Forced Evictions and Disability Rights in Africa

By Sibusiso Magnificent Nhlabatsi

Sibusiso Nhlabatsi is a human rights lawyer and an admitted attorney of the High Court of eSwatini. Nhlabatsi currently works at the University of eSwatini as the Legal Clinic Principal. Nhlabatsi is working towards the completion of his LLM at the University of South Africa; he holds an LLB and a Diploma in Law from the University of eSwatini. Nhlabatsi is the founding director of the Institute for Democracy and Leadership (IDEAL) and the eSwatini Litigation Centre.

Published January/February 2023

(Previously updated by Angelo Dube in August 2013, and by Sibusiso Nhlabatsi in July/August 2016 and in October 2018)

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Table of Contents

1. Understanding Forced Evictions

Forced eviction is the permanent or temporary 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.”[1] The practice of forced eviction – the involuntary removal of persons, families and groups from their homes and communities – exacerbates global problems of inadequate housing and homelessness. Forced evictions are human rights violations. Reinforcing the right to housing and freedom from forced evictions are universal human rights standards defined in the Universal Declaration of Human Rights, CEDAW, the International Covenants and other widely adhered to international human rights treaties and Declarations-powerful tools that must be used in realizing the human right to freedom from forced evictions.[2] Various elements, separately or combined, define a forced eviction:

  • A permanent or temporary removal from housing, land or both;
  • The removal is carried out against the will of the occupants, with or without the use of force;
  • It can be carried out without the provision of proper alternative housing and relocation, adequate compensation and/or access to productive land, when appropriate;
  • It is carried out without the possibility of challenging either the decision or the process of eviction, without due process and disregarding the State’s national and international obligations.

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 fueled 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.[3] South Africa presents a peculiar form of forced evictions, affecting mainly the urban poor. This form of eviction usually results from outsourcing or privatizing governmental functions, such as the provision of basic services like housing, water, etc.[4]Forced evictions have become commonplace in Africa, and the common thread running through all of them is violence and the non-payment of compensation.[5] 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 unpublicized evictions such as the eviction of more than 20 families from Farm 10/69 Hlantambita in Eswatini in 2006,[6] and the eviction of indigenous people from the Digya and Kyabobo National Parks in Ghana.The phenomenon of forced evictions is almost synonymous with landlessness and poverty. This link has a historical presence that dates back to colonial days.[7] 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.[8] 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.

2. The Normative Content of the Protection against Forced Evictions

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.[9] 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 after 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.[10] 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.[11] 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 landowners, 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.[12]

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,[13] equality,[14] and the right to an effective remedy in case of a violation of fundamental rights.[15] 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.

Moreover, article 2 of ICESCR enjoins state parties to guarantee the enjoyment of these rights without discrimination of any kind, ‘including … property and other status.’ State parties are also obligated to commit ‘maximum available resources’ so as to ‘progressively’ ensure the full realisation of these rights. It is also significant that ICESCR invites state parties to institute administrative and legislative measures to realise these rights.[16] 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 honor and reputation.[17]

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.[18] 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.[19]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.[20]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[21] and No 7.[22] Accordingly, evictions should not result in individuals being rendered homeless or vulnerable to the violations of other human rights.[23] 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.[24]These criteria have been affirmed by the African Committee in the SERAC case.[25] 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.[26]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 Eswatini 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, Eswatini, 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.[27] The Habitat International Coalition’s Housing and Land Rights Network Violation Database indicates that at least 11,959,550 African citizens have been subjected to punishing forced evictions since adopting Agenda 2063. While not all of these gross violations took place in intermediate cities, this number is by no means comprehensive. And none of these victims—men, women, children, and youth—has enjoyed her/his entitled reparations.

3. Evictions in Ghana

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, color, 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.[28]

The rights mentioned in the above article include the prohibition of the deprivation of life,[29] human dignity,[30] and the right to own property and not to be arbitrarily deprived of that property.[31] 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.[32] 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. A boat carrying people evicted from the park was capsized. 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.[33]

3.1. The Shiare Evictions

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.[34] 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 beekeeping as an alternative means of livelihood for the people. Their argument was that the money made from the beekeeping 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.

3.1.1. Denial of Access to Farmland

The denial of access to farmland 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.[35] 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 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.

3.1.2. Police Complicity in Human Rights Violations

On 8 October 2007, five boys aged between 15 and 19 years were arrested and beaten for cutting a bamboo pole from the KNP.[36] 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.[37]

3.1.3. Wither Shiare?

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.

4. Evictions in Botswana

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.[38] 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.

4.1. The Basarwa Evictions

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.[39]Section 14 of the Constitution of Botswana buttresses the Basarwa’s claim in that land.[40] 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, and public health or for development purposes, such property will be deemed to have been lawfully acquired.[41] What is more is that section 7 of the Constitution of Botswana provides that for the protection from inhuman treatment. The section quoted in extenso stipulates:

  • No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.
  • Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the country immediately before the coming into operation of this Constitution.

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.[42] In other words it discourages the imposition of policies and lifestyles upon a minority by a politically dominant group.[43]The evictions of Basarwa from CKGR by the Government of Botswana were conducted without consultation with Basarwa.[44] This can be attributed to the inferior economic and political status of Basarwa in Botswana and how they are usually treated by members of dominant ethnic groups, such as Bangwato.[45]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 licenses 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.

5. Evictions in Eswatini

Eswatini’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,[46] forced evictions have in the past been carried out in terms of Swazi customary law.Acquisition of land under SNL is done through chiefs who are given authority by the King to be responsible such land, which is demarcated into distinct chiefdoms. Amongst the powers vested upon the chief is the allocation and reallocation of land within his chiefdom. To acquire land in SNL, one has to go through a process known as kukhonta,[47] which is a form of application to be part of the chiefdom and a commitment to pay allegiance to the chief. The chief under this process gives the subject user-rights to a piece of land, and this land is demarcated to show the boundaries within which the subject can carry out livelihood activities including farming. The pieces of land given to individuals by the chief vary in size depending on availability within the chiefdom and the reasons for which it is sought. Chiefs are appointed by the King and the iNgwenyama in terms of section 233 of the Constitution.[48]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,[49] 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.[50] 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 Eswatini 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 Eswatini, does not address itself to any substantive rights of that class of people.[51] 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. Eswatini is a party to many international and regional instruments on human rights, which enjoin member states to respect and uphold the provisions therein. For instance, the Universal Declaration of Human Rights (UDHR) provides in its preamble that:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world….

5.1. Chronology of the Farm 10/69 Hlantambita Evictions

The Hlantambita Evictions are shrouded in a cloud of controversy regarding the way 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 Eswatini. The Lubombo Region is a drought stricken, poverty riddled area where most of the people rely on food aid, since subsistence farming no longer produces enough food. Most 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.[52]The letters inviting the residents of Farm 10/69 to a meeting were written in English, despite 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 victimized and subjected to violence by these game rangers. Most 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.[53] 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.[54]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[55] 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 Swazi National Council in March 2006 issued an order to the effect that the residents should leave the area within six months. Indeed, they were moved to Lubhuku farm, which is located about six kilometres from their original land. It is worth noting that the evictions were forceful and were without compensation.

5.2. Evictions at Farm 692 Nokwane at Mbanana

Evictions on this farm brought to the fore the conflict found the in-land tenure system in Eswatini. The evictions were to make way for a technology park. The Swazi government is hoping that the Park will help to develop knowledge around, and commercial potential, of indigenous plants and animals. The aim is to stimulate employment, foreign investment, and ecological tourism. However, despite these laudable aims, little progress has been made since the project was first mooted in 2010, and, on September 29, 2014, homes were demolished to make way for the construction of the park – despite ongoing legal action brought by the residents to halt the evictions and demolitions.The occupants of the farm who were eventually evicted alleged ownership of Farm 692 at Nokwane/Mbanana area in the Manzini District. The argument by the occupants was that the Eswatini Government did not have title over the land as title was transferred to the iNgwenyama in trust for the Swazi nation. On August 20, 2014, Judge Mpendulo Simelane[56] granted the Swazi Government an interim order allowing the evictions of the ten Nokwane homesteads sought by the Government to facilitate the construction of the Science Park. On 8 September 2014 this interim order was made final[57] and the residents immediately lodged an appeal to the order. Appeals to eviction orders ordinarily stay the execution of the orders, and so this should have prohibited the government officials from evicting any person named in the eviction order, but the demolition and eviction went ahead despite an appeal having been noted.

5.3. Evictions in Madonsa Portion 1 of Farm 319 in Madonsa Township

About 85 homesteads at Madonsa are facing evictions. The Mnyenyweni Chiefdom claims ownership of the land and it was in fact the one which allocated the land to the people as they settled through the khonta[58] system. Now the Eswatini National Provident Fund (ENPF),[59] claims ownership of the land on the basis that they have title over the land, and it belongs to TDL under deed of transfer No. 575/1993. The SNPF approached the High Court to for an order to evict the occupants from the land and further demolish the structures erected. This order was issued by the High Court on August 9, 2007, authorizing their eviction.For the first time since its establishment the Eswatini Commission on Human Rights and Public Administration,[60] (the Commission), joined the Court process and averred that no eviction had to be undertaken without following the guidelines of section 211(3)[61] of the Constitution. Fortunately for residents of Madonsa, no evictions have been carried out yet as the High Court ordered that the parties involved negotiate a settlement and that the Commission facilitate the negotiations. The Commission though appears to be an old toothless dog that can bark but seldom bite on the basis that it cannot investigate matters touching on the exercise of the royal prerogative by the crown as in terms of section 165(3) (c) of the constitution.

5.4. Vuvulane Farm 860 Evictions

Like the Hlantambita evictions, the Vuvulane evictions leave a lot of questions unanswered in the way they were conducted. As of April 2016, the evictions had already commenced and were carried out fractionally. At the time of writing, the first set of about six families has been evicted.Vuvulane Farm 860, situated within the Lubombo District, was originally owned by the Commonwealth Development Corporation (CDC).[62] This is not strange as Eswatini was once a British protectorate before attainment of independence on September 6, 1968. The current occupants are commercial farmers who are in lawful possession of the land since 1983 when the CDC handed over the farm to them- the farmers having arrived in Vuvulane in the early 1960’s. In 1989 a new entity was established dubbed, Vuvulane Irrigation Scheme (VIF) – which sought to provide the technical expertise in farming to the farmers.VIF took over the equipment and machinery which the CDC had left to the farmers and failed to provide the said expertise which led to misunderstanding between VIF and the farmers. The farmers then ordered VIF to leave Farm 860. This led to VIF approaching the High Court seeking for an order to evict the farmers and Vuvulane Irrigation Fanners Association (Public) Co. Ltd[63] (VTFA), an application which was dismissed by the High Court on the basis that VIF lacked locus standi to bring the application. Having lost doing business with the farmers VIF was forced into liquidation wherein a liquidator was then appointed. The liquidator with the assistance with the Master of the High Court has been able to successfully move applications at the High Court and obtained orders that run counter the judgments that the High Court issued earlier. Six families have been evicted presently and there is a likelihood that eventually all the farmers will be evicted from Farm 860 without compensation.

5.5. Farm No. 670, Portion 6 of Farm 45 and 8 of Farm 45, Situated in the Manzini District Evictions

In 1957, the families were initially moved from land they were living on in order to make way for timber harvesting. They were resettled on this piece of land from which they were evicted on 9 April 2018. The eviction of residents of Embetseni was carried out in pursuance of a High Court order of July 2017,[64] in the presence of the Sheriff of the High Court of Mbabane and 20 armed police. The land in question has been the subject of a longstanding occupancy dispute between the families living on it, and a private farming company that owns the land. The affected community heard rumors of their imminent eviction from a policeman on 6 April 2018. They then responded by calling a meeting with the Eswatini police on the evening of the following day. During the meeting, the community was served with the High Court eviction order dated 14 July 2017.Amnesty International observed that dozens of people, including more than 30 children, were left homeless after their homes were demolished by 20 armed police and bulldozers in the farming area of Embetseni in Malkerns town, Amnesty International said today.[65] The demolition, which saw 61 people forcibly evicted from their homes, took place on 9 April 2018. Some of those rendered homeless were forced to spend the night in a chicken shed.[66]The affected people were not provided with any alternative accommodation, forcing some of them to take refuge at a local school. Others slept in the open at the site of the demolitions with their belongings, while some slept in a chicken shed. One family slept at the Chief’s residence. To its credit the Commission on Human Rights and Public Administration[67] litigated on behalf of the victims. The court however dismissed the application and refused an order to compensate the victims. The Court observed that:

…The reason why this court cannot find in favor of the Applicants is that even if we were to extend the notion of the protection from inhuman or degrading treatment to include evictions as the Applicants are seeking to persuade this court to do, linking Section 18 of the Constitution to Section 19 would result in an absurdity. As indicated earlier, Section 18 has its own parameters in terms of application which has to do with ensuring that people are not subjected to inhuman and degrading treatment. By its very nature, an eviction has some inhuman and degrading effect. But what matters is that it must be carried out following due process of law. If we were to take the position that every lawful eviction should result in the compensation of the victim, the owner’s right to property would be infringed. The rights of owners of property is provided for in Section 19 of the Constitution. Sub section (1) confers the right to own property either alone or in association with others. Sub section (2) guards against the compulsory deprivation or taking of property or any interest in or right over property unless it is for public purpose and public benefit. An owner of property is therefore entitled to protection against compulsory deprivation of property unless such deprivation is for public purpose and public benefit…

6. The Constitution of Eswatini and Forced Evictions

The Constitution of Eswatini[68] prohibits arbitrary eviction without compensation.[69] Although the King’s judicial powers—his power to issue orders under customary law—have been curtailed by the Constitution,[70] in 2006 the King, sitting with his advisory body—the Swazi National Council Standing Committee (SNCSC)[71]—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.[72]In so doing, the right to property and the prohibition against arbitrary deprivation of land as set out in the Eswatini 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 [2011] SZSC 30, the Supreme Court of Eswatini dismissed an appeal to stay the demolition of homes of residents of Madonsa Township on the outskirts of Manzini.[73] 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 Eswatini 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 Eswatini 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.[74]The ease with which evictions occur in the jurisdiction of Eswatini is quite intriguing. Where customary land is involved, evictions often occur without recourse to a proper legal process. This is often fuelled by governmental policies around land use and land management. As earlier stated, Eswatini’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 utilize 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. The High Court of Eswatini in the case of Law Society of Swaziland v Simelane N.O. and Others[75] where the Law Society was challenging the appointment of Justice Simelane, the court f relied on an archaic customary idiom, umlomo longacali manga (the mouth that does not lie) in finding that the king’s actions cannot be challenged as the king was considered to be unerring.[76] 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 Eswatini Constitution. In deciding the question of ownership of customary land, the judge misinterpreted section 211 of the Eswatini Constitution to hold that all land in Eswatini vests in the iNgwenyama, without reference to the trust requirement.[77] 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 then Chief Justice Mr. Michael Ramodibedi (now deceased), as he then was, 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 Eswatini 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 Maseko v Commission of Police and Another.[78] 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,[79] 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 Eswatini, 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.It is worth mentioning though that the current Chief Justice Bheki Maphalala withdrew Practice Directive No.4 of 16 June 2011 on 12 January 2018 through Practice Directive No.1/2017. The Directive, however, pointed out that Sections 7 and 11 of the Constitution do provide the necessary immunity for the King and iNgwenyama as well as Indlovukazi in respect of legal proceedings.Eswatini 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 Eswatini 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 Eswatini carries any real and tangible benefits for victims of forced eviction on not.[80]

7. Evictions in South Africa

7.1. 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 recognized that the 1913 Natives Land Act had left lasting scars on rural communities. According to debates in Parliament, the Act was passed 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.[81]The Natives Land Act set aside 7.3% of the total South African land area as reserves 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.[82] 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 several social and economic factors that favored 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 finalized. 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.[83]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.The National Assembly on Tuesday 27 February 2018 set in motion a process to amend the Constitution so as to allow for the expropriation of land without compensation.[84] The move is seen as attempt to address the injustice of the past. Section 25 (8) of the South African Constitution allows “any departure” from the provisions of section 25, including sub-section (2)(b), the right to compensation.[85] Departure means, in the context of expropriation, that when the state expropriates it may do so without compensation. The section requires compliance with the provisions of section 36 (1) of the Constitution.[86] Further it is required that expropriation be for land, water and related reforms. Furthermore, expropriation should be governed by a statute. The Expropriation Bill could be an attempt to solve that issue. However, the bill falls short of what society needs to achieve. It does not seem to cover many instances required for expropriation. It falls short of expropriation for land, water and related reforms. So, it fails sub-section 8.

7.2. Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998

South Africa has a strong legislation against arbitrary evictions called the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) came into effect on 5 June 1998, and which sets out to prevent arbitrary evictions. In terms of the Constitution of South Africa,[87]

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

The PIE Act governs the eviction process in the event of a land invasion. The aim of the PIE Act is to protect both the occupiers and the landowners. An application under the PIE Act can only be launched if the occupant of the property is considered in illegal occupation. In the event of a breach of any provision of the lease agreement, the provisions of the breach clause of the lease agreement should be followed. In addition to basic requirements such as proper notice of the eviction proceedings being served on the persons concerned, three major principles have been established by the South African courts in their interpretation of the PIE Act.The first principle is that people should generally not be evicted into a situation of homelessness. Temporary alternative accommodation should be provided to those facing homelessness by the relevant public authorities, usually municipalities.[88] The second principle is that people facing eviction from their homes should be given a meaningful opportunity to participate in the resolution of the eviction dispute. This can take the form of mediation (where a third party tries to assist the parties to reach an agreement), or more structured processes involving in-depth negotiations between municipal officials, private landowners, communities and the organizations supporting them.[89] The third general principle is that evictions, which might lead to homelessness, are never just private disputes – they always involve the state – whose duty to provide emergency housing may be triggered by an eviction. When there is a possibility of people being left homeless, relevant organs of state (usually municipalities) must be joined as necessary parties to the legal processes for eviction.[90]In the City of Cape Town v Those Persons Occupying and/or intending or attempting to occupy or erect structures on erf 18370, Khayelitsha[91] (Nuku AJ)) the Western Cape High Division of the Court temporarily suspended an eviction order against occupants who have been living on the land directly behind the Endlovini informal settlement (known as the Newcastle Informal Settlement) in Khayelitsha, since May 2014.[92] Nuku AJ lashed out at the City of Cape Town (the city) for its ‘failure to engage’ with Newcastle’s residents before obtaining an eviction order against them. Nuku AJ handed down judgment nearly five months after the court battle started, ordering that the eviction be stayed. Just two months after erecting their structures in May 2014, the residents claimed, they were informed that the courts had granted an eviction order to the city. The residents then lodged a counter application, challenging the city’s compliance with the PIE Act. The residents insisted that the city did not comply with the eviction order granted in 2014 by Western Cape High Court Judge Thandazwa Ndita. The city applied for leave to appeal and challenged the ruling in the SCA. In his judgment, Nuku AJ said the following:

‘[I]n a matter where a municipality applies for an eviction it is bound to act reasonably. Part of acting reasonably is the engagement with those who are to be evicted as that ensures that they are treated with dignity in the process … but has also failed to provide reasons why.’

Nuku AJ continued to state that instead of meeting with residents, the city chose to ‘dictate’ to the residents on what it would be prepared to discuss. There was in other words no engagement with the respondents prior to the launching the application for their eviction. The reasons provided in support of the eviction application were that some residents refused to give their details, were hostile, and threatened officials. Justice Nuku said after the city obtained the eviction order, it did not ‘deal with the issue of alternative accommodation’ or hold a meeting with the residents. The other factor that weighed heavily with Nuku AJ is the city’s attitude that it is not obligated to provide alternative accommodation to the occupants. According to Nuku AJ, in instances where the person is to be evicted from land owned by an organ of state, the protection afforded in the PIE Act must be available even if the person occupied the land for less than six months. Nuku AJ also highlighted the residents’ poor living conditions and urged the city to resolve the matter as soon as possible.In Residents of Joe Slovo Community v Thubelisha Homes,[93] an application was brought by the authorities in Cape Town seeking the eviction of the persons in the Joe Slovo informal settlement under of PIE, arguing that the property was needed for the development of affordable housing for poor people. The High Court granted the order, and the residents appealed to the Constitutional Court on the grounds that they were not unlawful occupiers, having obtained the consent of the authorities, and therefore could not be evicted. The court granted the eviction but ordered that alternative accommodation be provided to the occupiers.In Port Elizabeth Municipality v. Various Occupiers[94] Port Elizabeth Municipality filed an eviction application in response to a neighbourhood petition against 68 adults and children occupying shacks erected on privately owned land. They had been living on this undeveloped land for between two to eight years and were willing to vacate the property subject to reasonable notice and suitable alternative land. The legislation required that before granting an eviction order, the courts must be of the opinion “that it is just and equitable to do so” after considering all the relevant circumstances and where occupants have been there more than six months, whether land has or can be made available for relocation. The Municipality had embarked on a comprehensive housing development programme. Relying on the Constitutional Court’s decision in Grootboom,[95] it argued that if it were obliged to provide alternative land, the Court would effectively be requiring preferential treatment to this group of occupiers. The High Court granted the eviction order, but on appeal, the Supreme Court of Appeal (SCA) held that the eviction order should not be granted without an assurance that the occupiers would have some measure of security of tenure. On appeal to the Constitutional Court, the Court held that, considering the lengthy period during which the occupiers have lived on the land, the fact that eviction is not necessary for the land to be put to productive use, the Municipality’s failure to consider the problems of this particular group of occupiers, and the fact that this is a relatively small group of people who appear to be genuinely homeless and in need, it is not “just and equitable” to order the eviction. The Court found that the State has a constitutional responsibility to satisfy both property rights (section 25) and housing rights (section 26 and that solutions to difficult problems must be found on a case-by-case basis, considering all relevant circumstances, including the manner in which the occupation was affected, its duration and the availability of suitable alternative accommodation or land.[96]While holding that there is no unqualified constitutional duty on governments to provide alternative accommodation or land in any eviction, the finding that courts should be “reluctant” to grant evictions against relatively settled occupiers unless a reasonable alternative is available is a significant development in right to housing jurisprudence. The application of this principle to eviction from private land is of major importance, as well as the requirement that the government engage meaningfully with the affected group of occupiers.In the case of Occupiers of Erven 87 and 88 Berea and Christiaan Frederick De Wet and another,[97] the Constitutional Court rescinded an eviction order granted by the High Court. In casu, the applicants comprised of 184 residents, 23 of whom were children, who brought an application to have an eviction application granted by the High Court rescinded. Most of the applicants were either unemployed or of a low-income bracket. The main legal question to be decided by the bench was whether an eviction order handed down by the High Court pursuant to a settlement between the parties should be rescinded. In the circumstances, the court decided that the order should indeed be rescinded due to various reasons, including the fact that there was in fact no agreement between some 182 of the 184 occupants and the lessor to vacate the property. The court further held that even in instances where there is true consensus between the parties with regards to settlement terms to vacate a property, the court has a duty to probe the parties for all relevant facts to ascertain whether an eviction order would be in line with Section 26 of the Constitution (the right to housing) and the Prevention of Illegal Eviction Act. The court stressed the fact that the granting of an eviction order is a balancing act to be performed by the court, namely the rights of the landowner versus the rights of the illegal occupant, enshrined in sections 25 and 26 of the Constitution, respectively.In Fischer v Ramahlele,[98] the case involved an application to court by the owner of land in Philippi East, Mrs. Fischer, for an order preventing the unlawful occupation of her property by several people erecting informal dwellings on her land. In response to that application, members of the community instituted legal proceedings against the City, which they argued had destroyed more than 30 of their structures on the land illegally. This counterapplication was based on a common law remedy known as a ‘mandament van spolie’ which is aimed at restoring possession to people who have been unlawfully deprived of their peaceful and undisturbed possession of property (even if that possession is unlawful). The remedy is aimed at discouraging people or public authorities from taking the law into their own hands by speedily restoring possession without going into the merits of the underlying rights of the parties. The High Court held that the demolition of the structures on the land was unlawful, commenting that they were reminiscent of apartheid style evictions. Judge Gamble accordingly ordered the City to rebuild the structures. The City then appealed this judgment to the Supreme Court of Appeal. The Appeal Court held that the key issue in the case was whether the affected community members were in fact occupying the structures when these were demolished. If they were, then the City would have taken the law into its own hands and acted unlawfully in demolishing the structures. The residents would be entitled to have the structures rebuilt and restored to them. However, if the structures were vacant and unoccupied (as the City alleged) then the City was entitled to remove them. The Appeal Court held that the High Court should have heard evidence on whether the structures were occupied or not at the time of their demolition. It referred the case back to the High Court for evidence to be heard on this. The Fischer case centres on the question of whether the factual requirements for the mandament van spolie (see explanation above) were met. But it also raises the question of what constitutes a “home”. As noted above, the purpose of section 26(3) and PIE is primarily to protect people’s homes.

8. What Remedies are Available in Cases of Forced Evictions

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.

8.1. At the Regional Level

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.[99] 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,[100] the African Court on Human and Peoples’ Rights[101] and the African Committee on the Rights of the Child.[102]

8.2. The African Charter and Minority Rights

The African Charter is one regional instrument that can be used.[103] The African Charter was adopted by the OAU in June 1981,[104] 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[105], although listing several 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 Eswatini, 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 emphasizes the inviolability of the human being and the integrity of his person. It further emphasizes 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.[106] By peoples, the African Charter is referring to the rights of collectives, such as those of the minorities in the CKGR evictions.

8.2.1. How Can the African Charter be Used

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.[107]

8.2.2. Resolution 231

The African Commission on Human and Peoples’ Rights (the Commission) meeting at its 52nd Ordinary Session held from 9 to 22 October 2012 in Yamoussoukro, Côte d’Ivoire passed Resolution 231; Resolution on the right to adequate housing and protection from forced evictions.[108] Urges all States Parties to the African Charter to take appropriate steps to ensure respect, protection, and realization of the right to adequate housing. The Commission resolved to:

  • Putting an end to all forms of forced evictions, in particular evictions carried out for development purposes;
  • Ensuring that evictions are only carried out as a last resort after all alternatives to eviction have been provided and that all evictions comply with international and regional standards;
  • Adopting legislative and other measures to ensure that legal procedures are complied with prior to any eviction and making available remedies that are likely to result in the right to reparation either in the form of restitution in interim or monetary compensation;
  • Taking concrete measures to confer security of tenure to all people lacking such protection, with prior and informed consent of the affected people;
  • Ensuring that any alternative housing provided to people complies with international and regional standards on the right to adequate housing

Although this is soft law, and therefore not binding, it is expected however that states will still comply with it, and that civil society will use it to rally support for victims.

8.3. Domestically

8.3.1. Use of National Human Rights Institutions

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 Eswatini situation presents a peculiar set of facts though. Section 162 of the Eswatini Constitution precludes the NHRI from hearing any matter done under royal prerogative.[109]

8.3.2. Use of Dispute Settlement Procedures

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 Eswatini to adequately protect the rights of the evictees. The Eswatini process shows a bias mostly towards the landowner rather than leaning towards the protection of the rights of the evictees.

8.3.3. Litigation

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.

9. Conclusion

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. Most 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 Eswatini and Botswana’s Basarwa evictions, poverty and lack of resources characterize 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.

10. Disability Rights in Africa

According to the United Nations Department of Economic and Social Affairs (UNDESA),[110] In Africa, as in other regions, persons with disabilities are disproportionately likely to live in poverty and, too often, lack access to education, health care, employment opportunities, housing, social protection systems, justice, cultural expression, and participation in political life. The ability of persons with disabilities to participate in society is often frustrated because physical environments, transportation, information, communications systems are not accessible.[111]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 with disabilities (PWDs).[112] 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.[113] Even so, they fit under the prohibition of discrimination ‘on any other status.’[114] The lack of clarity on whether these rights are socio-economic or civil and political in nature presents a difficulty when determining whether their realization should be immediate or progressive.[115] 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.[116]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.In 2018 the African Union adopted the Disability Protocol to the African Charter on Human and People’s Rights (Banjul Charter). The protocol addresses and encompasses specific issues such as customs, traditional beliefs, harmful practices and the role of the family, caregivers, and community. It also deals with community-based rehabilitation and minority groups within the African disability community, including people with albinism. The protocol is an extension of the UN Convention on the rights of Persons with Disabilities (UNCRPD) which is the first comprehensive human rights treaty of this century, it does not address the unique challenges like the African Disability Protocol does.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)[117] 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.[118]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.[119] 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.[120] 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 realization of other fundamental rights and freedoms and should be accorded without discrimination.[121] 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,[122] 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 realized in all its aspects without discrimination of any kind.[123]

11. Disability Rights under African Constitutions

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 in justiciable.[124]

11.1. Eswatini

In 2006, Eswatini finally moved into a new constitutional dispensation, ending 33 years of rule by decree.[125] The Constitution of Eswatini 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 realize 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,[126] 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 Eswatini situation is the wording of section 60(6), which provides that the state and society shall recognize 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 Eswatini 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 Eswatini. 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)[127] also touches on the rights of PWDs, 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 Eswatini 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.People with disabilities in Eswatini are estimated to be at 171 347.[128] Accordingly, people with disabilities accounts for 16, 8 per cent of the country’s population.[129] Of note is that the prevalence of disability in Eswatini is higher than the average found in other developing countries (which is at 10 per cent of the total population). The prevalence of disability is much higher in rural areas. Eighty-two per cent of people with disabilities live in rural areas whilst the remaining 18 per cent live in urban areas.Eswatini adopted the disability legislation in 2018, the Persons with Disabilities Act No. 16 of 2018 (Disability Act). The Disability Act seeks to provide for the protection of the rights and welfare of persons with disabilities. The Persons with Disabilities Act, 2014 cares for the general well-being of persons with disabilities. 27 The Act proposes the establishment of a National Advisory Council for Persons with Disabilities. The objectives of the Committee are:

  • improve the socio-economic status of men and women, girls and boys with disabilities;
  • ensure that all persons with disabilities have equal access and opportunities to education, health and other services at all levels;
  • ensure that all buildings and infrastructure are accessible to persons with disabilities;
  • promote inclusiveness and ensure that all institutions provide services to persons with disabilities in the same manner as they provide to the non-disabled except where necessary;
  • ensure that policies in general do not have a negative impact on the status of persons with disabilities, and in particular vulnerable groups.”

The Persons with Disabilities Act further covers registration of organizations of persons with disabilities as well as registration of a person with disability, who will then be issued with a Disability Card;[130] makes provision for the right to assistance in situation of risk and humanitarian emergencies, including armed conflicts and the occurrence of natural disasters as well as, access to public facilities, amenities and services and buildings for persons with disabilities;[131] and provides persons with disabilities with the right to access to and use of transport facilities as well as the right to the enjoyment of health on an equal basis with persons without disabilities.[132] The Children’s Protection and Welfare Act of 2012 in part 2, section 4 provides that ‘a child shall not be discriminated against on the grounds of … disability …’ Furthermore, section 11 states that:

A child with disability has a right to special care, medical treatment, rehabilitation, family and personal integrity, sports and recreation, education and training to help him enjoy a full and decent life and dignity and achieve the greatest degree of self- actualization, self-reliance and social integration possible.

Eswatini ratified the United Nations Conventions on the Rights of Persons with Disabilities in 2012. The main aim of the convention is to ensure the full and equal enjoyment of all human rights by people with disabilities.[133] The country’s Constitution (Section 14 (3)[134] provides for the protection and promotion of fundamental rights and freedoms of people of whatever disability. Section 30 (2)[135] provides further that Parliament had to enact laws for the protection of persons living with disabilities to enable them to live a fulfilling life. Eswatini has also ratified the treaty’s Optional Protocol which permits the filing of individual complaints under the treaty by its residents.[136]

11.1.1. Cultural Discrimination of PWD’s in Eswatini

It can be said that Swazi that culture is also discriminatory, covertly so, and this is contrary to the constitution. There is a wide belief that disabled persons are traditionally not supposed to meet with the King because they are a bad omen. This is evident by the fact that the King has never appointed any disabled person to an administrative or political position. The Times of Eswatini reported in 2013 that a business-man (Peter Petersie – now deceased) with a disability was blocked by former Pastor Minister Lindiwe Dlamini from having an audience with His Majesty the King because he is disabled.[137] Petersie was told by the former minister that, because he has one leg, he could not kneel down as dictated by custom when one is before the King. The Minister confirmed that he had blocked Petersie but claimed she was trying to help him (Petersie), as he could not kneel before the King. This is just one incident on how culture in Eswatini continues to discriminate against PWD’s. If the minister’s justification was true, she ought to have consulted with Petersie first instead of pre-empting his disabilities.

11.2. Lesotho

The Lesotho Constitution takes a similar approach to the rights of PWDs as the Eswatini 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 favor 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.[138]

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 realization 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.[139] 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.[140]

In like manner as the Eswatini Constitution, section 3(1) of the Lesotho Constitution provides that the official languages shall be English and Sesotho. The Constitution fails to recognize 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 recognizes 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.[141] The South African Constitution clearly recognizes the need for PWDs to express themselves in a language of their own, sign language and further prohibits discrimination based on disability in section 9(3).

Lesotho became the 42nd country to ratify the Convention Disability Rights on 2 December 2008.

Lesotho enacted The Persons with Disability Equity Act (“Act”) on 12 March 2021 to provide for equal opportunities and recognition of rights of persons living with disabilities in Lesotho. Lesotho is a member State to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), and as such, it has now ratified all the relevant principles into domestic law. The main purpose of the convention is to ensure that member states provide the enjoyment of all human rights collectively for the promotion of human dignity.

According to the UNCRPD discrimination based on disability means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.

Considering the above, the purpose of the Persons with Disability Equity Act, is to domesticate the UNCRPD principles to uphold the fundamental freedoms of the People living with Disabilities. As such, an independent body namely the Council of Disability Rights has been established to oversee the implementation of the Act.[142]

Persons with Disability Equity Act on Access to Education: No person shall be denied access to study based on disability. The Ministry of Health shall through, the Department of Special Education, ensure that training is offered on the use of accessible format methods for a person living with a disability on an early basis, to the training of educators.

Persons with Disability Equity Act on Employment: An employee with a disability, who at the workplace performs his/her duties and responsibilities as competently as other employees, shall be subject to the same terms and conditions of employment, privileges, incentives, benefits, opportunities, and allowances as other employees. An employer will also be prohibited from discrimination against a person living with disabilities in relation to:

  • The advertisement of employment, recruitment policies, creation, classification or abolition of posts;
  • Determination or allocation of wages, salaries, pensions, accommodation, leave or other benefits;
  • Provision of facilities related to or connected with employment;
  • Choice of persons for posts, training, advancement, apprenticeship, transfer, promotion, or retrenchment; or
  • Any other matter related to employment.

Persons with Disability Equity Act on Public Information: People living with Disabilities will have access to public information in the form of Braille and other forms of accessible format. This would include government gazettes and publications.

Persons with Disability Equity Act on Reasonable Accommodation: A person living with disabilities is entitled to a barrier free and disability friendly environment to enable them to have access to buildings, roads and other social amenities. It also provides for access to assistive devices and other equipment to promote their mobility. An owner of a public building shall, within 5 years from the coming into operation of the Act, adapt the building to suit persons living with disabilities.

Persons with Disability Equity Act on Voting: The Act entitles people living with mental disabilities to register for voting in the national elections. It further provides that a person with mental disabilities should be assisted at his request by a person of his choice in voting.

Persons with Disability Equity Act on Sports and Recreation: A person living with disabilities is entitled to use the sports or recreational facilities owned or operated by government during social, sporting, or recreational activities.

Persons with Disability Equity Act on Access to Justice: A person with mental disabilities shall be assisted in every possible manner to participate in all legal proceedings effectively, directly and indirectly, including giving evidence in court.

Persons with Disability Equity Act on Residential Care Facilities: The Act also addresses the regulation of residential care facilities for compliance with the law and prescribed standard. It provides that the residential care facilities should be registered with the Ministry of Social Development.

Persons with Disability Equity Act on Disability Trust Fund: The Act provides for the establishment of the Disability Trust Fund by the Minister of Finance to support the implementation of the disability programs and services.

Persons with Disability Equity Act on Disability Grants: The Act also provides for disability grants and a grant-in-aid which shall be granted to people living with severe disability and who cannot generate income by any means. The determination for the severity of the disability shall be done by professionals such as Occupational Therapists, Physiotherapists, Medical Practitioners, Audiologists and Speech Therapists. The grant-in-aid shall be given to adults with disability in order to pay their caregivers.

Persons with Disability Equity Act on Decision Making: The Act also provides for meaningful and full participation by People living with disabilities in the decision-making aspects concerning their lives. This includes making informed choices and decisions about where to live and with whom to live.

Persons with Disability Equity Act on Public Transport: The Minister of Transport shall within 5 years of coming into operation of the Act ensure that a state-owned bus or any state-owned vehicle which transports the public, is adapted to suit a person living with disabilities.

Despite Lesotho having ratified the CRPD, people with mental disabilities, the deaf and those with speech disability do not enjoy the right to participate in government guaranteed by the constitution. This right is denied by section 57 read with section 58 of the constitution. In addition, section 219 of the Criminal Procedure and Evidence Act denies people with mental disabilities the right to access justice.

11.3. South Africa

The South African Constitution marked a departure from a past full of discrimination and marginalization, 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.

11.4. Botswana

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’s acceded to the Convention on the Rights of Persons with Disabilities (CRPD) on 11 August 2021.

11.5. Angola

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 because 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.[143] It further provides that in the assessment of disputes by Angolan courts, international instruments shall apply even when not invoked by the parties.[144] 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.[145] Angola has ratified the ICCPR,[146] CRC,[147] and the African Charter.[148]

11.6. Kenya

Section 70 of the Kenyan Constitution[149] 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.[150] 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 outlaw’s discrimination against PWDs.

11.7. Namibia

Namibia has ratified several international instruments that are relevant to the rights of PWDs. These include the ICCPR,[151] African Charter,[152] and CRC.[153]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 “[u]nless 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 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,[154] 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.

11.8. Ghana

The 1992 Constitution of Ghana also has provisions aimed at facilitating the integration of PWDs into society and ensuring their participation in daily life.[155] 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.[156] Ghana also enacted the Persons with Disability Act in 2006, which lays down the rights of PWDs.[157] 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:

  • At first glance, disability rights and forced evictions are like two opposite ends of a pole. However, upon closer inspection, it becomes obvious that there are common threads running through the two. Further, because of the domino effect of human rights violations, the two cannot be separated.[158] The violation of human rights in forced eviction cases opens the floodgates to the violation of the rights of PWDs.
  • It is a widely accepted fact that the impact of forced evictions on PWDs is doubled. This double impact is brought to bear by the harsh conditions that come with forced evictions. Consequently, even previously ‘able’ persons may find themselves disabled by the environment created by the wanton destruction of property and bodily injuries that go hand in hand with forced evictions.
  • Indigence, lack of information and vulnerability is another common thread running through both victims of forced evictions and disability rights violations. In most cases, the victims of human rights violations do not have sufficient funds for litigation, and as such their rights are violated with impunity. The case of the accused insane is instructive here.

13. Bibliography

13.1. Books and Journals

  • Sepulveda, M., Human Rights Reference Handbook University for Peace, Costa Rica (2004).
  • Dube A and Nhlabatsi S, The King can do no wrong: The impact of The Law Society of Swaziland v Simelane N.O. and Others [2014] SZHC 179 on constitutionalism, African Human Rights Law Journal 2016 (Forthcoming)
  • Dube A ‘Does SADC provide a remedy for environmental rights violations in weak legal regimes? A case study of iron ore mining in Eswatini 2013 (3) SADC Law Journal 259 – 278.
  • 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 Eswatini
  • 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)

13.2. Legislation and International Instruments

  • African Charter on Human and Peoples’ Rights
  • International Covenant on Civil and Political Rights
  • Constitution of the Kingdom of Eswatini
  • Constitution of the Republic of Ghana
  • Constitution of Angola
  • Constitution of Kenya
  • Constitution of Lesotho
  • Constitution of Botswana
  • Constitution of South Africa
  • Criminal Procedure and Evidence Act of Eswatini 1937.

13.3. Cases

  • City of Cape Town v Those Persons Occupying and/or intending or attempting to occupy or erect structures on erf 18370, Khayelitsha (WCC) (unreported case no 13700/14, 14-12-2015).
  • 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.
  • Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae) 2010 (3) SA 454 (CC).
  • Fischer and Another v Ramahlele and Others (203/2014) [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395 (SCA) (4 June 2014)
  • Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC)
  • Law Society of Swaziland v Simelane N.O. and Others [2014] SZHC 179
  • Port Elizabeth Municipality v. Various Occupiers 2004 (12) BCLR 1268 (CC)

13.4. Reports

  • 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).

13.5. Websites

[1] Committee on Economic, Social and Cultural Rights, General Comment No. 7 (1997), Forced Evictions Fact Sheet No. 25, Rev. 1 (Geneva 2014); (accessed on 08 April 2018).

[2] The Human Right to Freedom from Forced Eviction: The People’s Movement for Human Rights Education, as archived by Internet Archives on June 17, 2021 (accessed February 2023).

[3] 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 Eswatini.

[4] See n5 below for a detailed discussion on forced evictions in South Africa’s urban areas.

[5] 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.

[6] BA Dube and AS Magagula The law and legal research in Eswatini (accessed 12 October 2018).

[7] Juma L. Nothing but a mass of debris: Urban evictions and the right of access to adequate housing in Kenya, African Human Rights Law Journal (2012) 2 AHRLJ 470-507, (accessed May 2018).

[8] 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

[9] Ibid.

[10] 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.

[11] 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.

[12] As above.

[13] Article 2.

[14] Article 7.

[15] Article 8.

[16] There is a measure of achievement in this regard, among a range of states. Eg, in South Africa one might point to the Social Assistance Act 13 of 2004 and Social Security Agency Act 9 of 2004 and, in India, to the National Rural Employment Guarantee Act (2005) as legislative interventions that support socio-economic rights. See F Coomans ‘Some introductory remarks on the justiciability of economic and social rights in a comparative constitutional context’ in F Coomans (ed) Justiciability of economic and social rights: Experiences from domestic systems (2006) 7.

[17] 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.

[18] BA Dube, n5 above.

[19] Ibid.

[20] General Comment No. 7, paras. 3 and 4.

[21] Committee on Economic, Social and Cultural Rights, General Comment 4, The right to adequate housing, (Sixth Session, 1991), U.N. Doc. E/1992/23.

[22] General Comment No 7, n11 above.

[23] As above, para 17.

[24] BA Dube, n5 above.

[25] SERAC, n7 above 40.

[26] See General Comment No. 7, para. 4.

[27] African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. (Accessed on 13 May 2018).

[28] Constitution of the Republic of Ghana 1992.

[29] Section 13(1).

[30] Section 15(1).

[31] Section 18.

[32] Section 20(3).

[33] 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.

[34] Interview with one of the residents of Shiare, Volta Region, 9 October 2007.

[35] As above.

[36] The boys were interviewed in the village of Shiare, northern Ghana, Volta Region on 9 October 2007.

[37] One of the boys exhibited a swollen face and scratch marks on the neck.

[38] [1992] LRC (Const) 623, 654.

[39] BA Dube, n5 above.

[40] 14(1) No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Botswana, the right to reside in any part of Botswana, the right to enter Botswana and immunity from expulsion from Botswana.

[41] As above.

[42] 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, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.

[43] Note that Botswana has not ratified this Convention.

[44] Mosweunyane D Brutal development agenda by political panjandrums in Botswana: How CKGR evictions massacred the native citizens (Basarwa) through HIV/AIDS African Educational Research Journal Vol. 5(1), pp. 75-90, March 2017 (accessed on 9 May 2018).

[45] As above.

[46] 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 Eswatini, including the offices of iNgwenyama and king.

[47]Process by which an individual applies for a piece of land in a chiefdom by means of presenting a cow and declaring to pay allegiance and loyalty to the chief. Upon acceptance an individual may be allocated both residential and arable land, or just residential land only.

[48] Section 233 of the Constitution: “(1) Chiefs are the footstool of iNgwenyama and iNgwenyama rules throughthe Chiefs. (2) The iNgwenyama may appoint any person to be chief over any area. (3) The general rule is that every umphakatsi (Chief’s residence) is headed by a chief who is appointed by iNgwenyama after the chief has been selected by the lusendvo (family council) and shall vacate office in like manner. (4) The position of a chief as a local head of one or more areas is usually hereditary and is regulated by Swazi law and custom. (5) Unless the situation otherwise requires, a chief shall assume office at the age of eighteen years or so soon thereafter as the period of mourning comes to an end. (6) A chief, as a symbol of unity and a father of the community, does not take part in partisan politics. (7) A chief may be appointed to any public office for which the chief may be otherwise qualified. (8) The powers and functions of chiefs are in accordance with Swazi law and custom or conferred by Parliament or iNgwenyama from time to time. (9) In the exercise of the functions and duties of his office a chief enforces a custom, tradition, practice, or usage which is just and not discriminatory.”

[49] Section 211(2) provides that a citizen of Eswatini, without regard to gender, shall have equal access to land for normal domestic purposes.

[50] 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.

[51] 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.

[52] Interview with Bhunu Vilane, 23 February 2005, Farm 10/69 Hlantambita.

[53] 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.

[54] 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.

[55] See n41 above.

[56] Former Judge of the High Court of Eswatini (he was impeached).

[57] Swaziland Government v Jabulane Dlamini & 19 Others (1155/14) 2014 [SZHC] 401 (5December 2014): “… [12] It was for the above stated reasons that I granted the orders sought. [13] COURT ORDER. (1) The Respondents and all those claiming occupation through them at Farm 692 Nokwane at Mbanana be and are hereby ejected. (2) All and every illegal structure erected on Farm 692 Nokwane at Mbanana should be demolished. (3) That the National Commissioner of Police or his deputies and subordinates be and are hereby ordered to ensure compliance with this order. (4) The Respondents to pay the costs of this application… per Justice M. Simelane.”

[58] A system of paying allegiance to the chief (a local traditional authority) to be able to access Swazi Nation land.

[59] The Eswatini was established in 1974 as a savings scheme, the main purpose of which is to provide benefit for employed persons when they retire from regular employment in old age or in the event of becoming incapacitated (accessed on May 13, 2018).

[60] Established in terms of section 163(1) of the Constitution of Eswatini: “There shall be established within a year of the first meeting of Parliament after the commencement of this Constitution, a Commission on Human Rights and Public Administration in this Chapter referred to as “the Commission.”

[61] Section 211: “(1) From the date of commencement of this Constitution, all land (including any existing concessions) in Eswatini, save privately held title-deed land, shall continue to vest in iNgwenyama in trust for the Swazi Nation as it vested on the 12th April 1973. (2) Save as may be required by the exigencies of any situation, a citizen of Eswatini, without regard to gender, shall have equal access to land for normal domestic purposes. (3) A person shall not be deprived of land without due process of law and where a person is deprived, that person shall be entitled to prompt and adequate compensation for any improvement on that land or loss consequent upon that deprivation unless otherwise provided by law. (4) Subject to subsection (5), all agreements the effect of which is to vest ownership in land in Eswatini in a non-citizen or a company the majority of whose share-holders are not citizens shall be of no force and effect unless that agreement was made prior to the commencement of this Constitution. (5) A provision of this chapter may not be used to undermine or frustrate an existing or new legitimate business undertaking of which land is a significant factor or base.”

[62] A statutory corporation incorporated by an Act of the British Parliament. Founded in 1948, CDC is the UK’s Development Finance Institution (DFI) wholly owned by the UK Government.

[63] A company incorporated in 1989 formed by the Farmers.

[64]The Commissioner on Human Rights and Public Administration/Integrity & Another vs Umbane Limited and 2 Others (902/2011) [2017] SZHC 211 (4 April 2017)

[65] Available at Amnesty International (accessed on May 11, 2018).

[66] As above.

[67] Established in terms of section 163 of the Constitution. Section 163: “(1) There shall be established within a year of the first meeting of Parliament after the commencement of this Constitution, a Commission on Human Rights and Public Administration in this Chapter referred to as ‘the Commission’.”

[68] Act No.1 of 2005, came into force in February 2006.

[69] See BA Dube and AS Magagula, n4 above.

[70] Section 140(1) provides that judicial powers shall only be vested in the judiciary.

[71] 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.

[72] Telephone interview with Mgiva Dlamini, a former resident and evictee of farm 10/69, February 2008.

[73] Tsabedze & Ors v. Swaziland Provident Fund and Ors, (26/11) [2011] SZSC 30 (Nov. 30, 2011), (copy and paste the URL into the browser).

[74] LegalBrief.

[75] [2014] SZHC 179

[76] Dube A. and Nhlabatsi S., The King can do no wrong: The impact of The Law Society of Swaziland v Simelane N.O. and Others [2014] SZHC 179 on constitutionalism, African Human Rights Law Journal 2016 (Forthcoming)

[77] Hadebe Case, para 82.

[78] Commission of Police and Another v. Maseko, Civil Case No.1778/2009, [2009] SZHC 66 (January 17, 2011) (Unreported).

[79] Commissioner of Police and Another v Maseko, Civil Appeal Case No.03/2011, [2011] SZSC 15 (May 31, 2011).

[80] African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (accessed on May 13, 2018).

[81] Available at SA History (accessed on 13 May 2018).

[82] Available at: O’Malley (accessed on 13 May 2018).

[83] Available at Polity (accessed on May 13, 2018).

[84] Available on News24 (accessed on 13 May 2018).

[85] No provision of this section may impede the state from taking legislative and other measures to achieve land, water, and related reform, in order to redress the results Chapter 2: Bill of Rights 11 of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

[86] Section 36: “(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, considering all relevant factors, including — (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.”

[87] Section 26(3) of the Constitution of the Republic of South Africa

[88] Truter M., Evictions – a sad reality in South Africa (accessed on 13 May 2018).

[89] As above.

[90] As above.

[91] (WCC) (unreported case no 13700/14, 14-12-2015).

[92] Maregele BCourt stops City from evicting Newcastle residents’(accessed on 13May 2018).

[93] (CCT 22/08) [2009] ZACC 16; 2009 (9) BCLR 847 (CC); 2010 (3) SA 454 (CC) (10 June 2009).

[94] 2004 (12) BCLR 1268 (CC).

[95] Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC).

[96] Available at ESCR (Accessed on May 13, 2018)

[97] 2017 ZACC 18.

[98] Fischer and Another v Ramahlele and Others (203/2014) [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA 395 (SCA) (4 June 2014)

[99] This explains the laxity in human rights protection under the OAU, particularly minority rights and the forceful eviction of people.

[100] Set up under article 30 of the African Charter on Human and Peoples’ Rights, adopted 27 June 1981.

[101] 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.

[102] Set up under article 32 of the African Charter on the Rights and Welfare of the Child.

[103] Botswana, Ghana and Eswatini are all parties to the African Charter.

[104] Through OAU Doc. CAB/LEG/67/3 REV. 5, 21 ILM 58 (1982).

[105] Article 2 of the African Charter.

[106] Article 19.

[107] See articles 60 and 61 of the Charter.

[108] Resolution on the right to adequate housing and protection from forced evictions, ACHPR/Res. 231 (LII), 52nd ordinary session of the African Commission on Human and People’s Rights held from October 9-12, 2012, in Yamoussoukro, Ivory Coast (accessed February 2023).

[109] For a detailed discussion of the curtailed powers of the Eswatini NHRI, see the article referred to in n4 above.

[110] Available at UN (accessed on 13 May 2018).

[111] As above.

[112] 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, (accessed 13 May 2018).

[113] 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.

[114] Art 2 of the Universal Declaration on Human Rights, art. 2(2) of the Convention on Economic Social and Cultural


[115] 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.

[116] See B.A. 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. (Accessed on May 13, 2018).

[117] Entered into force in 1999.

[118] Art 13.

[119] (2003) AHRLR 96 ACHPR 2003

[120] BA Dube, n65 above.

[121] Para 83.

[122] Para 81.

[123] Para 84.

[124] See the Constitutions of Lesotho (section 26), Eswatini (section 60).

[125] 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.

[126] 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.

[127] 1937.

[128] Central Statistical Office Population and Housing Survey (2007) 1. See also the Central Statistical Office (CSO) [Eswatini], and Macro International Inc Eswatini Demographic and Health Survey 2006-2007 (2008)

[129] Government of Eswatini: Central Statistics Office (CSO) 2007 Population and housing census: Fertility, nuptiality, disability & mortality (2010)

[130] Sections 21 to 27 of the 2018 Persons with Disability Act.

[131] Secs 30 and 31 of the Persons with Disability Act.

[132] Secs 32 and 33 of the Persons with Disability Act

[133] Article 1 of the Convention on the Rights of Persons with Disabilities: “The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”

[134] A person of whatever gender, race, place of origin, political opinion, colour, religion, creed, age, or disability shall be entitled to the fundamental 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.

[135] Parliament shall enact laws for the protection of persons with disabilities to enable those persons to enjoy productive and fulfilling lives.

[136] See the United Nations Treaty Collection Website – Chapter IV (accessed May 13, 2018).

[137] Available at Times (Accessed on May 13, 2018)

[138] See in this regard section 26, Lesotho Constitution.

[139] BA Dube, n65 above.

[140] 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.

[141] Art 6(5).

[142] Zurayda Mayet, Disability Law in Lesotho, Kleingeld & Mayet Co., as archived by the Internet Archives on August 10, 2022 (accessed February 2023).

[143] Section 21(1).

[144] Section 21(3).

[145] 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)

[146] Acceded on 10 April 1992.

[147] Ratified on 14 February 1990.

[148] Ratified on 2 March 1990.

[149] 1963 (as Amended in 1999).

[150] 19 March 2008.

[151] Acceded on 28 February 1995.

[152] Ratified on 30 July 1992.

[153] Ratified on 26 September 1990.

[154] 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.

[155] Section 29(1) of the Ghana Constitution.

[156] Sections 29(5) and (6).

[157] Civil society began using the Act immediately, with Commonwealth Human Rights Initiative publishing a simplified version of the Act in easy-to-read language.

[158] BA Dube, n5 above page.