In law, there exists a universal legal principle known as the presumption of innocence—the idea that an individual is innocent until proven guilty.
This principle holds that anyone accused of a crime is considered legally innocent until the prosecution proves their guilt beyond reasonable doubt in a competent court of law. It is a cornerstone of criminal justice systems globally, including in Eswatini and forms the bedrock of due process, which guarantees fair and impartial legal proceedings for all.
Around April, news emerged that government spokesperson Alpheous Nxumalo had been accused of raping two siblings. Following these serious allegations, he was formally charged, appeared at the Manzini Magistrate’s Court and was later granted bail by the High Court.
From the outset, Nxumalo has maintained his innocence, both in public statements and through his not guilty plea in court. As with any accused individual, he is fully entitled to the presumption of innocence and to be afforded the protection of due process.
A TROUBLING TURN OF EVENTS
However, his case has taken a rather troubling and controversial turn. Instead of simply defending himself against the charges in court, Nxumalo and his legal team have begun to challenge the legitimacy of the very law under which he was charged—the Sexual Offences and Domestic Violence (SODV) Act of 2018. This move shifts the focus away from the evidence and towards a constitutional challenge of the legislation itself.
While it is within his legal rights to do so, the implications of this defence strategy extend far beyond his individual case.
The SODV Act was enacted specifically to protect the most vulnerable members of society—women, children, and survivors of abuse. To now witness a high-profile figure, especially one representing the voice of government, challenge its validity sends a chilling message.
It emboldens those who have long opposed the law and offers hope to individuals previously convicted under it, potentially undermining public confidence in the judicial process. It also risks reversing years of progress made by activists, legal reformers, and communities working to combat gender-based violence (GBV) in Eswatini.
When a government spokesperson—someone entrusted with the credibility and moral authority of the state—is accused of a serious crime like rape and then seeks to discredit the law intended to protect survivors, the case evolves into a test of national values, legal integrity and institutional resilience. It raises urgent questions about whether our justice system can uphold the rights of the accused while simultaneously safeguarding the vulnerable.
THE WIDER IMPACT ON THE RULE OF LAW
At the heart of this matter lies not just one man’s fate, but also public faith in the rule of law. When those in power appear to be above the very rules that bind society together, the legitimacy of the entire legal system comes into question. In Eswatini, as in many nations, such moments expose cracks in the system—in terms of how our laws are written, enforced, respected and how trust between the governed and those who govern is either built or eroded.
The urgency of this issue is underscored by the devastating scale of gbv in Eswatini.
During the recent People’s Parliament (Sibaya), citizens implored His Majesty King Mswati III to declare GBV a national emergency—a plea that reflects the gravity of the crisis. Between April 2024 and January 2025, the Royal Eswatini Police Service (reps) recorded 4 700 GBV cases, including 894 rape cases—a rise from 823 the previous year.
In 2024 alone, 4 909 GBV cases were reported, up from 4 359 in 2023, marking a 13% increase in a single year. Over just four years, more than 41 000 GBV cases have been documented. These are not mere statistics; they represent lives brutally lost, lives crippled by violence and trauma.
These figures point to a national emergency, not a marginal social issue. In such a climate, challenging the law designed to fight this scourge is what makes this appear more than just a legal manoeuvre—it is a heavy punch to a fraternity already disadvantaged in the fight.
DEFENCE TACTICS VS ACCOUNTABILITY
It is common practice for defence strategies to involve scrutinising the laws under which an individual is charged. Accused persons may claim that legislation is vague, improperly enacted, or in conflict with constitutional protections.
These are legitimate legal tools and are available to all, regardless of status.
However, there should be a clear distinction between a reasonable challenge and the manipulation of legal loopholes to escape accountability.
When such arguments come from public officials, whose duty is to uphold public policy and the rule of law, they send a disturbing message—that laws are only valid when they do not inconvenience the powerful.
Notably, in cases involving GBV, justice is often obstructed not by the lack of evidence, but by procedural arguments that distract from the truth. When legal technicalities override the testimony of survivors and the weight of credible evidence, our courts risk becoming a theatre of who can twist the law most cleverly. This reality weakens the public’s confidence in the system and discourages survivors from coming forward while incentivising prohibitive behaviour.
The consequences of such a challenge surely go far beyond the courtroom. If public officials are seen to successfully repudiate legislation passed by their own government, it no doubt creates uncertainty about the enforceability of any other law.
A DANGEROUS PRECE-DENT
When initiating this conversation we asked the question, ‘Is the SODV Act under siege?’ In simpler terms, ‘Can one person successfully bring down an entire law?’ Technically, yes. Courts are tasked with determining whether laws align with constitutional standards.
A single case—such as the one now before the court can result in parts or even the entirety of a law being struck down. But there is also a strong expectation that such decisions should be grounded in clear, compelling constitutional reasoning, not opportunistic defences.
In this instance, there is no significant scholarly or public consensus that the SODV Act is flawed. The challenge appears to be a personal legal strategy masquerading as a broader constitutional concern—one that, if successful, will unfortunately set a dangerous precedent. The signal that will emerge from this is that the rule of law is adjustable depending on who is in the dock.
Eswatini’s legal system draws from Roman-Dutch law, customary law and constitutional mandates, which, as proven by arguments raised in court in Nxumalo’s case, seem to coexist in a somewhat delicate balance. For instance, the SODV Act states clearly that any sexual act with a person under 18 is considered rape, regardless of claimed consent. Yet some customary practices—such as traditional unions and notions of marriage readiness—are seen as colliding with this definition. These ambiguities create grey areas ripe for exploitation.
Should Nxumalo’s challenge succeed, it would likely encourage others to pursue similar defences—focusing less on facts and more on legal loopholes. The burden will once again fall on the most vulnerable—children, women and survivors who already struggle to navigate a system often seen as biased or inaccessible. Regrettably, the long-term result could be a weakening of the SODV Act’s deterrent power and its legitimacy in the public eye.
In view of the unfolding situation, civil society, the legal community and the public must urgently seek accessible and unambiguous interpretations of laws around consent and age. Legal reform in this regard should occur transparently and democratically—not through cleverly initiated legal sidesteps.
The judiciary must be allowed to operate independently and efforts to delegitimise protective laws for personal gain must be publicly condemned and rejected in their entirety. Lawmakers must work to close legal loopholes—not exploit them. That would also be morally and ethically correct.
What is more glaring in this case is that it has become more than a legal proceeding—it is a test of Emaswati’s willingness to protect the rights and dignity of the most vulnerable in society.
The challenge to the SODV Act by a high-ranking official is, symbolically, a challenge to every girl who was ignored when she said ‘no’ and to every survivor who risked everything to speak out.
FINAL THOUGHTS
When it is all said and done, justice must be seen as more than a contest of legal technicalities—it must be rooted in fairness, consistency, compassion and a shared commitment to protect the vulnerable.
It would be regrettable, therefore, if—as SWAGAA Director Nonhlanhla Dlamini stated that this case becomes yet another example where “prominent and wealthy individuals seem to evade the law in ways ordinary citizens cannot.”
If those in power can bend or break the law to escape it, it would mean the law has failed. And if the law fails—who will protect the vulnerable?
Until next week,
God bless!
