SODV CLASHES WITH CONSTITUTION, CPE ACT

mfanukhona@times.co.sz
MBABANE – What a clash of laws!

The notorious Sexual Offences and Domestic Violence (SODV) Act says an employer can vet a prospective employee to ascertain if he was ever convicted of a sexual offence. The employer reserves the right in terms of this law to revoke the employment of a person who did not disclose to him (employer) his previous conviction.

On the other hand, the Criminal Procedure and Evidence Act (amendment) of 2018 states explicitly that a “record of previous conviction of any person shall not be used in the consideration of education or employment.”
Reads section 287 (3) of the amended CP& E Act: “A record of previous conviction of any person shall not be used in the consideration of education or employment.”

Furthermore, the SODV provides for the registration of sex offenders who committed the offence before the commencement of the law.
Section 56 of this Act provides for the establishment of a national register for sex offenders containing particulars of persons convicted of any sexual offence or who have been dealt with in terms of section 165 or section 319 of the CP&E Act whether committed before or after the commencement of the SODV.

Certain legal scholars say registering sex offenders, who, for example, committed the offence before June 2018, shall be unconstitutional on the basis of the Roman Dutch common law, which is recognised by section 252 of the Constitution.
There is a universally accepted principle in the Roman Dutch common law that laws shall not be applied or enforced retrospectively.  His Majesty assented to the CP& E amendment Act on June 21, 2018, and further legitimised in law the SODV on June 28, 2018.

“Subject to the provisions of this Constitution or any other written law, the principles and rules that formed, immediately before the 6th September, 1968 (Independence Day), the principles and rules of the Roman Dutch Common Law as applicable to Swaziland since 22nd February 1907 are confirmed and shall be applied and enforced as the common law of Swaziland except where and to the extent that those principles or rules are inconsistent with this Constitution or a statute,” reads Section 252 (1).

PROTECTING CHILDREN

Sifiso Khumalo, the Attorney General (AG), said the vetting of sex offenders would be done by certain types of employers. He said the vetting would be done to protect children from people with a history of committing sexual offences.
Khumalo said the SODV made it clear that people convicted of sexual offences might not work with a child or person who is physically or mentally disabled in any circumstances.

The AG said any other establishment or employment that did not deal with children could employ the person convicted of a sexual offence. “There is a qualifier provided in section 63 of the SODV, not all employments, but selected ones where a person once convicted of a sexual offence cannot be employed or engaged,” the AG said.

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