WHATSAPP PRIVACY CONCERNS IN KWAKHO KWAMI

MBABANE - Fear has spread throughout Eswatini in the wake of the detention of a woman who was apprehended for allegedly accessing her husband’s WhatsApp messages.

It is understood that she allegedly accessed the messages on her husband’s phone without his authorisation. Concerns have been raised among spouses married in community of property (kwakho kwami) regarding the potential applicability of the contentious Computer Crime and Cybercrime Act of 2022.

The article will not delve into merits and de-merits of the case, as the couple’s type of marriage has not been discussed or revealed in court. Instead, legal practitioners, in this article, are discussing the significance of harmonising the Marriages Act of 1964 and Computer Crime and Cybercrime Act of 2022.

It must be said that the confusion stems from the definition of marriage in community of property, a marital property arrangement where partners share all assets and liabilities acquired during their union.

Accountable

This implies that both spouses are equal proprietors of the assets and equally accountable for any debts incurred. Comparable cases in other countries highlight the complexities of laws governing marital property regimes. In South Africa, a website specialising in family and divorce law notes that marriage in community of property is deemed the most cost-effective and prevalent matrimonial regime, despite its inherent flaws.

Notably, the absence of an antenuptial contract automatically results in a marriage in community of property, where the spouses’ estates are amalgamated, granting each party equal authority over the assets. Renowned human rights and constitutional attorney in Eswatini, Sipho Gumedze, highlights the need for a comprehensive review of existing laws to avoid conflicting implementations.

Gumedze emphasises the necessity to align statutes such as the Computer Crime and Cybercrime Act with the Marriages Act of 1964. He questions the incongruity between prohibitions on accessing digital devices and physical privacy within a marital context, advocating for the synchronisation of Roman Dutch law with Eswatini’s customary practices.

Confusion

Gumedze states that the absence of a law reform commission creates confusion in the application of the country’s laws, some of which are clashing. “Why must I not touch her phone when I can touch her private parts?” wondered the attorney in an interview with Eswatini News. He said the Roman Dutch law, with Eswatini Law and Custom should have long been harmonised because the kingdom is a dual system.

Another question arises, he said: “Am I allowed to view your phone? Am I allowed to view your private parts?”
The principle of joint estate in marriages in community of property, symbolised by the notion ‘kwakho kwami’ in siSwati, can be understood to mean collective ownership of assets. He said marriages in community of property emphasise on the joint estate or ownership, which may be translated in vernacular as ‘kwakho kwami’  (literally meaning your asset belongs to me).

If ‘kwakho kwami’ is considered to be an admissible argument, it may mean the couple shares the mobile phone. “That would mean he/she accessed messages, in case of messages, that were contained in his/her phone which also forms part of his/her assets,” Gumedze said. One woman married in community of property is wondering if the controversial Computer Crime and Cybercrime Act of 2022 also applies to her.

“My husband’s phone, which also belongs to me, may be containing information that is harmful to our marriage. Infidelity, for instance, is an act that contravenes our matrimonial vows and also contravenes the Marriages Act,” she said, preferring to speak about this issue on condition of anonymity.  

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