Mbabane – Former Government Spokesperson Alpheous Nxumalo, facing serious charges of rape involving a 17-year-old and a 20-year-old, is petitioning to have the Sexual Offences and Domestic Violence (SODV) Act of 2018, under which he is charged, nullified.
Nxumalo, whose contract has recently expired, was granted bail of E50,000 by High Court Judge Mumcy Dlamini after appearing at the Manzini Magistrates Court.
In his civil suit against the government, Nxumalo argues that the SODV Act violates Section 115 of the Constitution due to non-compliance with mandated procedures. He cites several officials in his suit, being Manzini Principal Magistrate David Khumalo and the Acting Director of Public Prosecutions, Speaker of House of Assembly, Senate President and Prime Minister.
Nxumalo contends that the Act was improperly enacted because it neglected the necessary consultation with the Council of Chiefs, a requirement for laws impacting Eswatini’s traditional customs. He asserts that the legislative process only involved the House of Assembly and, that is it not clear about the Senate and the Council of Chiefs’s involvement, rendering the law unconstitutional.
He further claims that elements of the law—such as the broadened definition of rape, marital rape, and concepts like economic abuse, abduction, criminalising kwendzisa (child marriage) of girls below 18 and kukhuzela (pursuing love) —are imposed Western norms that conflict with SiSwati cultural practices.
He is challenging the limitation of the age of consenting to sexual activities to 18.
“Declaration that girls and boys below 18, even though fully doli capax in terms of The Child Protection and Welfare Act of 2016 to appreciate criminal conduct and prosecutable (if above 14 years of age), however, under the SODV Act they remain young and un-inteligent to appreciate sexual relations with their dating partners,” it reads.
Nxumalo is seeking several legal remedies, including:Nullification of the charges against him; Declaration of the SODV Act as unconstitutional; Review and annulment of decisions made by the House of Assembly Speaker and Senate President for failing to follow proper legislative procedures; A stay of his prosecution; An order compelling the Speaker of the House of Assembly to produce records of the parliamentary discussions that led to the Act’s enactment.
This case raises significant questions about the intersection of law, culture, and constitutional procedure in Eswatini.
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