shall be responsible for, among other things - advising the King on
customary the issues and any matter relating to or affecting chieftaincy,
including chieftaincy disputes and performing the function in terms of Section
115. Xaba submitted that he had been advised that the perquisite steps listed
under Section 115 of the Constitution were not followed when the SODV Act was
passed into law. According to the applicant, there was no evidence that the Bill
was introduced in Senate and Senate president allegedly never treated the Bill
as one that introduced significant changes in Swazi Law and Custom.
Omitted
“The Senate president and the Speaker deliberately and/or negligently refused
and omitted to refer the Bill to a council of chiefs for deliberations before
same was promulgated into law.
“This omission is fatal to the legality of the resultant legislation in that a
crucial step was omitted in the legislative process and thus the SODV Act is
unlawful,” he argued. The applicant further brought it to the attention of the
court that he had been advised that the council of chiefs had not been
constituted as yet as there was no government gazette that had been issued by
the relevant authorities appointing its members.
He told the court that Section 125 of the Constitution stipulated the manner of
formation of the council of chiefs, but such appointment had not yet been made
for reasons unknown to him.
In his application, Xaba wants the High Court to declare the SODV Act
unconstitutional for non- compliance with the manner and form stipulated by the
Constitution to be observed before promulgating a statute seeking to introduce
significant changes into the text of Swazi Law and Custom in terms of Section
115 of the Constitution. The applicant alternatively wants the court to suspend
the operation of the whole SODV Act pending finalisation of his application.
Xaba implored the court to release him on bail, pending determination of his
application.
The Act was previously challenged by a primary school teacher, who was arrested
for allegedly having sexual intercourse with a 15-year-old minor. The (SODV) Act
of 2018, according to the teacher, Moses Shongwe, is unconstitutional in that it
allegedly takes away the right to a fair trial, which is guaranteed by Section
21 of the Constitution. The teacher was charged under Section 3 of the Act. In
terms of this section, a person who rapes another commits an offence of rape
and, for purposes of this Act, an offence of rape is committed either by a male
or female person against another person.
Conviction
Shongwe informed the court that if he were to be tried under the SODV Act; “I
am guaranteed of a conviction and my defences to the charge laid against me have
been removed and if not removed, pleading to them is of no practical value under
the Act.” According to the teacher, the Act was crafted in such a manner that
his side of the story is allegedly irrelevant. In the present case, the
applicant is represented by Khumbulani Msibi of Dlamini-Kunene Associated while
the respondents are represented by the attorney general. The application, which
is being opposed by the respondents, was before Principal Judge Qinisile Mabuza,
who referred it to a full bench of the High Court.