UPDATE: Forced Evictions and Disability Rights in Africa
By Angelo Dube
Angelo Dube holds a BA, LLB and LLM in Human Rights and Democratisation.
Published August 2013
See the Archive Version
Table of Contents
3.1.1. Denial of Access to Farmland
3.1.3. Wither Shiare?
10.3. South Africa
12.1. Books and Journals
In this paper, the author looks at the incidence of forced evictions in Africa, as well as the protection of disability rights on the continent. In Section A, the author focuses on the experiences of four countries, namely Ghana, Swaziland, and Botswana, in addressing the issues faced by victims of forced evictions on the continent. In Section B, the author looks at constitutional and other domestic provisions aimed at protecting disability rights in several African countries. In both cases, the author explores the sub-regional, regional and international avenues available for addressing human rights violations arising out of forced evictions, or based on disability. Finally, the author explores the link between the forced evictions and disability rights.
In Africa, land—like language—is key to the identity and livelihood of a people. Apart from spiritual connections with land that most traditional societies have, land also forms the foundation of their livelihood. In most traditional societies, the economies of small villages are based on natural resources, that is, the farming, livestock-rearing and related activities that take place on their land. Beginning from pre-colonial times, land has been a contentious issue in Africa, and many conflicts were fuelled by fights over ownership of land. In recent times however, these conflicts have largely been between governments or big industries and traditional societies. This usually results in forced evictions, where large populations are forcefully moved and their properties destroyed to make way for development projects. Quite often these actions dispense with consultation and the governments carrying them out fail and/or refuse to compensate those affected. Tourism and nature conservation are often cited by governments in their efforts to remove villagers from their settlements, particularly to make way for the establishment of national parks or protected areas. South Africa presents a peculiar form of forced evictions, affecting mainly the urban poor. This form of eviction usually results from outsourcing or privatising governmental functions, such as the provision of basic services like housing, water, etc.
Forced evictions have become commonplace in Africa, and the common thread running through all of them is violence and the non-payment of compensation. Quite recently, the plight of the Basarwa people of Botswana made world headlines as they challenged their forced eviction from the Central Kalahari Game Reserve (CKGR). Apart from these incidents, there are numerous unpublicised evictions such as the eviction of more than 20 families from Farm 10/69 Hlantambita in Swaziland in 2006, and the eviction of indigenous people from the Digya and Kyabobo National Parks in Ghana.
The incidence of forced evictions often violates, in the main, the right to housing. This violation often leads to the violation of a broad catalogue of fundamental rights and freedoms. This is known as the domino effect of human rights violations. Apart from the right to housing, other fundamental rights are frequently violated, largely with impunity, in cases of forced evictions. These include the right to life, dignity, equality, freedom and security of the person, as well as privacy. All these violations often come as a result of forced eviction.
Forced evictions involve the violation of both civil and political rights as well as socio-economic rights. Because of the widely held view that socio-economic rights are not justiciable, the focus in cases of forced evictions tends to be on the latter set of rights, as the battle for redress focuses on them, with the state claiming it is under no obligation to compensate victims of violation.
In its preamble, the African Charter on Human and Peoples’ Rights (African Charter) clearly manifests the intention of the drafters as regards the enforcement of socio-economic rights. It states that:
[I]t is … essential to pay a particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights.
Article 3 of the African Charter provides that all individuals are equal before the law and are entitled to the equal protection of the law. The manner in which evictions are carried out in Africa has come to be characterized by flagrant violation of this provision. In most cases, evictees are not afforded the protection of the law, and hence they are not treated equally, as is the case with other citizens.
Forced evictions result in the loss of property, which could be used for residential purposes or for subsistence purposes. Most victims of forced eviction in African societies live and work on the land, carrying out activities such as subsistence farming. Article 14 of the African Charter provides that the right to property shall be guaranteed and that it may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.
Article 16 provides that every individual shall have the right to enjoy the best attainable state of physical and mental health. It further enjoins state parties to the African Charter to take those measures which are necessary to protect the health of their people and to ensure that they receive medical attention when they are sick. Disease and sicknesses tend to spread in the conditions that prevail subsequent to an eviction; as such, more human rights are violated.
One of the characteristics of forced evictions in Africa is the destruction of houses. In most instances, the state fails to protect the vulnerable members of society such as children, women, and the disabled during or after evicting them. Article 18(1) provides that the family shall be the natural unit and basis of society and as such shall be protected by the state. States are enjoined to take care of the family’s physical and moral well being. In situations of forced evictions, the state neglects the obligations placed on it by these foregoing provisions. Families are scattered and displaced during evictions, and as such do not enjoy the protection of the state as envisaged by this provision.
Most African constitutions do not provide for the right to housing or to shelter. Although the African Charter does not specifically provide for the right to shelter, the African Commission on Human and Peoples’ Rights (African Commission) has held that at a very minimum, the right to shelter obliges states not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. It further held that the obligation of the state to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those materials or other resources available to them in a way they find most appropriate to satisfy individual, family, household, or community housing needs. As regards the obligations of the state when non-state actors are involved in evictions, the Commission held that:
Its obligations to protect obliges it to prevent the violation of any individual’s right to housing by any other individual or non-state actors like landlords, property developers, and land owners, and where such infringements occur, it should act to preclude further deprivations as well as guaranteeing access to legal remedies. The right to shelter even goes further than a roof over one’s head. It extends to embody the individual’s right to be let alone and to live in peace - whether under a roof or not.
The African Commission broadened the jurisprudence on the right to housing and not to be evicted. It stated that although the right to housing or shelter is not explicitly provided for under the African Charter, the corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, the right to property, and the protection accorded to the family forbids the wanton destruction of shelter. It emphasized that when housing is destroyed, property, health, and family life are adversely affected. It is thus noted that the combined effect of Articles 14, 16 and 18(1) reads into the African Charter a right to shelter or housing.
The African Charter empowers the African Commission to draw inspiration from international law in determining cases brought before it. Article 60 of the Charter provides:
The Commission shall draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the parties to the present Charter are members.
Hence instruments such as the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (CESCR) are relevant for determining the normative content of forced eviction human rights norms in Africa.
The UDHR is one of the major human rights instruments to have attained wide recognition by states. In article 1, it provides that all human beings are born free and equal in dignity and rights and they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. The declaration affirms the rights to life, equality, and the right to an effective remedy in case of a violation of fundamental rights.
In article 25(1), the UDHR provides that:
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
The CESCR governs the cluster of rights known as socio-economic rights. These include the right to an adequate standard of living. Article 11(1) provides that:
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
The ICCPR also applies to cases of forced evictions. In article 17(1), the ICCPR sets out the protection against forced evictions in the following terms:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
Article 17(1), when read together with the provisions of article 11(1) of the CESCR, buttresses the right not to be forcefully evicted without adequate protection. The former provision further recognizes the right to be protected against arbitrary or unlawful interference with one’s home. It is worth noting that the state’s obligations to ensure respect for that right as provided for in article 17(1) of the ICCPR is not qualified by considerations of availability of resources.
The Committee on ESCR has, while noting that attempts to define forced evictions can be problematic, come up with a definition for the term. It noted that this expression seeks to convey a sense of arbitrariness and illegality. It defined the term forced evictions as the temporary or permanent removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. The prohibition on forced evictions does not, however, apply to evictions carried out by force in accordance with the law and in conformity with the provisions of the international human rights covenants.
Evictions can only be resorted to in exceptional circumstances and must conform to a strict set of criteria. The ESCR Committee has set out these criteria in its General Comment No 4 and No 7. Accordingly, evictions should not result in individuals being rendered homeless or vulnerable to the violations of other human rights. In the event that those affected are unable to provide for themselves, the state has the responsibility to take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement, or access to productive land is available.
The Committee further outlined a procedural checklist for criteria that need to exist for forced evictions to be lawful. It stated that appropriate procedural protection and due process are essential aspects of all human rights. It considered that the procedural protections which should be applied in relation to forced evictions include: (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision, where possible, of legal aid to persons who require it to seek redress from the courts.
These criteria have been affirmed by the African Committee in the SERAC case. In this case, the African Commission held that the particular violation by the Nigerian government of the right to adequate housing as implicitly protected in the African Charter also encompasses the right to protection against forced evictions. The African Commission drew inspiration from the definition of the term forced evictions by the Committee on ECSCR which defines this term as the permanent removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.
A recent addition to the African legal landscape was the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), which was adopted by African Heads of State and Government at the Special Summit of the Union held in Kampala on the 22 October 2009, and entered into force on 6 December 2012, thirty (30) days after the deposit of the fifteenth instrument of ratification on 6 November 2012 by the Kingdom of Swaziland in conformity with Article 17 of the Convention.
So far, the Convention has been signed by 36 Member States, with instruments of ratification deposited by 15 Member States. Benin, Burkina Faso, Central African Republic, Chad, Gabon, Gambia, Guinea Bissau, Lesotho, Nigeria, Niger, Sierra Leone, Swaziland, Togo, Uganda, and Zambia are Parties to the Convention.
The Convention, considering the serious situation of internal displacement as a source of instability and tension for African states, adopts measures aimed at preventing and abating the phenomenon of internal displacement by eradicating the root causes.
Ghana, the first African country to gain independence from its colonial masters, has had its fair share of unlawful evictions. Like all African governments, the government of Ghana has carried out evictions without compensation, despite constitutional provisions clearly stipulating that compensation must be paid.
Section 12(2) of the Ghana Constitution provides that:
Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.
The rights mentioned in the above article include the prohibition of the deprivation of life or human dignity, and the right to own property and not to be arbitrarily deprived of that property. The Ghanaian Constitution further obliges the state to resettle displaced people whose property has been acquired by the state, having due regard to their economic well-being, and social and cultural values.
The above entitlements notwithstanding, unconstitutional evictions have occurred in Ghana even after the 1992 Constitution came into force. The Digya National Park (DNP) evictions case is instructive here.
The Digya incident involved loss of lives when a boat capsized while carrying people evicted from the park. On 8 April 2006, a wooden boat—the Born Again, also called the 604 —was loaded with passengers and their belongings from several villages along the Volta Lake in the DNP, was heading towards Tapa Abotoase in the Jasikan District of the Volta Region when it capsized. The accident resulted in the loss of lives and property. The Born Again was allegedly carrying people who had been evicted from the DNP by the Wildlife Division of the Forestry Commission. A commission of enquiry, known as the Essel Mensah Committee, was appointed to investigate the tragedy.
More than one hundred people testified before the Committee, which also made in loco inspection visits to the place of embarkation. It also had the occasion to listen to survivors of the Volta Dam accident.
The boat ran over a submerged tree stump in the Volta Lake about 12 nautical miles from the DNP, resulting in the creation of a hole in the rear bottom. Water ingress caused the boat to lose stability and capsize. The boat had a carrying capacity of 64 persons but was carrying 103 persons on that fateful day. Also on the boat were personal belongings like livestock, blankets, etc.
The Committee found that the Wildlife Division had carried out an eviction exercise in the DNP from 11 to 20 March 2006 using the military and police personnel. Further, it found that the Wildlife Division personnel could not have reasonably foreseen that the eviction exercise would lead to a boat accident.
The DNP evictions and the Volta Lake disaster are not isolated cases of human rights violations by the government of Ghana. National parks continue to be the cause of widespread misery for many villagers, whose access to land is cut short in favour of protected areas. The establishment of the Kyabobo National Park (KNP) near the village of Shiare in the Volta region of Ghana was marred with human rights violations. The people of Shiare have lived on that particular land for generations, dating back to the early 17th century.
In 1993, the Government of Ghana unveiled plans to establish a national park in the area, the KNP. Negotiations were entered into between the eight affected communities and the government. The Shiare community was the worst affected, since the proposed park boundary would encapsulate land of theirs which was used for farming and worship. The villagers worship a god widely believed to be resident on the land earmarked for the park. Hence their right to property and freedom to worship and to manifest their religion would be encroached upon. During the consultation process, the community requested that the government use only a certain portion of the land, thereby leaving the farming land and that used for worship. The negotiations failed when government offered bee-keeping as an alternative means of livelihood for the people. Their argument was that the money made from the bee-keeping would not benefit them at all, since their economy is based on subsistence farming, which is connected to the land.
The government, however, moved ahead with the plans and established the KNP, thereby displacing the villagers who could no longer farm on the land. Although no physical boundary was erected, armed game rangers (wildlife officers) were deployed to the area ensuring that no one trespassed. Whilst this did not affect the residential part of the village, the farming areas were rendered inaccessible to the villagers. The farming style in Shiare is such that villagers spend a month or two in the farming area, living in temporary shelters. Both the temporary shelters and the crops were destroyed.
The denial of access to farm land had a huge impact on the village socio-economically. Villagers had to look elsewhere for land to farm, since the government did not provide alternative land. Those who were fortunate to locate alternative farming land were discriminated against by the original users of the newly secured land. They were mainly accused of giving their land to the government, and were told to leave those newly found farms. Since the KNP was established, villagers have been harassed, beaten and arrested by rangers for trying to access their farms.
Following a shootout between rangers and some unknown people in 2004, soldiers and police invaded the village. The villagers were assaulted and accused of sponsoring the violence against the rangers. The villagers have since resorted to petition writing in an effort to get the government to address their concerns. It is interesting to note that there is no known prosecution of a ranger to date. Villagers suspect police complicity in the actions of rangers, because no action is taken when villagers’ human rights are violated. As a result, the community has lost confidence in the police.
Villagers however, are often prosecuted and fined for trespassing into the park. Today the community suffers crop losses due to marauding wildlife, such as bush pigs. No compensation is offered to the villagers for such losses.
On 8 October 2007, five boys aged between 15 and 19 years were arrested and beaten for cutting a bamboo pole from the KNP. The boys had been sent by their teachers to cut a pole to erect a TV antenna when the rangers pounced on them and fired several shots in the air. They took the boys to their camp, about an hour’s walk from the village, where they were interrogated and tortured. They were later sent to the police station in Nkwanta, where they were further tortured and accused of fighting the rangers. They were advised never to go into the park again. No charges preferred against them.
The poverty afflicting the northern province, coupled with Shiare’s peculiar circumstances coalesce to worsen the plight of the villagers. In the absence of legal aid, these victims of continuing human rights violations cannot benefit from the perceived remedies available to them. Their socio-economic status does not allow for the luxuries of lawsuits and interdicts that would likely assist in their case. Unless legal aid is provided and moral and financial support availed to force the government of Ghana to remedy this wrong, the Shiare residents will remain marginalized.
Botswana also embraces the dualist school of thought. Thus, unless parliament enacts a law to domesticate international law, the latter cannot be enforced in Botswana’s domestic courts. This was buttressed in Dow v Attorney General of Botswana.
Botswana, like most African countries, has had its fair share of land related conflict. A case in point is the eviction of the Basarwa people from the Central Kalahari Game Reserve (CKGR). The CKGR is a protected area for wildlife. The Basarwa belong to the San ethnic group, which is also found in South Africa and Namibia.
Prior to 1885, the area that forms part of the CKGR today was inhabited by the Basarwa. When Botswana became the British Protectorate of Bechuanaland in 1885, the pre-existing rights of the indigenous inhabitants of an acquired territory remained in place unless and until they were extinguished by the British authorities, in terms of colonial law. When this happened, the Basarwa had already occupied the CKGR for many years, regulating usage of the land in terms of traditional laws, and the takeover by the Protectorate did not extinguish those rights. They remained in force even after Botswana’s independence in 1966 and there was no legislative enactment revoking them afterwards.
Section 14 of the Constitution of Botswana buttresses the Basarwa’s claim in that land. It guarantees the Basarwa’s freedom of movement within, as well as the right to reside in the CKGR. Section 8 further prohibits the deprivation of property. It states that no property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired. The proviso is that where it is necessary or expedient to take such property in the interests of defence, public safety, public order, public health or for development purposes, such property will be deemed to have been lawfully acquired.
Despite such provisions, the government used powers conferred upon it by the National Parks and Game Reserve Regulations effectively to force the Basarwa out of the reserve. The government invoked the need to protect the viability of the wildlife population in the reserve, the prohibitive cost of the provision of basic services to the settlements, and its desire to introduce the Basarwa to the mainstream of Botswana society. These reasons were advanced as justifications to make the government actions lawful. Such reasons go against the tenets of democracy, which manifest themselves in a country’s ability to tolerate and respect the choices made by its minorities, and to resist the temptation to impose upon them a way of life they may not want and do not seek. Further, article 2 of the ILO Convention 169 calls for consultation of indigenous peoples before steps like these can be taken. In other words it discourages the imposition of policies and lifestyles upon a minority by a politically dominant group.
The evictees brought a challenge to their eviction in the Botswana courts. During the High Court case in which the Basarwa challenged their eviction from the CKGR, they sought an order declaring unconstitutional the termination of essential services by the government to the CKGR. These services included the provision of drinking water on a weekly basis, the supply and maintenance of a borehole, and provisions for destitute members of the community and orphans. They also included transport of the Basarwa children to and from school, and they sought an order enjoining government to restore these services, and further restore the Basarwa to the CKGR.
The court unanimously held that prior to the termination of essential services, the Basarwa were in possession of the land which they lawfully occupied in the CKGR, and that the government’s refusal to issue special game licences to the Basarwa was unlawful and unconstitutional. It, however, concluded that the termination in 2002 by the government of the provision of essential services was neither unlawful nor unconstitutional, and that the government was not obliged to restore such services.
Swaziland’s land tenure system distinguishes land ownership into two broad categories, Swazi Nation Land (SNL) and Title Deed Land (TDL). SNL is that portion of land falling under the customary law regime, held in trust by the King on behalf of the Swazi nation. In other words, the King is a trustee, and the citizens are the beneficiaries of this land. It is regulated by chiefs who are constitutionally an extension of the King. For areas falling under SNL, forced evictions have in the past been carried out in terms of Swazi customary law. Chiefs would issue eviction orders for customary crimes, such as where a resident defied orders from the King, or where one was convicted for serious crimes by a court, e.g. murder. Since people living on SNL did not have title over the land, but used it subject to paying allegiance to the King and the chief, these kinds of eviction were commonplace. The practice was to instruct the evictee to ‘pass seven rivers’ or ‘pass seven chiefdoms’ before finally settling in a new chiefdom. Today, the Constitution enjoins the authors of such evictions to follow due process, and not hide under the arbitrary customary law processes.
Apart from the customary evictions, court ordered evictions from privately held land also exist—in other words, from TDL. In most instances, TDL is used for game farming and other agricultural activities. Some of the dwellers on TDL land have resided there for generations, in some cases even prior to the demarcation of the area as TDL. Because of scanty historical records, such residents are usually in a weaker legal position vis-à-vis the owner of the farm. Conflicts often arise when the owner of a TDL farm intends to develop the farm and seeks the eviction of the people residing on it.
In most instances, farm owners dispense with all the legal obligations to follow the rules of natural justice or to obtain an order of court before evicting the people. Some cunning farm owners simply revert to customary law for a quick solution, despite section 211(3) of the Constitution clearly stipulating that deprivation of land should be arrived at after following the rules of natural justice. An illustrative case here would be the forced eviction of over 200 people from Farm 10/69 Hlantambita in 2006. Arbitrary evictions like this can be very deleterious not only to the individuals being evicted, but to the entire village, especially in the Swaziland context where the victims of eviction survive on subsistence farming on the drought stricken land.
The Farm Dwellers Control Act, which is the principal instrument below the Constitution on matters of eviction from privately held land in Swaziland, does not address itself to any substantive rights of that class of people. Instead, it dwells much on procedural aspects of how evictions are to be carried out. The Act sets up the tribunals and lays down their procedural rules.
The Hlantambita Evictions are shrouded in a cloud of controversy regarding the manner in which they evolved. They resemble in many respects the Volta Dam evictions of Ghana. They are characterised by violence and impunity for human rights violations committed by wildlife officers known as game rangers. In a matter that dragged on for well over a year, residents of Farm 10/69 Hlantambita were almost perpetually put on suspense as regards their fate. In November 2004 they were served with letters of eviction by the lawyers of Mkhaya Game Reserve (MGR), instructing them to attend a meeting to discuss their looming evictions from the farm.
Farm 10/69 Hlantambita, which falls under TDL, is located next to the MGR in the Lubombo Region of Swaziland. The Lubombo Region is a drought stricken, poverty riddled area where a majority of the people rely on food aid, since subsistence farming no longer produces enough food. A majority of the dwellers of Farm 10/69 claimed to have settled there over a long period spanning over 60 years. Most of them were born there, and their ancestors’ graves are located within the farm.
The letters inviting the residents of Farm 10/69 to a meeting were written in English, in spite of the community’s illiteracy. A fact-finding mission for violations of human rights committed by game rangers accidentally unearthed the imminent evictions in late February 2005. Residents had been barred from ploughing their fields pending their exit from the farm. MGR management offered R5000 (approximately US$700) as compensation for this arbitrary eviction, plus transport to wherever the residents would relocate to.
The Farm 10/69 Hlantambita case also exhibits use of violence as a fear inducing tactic to get residents to comply with unlawful evictions. The MGR management used their much feared game rangers to deliver these letters and to threaten residents to attend the meeting. Most of the residents in the community had previously been victimised and subjected to violence by these game rangers. A majority of the adult males had at some point been assaulted, shot at or harassed by these game rangers on suspicion of poaching from the game reserve. The game rangers were responsible for erecting new fences, and marking new boundaries, thereby blocking thoroughfares used by both livestock and residents. In essence, anyone found on the wrong side of the fence would be shot by these immunity-wielding rangers.
Armed with immunity from prosecution and heavy arms, the rangers went about their fence erection duties undisturbed. The issuance of the eviction letters and erection of fences took place prior to the coming into force of the Constitution, hence resort could only be made to the Farm Dwellers Control Act as the governing legislation for such issues. The residents approached the regional tribunal as provided for under the Act to challenge their eviction. This process was riddled with delays and referrals back to the negotiating table. The residents were advised to seek redress under Swazi customary law by appealing to the king while the matter was simultaneously being pursued through the farm dwellers tribunal. Acting upon such advice from their traditional leaders, the residents withdrew an interdict application they had already commenced at the High Court, and opted to pursue their case under customary law instead.
The Constitution of Swaziland prohibits arbitrary eviction without compensation. Although the King’s judicial powers—his power to issue orders under customary law—have been curtailed by the Constitution, in 2006 the King sitting with his advisory body—the Swazi National Council Standing Committee(SNCSC)—issued eviction orders for the more than 20 families residing in Farm 10/69 Hlantambita. In issuing these orders, the King was acting under customary law. No compensation was provided to the more than 200 people affected, save for alternative land to relocate to.
In so doing, the right to property and the prohibition against arbitrary deprivation of land as set out in the Swaziland Constitution were violated. These evictions were also in violation of articles 2, 3, 4, 7, 14 and 21 of the African Charter.
In the case of Tsabedze and Others v Swaziland National Provident Fund and Others  SZSC 30, the Supreme Court of Swaziland dismissed an appeal to stay the demolition of homes of residents of Madonsa Township on the outskirts of Manzini. The residents were occupying the land through the traditional system of khonta; which means after paying the prescribed fee in the form of livestock to the area’s chief, they were allowed to settle there. Constitutionally, chiefs are appointed by the king acting under his customary law powers. Malangeni Dlamini, the chief’s area had for years held himself out as a chief of the area, and the state had acquiesced in this arrangement. When the process of eviction began, the residents learnt that the area was actually a farm belonging to the Swaziland National Provident Fund. The Fund obtained an order to evict them in April 2011. The affected residents took the case to court, arguing that the eviction and demolition of their homesteads contravened sections 18 and 29 of the Swaziland Constitution in that it was a threat to the education of children. The court stated it was of fundamental importance to record that the Fund was the undisputed registered owner of the farm in question. In other words, the land was not customary or communally held tribal land, but privately owned land, which cannot be accessed through the customary khonta system where residents pay livestock to the chief. 'Indeed, the appellants do not dispute the fund's case that they are illegal occupiers of the farm. They are simply illegal squatters who have not a colour of right to be in occupation,' Chief Justice Michael Ramodibedi stated in his judgment.
The ease with which evictions occur in the jurisdiction of Swaziland is quite intriguing. Where customary land is involved, evictions often occurs without recourse to a proper legal process. This is often fuelled by governmental policies around land use and land management. As earlier stated, Swaziland’s land is divided into tribal or customary land, called Swazi Nation Land, and privately owned land known as Title Deed Land.
Chiefs administer customary land and people access such land by paying the prescribed customary fees, these being the initial payment of livestock to the area’s chief. This is supplemented by loyalty, tribute labour and other communal activities that the resident performs during the tenure of their stay on that land. Constitutionally, such land belongs to the Swazi nation, but it is held in trust by the king. The government policy, however, has favoured an interpretation that takes away the trust component. As a result, land is largely believed to belong to the king, and users are only able to utilise it at the king’s pleasure. This position has also been erroneously endorsed by judicial interpretation in the highest courts of the land.
Since chiefs act as footstools of the king, decisions for eviction can be taken from these two offices. Customarily, the king is regarded as unerring and his decisions not reviewable. This has now been settled in law through recent judicial pronouncements. This basically means that eviction orders issued by the king’s office cannot be challenged in court. Recent court decisions on issues relating to customary law and the powers of chiefs and the king on customary land use demonstrate this. They cement the prevailing opinion that the king owns all the land, and can therefore deal with or dispose of them as he pleases; including the power to order the eviction of any person without compensation, and no court can enquire into that order.
The judgment of Maphalala J in the case of Sandile Hadebe v Sifiso Khumalo and Others Civil Case No.2623/11, is illustrative of this point. In this case, the judge endorsed the eviction of the applicant by the respondent, who was acting as a traditional chief, and constitutionally regarded as a footstool and extension of the iNgwenyama. iNgwenyama is the customary office of the king, and is entitled to the same immunities that the king has under section 11 of the Swaziland Constitution. In deciding the question of ownership of customary land, the judge misinterpreted section 211 of the Swaziland Constitution to hold that all land in Swaziland vests in the iNgwenyama, without reference to the trust requirement. The proper wording in that provision is clear that land vests in the iNgwenyama in trust for the Swazi nation, not in his personal capacity. The judge deliberately omitted that condition, thereby entrenching the misguided notion that the king owns all the land and natural resources, and everyone else only has access to them at his mercy. This kind of reasoning and approach by judges to the ownership of public goods effectively negates any rights that the individual might have under the Constitution, since any attempt to enforce them is treated with contempt by a government implementing a policy, albeit unwritten, of protecting the king’s private property. It should be noted that customary courts do not allow legal representation, and the fact that they can order the eviction without compensation when the individual is not represented is cause for concern.
Courts of the land cannot enquire into any matter where the king’s name is cited. In 2011, the Chief Justice Mr Michael Ramodibedi issued a directive that prevented prospective litigants from bringing civil claims against the king and iNgwenyama. Practice Directive No.4 of 16 June 2011. The CJ relied on the provisions of section 11 of the Swaziland Constitution which grants the king and iNgwenyama immunity from legal suit in respect of all things. The directive was addressed to all judges and legal practitioners in the country. The directive, which was issued to the Registrar, all courts, judges, magistrates and legal practitioners led to a four-month long boycott of courts by the country’s lawyers.
The CJ’s directive came after a High Court decision in the case of Aaron v Commission of Police and Another. This abrupt and unconstitutional prohibition of legal suits that directly or indirectly touched on the king came after a High Court judge had issued a favourable judgment in the Maseko Case in favour of a litigant whose herd of cattle had been unlawfully taken away by state police acting under instructions from the King’s Office. The High Court judgment was delivered by Justice Thomas Masuku, who was eventually charged with ‘insulting the king’. In a disciplinary hearing where the Chief Justice sat as a complainant, a witness, a prosecutor and a judge, Justice Masuku was eventually found guilty and dismissed from the bench. The allegations of insult relate to the text of his written judgment in the Maseko Case. The directive was meant to give effect to the Supreme Court judgment, in which the Chief Justice had overturned the High Court judgment in the Maseko Case. When the Maseko Case was decided on appeal at the Supreme Court, Chief Justice Ramodibedi noted, rightly that there seems to be a conflict of laws in Swaziland, which required to be properly managed, and that failure to manage its responsible would throw the entire justice system into disarray. According to the Chief Justice, the conflict was between Roman-Dutch Common Law and customary law and “...it is wrong, if not downright insensitive for any court in this country to apply Roman-Dutch law in a case which cries out for Swazi Law and Custom”. But where the Chief Justice got it wrong was to simply conclude that this choice-making process should eventually lend the choice maker at the doorstep of custom, regardless of the obvious conflict with the Constitution, the supreme law of the land. Both Justices in the Maseko and Hadebe cases emphasise the need to make a proper choice of law, without reference to the Constitution and whether this choice of law process must be tempered with a constitutional analysis backed by the spirit of the Bill of Rights. Their stance is that once there is conflict between the two systems in a case involving the king, the matter must automatically be decided in light of customary law.
Swaziland was the 15th African state to ratify the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) on 5 October 2012. As Swaziland was the 15th ratification, this paved the way for the Convention to come into force, which it finally did on 6 December 2012. It remains to be seen whether this move by the state of Swaziland carries any real and tangible benefits for victims of forced eviction on not.
Evictions in South Africa
The South African Natives Land Act 1913
The government of the African National Congress (ANC) embarked on a drive to restore land to dispossessed owners who were forcefully removed from their land in the early 1900s. The government’s land restitution policy recognised that the 1913 Natives Land Act had left lasting scars on rural communities. According to debates in Parliament, the Act was passed in order to limit friction between White and Black, but Blacks maintained that its aim was to meet demands from White farmers for more agricultural land and force Blacks to work as labourers.
The Natives Land Act set aside 7.3% of the total South African land area as reserves in order to accommodate the 'Native' population. Furthermore, it restricted land ownership according to race. ‘Natives’ were restricted from buying and/or owning land outside the reserves. The Act was very instrumental in evictions, as it was used by white landlords to remove black sharecroppers from their farms. It also facilitated their recruitment processes as it enabled them to recruit labour for the mines by proposing to enlarge the recruiting areas, the reserves. Urban removals were mostly dealt with in terms of the Group Areas Act or the Urban Areas Act. Rural removals consisted of various categories, such as black spot removals, removal of labour tenants, removals from mission stations, removals for the sake of forestry requirements and internal removals in the scheduled and released areas.
This Act did not go unchallenged. While it was being discussed in Parliament, the South African Native National Congress (SANNC, later to become the ANC), which was formed in 1912, rallied against the proposed law. In 1914 the SANNC submitted a petition to members of the Imperial Parliament and the British Government asking for intervention to stop the Act, but failed to achieve this.
The land restitution programme was first carried out with a December 1998 cut-off date for lodging land claims. This was done through the Restitution of Land Rights Act 22 of 1994. When this date came and claim submissions closed, there were a number of social and economic factors that favoured a re-opening, to accommodate those individuals who could not lodge their claims during the initial claim period. Minister Gugile Nkwinti, when announcing the re-opening of the claims process in Parliament in 2013 revealed that since the inception of the Restitution programme in 1995, 79 696 claims were lodged, 77 334 have been settled of which 59 758 were finalised. Land acquired by the state amounts to 4 000 land parcels, or 1, 443 million hectares. 137 000 beneficiaries are female headed households, and 672 are persons with disability.
The initial land claims procedure limited claims to those that arose from dispossessions that occurred from 19 June 1913 onwards, leaving those affected by pre-1913 dispossessions without a remedy. The new process is aimed at accommodating claims by the descendants of the Khoi and San, claims on heritage sites, and historic landmarks.
As mentioned earlier, human rights are inherent in every individual by virtue of their humanity. The international instruments relied upon for asserting these rights merely serve to manifest those rights, but do not create them. These international instruments also serve to set up supervisory mechanisms to assist in cases of violation of these rights. Such mechanisms include state reporting and individual communications both at the regional and international levels.
The African regional human rights system offers a platform to challenge and redress widespread human rights violations. The African system, which is the youngest in the world, was initiated under the former Organisation of African Unity (OAU), which was primarily concerned with African states gaining independence from their colonial masters. The African Union (AU) succeeded the OAU in 2000 when African leaders adopted the AU Constitutive Act. The Constitutive Act enumerates nine principal organs of the AU. These include the Assembly of the Union, the Executive Council, the Court of Justice and the Pan-African Parliament. Three bodies are most relevant to human rights protection under the African human rights system, viz the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights and the African Committee on the Rights of the Child.
The African Charter is one regional instrument that can be used. The African Charter was adopted by the OAU in June 1981, but did not come into force until 21 October 1986. In its preamble, the African Charter aspires to consider the virtues of the historical traditions and African values of civilisation as the continent reflects on the concept of human and peoples’ rights. In article 1 of the Charter, all state parties are enjoined to uphold the rights enshrined in the Charter and to further strengthen these via legislative enactment at the domestic level. The next two articles form the core of the Charter, in that they incorporate the notions of human dignity, equality, freedom and non-discrimination. The non-discrimination provision, although listing a number of prohibited grounds of discrimination, is still very broad in its application. The grounds enumerated therein do not constitute an exhaustive list of prohibited grounds of discrimination, since the wording of the relevant article is open ended, and prohibits ‘distinction of any kind’ before giving examples of these different kinds of distinctions. Article 2 therefore provides as follows:
Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.
Apart from the broad interpretation of ‘distinction of any kind’, reliance can still be had to ‘other status’. In the case of Swaziland, in particular the Hlantambita evictions, reliance can be had, novel as it may be, to both ‘distinction of any kind’ and ‘other status’ in determining if any of the residents of Farm 10/69 Hlantambita had been discrimination against based on his or her socio-economic status.
Article 3 provides for the equality of all human beings whilst article 4 emphasises the inviolabilibity of the human being and the integrity of his person. It further emphasises the sanctity of the right to life and stipulates that no human being may be deprived of this right. These provisions relate to the human being as an individual, that is, to each member of the evicted group as an individual.
However, the African Charter also makes provision for the protection of the group to which such individuals belong. It further provides that all peoples shall be equal and that they shall enjoy the same respect and shall have the same rights. The domination of a people by another can therefore not be justified. By peoples, the African Charter is referring to the rights of collectives, such as those of the minorities in the CKGR evictions.
The African Charter sets up the African Commission on Human and Peoples’ Rights (African Commission). The Commission accepts individual communications alleging violation of human rights by a state. Authors of communications sent to the African Commission can allege violations of the provisions of the African Charter. In determining communications brought before it, the Commission can invoke international legal principles on human and peoples’ rights. It can thus rely on other international human rights instruments to draw inspiration, as well as rely on the jurisprudence of other international tribunals to pronounce on the rights of evictees. As a result, where the African Charter is inadequate for the protection of these rights, recourse can be had to international instruments forming part of international law.
National human rights institutions (NHRI) are the cheapest avenues for redressing violations of human rights. This is the case because of the minimal cost involved in approaching these institutions. Victims of human rights violations like those evicted in the above captioned cases can approach these bodies for redress. That said, the Swaziland situation presents a peculiar set of facts though. Section 162 of the Swaziland Constitution precludes the NHRI from hearing any matter done under royal prerogative.
Alternative dispute resolution is also an alternative that can be explored. Again the weaknesses of this procedure can be drawn from the failure of the farm dwellers’ tribunals in Swaziland to adequately protect the rights of the evictees. The Swaziland process shows a bias mostly towards the land owner rather than leaning towards the protection of the rights of the evictees.
Litigation is costly and therefore usually inaccessible for the common villager evicted from his or her farm. Public interest groups can assist in this regard by taking claims by evicted villagers to court. A strong civil society can also positively impact the development of jurisprudence around forced evictions by seeking to be joined as amicus curiae in proceedings where vulnerable sectors of society are opposing their looming forced evictions.
Forced evictions remain a thorn in the flesh of many indigenous African societies. However, evictions are not limited to indigenous or ethnic minorities. A common thread running through all cases of forced evictions in Africa is poverty. A majority of communities that suffer forced evictions have a low socio-economic standing. From the Volta Dam and Shiare evictions in Ghana, to the Farm 10/69 Hlantambita evictions in Swaziland and Botswana’s Basarwa evictions, poverty and lack of resources characterise the lives of the evictees. The other common thread is the unwillingness of governments to pay compensation, and their readiness to allow perpetrators of human rights violation get away with murder. It is apparent that greed and avarice on the part of governments and private entities bent on exploiting natural resources at the expense of human life contribute immensely to this growing trend of eviction without compensation.
The period from December 2000 to 2009 was declared by the AU’s predecessor, the OAU in its Thirty-Sixth Session, as the African decade for persons living with disabilities (PWDs). Apart from the UN Convention on the Rights of People with Disabilities (Disability Convention), the rights of PWDs are protected mostly by provisions of non-discrimination under several treaties. Even so, they fit under the prohibition of discrimination ‘on any other status.’ The lack of clarity on whether these rights are socio-economic or civil and political in nature presents a difficulty when determining whether their realisation should be immediate or progressive. There is also a need to look at the necessity of having an African instrument on the rights of PWDs to ensure adequate protection at the regional level.
The African human rights system is the youngest regional system. One of the most distinctive features of the African Charter is its recognition of collective rights. It views individual and peoples’ rights as linked. The African human rights system currently treats the rights of PWDs in piecemeal fashion, by way of a few provisions in the regional human rights instruments.
The African Charter under article 18(4) provides that PWDs have the right to special measures of protection in keeping with their physical or moral needs. Article 16(1) of the same Charter provides that every individual shall have the right to enjoy the best attainable state of physical and mental health.
The African Charter on the Rights and Welfare of the Child (African Children’s Charter) also includes special mention of PWDs by calling for adoption of special measures of protection, together with the principle of self-reliance, participation and access.
To date, only one communication involving the rights of PWDs has come before the African Commission on Human and Peoples’ Rights (African Commission). The case of Purohit and Others v The Gambia was brought in regard to the legal and mental conditions of detention in a Gambian mental health institution. In this communication, the African Commission explored the prohibition of discrimination on the basis of disability and the meaning of the right to health, as provided for under the African Charter. The Commission held that Gambia fell short of satisfying the requirements of articles 16 and 18(4) of the African Charter and that the enjoyment of the right to health is crucial to the realisation of other fundamental rights and freedoms and should be accorded without discrimination. It went on to state that mental health patients should be accorded special treatment to enable them to attain their optimum level of independence and performance, and that this would be consistent with article 18(4), as well as the standards outlined in the UN Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care (UN Principles).
The Purohit communication is significant for its attempt to bring clarity to the substantive content of article 16, by reading into it the obligation of state parties to the African Charter to take concrete and targeted steps, while taking full advantage of its available resources, to ensure that the right to health is fully realised in all its aspects without discrimination of any kind.
The major weakness of disability rights provisions under African constitutions can be traced to the widespread perception that disability rights are socio-economic in nature, hence they are not justiciable. Most constitutions provide for the rights of PWDs under the directive principles of state policy, rendering them injusticiable.
In 2006, Swaziland finally moved into a new constitutional dispensation, ending 33 years of rule by decree. The Constitution of Swaziland Act No.1 of 2005 asserts its supremacy over all other laws of the land. Like most constitutions, it provides for the general rubric of rights that everyone is entitled to, including PWDs. These include the right to equality, freedom from discrimination, torture and cruel or degrading treatment, the right to a fair hearing, protection of the right to life, right to personal liberty, protection from slavery or forced labour, protection against arbitrary search or entry and protection of freedom of movement.
Section 20(1) provides that all persons are equal before and under the law in all spheres. It further lists in subsection (2) prohibited grounds of discrimination, amongst which is disability. This provision is aimed at ensuring that rights of PWDs are protected and guaranteed. Section 30(1) further provides that PWDs have a right to respect and human dignity, and that the government and society shall take appropriate measures to ensure that these persons realise their full potential. Parliament is obliged by subsection (2) thereof to enact laws for the protection of PWDs so as to enable those persons to enjoy productive and fulfilling lives. This provision takes a sharp break from, for instance, the provision on women’s rights, in that it does not limit the provision of facilities for PWDs to the availability of resources. However, the section is also weakened by its lack of affirmative action provisions to advance the welfare of PWDs. Unless parliament rescues the situation by enacting affirmative legislation for addressing the past imbalances, the rights of PWDs will continue to be violated.
What is very worrying in the Swaziland situation is the wording of section 60(6), which provides that the state and society shall recognise the rights of PWDs to respect and human dignity. Section 60 falls under the directive principles of state policy, which by virtue of section 56(3) are not justiciable. These are merely aspirations of the Swazi government and hold no real hope for PWDs.
The Swaziland Constitution only lists English and SiSwati as the official languages (section 3(2)). It fails to mention sign language, despite the presence of PWDs in Swaziland. The failure of the state to provide for the promotion of sign language and the use of Braille leaves many PWDs vulnerable to further human rights violations, as they cannot access information easily or at all.
The Criminal Procedure and Evidence Act (CPEA) also touches on the rights of PWDs, in particular those with mental disabilities. Section 164 of the CPEA provides that:
If the accused person appears to be capable of making his defence at the time of a preparatory examination the magistrate, notwithstanding that it is alleged that such accused person was insane at the time when the act in respect of which he is charged was committed so as not to be responsible according to law for such act, shall proceed with the case and if the accused person ought in the opinion of the magistrate otherwise to be committed for trial, the magistrate shall so commit him.
Section 165(1) of the CPEA regulates the conviction of PWDs with mental instability. It provides that:
If an act either of commission or omission is charged against any person as an offence and it is given in evidence on the trial of such person for such offence that he was insane so as not to be responsible according to law for his act at the time when it was done, and if it appears to the court before which such a person is tried that he did the act but was insane as aforesaid at the time when he did it, the court shall return a special finding to the effect that the accused did the act charged, but was insane as aforesaid when he did it.
Subsection (2) thereof provides that if such a special finding is returned, the court shall report to the Attorney-General for the information of His Majesty the King, and shall meanwhile order the accused to be kept in custody as a criminal lunatic in such place and in such manner as it directs. The CPEA in subsection (3) introduces a provision that has led to continued violations of the rights of PWDs. It provides that where such a finding is made by the court, the convicted PWD may be kept in safe custody during His Majesty’s pleasure. The proper safe custody for keeping mentally disabled persons in Swaziland is a mental asylum or hospital. The effect of section 165(3) is that the convicted PWD is kept in a mental asylum at the pleasure of the king. This makes it difficult, if not impossible to determine the length of sentence such a convict would spend behind bars. It also means that the convicted PWD is kept in custody indefinitely, which is a violation of his right to life, liberty, dignity and equality.
Swaziland became party to the Disability Convention by ratification on 24 September 2012.
The Lesotho Constitution takes a similar approach to the rights of PWDs as the Swaziland Constitution. Section 33 of the Lesotho Constitution makes provision for the rehabilitation, training and social resettlement of PWDs. It enjoins the state to adopt policies designed to facilitate access to employment for PWDs. While this provision seems to lean more towards affirmative action in favour of PWDs, it is non-justiciable. Disability rights appear for the first time under the Principles of State Policy of the Lesotho Constitution, and do not feature elsewhere in the Constitution. Even the non-discrimination clause fails to list disability as a prohibited ground for discrimination.
The Constitution of Lesotho, in section 25 under the Principles of State Policy, provides thus:
The principles contained in this Chapter shall form a part of the public policy of Lesotho. These principles shall not be enforceable by any court but, subject to the limits of the economic capacity and development of Lesotho, shall guide the authorities and agencies of Lesotho and other public authorities, in the performance of their functions with a view to achieving progressively, by legislation or otherwise the full realisation of these principles.
These seemingly progressive provisions and the rights contained therein cannot be enforced. They are merely aspirations of the government of Lesotho, and shall form part of the state policy. In such circumstances where disability-specific rights are not spelt out, resort should be had to the prohibition of non-discrimination and the notion of equality that apply to all human beings, whether PWDs or not, by virtue of their humanity. This however, can be cured by affirmative action provisions in national legislation.
The Committee on ESCR has already held that the concept of other status clearly applied to discrimination on the grounds of disability, both mental and physical.
In like manner as the Swaziland Constitution, section 3(1) of the Lesotho Constitution provides that the official languages shall be English and Sesotho. The Constitution fails to recognise sign language as a language. This impacts heavily on PWDs, as they cannot easily access information in a language they are comfortable with. Language is not only a means of identity, but today language acts as a determinant of one’s proficiency to enter the labour market. PWDs run the risk of being shut out from employment, education and social spheres of life simply because of socially created language barriers. To remedy this situation, Lesotho can take lessons from section 6 of the South African Constitution. Although section 6 does not list sign language amongst the 11 official languages, it recognises the historically diminished use and status of certain languages, and the need to take practical and positive measures to elevate the status and use of these languages. It further provides for the establishment of a Pan South African Language Board whose responsibility shall be to promote and create conditions for the development and use of all official languages, including sign language. The South African Constitution clearly recognises the need for PWDs to express themselves in a language of their own, sign language and further prohibits discrimination on the basis of disability in section 9(3).
Lesotho does not yet have national legislation on disability rights. There is a disability policy which basically stipulates that government should cater for PWDs by providing user-friendly buildings, catering braille reading for their educational purposes and providing employment. Lesotho became the 42nd country to ratify the Convention Disability Rights on 2 December 2008.
The South African Constitution marked a departure from a past full of discrimination and marginalisation, which impacted more negatively on PWDs. In section 9(1), it provides that everyone is equal before the law and has the right to equal protection and benefit of the law. This provision applies equally to PWDs. In subsection (3), it provides that:
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
Whilst a cursory reading of the section makes it look like only the state is barred from discriminating on the grounds of disability, subsection (4) further provides that no person may unfairly discriminate against anyone on one or more of the grounds listed in subsection (3).
Sign language and Braille are mostly used by PWDs. The South African Constitution does not list sing language as an official language. Section 6(5)(a) provides for the establishment of a Pan South African Language Board whose main duty would be to promote, and create conditions for the development and use of all official languages, as well as sign language. This bold step by the drafters of the Constitution must be commended, for it ensured that PWDs’ access to information cannot be hindered by failure to provide that information in sign language. South Africa ratified the Disability Convention on 30 November 2007.
Over and above the constitutional provisions, South Africa has legislation aimed at redressing past imbalances faced by PWDs. These include the Employment Equity Act 1998, the Promotion of Equality and Prevention of Unfair Discrimination Act 2000, the Labour Relations Act 1995 and the Social Assistance Act 1992.
Botswana is one of the few former British protectorates to retain their independence constitutions. Although amended over the years, the Botswana Constitution of 1966 provides for the protection of fundamental rights, including the rights of PWDs.
Section 15 of the Constitution prohibits discrimination of any kind. It provides in section 15(2) that no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority. However, the Constitution fails to mention disability as a prohibited ground for discrimination. It defines discrimination as:
… affording different treatment to different persons, attributable wholly or mainly to their respective descriptions by race, tribe, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
Botswana had neither signed nor ratified the Disability Convention as of 29 July 2008.
The 1992 Angolan Constitution provides for equality of all citizens. In section 18(1) it states that:
All citizens shall be equal under the law and shall enjoy the same rights and be subject to the same duties, without distinction as to colour, race, ethnic group, sex, place of birth, religion, ideology, level of education or economic or social status.
In section 47(1), the Constitution provides that the state shall promote the measures needed to ensure the right of citizens to medical and health care, as well as child, maternity, disability and old-age care, and care in any situation causing incapacity to work. Section 48 provides that disabled combatants of the national liberation struggle, the minor children of citizens who died in the war and those physically or mentally handicapped as a result of war, shall have special protection, to be established by law. This is a weakness of the Angolan PWD clause, in that it limits its application to veterans of the struggle and civil war.
Section 21 of the Angolan Constitution introduces an interesting and valuable dimension to disability rights. This section provides that the fundamental rights provided for in the Constitution shall not exclude others stemming from the laws and applicable rules of international law. It further provides that in the assessment of disputes by Angolan courts, international instruments shall apply even when not invoked by the parties. In subsection (2), it provides that:
Constitutional and legal norms related to fundamental rights shall be interpreted and incorporated in keeping with the Universal Declaration of the Rights of Man, the African Charter on the Rights of Man and Peoples and other international instruments to which Angola has adhered.
Although it is not clear whether the use of the word ‘adhered’ in subsection (2) refers to ratification or mere signature, the fact that Angola has broadened the scope for the applicability of international law within its domestic courts raises some hope for disability rights. The effect of such a clause is to make the provisions of international instruments relevant to PWDs automatically applicable within the courts of Angola. Since international instruments tend to be more elaborate in terms of the rights protected, this works to the advantage of PWDs. Angola became party to the Disability Convention when it ratified it in December 2011. It is hoped that PWDs will now be able to assert their rights. Angola has ratified the ICCPR, CRC and the African Charter.
Section 70 of the Kenyan Constitution provides that everyone is entitled to fundamental human rights without discrimination. The Constitution further protects other rights such as the right to life (section 71), the right to personal liberty (section 72) and protection from inhumane and degrading treatment (section 74), amongst others. In section 82, the Kenyan Constitution mirrors the Botswana Constitution in its definition of the term ‘discriminatory ‘. It also fails to list disability as a prohibited ground for discrimination. Apart from the equality and non-discrimination provisions, Kenya’s Constitution does not specifically provide for the rights of PWDs. Kenya has already ratified the Disability Convention. Kenya also has an Act of Parliament regulating the rights of PWDs. The Persons with Disabilities Act, 2003 prohibits all forms of discrimination against persons with disabilities and is the only statute that outlaws discrimination against PWDs.
Section 10 of the Namibian Constitution provides for the equality of all and prohibits discrimination of any kind. Although disability is not listed as a prohibited ground for discrimination, the Namibian Constitution redeems itself by providing for the automatic incorporation of international law. Namibia belongs to the monist school. In other words, in the Namibian legal system, international human rights instruments dealing with the rights of PWDs are directly applicable. There is no need for these instruments to be incorporated through an Act of Parliament first before they can be invoked in the courts.
In section 144, the Constitution states that
Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.
This means that as soon as international treaties become binding on Namibia - that is, as soon as they are ratified or acceded to by the President - their provisions can be used to advance the rights of PWDs in the Namibian courts. The provisions of the African Charter, ICCPR, and CRC, that are relevant to PWDs are thus applicable automatically. Namibia also ratified the Disability Convention on 4 December 2007. This means that as soon as the Convention comes into force in May 2008, its provisions on the rights of PWDs shall be directly enforceable within Namibian courts. The Disability Convention was ratified by Namibia on 4 December 2007.
The 1992 Constitution of Ghana also has provisions aimed at facilitating the integration of PWDs into society, and ensuring their participation in daily life. It also proscribes in section 29(4) any form of exploitation and discrimination against PWDs and calls for improved access to public places and buildings for PWDs. It further calls for the use of disability-friendly legal procedure during judicial proceedings. Ghana also enacted the Persons with Disability Act in 2006, which lays down the rights of PWDs. Ghana initially signed the Disability Convention without ratification. On 21 August 2012, Ghana became the 119th state to ratify the instrument.
There are several linkages between forced evictions and disability rights. A few of these are enumerated below:
Sepulveda, M., Human Rights Reference Handbook University for Peace, Costa Rica (2004).
Dube, BA, ‘Domestic application of human rights norms in forced eviction cases in Africa’ in M Killander (ed.) Human rights litigation and the domestication of human rights standards in sub-saharan Africa, AHRAJ Casebook Series, Vol 2 (International Commission of Jurists: Kenya, 2008)
Dube, BA and AS Magagula The Law and Legal Research in Swaziland available at Swaziland.htm.
Maja, I., ‘Domestic application of human rights norms in forced eviction cases in Africa’ in M Killander (ed.) Human rights litigation and the domestication of human rights standards in sub-saharan Africa, AHRAJ Casebook Series, Vol 2 (International Commission of Jurists: Kenya, 2008)
Lissu, T., ‘Policy and legal issues on wildlife management in Tanzania’s pastoral lands: the case study of the Ngorongoro Conservation Area’ (1) (2000) Law Social Justice and Global Development Electronic Law Journal.
Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities UN Document E/CN.4/Sub.2/384/Add.1-7 (1997)
Social and Economic Rights Action Centre for Economic and Social Rights v Nigeria, Communication No. 156/96, African Commission on Human and People’s Rights, done at the 30th ordinary session, Banjul, 13-27 October 2001; AHRLR 60 (ACHPR 2001).
Malawi African Association v Mauritania, Communication No. 54/91; Amnesty International v Mauritania, Communication No. 61/91; Ms Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO v Mauritania, Communication Nos. 164/97 to 196/97; Association Mauritanienne des Droits de l’Homme v Mauritania, Communication No. 210/98, African Commission on Human and Peoples’ Rights, 11 May 2000.
African Commission Report, Indigenous Peoples in Africa: The Forgotten Peoples?, The African Commission’s Work on indigenous peoples in Africa, (2006).
Report of the Committee of Enquiry into the April 8, 2006 Volta Lake Boat Disaster.
Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities UN Document E/CN.4/Sub.2/384/Add.1-7 (1997).
 In all three cases, the evictions centred around protected areas: the Central Kalahari Game Reserve in Botswana; the Kyabobo National Park in Ghana and the Mkhaya Game Reserve in Swaziland.
 See n5 below for a detailed discussion on forced evictions in South Africa’s urban areas.
 For example, T. Lissu paints a picture of the plight of the Maasai in Tanzania’s Ngorongoro Conservation Area. Freedom of movement, the right to a livelihood, and right to life, right to own property are some of the social ills visited upon the Maasai. See T. Lissu (2000) ‘Policy and legal issues on wildlife management in Tanzania’s pastoral lands: the case study of the Ngorongoro Conservation Area’ (1) Law Social Justice and Global Development Electronic Law Journal.
 BA Dube, ‘Domestic application of human rights norms in forced eviction cases in Africa’, in M Killander (ed.) Human rights litigation and the domestication of human rights standards in sub-Saharan Africa, AHRAJ Casebook Series, Vol 2 (International Commission of Jurists: Kenya, 2008. Available at www.icj-kenya.org).
 See sections 26 and 28(1)(c) of the South African Constitution, which provide extensively for the right to housing and the right to shelter.
 Social and Economic Rights Action Centre and Centre for Economic and Social Rights v Nigeria (SERAC) Communication No156/96, African Commission on Human and Peoples’ Rights, done at the 30th Ordinary Session, Banjul, 13-27 October 2001; AHRLR 60 (ACHPR 2001) para 61.
 As above.
 Article 2.
 Article 7.
 Article 8.
 See Committee on Economic, Social and Cultural Rights, General Comment 7, Forced evictions and the right to adequate housing, (Sixteenth Session, 1997) U.N. Doc E/1998/22, para 9.
 BA Dube, n5 above.
 General Comment No. 7, paras. 3 and 4.
 Committee on Economic, Social and Cultural Rights, General Comment 4, The right to adequate housing, (Sixth Session, 1991), U.N. Doc. E/1992/23.
 General Comment No 7, n11 above.
 As above, para 17.
 BA Dube, n5 above.
 SERAC, n7 above 40.
 See General Comment No. 7, para. 4.
 Constitution of the Republic of Ghana 1992.
 Section 13(1).
 Section 15(1).
 Section 18.
 Section 20(3).
 Paragraph 8.8, Statement on the Report of the Committee of Enquiry into the April 8, 2006 Volta Lake Boat Disaster, issued by the Ministry of Harbours and Railways, Government of Ghana.
 Interview with one of the residents of Shiare, Volta Region, 9 October 2007.
 As above.
 The boys were interviewed in the village of Shiare, northern Ghana, Volta Region on 9 October 2007.
 One of the boys exhibited a swollen face and scratch marks on the neck.
  LRC (Const) 623, 654.
 BA Dube, n5 above.
 As above.
 Article 2 of Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries provides:
(1) Governments shall have the responsibility for developing, with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.
 Note that Botswana has not ratified this Convention.
 This is land held in trust by the King on behalf of the Swazi Nation, and administered by traditional chiefs who act as the King’s representatives. Section 211(1) of the Constitution provides that all land, except privately owned land shall vest in the iNgwenyama in trust for the Swazi nation. iNgwenyama, in terms of section 228, is the traditional head of state. In other words iNgwenyama is the same as the king, save that under the former title, he acts in terms of Swazi customary law. See further BA Dube and AS Magagula, n4 above for a detailed discussion of the law in Swaziland, including the offices of iNgwenyama and king.
 Section 211(2) provides that a citizen of Swaziland, without regard to gender, shall have equal access to land for normal domestic purposes.
 Today the Constitution by virtue of section 211(3) prohibits eviction from land, be it SNL or privately held, without due process of law. It further provides for prompt and adequate compensation to be paid to evictees.
 Farm Dwellers Control Act No. 12 of 1982. This Act further ousts the jurisdiction of any court to hear an eviction matter. It provides for a tribunal to be established for deliberating on evictions for farm dwellers, with appeals from decisions of the tribunal lying to the Minister. The Minister’s decision is final. See section 9 of the Act.
 Interview with Bhunu Vilane, 23 February 2005, Farm 10/69 Hlantambita.
 Interview with Majuba Tsabedze who was dragged out of his house at night, beaten until he soiled his trousers and was made to eat his own faeces by the game rangers. Interviewed on 22 July 2004.
 In terms of section 23(1) of the Game (Amendment) Act of 1991, a game ranger or a person acting on the instruction of a game ranger shall be immune from prosecution for any act or omission done in the line of duty. Over the years, this section has been interpreted by law enforcers to mean that there is a blanket immunity from prosecution, hence it was opportune for MRG to deploy these feared rangers in the eviction process. This misinterpretation of section 23 has ensured that cases involving game rangers never get to court, hence this piece of legislation has never been tested in a proper forum.
 See n41 above.
 Act No.1 of 2005, came into force in February 2006.
 See BA Dube and AS Magagula, n4 above.
 Section 140(1) provides that judicial powers shall only be vested in the judiciary.
 The SNCSC was reconstituted when the Constitution came into force; today, the advisory body is known as Liqoqo. In terms section 231(1), Liqoqo is an advisory council whose members are appointed by the king from the membership of princes and princesses, chiefs, and persons who have distinguished themselves in the service of the nation. Their function is to advise the king.
 Telephone interview with Mgiva Dlamini, a former resident and evictee of farm 10/69, February 2008.
 Hadebe Case, para 82.
 Maseko v Commission of Police and Another, Civil Case No.1778 of 2009 (Unreported). Available at http://www.swazilii.org/sz/judgment/high-court/2011-10.
 Commissioner of Police and the Attorney General v Maseko, Civil Appeal Case No.3 of 2011 available at http://www.swazilii.org/sz/judgment/supreme-court/2011/15.
 This explains the laxity in human rights protection under the OAU, particularly minority rights and the forceful eviction of people.
 Set up under article 30 of the African Charter on Human and Peoples’ Rights, adopted 27 June 1981.
 Set up under article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the establishment of an African Court on human and peoples’ rights, adopted 9 June 1998.
 Set up under article 32 of the African Charter on the Rights and Welfare of the Child.
 Botswana, Ghana and Swaziland are all parties to the African Charter.
 Through OAU Doc. CAB/LEG/67/3 REV. 5, 21 ILM 58 (1982).
 Article 2 of the African Charter.
 Article 19.
 See articles 60 and 61 of the Charter.
 For a detailed discussion of the curtailed powers of the Swaziland NHRI, see the article referred to in n4 above.
 In February 2002, the OAU organised at Addis Ababa, in collaboration with regional organisations of PWDs, the Pan African Conference on the Africa Decade of Disabled Persons to consider a Plan of Action for the Decade. The Action Plan called upon member states of the OAU to study the situation of PWDs with a view to formulating measures for the equalisation of opportunities, full participation and their independence in society. See International Norms and Standards Relating to Disability, http://www.un.org/esa/socdev/enable/comp303htm (accessed 28 August 2007).
 Such as the International Convention on Civil and Political Rights, the International Covenant on Economic,
Social and Cultural Rights and the Convention on the Elimination of all forms of Discrimination Against Women.
 Art 2 of the Universal Declaration on Human Rights, art. 2(2) of the Convention on Economic Social and Cultural
 Unpublished: C Ngwena, Lecturer on Rights of PWDs, presentation made before LLM in Human Rights and Democratisation in Africa Class as part of lecturer notes, Pretoria 8 May 2007.
 See BA Dube, Protection of the rights of persons living with disabilities under the African human rights system, a dissertation submitted in partial fulfillment of the requirements for the degree LLM in Human Rights and Democratisation in Africa, University of Pretoria 2007. Available at www.up.ac.za/dspace/bitstream/2263/5441/1/dube_2007.pdf. (accessed 2 July 2008).
 Entered into force in 1999.
 Art 13.
 (2003) AHRLR 96 ACHPR 2003
 BA Dube, n65 above.
 Para 83.
 Para 81.
 Para 84.
 See the Constitutions of Lesotho (section 26), Swaziland (section 60).
 The Independence Constitution of 1968 was unilaterally ousted by the late King Sobhuza II through the King’s Proclamation to the Nation on 12 April 1973, which vested all judicial, executive and legislative powers in him. The Proclamation was the supreme law of the land throughout that period, and any law that was inconsistent with it was, to the extent of that inconsistency, null and void.
 Section 28(2) provides that, subject to the availability of resources, the government shall provide facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement. Whilst this is an affirmative action clause, it is weakened by the proviso on the availability of resources. The disability affirmative action clause, however, does not make the provision of facilities for PWDs dependent upon availability of resources.
 See in this regard section 26, Lesotho Constitution.
 BA Dube, n65 above.
 Committee on Economic, Social and Cultural Rights, General Comment No.5, Persons with Disabilities, (Eleventh Session, 1994) UN DOC E/1995.22 at 19 (1995), para 5.
 Art 6(5).
 Section 21(1).
 Section 21(3).
 See also Maja I, ‘Freedom of expression: The normative content and southern African practice’ in M Killander (ed.) Human rights litigation and the domestication of human rights standards in sub-saharan Africa, AHRAJ Casebook Series, Vol 2 (International Commission of Jurists: Kenya, 2008)
 Acceded on 10 April 1992.
 Ratified on 14 February 1990.
 Ratified on 2 March 1990.
 1963 (as Amended in 1999).
 19 March 2008.
 Acceded on 28 February 1995.
 Ratified on 30 July 1992.
 Ratified on 26 September 1990.
 Article 44 of the Convention states that the Convention shall come into force thirty days after the twentieth instrument of ratification is deposited. The twentieth instrument was deposited by Ecuador on 3 April 2008, and as such, the Disability Convention came into force on 3 May 2008.
 Section 29(1) of the Ghana Constitution.
 Sections 29(5) and (6).
 Civil society began using the Act immediately, with Commonwealth Human Rights Initiative publishing a simplified version of the Act in easy to read language.
 BA Dube, n5 above page.