Mr Editor, thank you for publishing this article which seeks to highlight the ills of the forced evictions currently taking place in Swaziland. It further seeks to establish the existence of a pattern and a systematic mode of operation with which citizens’ rights to land, life, human dignity, shelter etc are violated with impunity by the state of Swaziland.
First, the state of Swaziland perceives itself as a unitary, sovereign and democratic state (section 1(1) of the Constitution). Reference to a democratic state presupposes an egalitarian, open society where human dignity comes first. However, the evictions at KaShali on 6 November 2010 fly in the face of these constitutional ideals, which Swaziland seeks to be seen as upholding. This Constitution of ours protects a broad category of rights, such as the rights to life, human dignity, equality before the law, equal protection of the law, access to courts, land usage rights, protection from undue deprivation of property as well as rights to compensation in the event of deprivation.
Let me turn to the land tenure system in Swaziland Mr Editor. The reader will appreciate that there are largely two land tenure systems in Swaziland (others may exist, but for purposes of this article, I will limit myself to these two), viz Title Deed Land (TDL) and Swazi National Land (SNL). SNL refers to land a public good, where, even though belonging to the Swazi nation this land is held in trust by the iNgwenyama (see section 211(1) of the Swaziland Constitution). The beneficiary(ies) of this trust relationship is the Swazi nation, in other words, the individual members of the Swazi nation.
Whether KaShali is situated on SNL or TDL is a matter that requires some further investigation, such as double-checking with the office of the Surveyor General if the land in question is indeed registered as a private farm (TDL) and to whom. But whatever the outcome of that investigation, the bottom line in these evictions is that human beings were left homeless, vulnerable, denied human dignity and compensation. Perhaps one should turn to the question whether the evictees’ initial settlement in the area was legal or not.
Was the settlement of these people legal?
It would seem there are elements within our society who believe that the enquiry into the legality of the evictions must begin from the moment of acquiring that property. These elements further believe that if the answer to the initial question is in the negative, the matter ends there and the eviction can be deemed to be legal. Unfortunately, this small clique of pro-eviction advocates are deluded by both their ignorance of the law and the desire to earn political mileage by appearing to be advancing the state’s case for evicting the poor. Whether the initial settlement was legal or not, whether the land in question is TDL or SNL, the bottom line is the state (or whoever controls the land) acquiesced in these people’s settlement there, and did nothing about it. This is a dereliction of duty on the state’s part, in as far as its obligations to promote human rights is concerned, for part of the promotion agenda involves civic education on rights. The state was therefore under a duty to educate the public on the land tenure system in Swaziland, as a preventative measure, to ensure that it does not find itself violating people’s rights the way it has done now.
Who controls SNL?
Tied to the question of the legality of the settlement of the evictees is the question of who is the ultimate controller of settlements on SNL. In terms of our Constitution (the supreme law) the regulation of SNL is in the hands of chiefs. Might I remind the reader that SNL is defined in the Constitution as being held in trust by the iNgwenyama on behalf of the Swazi nation. Now, this introduces customary law into the regulation of SNL in Swaziland, since the beneficiaries (Swazi citizens) have to access such land through the iNgwenyama’s subordinates (chiefs). Note section 233(1) of our Constitution which refers to chiefs as the footstools of the iNgwenyama. Hence instead of administering SNL personally, the iNgwenyama can and has done so through delegation to his footstools, the traditional chiefs. (Notice that I have deliberately underplayed the role of the Land Management Board here, which is also a constitutional body).
One of the common customary methods for accessing SNL in Swaziland is through the process of kukhonta. This khonta process basically involves the applicant paying a cow or its equivalent to the area’s chief. Once this is done, and the portion of land is pointed out to him or her, he or she takes possession of that land. There is no registration process which would give the possessor of that land better and traceable title. Registration here should not be viewed in the narrow sense of a 2-Quire Exercise book with a list of people who khontaed kept at the chief’s or induna’s place. This omission on the state’s part places the citizen who uses SNL at a vulnerable position.
The major drawback of such a system of land allocation is that it is oral and there are no records to prove possession of that land. This is partly the reason we have experienced evictions similar to the KaShali evictions in recent times.
Why are these forced evictions counterproductive for Swaziland?
The recent United Nations Human Development Index report places Swaziland at number 121 out of 169 countries. This on its own is a bad ranking for Swaziland. That notwithstanding, Swaziland is party to (in fact has acceded to) the following key international instruments: the International Covenant on Civil and Political Rights (CCPR), International Covenant on Economic Social and Cultural Rights (CESCR), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention Against Torture (CAT) and ratified the African Charter on Human and Peoples’ Rights. Swaziland has further shown a willingness to embrace the Universal Declaration of Human Rights (UDHR) some of whose provisions have now crystalised into customary international law, which means they are binding on and create obligations for Swaziland.
These international instruments contain provisions, which the state of Swaziland promised to align itself with. In fact, the state is obliged as it did freely undertake that obligation, to promote, protect and ensure fundamental rights and freedoms. It further domesticated some of the provisions of these instruments in domestic legislation, that is the Constitution. Interestingly, section 211(3) of the Constitution stipulates that there shall be no deprivation of land without due process of the law as well as adequate and prompt compensation. In discussing this traumatic experience with the victims of these forced evictions, and if media reports published when the story first broke out, there are no plans to compensate any of the victims. This in itself is a flagrant violation of the supreme law of the land, the Constitution we adopted in 2005.
These instruments are crucial in determining Swaziland’s willingness to implement its international obligations. I have always contended, and the KaShali evictions give credence to that conclusion, that whilst the state of Swaziland is quick to ratify at times, it does so without any intention to implement what it has ratified. Signature and ratification of these international instruments is not for cosmetic or fanciful purposes, but are meant to be seriously adhered to.
The saddening thing is that these evictions occur at a time when Swaziland has just celebrated 42 years of independence (6 September 2010), and just days before the beginning of the 16 Days of Activism Against Gender-Based Violence Campaign. A further worrying factor is that these evictions happened less than a month before the world, Swaziland included, celebrates international human rights day on 10 December.
The questions that beg an answer here are: How many women were affected? How many children were affected? How many of those children are supposed to be sitting for or preparing for their year end examinations? How many of those children’s futures were massacred? How many elderly people were affected. Is this Swazi? Is it humane? Is this in line with the spirit of ubuntu? Definitely not, it is so UnSwazi. Have these people been treated with dignity? Definitely not.
