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MBABANE – In a shocking revelation that could set the country back in its fight against the sexual abuse of women, the now documented Indigenous Swazi Law and Custom legalises rape of a wife by her husband.

“A husband cannot rape his wife,” reads the document which further defines rape as the ‘forcible intercourse of a male with a female to whom he is not married’.
The 317-page document titled ‘The Indigenous Law and Custom of the Kingdom of Swaziland (2013)’ has, however, not been adopted by government, but has allegedly been presented to the King. 

The book, which is a recording of the Swazi Law and Customs, has been compiled by Professor Frances Pieter Whelpton, a Professor of Law at the University of South Africa and the work on the codification of the law began way back in 1992.
Under Chapter 7, which addresses offences (emacala) in Swaziland, rape is said to be committed only if the woman forced is not the man’s wife or lover.
When defining rape in Swaziland, it says in the past, penetration was not an essential element.

“Throwing a female to the ground and grabbing hold of her in an unsuccessful move to ravish her amounts to rape. However, every act of intercourse is supposed to be accompanied by a struggle because the woman is not supposed to submit to the man,” it was observed.

The punishment for rape though is the death penalty and according to the report, since rape was also a delict, damages and satisfaction may be awarded to the family of the victim. 
The professor’s report says the law presently supports the view that a man cannot be charged with raping his wife.

In relation to women, the Swazi law says a woman cannot, however, commit rape. “If a woman forces a young boy to have coitus with her she is guilty of unnatural sexuality,” it reads.
The report mentions that a woman may, however, be found guilty as a participant in rape committed by a man; for example if she helps by forcing a girl to have intercourse with him.
 A man can also not rape another man according to Swazi custom, however, she may also be found guilty of unnatural sexuality if he has intercourse with another man by force.  

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