Some Reasons Swazis Don't Use the Courts

At the recent 'First Biennial Conference on the Curriculum' held by the National Curriculum Council, I gave a paper on the Free Education Case (HERE).  The case, and the challenge of government in the formal (colonial) courts, has made Swazis uncomfortable.

So I asked the participants, about 100 Swazis from different walks of life, why they didn't like taking questions of law or policy to court.  (Swazis tend not to mind taking contract/commercial disputes to the courts, but are more than reticent about social/policy questions.)  The answers were illustrative.

There were four main reasons, being:

1) Cost of attorneys

2) Poor judgments / bad rulings - many of the decisions of the courts in Swaziland have been conservative or questionable.

3) Government ignores the rulings - this has happened earlier this decade, as well as in the Free Education Case itself.

4) Illegitimacy - the courts are colonial institutions and not to use the traditional dispute resolution mechanisms is to "betray the system" (in their words).

These reasons flow into each other in confusing ways.  For example, the illegitimacy issue adds to the cost, as attorneys have to clamber over each other for the fewer cases that come to the formal system (lawyers are strictly banned from the traditional courts).  Likewise, there is no doubt that some of the poor judgments have arisen directly because of the fear that government would ignore the ruling and further undermine the rule of law.

So what is to be done?

I'm not sure.  I think it would be really helpful if the attorneys were all less greedy here, but some are on the breadline, so how can you say that?

I think also that the dualist system has to be abolished. But how do you do that in this day and age? What would the international community say if tomorrow it was announced that the Magistrate, High and Supreme Courts were all abolished?

It wouldn't be pretty but it might be for the best.

Inheritance Rights and Swaziland’s Dualist Constitution

Earlier this week, I gave a presentation on inheritance laws at a meeting of NGOs.  Two things struck me: 

(a)    The lack of knowledge amongst even the elite about the formal (colonial) inheritance laws, which are now supposed to govern any title land and movable property over a certain value (most property these days). 

(b)   The amount of disagreement about the proper approaches to inheritance in terms of Swazi Law & Custom.  It is this uncertainty which is worrying many NGOs as the HIV-AIDS pandemic has left an unprecedented number of orphans in the country.  The uncertainty of the laws is leading to high levels of property grabbing, usually from family members.

The lack of knowledge was put down to the fact that very few people actually use the formal system to decide inheritance matters.  To give you some idea, the formal system involves a ‘Master of the High Court’ (a probate magistrate) keeping a registry of assets, and exercising supervisory jurisdiction over an ‘executor’, who is legally obligated to deal with a will in accordance with the instructions of the deceased.  If there is no will, then the Master will make orders after hearing all concerned parties.

The reasons given for not using the Master are illustrative.  Participants at the NGO conference cited the following:

(1) Master of the High Court takes a % of the estate (a silly practice - which will discourage full declaration and discourage attendance at the Master's office)    

(2) Master of the High Court corrupt

(3) Formal system slow/inefficient

(4) Formal system expensive

(5) Lack of understanding / legal language difficult and threatening

(6) Too far to travel

(7) Lack of knowledge of formal laws

(8) Fear of lusendvo (the family council - who's decisions are binding in terms of Swazi Law & Custom)

(9) Fear of losing share (greed)

Given the hurdles facing a person (let alone an orphan), one has to wonder how sustainable Swazi inheritance law is.  Although the Administration of Estates Act 1967 ostensibly makes the formal system the laws which must be followed, in practice the customary law is nearly universally applied.  As the customary law is not written down, and because it relies heavily on relationships at the expense of procedure, it is susceptible to serious abuse. And is seriously abused.

But an appropriate remedy is hard to foresee.  A change to the customary practice, whereby the family council (lusendvo) meets and appoints a ‘controller’ (inkhosana) of an estate, would have to be made by parliament.  As it is a law dealing with Swazi Law & Custom, this would have to be first considered in the highly traditional (appointed) Senate.  Section 115 of the Constitution requires such Bills to be sent to the Council of Chiefs, impliedly for their prior approval.  As any alterations to the system would undoubtedly touch on the control of Swazi Nation Land, it would be highly unlikely to be get such approval.  Control of SNL is the primary means the traditional authorities use to control Swaziland. 

That leaves tinkering with the current formal laws, which as discussed are barely understood, let alone followed. So, what is to be done?  Addressing the 9 problems listed above would be a good start.  This might encourage more Swazis to use the Master’s office.  Making it easier (read: lawyer-free) to appeal from any decision of the Master would also greatly assist.