This case concerns the ability of women married in community of property to register property jointly in their own and their husband’s names. In deciding this case, the Supreme Court of Swaziland upheld fundamental rights to equality enshrined in the Constitution.
In July 2011, Parliament passed an updated version of the Act allowing women to register property in their own names, including women married in community of property. Further, no spouse can deal with immovable property or legal rights connected to property or other items unless the other spouse has consented in writing. In October 2011, Zwelethu Mnisi, Ambassador of Swaziland to the United Nations, reiterated the same in his statement before the Third Committee of the 66th Session of the UN General Assembly pertaining to the Advancement of Women. To date, the government is in compliance with the legislation.
This historic decision was widely celebrated by women in Swaziland and across the region as a significant development towards protecting women’s property rights and advancing gender equality, and the first time Swaziland’s 2005 Constitution was used as the basis to protect women’s rights. Aphane’s victory is a testament to the Court’s commitment to equality principles outlined both in the Constitution and international human rights instruments to which Swaziland is a party. It is also important to note that the State and Government officials were in agreement with Aphane that Section 16(3) was inconsistent with the equality principles outlined in Sections 20 and 28 of the Constitution. However, the decision did not actually address the common law doctrine of marital power, which underpinned the offending section of the Act.
The ruling is particularly relevant today, when women around the world still own less than 20 per cent of the world’s land. In Africa, while 31 per cent of men own land individually, only 12 per cent of women do so. Building on international recognition of the critical importance of women’s rights related to land and property rights, a July 2017 paper by the UN Working Group on the issue of discrimination against women in law and in practice emphasizes that “[s]ecure land rights for women set off powerful, continued ripple effects that go a long way toward realizing gender equality and a range of critical SDGs and human rights.”
*This picture is not directly related to the two cases but pertains to the work of the Swaziland Rural Women’s Assembly, an organization working on women’s rights and development in Swaziland.
