Long wait for justice in Swaziland - Feminist analysis of David Simelane serial murder case by Open Society Initiative for Southern Africa (OSISA)

The long wait for justice in swaziland: A Feminist analysis of the David Simelane serial murder case

Nonhlanhla J. Vilakati

OPEN DEBATE 07 The long wait for justice in Swaziland: A Feminist analysis of the David Simelane serial murder case

70 CONTENTS 02

Introduction

Gender dimensions and emergent womenâ&#x20AC;&#x2122;s rights concerns

Sex of the victims: Womenâ&#x20AC;&#x2122;s socio-cultural vulnerability

Socio-economic vulnerability: Unemployment

Socio-geographic vulnerability: Rural residency

Psychosocial vulnerability: Extended separation from family

Justice delayed and denied? Analysis of the legal process

The Trial: Further delays

Gender Activism during the trial period

Emergent opportunities for advocacy

Conclusion

References

Endnotes

OPEN DEBATE 07 The long wait for justice in Swaziland: A Feminist analysis of the David Simelane serial murder case

the endless delays engendered doubt, anxiety, impatience, disappointment and even desire among some people to take the law into their own hands.

1. INTRODUCTION In Swaziland, the slow pace of the judicial process is a reality that citizens have long since grown accustomed to. The system is riddled with delays and there is always a lengthy backlog of un-heard cases on the High Court roll. However, delays usually occur once the accused is charged – not before the trial has even begun. But not in the controversial case of serial killer David Simelane, who was eventually found guilty of at least 28 murders. His extraordinary case was delayed at every stage – pre-trial, during the trial and even in the lengthy appeal process. While the actual trial is said to have involved 157 days in court, there were so many delays, postponements and adjournments that the entire matter from his arrest to his conviction took a decade.1 Never had a case in Swaziland dragged on for so long and amounted to ten years of torment for the traumatised families of his victims, who had to wait an incredibly long time for justice to be served.

imelane was arrested in April 2001 but was only arraigned in court for the first time in 2004. Astonishingly, Swazis had to wait for three years for preliminary investigations to be completed and for Simelane to be formally charged and brought to trial. No one has ever heard of a case in Swaziland that took so long to officially begin. And in this regard, it was clear to any interested observer – and there were many – that this case would be a classic example of the denial of justice through delay. Criminal activity disrupts order and well being in any society2 – a disruption that is exacerbated by the perceived or actual failure of the justice system in any given situation to respond effectively to the human cry for justice. In addition, the unprecedented nature of Simelane’s crimes – the pre-meditated murder of so many women – should have precipitated the most urgent judicial redress rather than the slowest judicial response on record. Understandably, the protracted delays bred uncertainty about whether the case was a prosecutable legal matter and whether it would ever be resolved. Indeed, the endless delays engendered doubt, anxiety, impatience, disappointment and even desire among some people to take the law into their own hands. 3

And the delays did not only result in the denial of justice but also in additional suffering for those who were waiting for the state to prosecute Simelane for the brutal killing of their loved ones. From these introductory remarks, it is evident that the David Simelane case was historic – even if it were for all the wrong reasons. This paper serves not only to document this gross violation of the victims’ human rights but also to provide lessons from this terrible case that will ultimately help to create a better tomorrow for the Swazi nation and the southern African region. The necessity of a post-prosecution analysis has already been articulated in a variety of ways by those who took an interest in the case, such as the Director of the Swaziland Action Group Against Abuse (SWAGAA), Cebile Manzini-Henwood, who said: The long wait was not justified. We have to look at the reasons that cause cases of gender-based violence to be postponed for so long.4 And she is correct because at the core of discussions about this case are its nature as a gendered legal matter and the implications it holds for women’s rights in Swaziland and the southern African region.

2. Gender dimensions and emergent women’s rights concerns

ender-based violence (GBV) in Swaziland has long been recognised as a grave social problem. Indeed, a study conducted by Doo Aphane and Phumelele Thwala in 2006 found that levels of GBV were extremely high. Unfortunately, the problem of GBV has never been properly addressed and it is not surprising that it has reached a level where a single man can murder so many women. The rise in GBV can be partly explained by reference to the broad hostility towards gender discourse within Swaziland. It has always been a real challenge to get people to appreciate the seriousness of GBV and the work that is being done to eradicate it. Invariably, political elites regard gender equality as foreign and undesirable – so much so that non-governmental organisations (NGOs) that work on the issue are often perceived as a threat to the state. 5 With such ingrained attitudes we cannot hope to see any significant change in people’s mind-sets let alone in perpetrators’ behaviour. In a society where all the evidence points to high rates of GBV, it is remarkable that many people are still not convinced that gender activism is a worthy cause. However, a few men have taken note of the negative view of those working for gender justice and equality – and begun to speak out. When a second serial killer named Vusie

OPEN DEBATE 07 The long wait for justice in Swaziland: A Feminist analysis of the David Simelane serial murder case

Dlamini was arrested in 2009 – while the trial of David Simelane was still dragging on – Alec Lushaba made a passionate call for the state to do something to curb violence against women and mentioned that women’s organisations doing gender work are denigrated in Swaziland: If we are truly concerned with the plight of our women folk, it is high time we tighten the screws on our legislation. Women’s organisations – the ones we have tended to name call – have always called for the domestication of all conventions and protocols that deal with gender based violence. Here they talk of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the recently adopted SADC Protocol on Gender and Development. They call for the domestication of such conventions and protocols because there is a tendency within men to abuse them, some of which leads to murder hiding behind the facade of culture and religion. It is encouraging to note that there are some men who see the importance of gender work and it is critical for gender activists and women’s organisations to try and foster meaningful partnerships with them to boost broader sensitisation. Furthermore, there is a need to ensure that gender is mainstreamed in Swaziland. There has been some success in this area with gender concerns being integrated into the country’s national Development Strategy (NDS), Poverty Reduction Strategy (PRS) and the accompanying Poverty Reduction Strategy Action Plan (PRSAP). But often the concerns are addressed on paper only, not in practice. The reality is that women’s lives are not as valued as men’s lives. Women remain – in many senses – second-class citizens in Swaziland. It is this failure to value women equally with men that allowed Simelane to commit so many femicides. This lack of equality in Swaziland is based on a host of factors.

3. Sex of the victims: Women’s socio-cultural vulnerability

imelane’s victims were exclusively women – some of whom were murdered together with their infants or when they were pregnant. The fact that they were all female indicates that Simelane made a calculated selection of the social category of people whom he believed he could murder with impunity. Those who have an interest in gender work were quick to spot this and to condemn his killings as a gendered crime, a view that was reinforced by Justice Jacobus Annandale, who said, “You killed defenceless women and children, you said that your reason for the mass killings was revenge against women.”6 It was also echoed in a number of media reports.7 And it was not an accident or a coincidence that Simelane only killed women. In a deeply patriarchal society like Swaziland, the murder of so many women can occur because of the entrenched unequal power relations between men and women – the gaping social inequalities that often give rise to instances of femicide.8 Simelane preyed on women because they are – for socio-economic and cultural reasons – the most vulnerable group in society. Assuming a position of social supremacy, men occasionally brutalise women in their desire to assert control over them. Deeply ingrained sexism and male dominance place Simelane – or any other Swazi man – in a potentially predatory position. What emerges from this analysis is that the female victims were deprived of the right to life on the basis of socio-cultural discrimination. Simelane targeted women for killing because of the social and cultural inequalities that are part and parcel of Swaziland’s patriarchal society. According to S20 Ss(1) of the Constitution, “…all persons are born free and equal under the law in all spheres of political, economic, social and cultural life and in every respect…” But the reality is that women do not enjoy the same rights as men. And as long as Swazi men continue to live by out-dated patriarchal norms, which place them in a dominant position and subordinate women to them, we shall continue to see men inflicting physical violence on women.

OPEN DEBATE 07 The long wait for justice in Swaziland: A Feminist analysis of the David Simelane serial murder case

desperate rural women are extremely vulnerable

Socio-economic vulnerability: Unemployment

Socio-geographic vulnerability: Rural residency

nother notable feature of this case is that the victims were all unemployed and looking for work. And in his confession, Simelane explains how he lured many of them to their deaths with promises of work. Their susceptibility to such fatal deceit emanates from the fact that the majority of unemployed people in Swaziland are women, who are often forced to rely on the informal sector, which does not offer job or social security. As a result, unemployed women are likely to pursue any promise of employment without much thought. This explains why the victims in this case took a stranger at his word when he came to them with alluring promises of employment. The state of the economy also increases the vulnerability of women, particularly as little has been done to empower women. It is also unfortunate that the national constitution does not obligate the state to provide social protection for the needy. Instead, Section 27 makes social protection for vulnerable Swazis contingent upon the availability of resources. The result is that many Swazi women face a daily struggle to survive and this sometimes impairs their intuition and ability to sense danger.

ll the victims except for three came from rural areas, which are still home to the majority of Swazis and large numbers of unemployed women. A study conducted by the Ministry of Labour and Social Security in 2009 found that the unemployment rate was 22 percent in urban areas and 33 percent in rural areas. The study also revealed that many rural inhabitants migrate to the industrial centres along the Manzini-Mbabane corridor in search of work. The Malkerns forest – where Simelane perpetrated his crimes – is in this area and is near an agricultural estate that hires seasonal women workers. His victims may well have agreed to go with him in the hope of finding employment at this estate.

insecurity. And there are additional factors that aggravate the vulnerability of women in rural areas, including the country’s economic problems, rising prices, increasing numbers of orphans and the world’s highest adult prevalence rate of HIV.

Rural life in Swaziland continues to be dependent on subsistence agriculture. However, climate change has resulted in more regular droughts, reduced crop production and severe food insecurity. For the past 10 years, the country has relied on food aid from the international community. Indeed, about 40 percent of rural households have experienced chronic food

The case shows the effects of a country where unemployment for women is so high. These women have to take care of families without support. They are desperate for jobs. It the story told in court is true, it shows the depths that predators will go to exploit women’s desperation for means of income.9

It is within this context that we can understand why so many of the women who Simelane killed came from the rural areas. Forced to leave their homes behind in search of work, desperate rural women are extremely vulnerable. Simelane understood this and exploited their socioeconomic status by luring them with the promise of paid work – a fact highlighted by SWAGAA spokesperson, Hlobsile Dlamini:

OPEN DEBATE 07 The long wait for justice in Swaziland: A Feminist analysis of the David Simelane serial murder case

that prolonged absences and lack of contact do not necessarily indicate that something is amiss.

Psychosocial vulnerability: Extended separation from family

he pressure on rural women to find work and earn an income often leads to their separation from their families for extended periods. Indeed, lengthy separations have become routine for many poor families – marking a significant shift in the structure of rural life. Often it is difficult for women to contact their families while they are searching for work or working. In addition, women who manage to find work in low skilled sectors such as in other people’s homes as housekeepers or in textile factories frequently change jobs because of their desire to find more satisfactory remuneration. Sometimes they are unemployed in between jobs and do not return home until they have found other employment. This mobility makes the women vulnerable. And as they do not return home or contact their families regularly, their relatives do not immediately panic if they do not see them or hear from them for a while. It is disconcerting to learn that some Swazis do not fully appreciate the vulnerabilities of rural families, whose members are forced by hostile circumstances to leave their homes and whose remaining relatives are forced to accept their long absences. Some Swazis have even reportedly been puzzled by the failure of the families to rapidly start looking for their loved ones when they did not return home. For example, Alicia Lukhele, who is a social worker with the Ministry of Health and Social Welfare, reportedly remarked: One aspect that was shocking was that over 30 women and children went missing for up to a year,

Fifty years ago, Swazis lived their entire lives at their homesteads, and rarely ventured outside their chieftaincies…The only ones who ever left the country went to South Africa to work in the mines under contract. They were illiterate, and did not write home. But their families knew they would eventually return.12 Meanwhile, Dr Malepe, a Swazi psychiatrist, had this to say:

unreported by their families, until Simelane led police to their graves. This is not supposed to happen in a traditional society, where everyone’s whereabouts and welfare are shared by family members.10 But quibbling about the families’ failure to react swiftly when their relatives did not show up for extended periods signals a failure to understand the social changes that have occurred in family life in Swaziland. Worse still, it unwittingly subjects the relatives of the murdered women to secondary abuse. The fact is that Simelane knew that his victims’ families were not going to rapidly raise the alarm because they were accustomed to losing touch with their relatives for lengthy periods of time. This has been accurately observed by a number of people, such as Phefeni Vilakati, who describes the poverty that leads women to leave the safety of their homes to go looking for jobs without any clear indication of when they will return:

We have been living with an illusion that the traditional ways that safeguarded our ancestors still protect us in a rapidly changing society…These serial killings have proven that false…The crimes have highlighted the danger of assuming your relatives, who are in transit, are alright.13 And Reverend Jabulani Dlamini declared: We no longer live in the womb of traditional life that used to protects us…We must be more proactive to protect the most vulnerable amongst us, our women and children, from African predators. These predators are no longer lions and leopards. They wear human guises.14

The traditional homestead can no longer support all its residents, particularly now when AIDS is hitting so hard and taking away many breadwinners. Women go off, sometimes with their children, with only enough bus fare to get to a place like Malkerns, where they hope to find work. They have no money to get back.”11

Considering how calculating Simelane is, there is little doubt that he was aware of this reality and exploited it. However, it seems as if Simelane killed his victims shortly after meeting them so it is highly unlikely that they could have been saved even if their families had reported them missing earlier – but maybe it would have exposed the fact that a serial killer was operating in time to help prevent some deaths and perhaps it would have resulted in the earlier discovery of the victims’ bodies.

Corroborating this view is historian Richard Motsa, who explained that Swazi men have gone off to work in the mines in South Africa since colonial times so families have become used to various members disappearing for long periods of time to work or search for work – and have also learned

But overall, this profile of the people Simelane killed demonstrates the various elements that made them so vulnerable as a social group. One hopes that the Swazi government, and the social welfare department in particular, has learned from this case and will use its new knowledge about

the risks that poor, unemployed, rural women are prepared to take to survive to inform future social protection policies in order to render them less vulnerable – and so less likely to become victims of the next Simelane. It is worth noting that Swaziland’s current constitution does enshrine women’s human rights. Previously, there was no constitutional basis for gender equality and women’s rights were claimed in a constitutional vacuum. However, constitutions do not automatically result in their stated intentions. Even the best of them have weaknesses. For example, South Africa is rightly hailed for having one of the most progressive constitutions in the world. And yet, South African women are still struggling to make it work for them. Swaziland’s constitution has very serious internal contradictions, which lessen its authority as the supreme law of the land. By entrenching customary law, which is highly fluid, the constitution creates a dilemma in terms of which legal regimen should take precedence. It is also deeply problematic because customary law is not friendly to women. While Section 28 of the constitution sets out the provisions for the enjoyment of women’s specific rights, there are further problems. The constitution does not include the sphere of culture with regard to providing for women’s enjoyment of equal treatment – and places the burden on women to claim the right to protection against the imposition of customary practices that they find objectionable. The truth is the women’s rights, as articulated under Section 28, are nonexistent. This paper is certainly not the first one to make these observations nor is it the first time that this author has observed the inadequacies of the constitution. The challenge is how the debates generated by the identification of these constitutional defects are taken forward until the current situation is positively transformed.

7. Justice delayed and denied? Analysis of the legal process

OPEN DEBATE 07 The long wait for justice in Swaziland: A Feminist analysis of the David Simelane serial murder case

one of the main reasons why violence against women is so rampant is because perpetrators know that they will invariably face no consequences when they commit these types of crimes.

re-trial stage: delayed indictment

t took an inordinately long time for Simelane to be formally charged and brought to trial. Captured in April 2001, he was only arraigned in court for the first time in 2004. I am not aware of any case in Swazi legal history that took this long to start. And when due process is seen to fail at the start, it is bound to make everyone feel unprotected by the law and therefore unsafe – well everyone except criminals and potential criminals who will start to believe that they can commit crimes with impunity. This is very important to note in relation to cases of GBV because one of the main reasons why violence against women is so rampant is because perpetrators know that they will invariably face no consequences when they commit these types of crimes. The protracted process of getting the suspect to court inadvertently cheapened the lives of his victims. Such a demonstrable failure to urgently proceed with the trial and so express society’s horror of these crimes and respect for the dignity of the victims amounted to a serious indictment against the entire judicial system Indeed, the matter was never treated with the sensitivity and urgency it deserved. The lengthy delay before court proceedings even began exacerbated the emotional distress of the families and dashed their hopes for a speedy resolution to the case. The families must have wondered what the real reason was for the delay – and come to the conclusion that the murder of their relatives lacked political favour. Otherwise, the process would have sped through the system. Indeed, given that almost all the victims came from humble backgrounds, the families must have felt that crimes perpetrated against the lowly in society are not treated with seriousness and that there is no real justice for the poor in Swaziland. The unbelievably slow process seemed to suggest that each of

the deceased was viewed as no more than a cold fact – a disembodied statistic – rather than someone’s mother, daughter, sister or wife. Considering how urgently people wanted the case against Simelane to proceed, it is obvious that the pace at which this was actually done failed to live up to people’s expectations. What is more – the agonisingly slow pace of the case did not live up to the principles in the country’s constitution, which guarantees the right to a speedy trial. As a result, at some points along the way, people lost heart and thought that Simelane would not face prosecution at all. It is understandable that the need for forensic testing of the DNA evidence, which was crucial for the formulation of the charges against Simelane, would slightly delay the process, especially as suitable forensic testing facilities are only available in South Africa. However, this process does not account for the 3-year delay in bringing him to court. If South Africa could try its own serial killers expeditiously – for example, it took just over a year for Moses Sithole to be arrested, tried, found guilty and sentenced to life in prison for killing and raping dozens of women. Compare this with the decade it took from Simelane’s arrest to his conviction.

OPEN DEBATE 07 The long wait for justice in Swaziland: A Feminist analysis of the David Simelane serial murder case

Lack of structural capacity It appears that Swaziland’s court system lacks the capacity to handle complex cases such as this one. Simelane was indicted for killing 34 people, which required that he be conclusively and directly linked to all those murders – and necessitated a large number of crown witnesses (83 in all). Clearly so many charges and so many witnesses would have resulted in a longer trial than usual but not one that lasted for seven years. The justice system appears to have simply been incapable of coping with this level of complexity – a view that Justice Annandale endorsed when he noted that:

…suffice to say that the number of witnesses and multiple indictments of murder do not justify the duration of the trial.

The Trial: Further delays Postponements and adjournments

nce the trial began in 2004, it soon became evident that delays would remain the order of the day. There were numerous postponements, adjournments and other lengthy stoppages. According to the OSISA Case Documentary Final Report, there were – astonishingly – 20 formal postponements between September 2004 and August 2009. Bureaucratic judicial procedures It transpired in Justice Jacobus Annandale’s written judgement that the established judicial procedures also contributed to the inordinate delay in bringing the case to a close: In our jurisdiction, the presiding judge has no say in the allocation of different trials to his or her court, nor in the setting of court rolls and allocation

Delaying tactics by the first defence counsel

of dates, nor in the decision of how many counts are to be included in the indictment, nor what an arraigned accused is to be prosecuted for. Comparatively, the International Criminal Court functions in the opposite manner. As mere example, the trial of Saddam Hussein ran continuously for a short period of time and the number of counts could be counted on a few fingers, instead of hundreds or thousands of potential prosecutable charges. In the present instance, each of the prosecutable charges were included in the indictment, with only the instances where no link at all which could be connected to the accused, being excluded. The allocated trial dates were haphazard and piecemeal, with numerous other criminal and civil trials scheduled in between, for hearing in the same court. (emphasis mine)

The first pro deo counsel, Luck Howe, played a big part in delaying the unfolding process. Howe was absent without explanation many times, while on other occasions he had to attend to other cases. But his abrasive disposition towards the presiding judge, whom he wanted to be recused and then accused of judicial misconduct, also caused problems. Indeed, Justice Annandale mentioned the difficulties caused by Howe. These futile delaying tactics would not be acceded to by the Court, having dismissed the series of attempts at further delay as well as a belated addition, being that the court is not allowed to continue with a part heard criminal trial prior to the official opening of a new legal year. The defence counsel thereafter announced that he could no longer represent the accused in the court of the incumbent judge. He was then given leave to withdraw from the case. Judgement and sentencing

It remains to be seen whether this observation will inspire and inform any future reforms to the administration of justice of Swaziland, which clearly needs to be made more efficient.

Postponements and delays plagued the trial right up to the appointed day for delivering judgement – March 18, 2011. This day had been set aside for the

judgement but it was not to be. Late in the afternoon of the 17th, the Registrar of the High Court suddenly issued a press release postponing the delivery of judgement. He cited unavoidable circumstances, which had led the country’s controversial Chief Justice to order a postponement. Judgement would now be given a week later. Needless to say, this final delay sparked serious disappointment, particularly from the victims’ families and women’s organisations, such as the local chapter of Women and the Law in Southern Africa. While delays had become synonymous with the case, it still caused surprise and consternation that even the appointed day of judgement was not adhered to – and served to underline how hopelessly ill-equipped the system was to deliver justice in this matter. Perhaps in a last attempt to illustrate that it could dispense justice speedily, the court closed the case by combining judgement and sentencing. This provided a strangely abrupt end to a case that had been such a long and tediously drawn out affair – and made no difference to the fact that people’s confidence in the country’s administration of justice had been seriously eroded during the trial, as Senate Winnie Magagula made clear: Mine is to say that justice delayed is justice denied. The justice that has been done might not serve the intended purpose, especially to the relatives. The justice system in this country is slow and we hope this would change soon. We hope justice would speed up so that the sentences would be relevant.15 But at least the end of the trial meant that the victims’ families could finally find closure. Mbali Dlamini of the Women’s Coalition curtly remarked that the judgement and sentencing meant that it was time to stop debating the failings of the judicial system and focus on the relatives of the murdered women since they had waited for a decade to bury their loved ones. “Now it about the families – not Simelane,” she said.16

OPEN DEBATE 07 The long wait for justice in Swaziland: A Feminist analysis of the David Simelane serial murder case

9. It is encouraging to note that there did seem to be positive change of attitude in relation to handling the case after these activities.

Gender Activism during the trial period

he preceding analysis demonstrates that the court’s management of the case was glaringly deficient and unconstitutionally slow. This was noticed early on by gender activists and representatives from women’s groups, who responded by mobilising civil society to participate in protest marches and to sign petitions. On one occasion, in November 2009, women went to court during a hearing and demonstrated as part of the annual international campaign around 16 days of Activism Against Gender Violence.17 It was also helpful to have an OSISA-sponsored observer sitting in the court throughout the trial documenting the proceedings. A number of representatives from other NGOs were also in attendance from time to time. It is encouraging to note that there did seem to be positive change of attitude in relation to handling the case after these activities. For one thing, the case picked up pace even if the effect of the long haul had already been felt – since most of the victims’ family members had long since stopped coming to court out of frustration and loss of confidence in the justice system. In particular, it is likely that the directive issued by Chief Justice Ramodibedi in 2009 that the case be heard during the High Court’s usual December/January break came as a direct result of the women’s activism. And the protest actions by the women’s groups added value besides bringing pressure to bear on the judicial process. The public activism had a significant impact on the national gender discourse. It helped to give much-needed visibility to the fight for women’s rights and impetus to the never-ending task of raising awareness about the need for gender equality. Overall, it helped to keep the gender agenda alive against the backdrop of a weaker women’s movement in the country and the feeling that activism around women’s rights had run out of steam

OPEN DEBATE 07 The long wait for justice in Swaziland: A Feminist analysis of the David Simelane serial murder case

10. Emergent opportunities for advocacy

lthough unbearably tragic, the Simelane case could still be turned into a positive learning experience. It could give impetus to various advocacy efforts aimed at creating positive change in Swaziland – from achieving gender equality to transforming judicial structures and procedures to make them more responsive to gender issues to protecting women from gender-based violence. Indeed, there are five areas where I see the Simelane case providing a window for gender activism. Acceleration of law reform The adoption of the Constitution necessitated a broad law reform process, which would bring existing national statutes in line with the legal principles contained within the country’s new supreme law. Unfortunately, many of the envisaged law reforms have not taken place, particularly in relation to women’s rights. As Sizakele Hlatshwayo, a gender specialist with the Coordinating Assembly for Non-Governmental Organisations (CANGO) once commented, “Swaziland adopted a new constitution but it has not harmonised the country’s common law to bring it in line with the constitution and other international instruments such as the UN Convention on the Elimination of all forms of Discrimination Against Women.” 18 Goodwill has been shown by the UNDP country office, which undertook to support law reform through a project known as Gender, Law Reform and Human Rights. This initiative did admirable groundwork in carrying out a law audit, which identified a list of laws that needed reform: • The 1964 Marriage Act – accords legal minority to married women while giving marital power to men; • The 1968 Deeds Registry Act – requires all property to be registered in the name of the husband unless couples are married out of community of property;

• The 1970 Maintenance Act – provides for both parents to support their children in the event of divorce but does not provide equal custody rights for both parents. Fathers can ‘buy’ their children from their mothers if they do not want to pay maintenance. Advocacy work should be carried out to accelerate the very slow law reform process, building on the work that has been done. For example, the Ministry of Justice and Constitutional Affairs has twice held consultative stakeholders’ meetings, which have discussed redrafting the above bills. Meanwhile, in October 2011, two important bills – the Children’s Protection and Welfare Bill (2010) and the Sexual Offences and Domestic Violence Bill (2009) – were finally passed by parliament. While this does represent progress, the fact that it took so long to pass bills that begin to ‘harmonise’ the country’s laws with the spirit of the Constitution does underline the customary lack of political will around gender issues. What is clear is that the pace of law reform is remarkably slow. In 2012, Amnesty International wrote a commentary on the failure of the country to bring existing laws in line with constitutional provisions19 – arguing that as long as the laws that prejudice women remain unchanged and therefore operative, gender inequalities and discrimination will be perpetuated. These contradictions between constitutional provisions and old laws mean that the Constitution is, in part, not justicable – and this means that the supremacy of the Constitution is null and void. What is also clear is that gender activists must keep pushing to speed up the pace of law reform in relation to gender equality because without continued activism, the government will do little to advance gender transformation in Swaziland. Filling gaps in legislation and policy

• The 1902 Administration of Estates Act – requires the estates of those married by Swazi law and custom to be administered according to the same, which prohibits women from inheriting property; and

There are gaps in the country’s legislation, especially with respect to laws that address

offences that fall within the area of GBV. Filling some of these gaps has begun with the passage of the Sexual Offences and Domestic Violence Bill (2009). However, Amnesty did criticise some aspects of the bill and gender advocacy could focus on those concerns. Institutional reforms The Swazi government should consider a variety of responses to improve the gender responsiveness of the judicial system, such as: • Appointing a Law Review Commission to speed up the law reform process; • Setting up specialised courts to try sexual offences, which would help to avoid the long wait for justice that was experienced in the Simelane case; • Ensuring that the provisions of the Child Protection and Sexual Offences Act are implemented effectively and backed up with sufficient resources; and • Introducing legal aid for women to improve their access to justice. Gender training of judicial officers Swazi justice is gender insensitive. This will not change solely with the passage of the Sexual Offences Bill but requires training of judicial officers. Adoption of best practices It emerged during the case that Simelane is a habitual criminal. It would be a good practice if police records were compiled into a database or a register of offenders, which the police could use as a resource to search for possible suspects when crimes are committed.

OPEN DEBATE 07 The long wait for justice in Swaziland: A Feminist analysis of the David Simelane serial murder case

11. Conclusion

hat the David Simelane case has shown above all else is that women in Swaziland, particularly from rural areas, are extremely vulnerable because of socio-economic and cultural reasons. The ease with which he got away with so many murders for so long and the unacceptable length of his trial also highlight that Swazi society remains very far from equal. So those who are passionate about working for gender justice must persist in their calls for transformative action. There are sufficient structures in place to carry out advocacy and sensitisation work that could make a significant impact on the lives of Swazi women. It is laudable that – through the assistance of partners like OSISA – work to re-invigorate the women’s movement in Swaziland has already begun. In particular, strengthening the movement by supporting the emergence of younger leaders is a step in the right direction. And all this is vital because the Simelane case showed how much work there still is to be done. However, it also provided a call to action – a focal point for gender activism that has made a difference already and will hopefully have even more impact in future. In that way, some long term good might come out of Simelane’s tragic reign of terror.

References

Endnotes

1. Aphane D and Nozipho Mkhatshwa (2009) SADC Gender

1. David Simelane was arrested on April 25 2001, convicted on March

Protocol Barometer Baseline Study, funded by UNDP

23, 2011 and subsequently sentenced on April 1 2011.

2. Brown Tenille (2010) Women’s Legal Status under Civil Law and

2. “The murder of at least 29 people in a spate of suspected serial

Swazi Law and Custom

killings has rattled the sense of well-being in the sleepy mountain

Burger Warren (1970) What’s Wrong With the Courts: The Chief

kingdom, known for its low crime rate and friendly people” (http://

Justice Speaks Out, U.S. News & World Report (vol. 69, No. 8,

www.iol.co.za/news/africa/swazis-search-for-answers-after-grisly-

Aug. 24, 1970) http://en.wikipedia.org/wiki/justice_delayed_is_

find-1.64829 accessed 8/9/2011).

justice_denied accessed 8/9/2011

3. The print media reported several incidents when families of the

3. Kingdom of Swaziland 2003 National Skills Survey: Ministry of

victims expressed frustration, especially at the postponements. For

Enterprise and Employment

instance, when the hearing was postponed from 26th November

4. Kingdom of Swaziland (2007) Census Report

2009 to 19th January 2010, people stoned the policed vehicle taking

5. Kingdom of Swaziland (1997) Census Report

Simelane away from court.

6. Mcfarlen J., Campbell J. and Watson K. (2002) Intimate Partner

4. Times of Swaziland March 24, 2011

Stalking and femicide: Urgent implications for women’s safety.

5. In April 2011, the Minster of Public Works and Transport told a

Behavioural Science and Law 20

gathering of diplomats that government took a dim view of foreign

7. Maguire, Patricia (1987) Doing participatory research: a feminist

missions that give money to organisations that have an anti-govern-

approach. Amherst, MA: Center for International Education,

ment agenda. See http://www.iq4news.com/feed/swaziland-ngos-

School of Education, University of Massachusetts.

accused-being-enemy accessed 110/11/20. The article points out that

8. Morrison A., Ellsberg M., and Bott S. (2007) Addressing Gender-

‘NGOs such as Women in Law in Southern Africa and the Swaziland

Based Violence: A Critical Review of Interventions.

Action Group Against Abuse have drawn fire for promoting gender

9. Mutangadura, G. (n.d.) Achieving gender equality, women’s

equality and the protection of women in a society where women were

empowerment and ending violence against women in Africa: A

considered as minors under traditional law’.

review of the role of family policy and social protection at http://

6. David Simelane Case Documentary, Report #8 prepared for OSISA

www.un.org/esa/socdev/family/docs/egm09mutangadura2.pdf

by B. Luhlanga on 01/04/11

accessed 20 September 2011

7. 31 May 2006 – IRIN story - SWAZILAND: Alleged serial killer’s

10. Swaziland Household Income and Expenditure Survey (1995)

trial puts spotlight on gender issues. (http://afrol.com/printable_

Swaziland Ministry of Economic Planning

article/19549)

11. Swaziland Poverty Reduction Strategy and Action Plan (2007)

8. The conception of femicide in this paper is the one held by Judith

Ministry of Education and Planning

Mcfarlen, Jacquelyn Campbell and Kathy Watson, who define femicide

12. Swaziland Integrated Labour Force Survey 2007–2008 (2009)

as “all killings of women, regardless of motive or perpetrator status”.

Ministry of Labour and Social Security

9. http://afrol.com/printable_article/19549

13. Stefiszyn K. (2008) A Brief Overview of Recent Developments

10. Ibid

in Sexual Offenses Legislation in Southern Africa. Expert Paper

11. http://www.crimezzz.net/serialkiller_news/S/SIMELANE_david_

presented to the Expert Group Meeting on good practice in legis-

thabo.php

lation on violence against women 26-28 May 2008.

12, 13, 14. Ibid

14. Swaziland Annual Vulnerability Assessment and Analysis

15. http://www.legalbrief.co.za/article.php accessed 8/09/2011

Report (2010) Swaziland Vulnerability Assessment Committee

16. http://www.rnw.nl/africa/print/342903 accessed 8/09/2011

15. Vetten L. (2005) Addressing domestic violence in South Africa:

17. As noted in the OSISA Case Documentary (Report # 8 p.5), most

Reflections on strategy and practice. Expert paper presented

of the activism was carried out in 2009, which was roughly two years

to the Expert Group Meeting on violence against women: Good

before the trial ended.

practices in combating and eliminating violence against women.

18. Phakathi Manthoe (2009) Swazi Government in court over

Vienna, Austria 17-20 May 2005.

property rights http://www.thefreelibrary.com/_/PrintArticle.

16. Vukor-Quarshie G. (undated) The Application of the Death

aspx?id215723426 accessed 25/11/2011

Penalty in Commonwealth African State: Swaziland – Prelimi-

19. Amnesty International November (2010). Too Late, Too Little: The

nary Report.

Failure of Law Reform for Women in Swaziland

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Nonhlanhla Vilakati has been teaching at the University of Swaziland since 1985. She holds an MA in theological studies which she obtained at McCormick in Chicago, USA. It was there that she first read widely on feminist theory, gender analysis and hermeneutics in general. She then became involved in the women’s movement in her native Swaziland, becoming a member of the board of directors of the now defunct Women’s Resource Centre (Umtapo waBomake). She has also written columns on women’s and gender issues for the weekly newspaper the Times Sunday and The Nation magazine, although the latter has also given her the opportunity to expand her commentary to include broader issues of socio-political justice. Nonhlanhla has worked with the local office of Women and Law Research Trust, Lawyers for Human Rights and the women’s wing of the former Swaziland Federation Trade Unions (SFTU). She has also worked with the Church Forum on HIV and AIDS, for which she co-authored A Biblical Approach to Gender. Abroad, Nonhlanhla has been a member of the Working Group on Women – a structure for addressing gender issues with the World Council of Churches (WCC). For Nonhlanhla, the struggle against gender injustice is fought on all fronts – from her academic work to her civic engagement.