APPEALS FROM THE TRADITIONAL COURTS

Human Rights Watch has released its World Report 2013.  Unfortunately, it does not cover Swaziland but it does contain some essays pertinent to Swaziland today.  The essays cover:

(1) Traditional values and human rights (click HERE);

(2) Corporations and human rights (click HERE); and

(3) The environment, health and children's rights (click HERE).

The piece on traditional values references a case in Botswana where the High Court overruled a customary law granting inheritance of the family home to the last born male heir.  The elder sisters challenged the law, which had been applied by a customary court, on the basis that it violated their constitutional right to equality before the law - and won (to read the full judgment click HERE).  To date, as far as I am aware, no one has challenged a decision of any Swazi Court at the High Court, partly I think because of the lengthy and intimidating appeals process.  According to the Swazi Courts Act 1951, civil appeals must go first to the Swazi Court of Appeal, then the Higher Swazi Court of Appeal and then to the High Court.  This is a pretty long road for a person dissatisfied with the decision of the local Swazi Court President.  But this lengthy process ignores, I think, the effect of Section 35(1) of the 2005 Constitution which states:

"Where a person alleges that any of the...provisions of this [Bill of Rights] has been, is being, or is likely to be contravened in relation to that person or a group of which that person is a member...that person (or that other person) may apply to the High Court for redress."

This should mean that a person can apply directly to the High Court from a decision of a Swazi Court contravening (as with the Botswanan case) a provision of the Bill of Rights. 

VIDEO OF SWAZILAND AT UN HUMAN RIGHTS COUNCIL

Here is the footage of Swaziland at the UN.  If you would prefer to open it in a separate page, the link is:


http://www.unmultimedia.org/tv/webcast/2011/10/closing-upr-report-of-swaziland-12th-universal-periodic-review.html

SUBMISSIONS TO UPR NOW AVAILABLE

For those interested, the submissions made to the UN for the Universal Periodic Review (UPR) are now available:

http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRSZStakeholdersInfoS12.aspx

Submissions have been made by the Centre for Human Rights at the University of Pretoria, Amnesty International and Action for Southern Africa among others.  There is also a submission by the Swazi Human Rights Commission.

Swaziland's review comes up on 4 October 2011.

REPORTING TO THE UN TREATY BODIES

The Office of the High Commissioner for Human Rights' (OHCHR) compilation of stakeholders' report for the universal periodic review is now available (HERE).  One of the items it reports on is Swaziland's commitment to reporting under the UN treaty regime.  In this regard, it states:

"[Amnesty International] noted that Swaziland had a poor record of reporting on the implementation of its international human rights treaty obligations.  [Joint Submission 1] recommended that Swaziland take its reporting obligations under the various international instruments seriously and report accordingly."

Looking at the OHCHR compilation of UN reports (HERE), it is hard to disagree with this argument.  At p 4, it has the following table:

Treaty body	Latest report  submitted and considered	Reporting status
CERD	1996	Fifteenth and nineteenth reports overdue since 2006
CESCR	–	Initial report overdue since 2006
HR Committee	–	Initial report overdue since 2005
CEDAW	–	Initial report overdue since 2005
CAT	–	Initial report overdue since 2005
CRC	2005	Combined second to fourth report due April 2011

Abbreviations:
CERD   Committee on the Elimination of Racial Discrimination
CESCR Committee on Economic, Social and Cultural Rights
HR Committee  Human Rights Committee
CEDAW  Committee on the Elimination of Discrimination against Women
CAT   Committee against Torture
CRC    Committee on the Rights of the Child
CRPD  Committee on the Rights of Persons with Disabilities.

The committees have responsibility for overseeing their corresponding conventions.  The Human Rights Committee is the body which oversees the International Covenant on Civil and Political Rights.

With four out of (a rather paltry) six treaties having never been reported on and the last report being six years ago, it is hard to say that a commitment to report is there. It will be interesting to see whether this is raised with the Swazi government during question time, which will happen on Tuesday 4 October 2011 3PM-6PM Mbabane time (GMT+2).  It can be watched here:

http://www.un.org/webcast/unhrc/index.asp

UN HUMAN RIGHTS REPORTS AVAILABLE

Three reports on the human rights situation in Swaziland are now available from the UN Office of the High Commissioner for Human Rights (OHCHR).  These are the documents which will form the basis for the human rights review under the new UN human rights mechanism, the universal periodic review (UPR).

The reports are the:

(1) National report - the submission on the human rights situation in the country compiled by the Swazi Ministry of Justice (click HERE);

(2) Compilation of UN information - a summary of reports of the UN 'treaty bodies' (committees established by different treaties, for example, the Committee on the Rights of the Child, which oversees the Convention on the Rights of the Child) (click HERE);

(3) Summary of stakeholders' information - an OHCHR compilation of submissions made by civil society organizations and the Human Rights Commission (click HERE).

The next step is for countries to put Swaziland 'on notice' about questions the country will be expected to answer when it fronts the Human Rights Council on Tuesday 4 October 2011 from 3PM-6PM (Mbabane time; GMT+2). That meeting can be watched live (with a good Internet connection) here:

http://www.un.org/webcast/unhrc/index.asp

Now to find a good Internet connection...

THE BUDGET AND GOVERNMENT SERVICES

There was general amusement at Court B of the High Court on Thursday last week when Justice Ota asked the government attorney why he had not provided copies of the cases that he was relying on.

Attorney: Ah, well, we have a little problem in government, you see, there is no money.

Judge: I expect copies of these cases on my desk by the end of the day.

Attorney: Yes, certainly, my Lady...I will have to incur out-of-pocket expenses.

This resulted in riotous laughter from the gallery and the bench itself.

But all jokes aside, it seems that government is facing a cash crisis and that, unless urgent measures are taken, this will have serious implications for the already-scanty services it provides to its people.

In an attempt to bolster its cash reserves, government recently undertook a sale of government bonds. It was able to sell less than a fifth of those on offer. To help explain the reasons for this, I asked an economist (who asked for anonymity) what the inability to sell bonds generally means for governments and I received the following answer:

“Basically, many governments don’t raise as much as they want to but I think it is pretty rare to only get away 1/5 of the target. Failing to raise as much cash as intended is usually a sign that:

(1) the government is too risky for the interest being paid (either too much debt or close to civil war etc), or

(2) the government is not going to repay the principal (the amount loaned), either because it is untrustworthy (unwillingness) or cannot repay (inability), or

(3) the government will repay but it will print a heap of money to survive between now and then, thereby causing hyper-inflation and reducing the real value of the principal (the time value of money).”

Hyper-inflation is not likely in the opinion of Swazi economist Thembinkhosi Dlamini. In an article for IDASA (HERE), he writes:

“It seems from afar that the government has opted for the most unprocedural and unprofessional option of public finance management, which is to continue to sign cheques until the money is finished then suspend government operations.”

So instead of printing money (like Zimbabwe), it seems the authorities will just cut back on services. Justice Ota better start reading cases online.

Human Rights Review of Swaziland

The Universal Periodic Review of Swaziland is happening this year, with civil society submissions about the human rights situation in Swaziland due by 14 March. For more information about this new United Nations procedure, there is a page here:

http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRmain.aspx

For civil society groups interested in making a submission, look here:

http://www.ohchr.org/EN/HRBodies/UPR/Pages/NoteNGO.aspx

I have been asked by a few people what documents are used in the review and I have to confess I was a bit stumped. But research reveals the following:

1. The basis of the review is:

(a) The Charter of the United Nations;

(b) The Universal Declaration of Human Rights;

(c) Human rights instruments to which a State is party;

(d) Voluntary pledges and commitments made by States, including those undertaken when presenting their candidatures for election to the Human Rights Council (hereinafter “the Council”).

2. In addition to the above and given the complementary and mutually interrelated nature of international human rights law and international humanitarian law, the review shall take into account applicable international humanitarian law.

(For the document which has this information, and which establishes the review mechanism, click HERE (word file).)

The (rather paltry) list of human rights treaties to which Swaziland is a party reads as follows: the Convention on the Elimination of Racial Discrimination (since 7 May 1969); the Convention on the Rights of the Child (6 October 1995); the Convention on the Elimination of Discrimination Against Women; the Convention Against Torture (both 26 April 2004); the Convention on Civil and Political Rights; and the Convention on Economic, Social and Cultural Rights (both 26 June 2004).

I haven’t yet reviewed what the Human Rights Council (the body of experts that undertakes the review) has been ruling regarding “international humanitarian law” but this presumably provides some scope for moving beyond the UN treaties.

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.

The Swazi Human Rights Commission & the Black Stars

Some weeks ago, we were all summonsed to partake in a consultation regarding the Human Rights Commission (HRC) in Swaziland.  The consultation was undertaken by the Commonwealth, and as it was a government shindig, the lunches were sumptuous.

The facilitator - ennoblingly titled 'Guest of Honour' - was Justice Emile Short, the Ghanaian Human Rights Commissioner.  He did a fantastic job.  The draft Bill for the Commission was distributed, and it is modelled on the Ghanaian Commission, which has by all accounts been fantastically successful.  

But it became clear throughout the sessions that Swaziland is a far cry from Ghana.  There is a fear here of government commissions and powers that perplexed the facilitators.  When it was explained, for example, that the Elections & Boundaries Commission here in Swaziland had attempted to prevent democratic voter education, under the rubric that it and it alone had the authority to 'facilitate voter education' (see the EBC case), the Commonwealth facilitators were all stunned.  Still, they pushed on with peddling the Ghanaian model.

So what is the model?

Well, unlike most HRCs in the developed world, the Ghanaian model allows individuals to take other individuals directly to the Commission.  This makes the HRC rather like a less formal court.  In most countries in the West, a person can take a case alleging a violation of human rights by another individual, but the focus of the complaint is the government.  So, one might allege that a neighbour has invaded one’s right to privacy, but the complaint will centre on why the government has not outlawed the neighbour’s behaviour, or taken appropriate action to enforce the law.  This type of HRC is usually given power to investigate complaints about “actions or practices” (including omissions) undertaken (or not) by the state that are said to violate human rights.  Or, usually a human rights treaty.

Not so the Swazi HRC.  It is proposed to give this the power to investigate “violations of human rights.”  This specifically allows individuals to make complaints against other individuals.  Perhaps more worryingly, it also specifically allows any governmental body to make complaints against individuals.

In addition to this, the definition of “human rights” is somewhat vague in the proposed Bill.  It is defined as follows:

“‘human rights’ means human rights guaranteed by or under the Constitution or any other law in force in Swaziland, including international law.”

This might be fine in Ghana, although it is the sort of definition that should be avoided for uncertainty.  Just what are the ‘human rights guaranteed by...any...law in Swaziland’?  There may be certain rights existing in unwritten Swazi Law & Custom (which is ‘law in Swaziland’), for example, that might be construed as being ‘human rights’ and therefore form a proper basis for an investigation by the HRC.  I hope that you can appreciate we are on slippery ground here.  When this was raised at the consultation, the Commonwealth dismissed those concerned with the statement that they were misunderstanding what human rights were.  But this rather misses the point.  There are safer ways of defining the HRC’s mandate, ways that would avoid any possible misunderstandings.  And these misunderstandings could easily be abuses in the guise of misunderstandings.  Coupled with the ability of the HRC to investigate individuals at the behest of the state, the Swazi HRC could end up being the exact opposite of what any right-thinking people would want from it.  And if you think that is ridiculous, just speak to some of the people that ended up on the wrong side of the Elections & Boundaries Commission’s attentions.

Ghana, as I said, is a long way from Swaziland. 

Just as the Black Stars are a long way from Sihlangu.

A Prohibited Immigrant

David Soggot, a famous human rights lawyer from South Africa, has passed on. You can read his obit HERE.

He was the lawyer who won the case regarding the status of the National Ngwane Liberation Congress back in 1973.  The case lead to the King's Proclamation and the suspension of the Independence Constitution, including the 1968 Bill of Rights. He was also declared a 'prohibited immigrant' by King Sobhuza for his troubles.

As I pore over the case law that has just been produced in the latest Supreme Court rulings, I cannot help but ask myself: does a lawyer who pursues a just but ultimately failed cause, share in any of the blame that must accompany the poor law coming out of the judgment?  And by extension then, can David share any blame for the suspension of the Independence Constitution in Swaziland?  Or is that just woolly-headed?