Makhosazane Eunice Sacolo (nee Dlamini) and Another vs. Jukhi Justice Sacolo and 2 Others (1403/16)  SZHC (166)
The common law of marital power and the Marriage Act of 1964 in eSwatini violate the constitutional rights of married women to equality before the law, dignity, and freedom from race-based discrimination.
When Makhosazane Eunice Sacolo, a Swazi woman, was left by her husband, she was unable to sell any of the livestock that they owned, even those that she had purchased with her own money. Under eSwatini’s common law of marital power, that property was registered in her husband’s name. This common law doctrine, as well as the Marriage Act of 1964, also prohibited married women from concluding contracts without her husband’s permission. Married women were unable to administer property or represent themselves in civil suits and were restricted from accessing bank loans, mortgages, and financial credit without their husband’s consent.
Women and Law in Southern Africa’s Swaziland chapter (WLSA) brought a case with Makjosazane. They argued that the common law of marital power violated the constitutional and international human rights of married women to equality before the law and to dignity. They also argued that the Marriage Act discriminated based on race because it imposed customary marriage law on “African” spouses but common law on “non-African” spouses (without defining these categories). Thus, even if the common law of marital power were overturned, the Marriage Act would still impose customary law on married Swazi women.
The Court declared the marital power doctrine was unconstitutional because it discriminated against married women and violated their dignity, holding that spouses married under the Marriage Act and in community of property had equal capacity to administer their property. The Court also struck down all parts of the Marriage Act that imposed customary law because they discriminated on the basis of race. To reach these conclusions, the Court did not rely on the international treaties and conventions the plaintiffs had presented in their briefs because the decision could be thoroughly based on the domestic constitution and jurisprudence.
The Court summarized marital power as the right of a husband to “rule over” his wife’s person and administer her property, at least to the extent that she must seek his consent. Two prior eSwatini decisions in 2013 and 2009 had abridged marital power, with limited rulings that married women could not be denied standing in court or prohibited from registering immovable property in their name because those prohibitions violated their right to equality. However, these decisions were too narrow, not negating the marital power doctrine’s discriminatory effect.
According to the Court, common law marital power violated Section 20 of eSwatini’s constitution, which declares that all people are equal before the law and cannot be discriminated against because of gender, as well as Section 28, which expressly states that “women have a right to equal treatment with men.” While couples could mitigate the marital power doctrine by restricting the husband’s common law authority and, through a pre-nuptial contract, excluding community property from being assigned to the husband, the Court found that the availability of such mitigation measures did not make the law any less discriminatory. The Court based its reasoning on the U.S. Supreme Court case Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981), which found a similar statutory provision unconstitutional because it discriminated based on gender. The Court asserted that the common law marital power is discriminatory because it differentiates based on gender and requires women to go through an extra legal step to gain equality, which husbands do not need to.
Furthermore, according to the Court, the common law violated the dignity of married women because it denied them majority status. Clause 18 of the constitution protects dignity, understood as the state of being worthy of respect and honor. The Court accepted plaintiffs’ argument that, because the common law treated married women perpetually as minors, it deprived them of dignity.
The Court also stated that Sections 24 and 25 of the Marriage Act also discriminated against married women because they imposed different legal treatment of African and non-African couples based on race.
Women in eSwatini are now enabled to buy and sell property, sign contracts, and conduct legal proceedings without their husband’s consent. If broadly interpreted, this should mean that women should not need their husband’s consent to run for and hold public office. Advocates WLSA and the Southern Africa Litigation Centre, who supported WLSA in the case, hope that this judgment will bring eSwatini closer to constitutional and international human rights law compliance. This decision could also bolster the country’s law reform process to make sure that marriage equality is reflected in all marriage laws. In its decision, the Court also cited to recent judgments from Botswana and India related to the criminalization of sexual orientation in its reasoning that dignity is an essential element of respect and honor, demonstrating the impact of comparative domestic human rights rulings.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.