Unfair Marital Power System in Africa Negated — Thanks to International Women’s Human Rights Clinic

January 17, 2020

A valley between Mbabane and Manzini cities in Eswatini.

Two former Georgetown Law clinic students, now graduates, have helped an African women’s rights advocacy group to mount a successful legal challenge to a discriminatory marital law regime in Eswatini (formerly Swaziland).

Women and Law Southern Africa-Eswatini (“WLSA-Eswatini”) adopted essentially word-for-word a brief prepared by Michelle Brignone (L’16) and Zachary Meyer (L’15) during their stint with Georgetown Law’s International Women’s Human Rights Clinic in arguing that Eswatini’s common law marital power system violated the country’s constitution. Their arguments persuaded the High Court of Eswatini to abolish the marital power system — which “essentially relegates women to the legal status of a minor under the guardianship of their husbands,” according to the brief — once and for all.

Brignone and Meyer’s brief had pointed out that prior High Court decisions had chipped away at certain aspects of the marital power system, such as the prohibition on the right of married women to sue and be sued in their own names. But other key unfair precepts remained, such as the bar on married women’s rights to administer property and enter into contracts. The court agreed.

“Although [prior] landmark judgments … provided a much-needed watershed regarding the rights of women in the country, the Applicant argues that because they applied to specific instances only, they did not go far enough,” the court wrote. “We cannot agree more. To a larger extent, the marital power of the husband is alive and well in the country, pervasive in its discriminatory shackles.”

The consequences of the marital power system reach beyond the restrictions individual women must endure, Brignone said.  It can also hold back a nation’s development, she said.

“Research overwhelmingly shows having women fully participate in all levels of business and society raises a country’s GDP per capita, results in a higher rate of economic growth, and results in more prosperous and stable countries,” said Brignone.  “Yet, countries like Swaziland continued to impede growth by restricting how and when married women could participate in formal market activities. I cannot wait to see the economic growth and the changes that will come because marital power has been abolished.”

As the brief had argued, the court found that the common law’s vesting of the sole right to administer and sell marital property in husbands, without their wives’ consent, violated Eswatini constitutional provisions guaranteeing equal treatment under the law, including specifically as to women. The court also quoted verbatim the students’ explanation of why the option to enter into prenuptial agreements nullifying a husband’s default marital power was irrelevant: “Wives should not have to go through the burden of an additional legal step just to preserve their constitutional right to equality, especially since husbands do not have to take this legal step to preserve their rights.”

Brignone and Meyer prepared the brief, affidavits and other filings in 2014, well before WLSA-Eswatini was able to secure a married woman willing to serve as a plaintiff (or “applicant”) for standing purposes, a common difficulty.

The organization filed suit in 2016, with the applicant a woman who had bought cattle that she brought into the marriage, but whose husband, who had abandoned her, was able to sell the cattle without her knowledge or consent. She also was blocked from selling them on her own when needing to generate money for food, clothes and school fees for her children.

Students often are able to marshal legal arguments in cases like these ahead of time because “the law is pretty straightforward,” says Professor Susan Deller Ross, director of the International Women’s Human Rights Clinic. “We’re dealing with statutes that are explicitly discriminatory.” (In that vein, the High Court also struck down, also at the clinic brief’s urging, a portion of the marriage statute that applied different marital power regimes depending on whether the parties to the marriage were “African,” a term that was not defined, but that the Court acknowledged was probably intended to reach indigenous Swazis.  While indigenous Swazis could also opt out of the regime that gave the husband marital power over his wife and made him the sole owner of marital property, the Court ruled that the fact of the option existing did not make it “any less discriminatory,” just as it had ruled earlier on the common law marital power based on sex.)

The Georgetown Law Clinic Experience

Clinic students are also able to devote more attention to a particular case than the often-overextended organizations the clinic works with, Ross said.

“We have access to so many more materials and time than our partners do,” she says. “The organizations we work with are very understaffed and overworked, and they don’t have the legal resources we have.”

In the fall semester, the clinic helps its partners identify unjust laws to target in litigation. A United Nations body that monitors the implementation of its Convention on the Elimination of All Forms of  Discrimination against Women highlights outstanding issues countries need to address, Ross says. The clinic’s in-country investigatory work also identifies areas in which countries are failing to meet their treaty obligations in existing laws on the books. In the spring semester, students draft proposed legislation and human rights reports, but often the court system provides the quickest path to change, Ross says. The students’ brief in this case noted that Eswatini had already long acknowledged to the U.N. that its common law and statutory marital power systems were discriminatory — but that proposed legislative reforms had languished for seven years.

“You’re seeing African courts paying attention and starting to give women equal rights and do so very definitely,” Ross says. “You can persuade them with precedent and their international obligations and their constitutional obligations.”