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FOUR SEXUAL OFFENCES CLAUSES SCRAPPED

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MBABANE – Anger, shock and outrage!

These three words describe the reaction of human rights activists upon hearing that four core clauses of the Sexual Offences and Domestic Violence Bill of 2015 have been entirely scrapped from the proposed law.
The clauses are Clause 4, 10, 42 and 47 which dealt with incest, unlawful stalking, abduction and flashing, respectively.
Although the Bill has not been adopted by Members of Parliament (MPs), a report calling for the adoption of the law without the clauses has been tabled by the Chairperson of the Deputy Prime Minister’s (DPM) Office Portfolio Committee, Sandleni MP James Simelane.

Two of the main excuses made by the chairperson in his report were that some of the provisions were meant to seriously undermine Swazi traditions.
For example, in the report on unlawful stalking, the committee found that the way it was covered was too ethnocentric (evaluating other cultures according to preconceptions originating in the standards and customs of one’s own culture) and did not protect certain Swazi traditions related to courting a woman.
The committee believed that a person who annoyingly made advances towards a woman could be taken to task by applying for a restraining order as per common law.
“The committee recommends that Clause 10 be deleted completely from the Bill,” reads the report.

In the Bill, a person who was found to have unlawfully stalked another would be on conviction liable to pay a fine of E15 000 or to a term of imprisonment not exceeding three years or both.
The conduct of unlawful stalking has been defined in the Bill as following, loitering near, contacting a person in anyway; including but not limited to telephone, mail, fax email or through use of technology.
Clause 10 (2c) further describes it as leaving offensive material where it would be found by, given to or brought to the attention of the person.
“Any intimidating, harassing or threatening act against a person whether or not involving violence or a threat of violence” has also been defined as unlawful stalking.
Interestingly, the very same Bill provides that for the removal of doubt, unlawful stalking for the purposes of the section does not include acts acceptable under Swazi law and customary practices.
On Clause 47, which concentrates on flashing, the committee found that the subject as covered in the Bill, was meant to seriously undermine the Swazi Tradition of dressing (imvunulo) and other practices and it was therefore unnecessary.

The committee recommended that Clause 47 be deleted. The Bill itself defines flashing as the exposure of or display of genital organs and female breasts among others.
It provide that a person who unlawfully, whether or not for the sexual gratification of the person or third person or not, exposes the above, commits an offence and shall on conviction be liable to a fine not exceeding E15 000 or imprisonment or both.
However, Subsection 2 states that it is a defence to establish that the display of breasts was for the purposes of breastfeeding or for Swazi cultural events.
It further states that it is a defence that the exposure or display of genital organs was by the parent or guardian of the child and that the child was under the age of 12, required assistance with bathing, the exposure was only for the purpose of the parent and child bathing together.

The committee, in its report, further submitted that the SODV Bill layout had been cumbersome and voluminous and it included a lot of clauses that were adequately covered in other laws in Swaziland.
“It is the recommendation of the committee that the drafting of Bills should be improved as to be simpler and user friendly,” reads the report. The committee then asked the House to adopt the report and pass the SODV with the amendments made.
The debate is expected to take place this afternoon in the House of Assembly as announced by the Speaker Themba Msibi on Monday.         

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