Swaziland
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DIVORCE UNDER KUTEKWA CLAUSE BACK

LOBAMBA – A clause on divorce under customary law marriage has been restored to the Civil Registration Bill.

Intervention and guidance that was provided by the Attorney General (AG), Sifiso Khumalo, saw the return of two controversial clauses to the National Civil Registration and Vital Statistics Bill of 2022. The Bill aims at harmonising and consolidating laws relating to the mandatory registration of citizens and non-citizens legally resident in Eswatini, to provide for insurance of identity cards, procedure change of surname and all life events registration.

During the debates and workshops on the Bill, senators strongly challenged two clauses of the Bill. These were Clause 40 and 55. Clause 40 is on election of female spouse to change surnames.  The clause states that a female spouse may, at any time while married, elect in the prescribed manner to change her surname to; The surname of the husband; or A surname consisting of her surname and that of the husband, hyphenated or combined or (b) Resume the surname that the female spouse had immediately before marriage, at any time after a marriage is dissolved by divorce, annulment or death. The proposed law says, the former spouse may elect in the prescribed manner to resume the surname that the spouse had immediately before marriage.

Argued

Senators had argued that the clause was unSwati and wanted it not to be included in the Bill. Clause 55 on expunging of record of marriage in terms of Eswatini law and custom had been removed from the Bill, as Senators stated that there was no divorce under kutekwa or customary marriage.
Yesterday before the senators passed the Bill, Khumalo explained in detail the two controversial clauses, which eventually made it back to the Bill. Clause 40 was adopted as is by Senate. He also read Sections 27 and 28 of the Constitution. He said, if families were okay with their daughter-in-law using their birth surname, she shouldn’t be barred.

Lacking

He, however, made adjustment to Clause 55, saying it was lacking some elements. “I am with senators, there is not divorce under customary marriage. However, I am saying to the Ministry of Home Affairs, this is essential in cases where all processes have been followed that involve separation of a married couple, which includes family meetings. Royal kraals can register the annulment,” he said. The AG noted that the Bill did not outline those processes as grounds for registration of expunging.

“From the Bill, the ministry made itself a court, yet it is supposed to state that parties should bring evidence through court,” he said. The legal head said the ministry was not competent to determine whether a couple should divorce, but the court. He said Home Affairs deregistered a marriage that had undergone all the processes. A court order would be issued that would be presented at the ministry for deregistration.

Proposing

“I am proposing that Section 55 reads as “Director may expunge marriage conducted in Eswatini law and custom upon receipt of a court order from a competent court,” he said. In as much as some senators had other reservations in some areas, the AG provided the much needed clarity to the extent that the entire house had him to thank and the Bill was passed by the senators. Chairperson of the Ministry’s Senate Portfolio Committee, Senator Chief Ngalonkhulu Mabuza said the passing of the Bill will see a reduction in stealing of elderly grants. The senator stated there were so many deaths that were not registered, more especially those of elderly people. He said some families continued receiving grants, therefore, the passing of the Bill, which has strong teeth and provisions in all forms of registration, would save government a lot of money.

On another note, the passed Bill will now grant judges the power to issue a surname to children who have been found abandoned.
This came after it was scrapped out that every child found dumped must be given a Dlamini surname. Under the new law, the judge will grant a surname.