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Print this pageSWAZILAND: National laws

Date:

26/11/2013

Organisation:

Child Rights International Network

Resource type:

National Laws

Summary:

General overview of Swaziland's national legal provisions on children's rights, including guidance on how to conduct further research.


National laws on children's rights

Status of the CRC in national law

Article 238 of the Constitution of Swaziland provides that unless it is self-executing, an international agreement becomes law only when enacted into law by Parliament. As such, the provisions of the Convention on the Rights of the Child must generally be implemented in further legislation in order to be invoked before the courts. National courts have made reference to the Convention in their decisions, but have not been willing to apply its provisions directly.

Constitution: Article 29 of the Constitution of Swaziland sets out a number of rights provisions that specifically apply to children, including in relation to work; abuse, torture or other cruel inhuman or degrading treatment or punishment; the right to be properly cared for by parents or another lawful authority; discrimination on the basis of parents marital status; a duty of children to respect their parents; the right to education; and Parliament's duty to enact laws for the protection of children. Article 29(2) explicitly permits “lawful and moderate chastisement for purposes of correction”.

Chapter III of the Constitution of Swaziland includes a number of further rights provisions that apply regardless of age, as well as a number that specifically address the rights of children:

  • Article 14(1)(f): enshrines respect for rights of the family, women, children, workers and persons with disabilities.

  • Article 15(5)(a)(iii): includes within the grounds under which abortion may be lawful, where “there is serious risk that the child will suffer from physical or mental defect of such a nature that the child will be irreparably seriously handicapped”.

  • Article 16(1)(f): prohibits deprivation of liberty except in certain limited cases. Among the grounds for which deprivation of liberty is permitted, is for the purpose of education, care or welfare of a person under the age of 18.

  • Article 23(3): entitles religious communities to establish and maintain places of education.

  • Article 27(4): provides that motherhood and childhood are entitled to special care and assistance by society and the State.

  • Article 31: abolishes the status of “illegitimacy” of persons born out of wedlock.

  • Article 32(3): requires employers to accord protection of female employees after child birth.

  • Article 43(4): entitles children born outside of wedlock, who are not adopted or claimed by a father in accordance with national law, to citizenship where the mother is a citizen of Swaziland.

  • Article 43(5): entitles adopted children to citizenship of Swaziland where the adoptive parent was a citizen of Swaziland at the time of adoption.

  • Article 46: entitles a child born after the death of his or her father to citizenship on the same terms as if the father were alive.

  • Article 47: provides that a deserted child of not more than seven years found in Swaziland is deemed to have been born in Swaziland unless the contrary is proved.

  • Article 52(1): provides that the death of a citizenship of Swaziland shall not affect the citizenship of any surviving child or dependent.

  • Article 52(2): provides that loss of citizenship by a person will not affect the citizenship of a spouse or child.

  • Article 60(8): requires the State to promote free and compulsory basic education for all.

  • Articles 195(7) and 196(5): include provisions related to the pension benefits of children and dependants.

Legislation: the Children's Protection and Welfare Act contains many of the provisions within national law that specifically address children's rights, but relevant provisions can be found in a number of Acts and Orders. Legislation of particular relevance to children includes, but is by no means limited to:

  • The Children's Protection and Welfare Act 2012

  • The Crimes Act 1889

  • The Criminal Procedure and Evidence Act 1938

  • The Prisons Act 1964

  • The Sexual Offences and Domestic Violence Act 2009

  • The Education Act 1981

  • The Employment Act 1980

  • The Reformatories Act 1920

  • The Adoption of Children Act 1952

  • The Immigration Act 1982

  • The Girls' and Women's Protection Act 1920

  • The Age of Majority Act 1853

  • The Marriage Act 1964

  • The Liquor Licensing Act 1964

  • The Births, Marriages and Deaths Registration Act 1983

  • The Swaziland Citizenship Act 1992

  • The Maintenance Act 1970

  • The Obscene Publications Act 1927

  • The Public Health Act 1969

  • The Child Care Services Order

Legal Research

The official government website provides access to the Constitution (http://www.gov.sz/images/stories/Constitution%20of%20%20SD-2005A001.pdf) and the Swaziland Legal Information Institute provides access to enacted legislation (http://www.swazilii.org/indexpage/legislation). The World Law Guide (http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweswa.htm) and the International Labour Organisation website, NATLEX (http://www.ilo.org/dyn/natlex/natlex_browse.country?p_lang=en&p_country=SWZ), also provide access to a selection of national legislation. In addition, the GlobaLex project at New York University has produced a guide to legal research in Swaziland (http://www.nyulawglobal.org/globalex/Swaziland1.htm) and the World Legal Information Institute (http://www.commonlii.org/links/2712.html) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/swaziland.php) provide access to a selection of legal and governmental resources. All resources are available in English.

Case Law

CRC Jurisprudence

The High Court of Swaziland has made reference to the Convention on the Rights of the Child in relation to the rights of children born out of wedlock (http://www.crin.org/Law/instrument.asp?InstID=1568).

Case Law Research

The South African Legal Information Institute provides access to databases of the decisions of the Supreme Court, High Court, Industrial Court and the Industrial Court of Appeal (http://www.saflii.org/content/swaziland-index) as does the Swaziland Legal Information Institute (http://www.swazilii.org/). The World Legal Information Institute also provides access to a selection of databases of national court decisions (http://www.worldlii.org/catalog/55863.html). The official website of the Government of Swaziland has dedicated a section of its website to High Court judgments (http://www.gov.sz/index.php?option=com_content&view=article&id=367&Itemid=375), but at the time of writing, limited resources were available.

Compliance with the CRC

In its Concluding Observations of 2006, the Committee on the Rights of the Child welcomed the enactment of the Constitution in 2005, particularly the explicit guarantees of children's rights. The committee also noted that the Children’s Bill and a Sexual Offences and Domestic Violence Bill were being discussed in the State, but expressed concern at the lack of a systematic and comprehensive legislative review of the compatibility of domestic legislation, policy and practice with the Convention. The Sexual Offences and Domestic Violence Bill was enacted in 2013.

In depth analysis

Among the more pervasive causes of concern raised during the Committee's 2006 Concluding Observations was discrimination. The Committee noted the Constitutional prohibition on discrimination, which places particular emphasis on children born out of wedlock, but expressed concern that much of the relevant national legislation was inconsistent with the non-discrimination provisions of the Constitution. The Committee expressed concern that children were not able to derive citizenship from their mothers except in a small number of situations specifically identified in the Constitution and urged the State to revise its legislation to ensure that children within the territory enjoy all of the rights set out within the Convention without discrimination, including by ensuring that children are able to inherit citizenship equally through their mothers and fathers. The Committee also noted the prevalence of discrimination against children with disabilities and urged the State to prevent and prohibit all forms of discrimination against children with disabilities and to implement domestic legislation on the issue.

Violence against children was also a notable feature of the Committee's Concluding Observations. Of particular concern was the lack of comprehensive policy for preventing and combating child abuse and neglect in the family as well as the legality, prevalence and social acceptability of corporal punishment in the family, schools and the justice system. The corresponding recommendations called on the State to take broad measures to combat violence against children, including by establishing mechanisms to monitor and investigate reports of child abuse and neglect; setting up free national legal aid and mediation to address matters of abuse, including sexual abuse; and explicitly prohibiting corporal punishment in all settings.

With regards to the justice system, the Committee expressed concern at the low minimum age of criminal responsibility (7 years); the practice of detaining children, particularly girls, with adults; the lack of rehabilitation and reintegration programmes for juvenile offenders; the lack of training programmes for professionals working in the juvenile system; and the use of corporal punishment as a criminal sanction. The Committee urged the State to reform its juvenile justice system, including by raising the minimum age of criminal responsibility as a matter of urgency; ensuring that deprivation of liberty is only used as a measure of last resort; providing children with legal assistance at an early stage of legal proceedings and abolishing the use of corporal punishment as a penalty in the juvenile justice system. The Committee also urged the State to ensure that children in conflict with the law are provided with and effective complaints mechanism.

Current legal reform projects

Please contact CRIN if you are aware of any current legal reform projects.

Previous National Laws items


Organisation Contact Details:

Child Rights International Network
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2 Pontypool Place
London
SE1 8QF
Tel: +44 (0)207 401 2257
Email: info@crin.org
Website: www.crin.org

Last updated 26/11/2013 16:52:29

Please note that these reports are hosted by CRIN as a resource for Child Rights campaigners, researchers and other interested parties. Unless otherwise stated, they are not the work of CRIN and their inclusion in our database does not necessarily signify endorsement or agreement with their content by CRIN.

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