In defense of the SODV Act

Two conflicting narratives have emerged in Swaziland following the enactment of the Sexual offences and Domestic Violence Act. The first contends that the SODV Act is explicitly a “gender-blind” legislation crafted to put a screeching halt to the heart-wrenching sexual and domestic violence atrocities committed throughout the country.

The second holds that the SODV Act, particularly the marital rape clause, is “gender biased”. Proponents of this (misinformed) point of view vociferously argue that the marital rape clause was crafted by vengeful individuals to target and persecute married men by criminalising the authority they have over their wives.

Activists protesting on issues related to women

I have observed misogynistic aspersions cast towards the marital rape clause with resentment and trepidation. What is unfortunate is that the very same people which perpetuate of economic inequalities in our nation also “feed” on the relentless attack of the SODV Act. 

Our law makers, by virtue of being in position of power, should be in the forefront in the emancipation of women instead mock, belittle and tarnish the good intentions of the SODV Act.

These unfortunate aspersions are not new though. In fact, they date back to as far as 2009 when the SODV Bill was first introduced in both Houses of Parliament. 

History has it that in 2009, a coalition of civil organisation and women rights activist successfully lobbied the ninth Parliament to debate and enact the proposed Sexual Offences and Domestic Violence Bill. This came after it was found that the dual legal framework (Roman-Dutch law and Customary Law) of Swaziland was largely ineffective in prosecuting sexual and domestic violence atrocities. 

Influential members of the ninth Parliament are infamously remembered for deliberately delaying and stonewalling the enactment of the SODV Bill because they were not happy with of some of its clauses. Senator Moi Moi Masilela, for example, minced no words when he publicly registered his hatred towards the marital rape clause to a point of branding it a home wrecker (Incitsamuti).

The marital rape clause was one of three other contentious clauses which the legislators of the ninth parliament felt were undermining Swazi cultural norms and values. The other clauses in question were clause 10 (which talks about unlawful stalking), clause 42 (which talks about abduction), and clause 47 (which deals with incest). 

Our so called “patriotic” legislators felt these clauses should be modified because ‘they criminalized proposing love and traditional marriage (Kuteka)’.

Most legislators were of the view that these four clauses curtailed husbands from attaining conjugal rights from their wives, criminalised proposing love, undermined traditional marriage rights (Kuteka) and traditional regalia respectively.  They urgently called for their modification, a process that took a daunting nine years.

The ultimate enactment of the “modified” SODV Act in 2018, albeit belatedly, did not extinguish the resentment and misgivings male supremacists in Swaziland have towards the marital rape clause. 

The Swazi Observer (21 May 2019) quoted one Mkhulu Mahlalela who spoke during Lomahasha Member of Parliament Ndumiso Masilela’s thanks giving ceremony and said: “I don’t believe Swazis were part of this. I promise you no man would have accepted this. What would be a point of having a wife if she will say no to sex sometimes? What if I beat my wife, shouldn’t I bring her to order? Now she is allowed to go lay a charge! There is no way that marriage can continue existing when I come back from jail. This law is really meant to punish and men only”.

These baseless suppositions were supported by another woman, Shirley Maziya, who stressed how unhappy she was with the SODV Act, in particular the clause relating to marital rape because it was ‘causing unprecedented rifts between husbands and wives on sexual rights’.  

Such jaundiced views are similar to those articulated by appointed Member of Parliament Princess Phumelele during the debate of the second quarter performance of the Prime Minister’s office.

The Swazi Observer (2019-11-15) quoted the Princess to have said that “it was wrong for women to be allowed to refuse their spouses conjugal rights”. She rhetorically wondered why and how the SODV Act was passed by Parliament because some of the legislators were fully against it.

The above submissions speak volumes about the toxic patriarchal conception most Swazis, in particular our legislators, have towards the marital rape clause of the SODV Act (2018).  

Studies conducted by UNICEF (2007), WLSA (2002) and ICJ (2018) (2016) rightly indicated that the conventional patriarchal discourse of Swaziland society fuels and condones behaviours and attitudes which perceive Swazi women as insubordinate which leads to their discrimination and sexually assault. 

These studies identified harmful social practices like kwendziswa (arranged marriages) Kugenwa (wife inheritance), Tibi Tendlu (sweeping family matters under the rug) as leading norms which perpetuate sexual assault on married women within the family unit.

The enactment of the SODV Act has thus seen countless offenders being prosecuted much to the bewilderment and anger of the male supremacist who believe they have a “cultural” right to (unwanted) sexual favours from women. At worse these supremacists want to relegate women to a subclass where they have no control or rights over their own bodies.

Swazi society is extremely patriarchal and its family unit enforce and condone discriminatory cultural and religious values that perceive married women as the “eldest child of the family” with no bodily autonomy and consent.”  The advent of the SODV Act in particular the marital rape clause has thus corrected this patriarchal imbalance.  Section 3 (3) stipulates that a sexual activity is unlawful when the person is coerced;

The SODV Act has given women power that many now want to contest

Section 3 (3) stipulates that a sexual activity is unlawful when the person is coerced. Reads the Act in part;

to engage in an unwanted sexual act including  the use of  force, threats and using the power or authority to the extent that the person in respect to whom the sexual act is committed is inhibited from indicating his/her resistance to participate in such a sexual act”.

To brand the marital rape clause as a cultural abomination means conforming to the misinformed assumption that tradition supersede womens’ natural rights. Women, married or not, are sovereign individuals free to do as they wish. 

They enjoy the right to engage in any sexual activity as and when they want to. For this reason, the SODV Act must be welcomed as a much needed legislation meant to safeguard those rights which, truth be told, had been ignored by the largely ineffective 2005 constitution.

I therefore argue that engaging in a parliamentary discussion of whether it is cultural permissible for a married woman to deny her husband conjugal rights is not only a blatant waste of taxpayer’s time and money but also a fruitless exercise. 

Women sexual rights neither come from culture nor from Parliament but from our humanity. Married women do not need permission from parliament or from stone aged cultural norms and values to exercise their sexual rights because these rights were bestowed to them by God who created all human beings in his image.

The relentless attack on the Marital Rape clause by other married women like Princess Phumelele, who should ordinarily be the voice of the voiceless women in the country, is not only shameful but a testimony to misuse and abuse of power. 

Ours indeed is a strange society; where the power of tradition is important than humanity, where laws which safeguard basic human rights are perceived as cultural deviants, where Parliament is convened to discuss whether it is culturally permissible  for married wives  to deny their  husbands conjugal rights! What message do these debates send to our young boys? Are we teaching them that women do not have bodily autonomy or a right to consent?

It is clear there are unabated “male chauvinistic” moves throughout the county to scrap the SODV Act and we males must stand out and say ‘not in our name’ and not make the defense of the Act a women only issue.  

Religion and Culture is clearly influential  in the attitudes Swazis have towards the SODV Act.  These two not only perpetuate the attack on the SODV Act but also systematically work hand in hand in maintaining the patriarchal set up of Swazi society. 

Notably, the same forces that categorises the marital rape clause as a cultural abomination draw biblical “self-cooked” teachings to justify the spurious and unlawful control of women sexual rights.  Feminist literature in Swaziland point out that the payment of bride price (lobola) is mistakenly believed to be the genuine price for the control of women sexual and reproductive rights.  

In such a social arrangement, culture dictates that the woman should unconditionally submit to her husband sexual needs. Traditional Christian teachings perceive God as a male supremacist.  

The use of an exclusive “HE” language for God inoculates Swazis, in particular our legislators, with the delusion that men are more like God and that they were created to unquestionably control and rule over women just like God rules over mankind.  

It is for that reason therefore that men in Swaziland feel that the marital rape clause in the SODV Act is a cultural/religious abomination because it challenges the presumptive myth  that they have control over women sexual rights.

In order to dismantle such jaundiced perceptions, we first need to smash the patriarchal myth-conception that categorizes God as a male supremacist. The pulpit should be used to emphasise that God created man and women equally.  

Furthermore, there is a need for co-operative parenting where young boys and girls are taught responsible life skills.  In this vein, mothers and fathers should raise their sons and daughters in a responsible manner where they are taught that they are equal and that they have bodily autonomy that deserve respect.  

Teaching men and young boys about responsible masculinity may be a stepping-stone towards ending gender-based violence.  It is refreshing to note that some non-governmental organizations like Kwakha Indvodza have heeded to the crucial call to change man and by so doing change society.

Additionally, there is a need for government to prioritize economic incentives directed to the empowerment of women and girls.  One of the reasons, which compel women to stay in abusive, they feel economically and socially indebted to their abusive spouses. 

Parliament should therefore refocus its debate energies by developing effective incentives to strengthen economic and social development for women in order to eradicate the “male dependence syndrome”.

Bongiswa Mndzebele holds a B.A Humanities (History and Theology and Religious Studies) from the University Of Swaziland. He did his Research thesis on the Implications of the Sexual and Domestic violence Act (2018) on Swazi norms and values. He is currently pursuing a Post Graduate Certificate In education in the same University. 

 

 
 
 
Bongiswa Mndzebele

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