Sexual Offences & Domestic Violence
On the 28th of June, 2018 the Sexual Offences and Domestic Violence Bill received Royal Assent from His Majesty King Mswati III. It will now be passed into law and will be known as the Sexual Offences and Domestic Violence Act.
History of the Bill
For almost a decade, civil society and women’s rights organizations have been advocating for legislation that better protects people from domestic and sexual violence in Eswatini. With alarmingly high rates of gender-based violence and sexual assault – nearly half of Swazi women experience some sort of sexual violence over their lifetime – it was recognized early on that a strong legal framework was needed to adequately respond to this national emergency.
The Sexual Offences and Domestic Violence (SODV) Bill was first introduced to Parliament in 2009. It was tabled and debated in both the House of Assembly and the Senate and was eventually passed in October 2011.
Unfortunately, the SODV Bill of 2009 did not receive Royal Assent from the King, which is required as the final step for any bill to be enacted into law in Eswatini, before Parliament was dissolved for the general elections in 2013.
As is customary in Swazi governing structures, the newly elected government had to be re-introduced to the SODV Bill and the procedure of enacting the bill into law had to start over again in 2015.
SWAGAA was among the first civil society organizations to lobby the government to enact the Sexual Offences and Domestic Violence Bill, dating back to as early as 2001. Over the years, we have participated in countless meetings with Parliamentarians, Senators, international institutions, lawmakers, magistrates, non-profit organizations, traditional leaders, local community members and survivors of gender-based violence and sexual abuse to champion this cause.
On July 17, 2018 King Mswati III signed the Sexual Offences and Domestic Violence Bill into law after it had been reviewed and amended by both the Parliament and Senate.
Why is the SODV Bill needed?
There was no comprehensive legal framework in place to protect people from domestic violence or sexual assault prior to the enactment of the SODV Bill. The legislation that was in place, some of it dating back over 100 years, was simply inadequate and ineffective at protecting people, especially women and children, from sexual and gender-based violence.
These previous legal instruments failed to meet the international and human rights standards we demand today in a modern society. For example, the definition of rape within this legal framework was only described as a male perpetrator and female victim. There was no definition of rape that included a male perpetrator and a male victim or a female perpetrator and a male victim. As such, these types of sexual assault would be considered cases of ‘indecent assault’ rather than rape in the previous legal system.
This weak legal system, instead of safeguarding the most vulnerable, fostered a culture of violence and impunity within Eswatini whereby perpetrators where often never convicted of their crime.
Goals of the SODV Bill
As outlined in the Sexual Offences and Domestic Violence Bill, its goals areas follows:
Give effect to certain rights which are enshrined in the Constitution of Swaziland Act of 2005, including the right to equal protection from the law, the right to privacy, the right to protection from inhumane and degrading treatment
Strengthen and consolidate certain common law and statutory provisions so as to adequately provide for the successful dealing, in a non-discriminatory manner, with sexual offences and domestic violence and to provide adequate protection to complainants
Provide protection to society’s most vulnerable, including women and children
End impunity for perpetrators by imposing terms of imprisonment on convicted persons that are proportionate to the crimes committed
Give effect to several international legal instruments, including
- The Universal Declaration of Human Rights, 1948;
- The African Charter on Human Rights and People’s Rights, 1986 and the Protocol to that charter on the Rights of Women in Africa, 2003;
- The United Nations Convention on the Elimination of All Forms of Discrimination Against Women, 1979
Did you know?
The previous laws narrowly defined rape as a forced sexual act of a male perpetrator and female victim. All other forms of rape were considered 'indecent assault'
The New Law
The SODV Act makes the act of rape gender neutral
Did you know?
A delay in reporting an incident of sexual or domestic violence was held against the victim in the previous law
The New Law
Section 50 of the SODV Bill stipulates that the court is not to draw any inference from any delay in reporting or from previous inconsistent statements
Did you know?
The burden of proof required in a sexual assault case according to the previous legislation was high
The New Law
The burden of proof for the offence of sexual assault has been lessened which will help increase the conviction rate