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MAN SENTENCED TO 15YRS NO FINE CHALLENGES SODV ACT

04/10/2022 08:55:00 Mbongiseni Ndzimandze

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MBABANE – Another court challenge on the constitutionality of the Sexual Offences and Domestic Violence (SODV) Act of 2018 in its entirety has been filed at the High Court.

This time around, a 34-year-old man of Lushikishikini, who has been sentenced to 15 years without an option of a fine for maintaining a sexual relationship with a 16-year-old teenage girl, wants the High Court to declare the SODV Act of 2018 unconstitutional. His contention, among others, is that the Act was not made in the manner and form stipulated by Section 115 of the Constitution, which includes taking it to the council of chiefs before it was enacted. He argued that the Bill should not have been enrolled and adopted in Parliament before the council of chiefs made its input. Machawe Lindokuhle Xaba (34) also argued that the Act introduced several modifications and significant changes which go against Swazi Law and Custom.

Criminalisation

The modifications, according to the applicant, include among others, the criminalisation of the custom of kwendzisa for girls below 18 years, limitation of sexual activity below the age of 18, redefinition of the crime of rape and widening same to include women as potential rapists, introduction of the crime of rape between husband and wife, criminalisation of the custom of kukhuzela, stalking of women by men and redefinition of such customs of relentlessly pursuing women for marriage as harassment and redefinition of abduction. “All the above species of conduct needed a national dialogue, through a council of chiefs, before it was made into law. As we speak, the SODV Act was imposed onto the nation and this is despite the legislative safety valve put in place to ensure some degree of involvement of the people in the enactment of laws designed to affect them,” he argued.

He averred that the law was passed prematurely before the establishment of the council of chiefs, let alone securing their opinion on the then SODV Bill. Respondents in the matters are the director of public prosecutions (DPP), Speaker in the House of Assembly, Senate president, deputy prime minister, commissioner general of His Majesty’s Correctional Services (HMCS) and the attorney general (AG). Under matters regulated by Swazi Law and Custom, Section 115 provides that: Where a Bill, in terms of this section, is duly introduced, the Senate shall not proceed to the second reading of that Bill until - a copy of that Bill has been sent by the president to the council of chiefs, and a period of 60 days has elapsed since the copy was sent to the council.

Section 25 of the Constitution stipulates that, there shall be a council of chiefs, which shall be composed of 12 chiefs drawn from the four regions of the kingdom, appointed by the Ingwenyama on a rotational basis. The council of chiefs shall be responsible for, among other things - advising the King on customary the issues and any matter relating to or affecting chieftaincy, including chieftaincy disputes and performing the function in terms of Section 115. Xaba submitted that he had been advised that the perquisite steps listed under Section 115 of the Constitution were not followed when the SODV Act was passed into law. According to the applicant, there was no evidence that the Bill was introduced in Senate and Senate president allegedly never treated the Bill as one that introduced significant changes in Swazi Law and Custom.

Omitted

“The Senate president and the Speaker deliberately and/or negligently refused and omitted to refer the Bill to a council of chiefs for deliberations before same was promulgated into law.
“This omission is fatal to the legality of the resultant legislation in that a crucial step was omitted in the legislative process and thus the SODV Act is unlawful,” he argued. The applicant further brought it to the attention of the court that he had been advised that the council of chiefs had not been constituted as yet as there was no government gazette that had been issued by the relevant authorities appointing its members.

He told the court that Section 125 of the Constitution stipulated the manner of formation of the council of chiefs, but such appointment had not yet been made for reasons unknown to him.
In his application, Xaba wants the High Court to declare the SODV Act unconstitutional for non- compliance with the manner and form stipulated by the Constitution to be observed before promulgating a statute seeking to introduce significant changes into the text of Swazi Law and Custom in terms of Section 115 of the Constitution. The applicant alternatively wants the court to suspend the operation of the whole SODV Act pending finalisation of his application. Xaba implored the court to release him on bail, pending determination of his application.

The Act was previously challenged by a primary school teacher, who was arrested for allegedly having sexual intercourse with a 15-year-old minor. The (SODV) Act of 2018, according to the teacher, Moses Shongwe, is unconstitutional in that it allegedly takes away the right to a fair trial, which is guaranteed by Section 21 of the Constitution. The teacher was charged under Section 3 of the Act. In terms of this section, a person who rapes another commits an offence of rape and, for purposes of this Act, an offence of rape is committed either by a male or female person against another person.

Conviction

Shongwe informed the court that if he were to be tried under the SODV Act; “I am guaranteed of a conviction and my defences to the charge laid against me have been removed and if not removed, pleading to them is of no practical value under the Act.” According to the teacher, the Act was crafted in such a manner that his side of the story is allegedly irrelevant. In the present case, the applicant is represented by Khumbulani Msibi of Dlamini-Kunene Associated while the respondents are represented by the attorney general. The application, which is being opposed by the respondents, was before Principal Judge Qinisile Mabuza, who referred it to a full bench of the High Court.