Help. Seriously, help.
Constitutional law nuts, human rights specialists, property law experts, and especially you devil’s advocates, I need you.
I have till Monday morning to identify, research, prepare and turn into an Amicus brief the legal argument that will save 80 families from eviction and establish a broad constitutional limitation on the power of governments and private landowners to evict residents. The Swaziland Constitution was passed in 2005, and most of its provisions have never been litigated. It contains a Bill of Rights which is mostly comparative to South Africa’s but also includes some completely different language – which, once again, has never been litigated. In constitutional law terms, we are in green fields.
Background to the Case
Swaziland has a monstrously complicated system of land title, where a kind of Torrens system of title by registration co-exists with what is called “Swazi National Land”.
Swazi National Land is land held by the King on trust for the nation. (Before you ask, no you cannot enforce this trust – I wish.) The King’s representatives in each region, the Chiefs, permit Swazis to build homes on the local land and to live there, in exchange for engaging in a practice called kukhonta, which involves giving a beast to the Chief.
The 80 families in this case approached the Chief of a rural area close to Manzini. The Chief told them that a section of land in that area was Swazi National Land and gave them permission to settle there. They all khontaed and built homesteads.
Some of the 80 families have been living at the farm since 1998, and almost all of them have been living there for eight years or more. Many of their 140 children were born at the site.
Procedural History
Drama struck in 2004, when the Swaziland Provident National Fund (SNPF) wrote to the Residents and advised them that SNPF was in fact the registered owner of the land. SNPF directed them to vacate the land. (SNPF is a statutorily constituted corporation charged with protecting Swazi super.)
The Residents tried to negotiate with SNPF and offered to purchase the land, but these negotiations were unsuccessful. SNPF, as registered owner of the land, was granted a court order to evict. This order was stayed when the Residents sought to apply for relief via the parallel dispute resolution system in Swaziland, via the traditional council of the King. The King’s eventual judgment was that the Residents should “go and speak to the landowner”.
The landowner, SNPF, applied to the Court for another order for eviction. The Residents cross-applied for a stay of the order pending an Impact Assessment Report by the Deputy Prime Minister’s office of the impact of the eviction on their children. They argue that eviction during the school year will prevent the children from accessing education, and that this constitutes inhuman or degrading treatment (I do not think this is a strong argument).
Most Swazis have extensive family networks, and if they were evicted from a residency in, say, Mbabane, they could return to their family homestead in Siteki and live with parents, siblings, cousins etc.
Many of the Swazis living at Farm do not have these networks. Illegitimate children are usually raised by the mother, but if the mother later marries, she will usually leave the child behind to be raised by a relative. The child does not truly ‘belong’ to the family, and will generally have no support network should he or she be in trouble in later life.
Many others of the Residents who would not be homeless because they could return to rural family homesteads would be unable to continue their child’s schooling at the current school due to distance. They would also frequently be living with 10+ people in just 2 or 3 rooms.
Our involvement
The Residents approached Save The Children asking us to intervene, and also asking us to provide the Impact Assessment Report, as the Swazi High Court declined to order the Deputy Prime Minister’s office to do so.
I’ve been meeting with their leaders and getting them to take a survey back to the Residents about their living situation and their children’s schooling should they be evicted. They have today brought back the final results, and now I am trying to prepare a report based on that data. Today, they also brought with them two residents of a neighbouring farm, who are having the same problem. They’re in court on Monday, so I have to prepare their report for then.
Why these eviction cases are significant
It’s heart-wrenching to speak with people about the possibility of their homes being demolished before their eyes. Many of these people were never acknowledged by their fathers, were abandoned by their mothers and raised as second-class citizens within relatives’ homes. They have never till now had a home at all. It’s also so senseless in such a poor country to permit a quasi-state body charged with looking after the welfare of the people to demolish homes – for what? SNPF has said something vague about a “development project”, but the land settled is 1/5 of the total farm and it is 8km from the town – the chances of there really being a big development project that requires this particular scrap of land are very slim. On the other hand, it may be that SNPF wants to gentrify the area into a satellite suburb of Manzini, which I concede is possible.*
* I have mixed feelings about that – on the one hand, making Manzini an attractive place to do business is a good thing for Swaziland’s economy, on the other hand, I am sceptical of the “rising tide lifts all boats” theory when applied to this country. Wealth seems to filter down to a certain point and then stop.
The thing is, these evictions are a nation-wide issue, ever increasing as more and more Swazi National Land is being sold off (rather quietly and perhaps corruptly…)
Many people are building their homes on what is now title land because the local Chief assures them that it’s Swazi National Land. Sometimes the Chief is fraudulent and just wants his beasts (see above, khonta), but other times the Chief himself will be surprised to learn that the Swazi National Land has (at law) disappeared from under him.
More than this, there have been incidents in Swaziland where entire villages of people have been forcibly moved off Swazi National Land so that it can be sold, or because it already has been sold and the government/monarchy can’t get the purchase price till they pass over control.
In this kind of political situation, I appreciate that there can be a lot of scepticism about whether a legal argument is worth the paper. I really do believe that it is. More importantly for my course of action during my time here, I believe that it is better to waste time and not succeed than to do nothing and make certain of it. But I really do think we’re in a position to establish a normative yardstick to shape responses to these kinds of situations.
Amicus intervention
We’re likely to make an amicus intervention into these cases.
I’d produce our report of the impact of an eviction on the families and children, and then I would argue that this violates the following sections of the Bill of Rights:
- 14(1)(c): right to privacy
- 20(2): right to equality (discriminatory impact of eviction on single parents and illegitimate parents)
- 27: rights of the family, and rights of motherhood and childhood
- 29: rights of the child
An unusual feature of Swaziland’s Constitution is that it seems to bind non-state actors with human rights obligations as well. Section 14(2) of the Swazi Constitution provides that:
“The fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, the Legislature and the Judiciary and other organs or agencies of Government and, where applicable to them, by all natural and legal persons in Swaziland, and shall be enforceable by the courts as provided in this Constitution.”
This seems to confirm that, where it is expressly stated, certain rights will bind private persons. These obligations must have some kind of legal content, since they are obligations that “shall be enforceable by the courts”.
So which Bill of Rights provisions bind private persons?
Would you believe it, sections providing for protection of the family. Sections 27(4) and (5) state:
- 27(4) Motherhood and childhood are entitled to special care and assistance by society and the State.
- 27(5) Society and the State have the duty to preserve and sustain the harmonious development, cohesion and respect for the family and family values.
So what kind of obligation is imposed?
We would be thrown out of court if we claimed that section 27 means that freedom of contract or the right to enjoy property rights are done away with entirely in circumstances whenever women, children and family values might be affected.
I have four possible approaches to this problem.
Where I need your help is in (1) helping me decide which approach is best, (2) helping me identify weaknesses in these approaches and determine whether the weaknesses can be fixed or if they scupper the argument, and (3) suggesting any additional ways of addressing this issue.* Also (4), raising practical/commercial concerns with trying to stop evictions.
*(Before any of you equity lawyers raise estoppel against the Chief, I think we would run into problems pleading estoppel against the representative of the King. He’s got immunity, plus Swazi National Land seems to exist in a different legal system. I’m pretty sure our only avenue is to go after the administrative government.)
First approach – arguing that SNPF is a de facto “organ or agency” of the Government for the purpose of the Bill of Rights
On what basis might SNPF be considered and treated as a de facto organ or agency of the State?
First the usual stuff about substance-over-form, especially when it comes to human rights protections.
Second, the factors here:
- SNPF was established by an Order of the King in 1974;
- It is the only national provident fund in Swaziland and it enjoys a state-prescribed monopoly;
- Employers are statutorily obliged to contribute to SNPF on their employee’s behalf, and if they do not, they are subject to criminal penalties; and
- The Board is comprised of members appointed by the Minister, it reports to the Minister, and each Board member may at any time be replaced by the Minister.
(Australians will know that our High Court rejected this kind of approach to statutory corporations in NEAT, but Swaziland doesn’t need to care about that.)
If SNPF is a State actor, it is directly obliged to observe section 14(1)(c) (protection of the privacy of the home) and section 27(2) (protect children from cruel, inhuman or degrading treatment).
The appeal of this approach is that by treating SNPF the landowner as a state organ, we are avoiding having to lay down a rule permitting the divestment of property rights from private persons. That removes some of the difficulties currently posed in shaping a test for binding private persons with human rights obligations. We’d still need to apply a proportionality test for acceptable and unacceptable limitations on these rights, but there is plenty of African and international case law on how state actors should balance rights, it is much easier.
Second approach - arguing that the property rights of SNPF must be limited by the section 27 obligation of society to protect the family
What it does on the lid. The critical thing about this kind of argument is being able to come up with something that gives some semblance of commercial certainty – that establishes some kind of minimum line of conduct for landowners but doesn’t cut in to disrupt private property and contract unless a very high threshold has been met.
The first step seems to be to propose and substantiate (with both reasoning and comparative case law) some kind of test. I am thinking the standard of conduct could be “not unreasonably harsh or inhumane”. (Sorry to use the double negative; more elegant phrasing suggestions very welcome!)
Tentatively, “unreasonably harsh” could be determined by reference to all the circumstances, such as:
· the nature of the party being asked to refrain from exercising its rights (here, a quasi-state body);
· the nature and extent of the harm to human rights it will inflict if it exerts its rights, and
· whether there are reasonable alternatives available to the person being asked to refrain (in this case, such as permitting the residents to purchase the land, or permitting them to remain but pay rent, or delaying the eviction till the end of the school year).
This is essentially a “proportionality” test, but one that can be specially adapted to balancing the interests of private person against private person, rather than State aim or interest against private person.
…Okay.
Third approach – seek order that the State compulsorily acquire the property to avoid human rights abuses of the Residents
Section 19 of the Swaziland Constitution provides that all persons are entitled to enjoy property rights. However, section 19(2) permits compulsory acquisition by the State when (here is my argument):
- it is for the purpose of protecting public morality (read: moral interest in sanctity and welfare of the family);
- it is pursuant to a law of general application (here, pursuant to the rights enshrined in the Constitution); and
- it is pursuant to a court order with a right of appeal (we are seeking that court order now).
Section 27, by imposing obligations on society as well as the state to protect the family, weighs in as a discretionary factor in favour of the Court making that order against a member of society and also supports the argument that such a move would be in accordance with the content of ‘public morality’.
This approach thus transfers the obligation to protect the residents to the State, and the State becomes obliged to protect the residents by acquiring the land from SNPF compulsorily and returning it to the Crown for use as Swazi National Land, so that the residents may stay.
The State obligation to intervene would be sourced from the right of the residents to privacy and family life, the right to dignity and the avoidance of inhuman or degrading treatment (which I think is violated by eviction into homelessness or overcrowded squalor, and many courts around the world have agreed), and the rights of the family and child for protection.
Problems with this approach are that it would risk stifling development, as land held by private persons could be reclaimed by the State whenever illegal squatters might be harmed as a result. If this was the chosen avenue for argument, it would have to be couched in an incredibly careful way to avoid the spectre of sovereign risk over FDI, especially for FDI into activities involving use of land, like diamond mining.
Fourth and final approach
This approach is to give up on going after SNPF, and instead focus on the State’s obligation to prevent human rights abuses by assisting the residents in resettling on new land.
It doesn’t address the residents’ loss of their homes but at a minimum it does set a precedent for the obligations of the government when these situations occur.
*
So there we have it.
Ideas and comments, whether supportive, constructively critical, or even “what are you smoking?” - oh so welcome.
Feel free to comment below or to email me privately if you prefer. Thank you!
Wow.
ReplyDeleteI think that it is great you are taking charge of this and actually running with it. My views are not from a legal perspective, nor a developmental one, but of a policy perspective, so it may not necessarily be the best for this case, but I thought I'd share anyways.
As you said, it seems that it is common for people to settle on what they think is Swazi National Land but in fact is private land. I assume a situation like you are describing would happen not just when a public body wants use of the land, but also (or perhaps more so?) with private organisations.
So although I think the first approach of saying the SNPF is a public body is probably the strongest argument, and a clean argument that doesn't get into the difficult areas relating to private economic actors, I think the larger structural problem is in relation to private economic actors. Especially if governments sell of bits of Swazi National Land to private actors in dodgy deals etc.
I am not sure if this is too big of a burden to be placed on you and this case, but I think a test case like this is an opportunity to create disincentives for states and businesses to act in a way that makes lots of people homeless and result in negative human rights outcomes.
I think the primary burden should still be placed on the state, as this is probably more palatable for private organisations and it would be more effective in getting the State to stop doing dodgy land deals and not lie about what kind of land it is.
In relation to the proportionality test applied to the private sector, although I don't oppose placing obligations onto private actors, the test devised may be broad enough to discourage investment in and on private property. There are probably lots of land around right now that is unused, and so people squat on it and develop communities. They may also argue that the whole point of having Swazi National Land means that private land should not be so burdened with the obligation to provide people housing.
Ok, this probably doesn't help with your case, so I'll shush now and try and think of helpful comments.
Li, you are a glorious human being and your comments are stupendously helpful!
ReplyDeleteThe policy issues you raise are exactly the kinds of issues with which I'm grappling. I know that if I’m short-sighted and go for a narrower argument that only applies to this case, a chance to affect the broader structural problem is lost. The problem is that an approach to protecting human rights that doesn't bind private actors is inadequate, but an approach that does bind private actors isn’t conducive to investment…
One thing that has come to me since reading your comments and a few other people's messages, is that it may actually be better in a policy sense to run this case on lines of Argument One after all.
This is because Swazi National Land (SNL) isn’t actually owned by the Government (ie, the Executive or Parliament). From what I can make out (it's a weird mix of positive law and silent custom), Swazi National Land is administered on a local level by the chiefs, who are the "footstools" of the King in the provinces. However, much of the land delegated as SNL (and SNL is about 75% of Swaziland’s territory) is now administered by an entity called Tibiyo takaNgwane, which tends to do all the developments and big scale farming enterprises like sugar plantations. Tibiyo is owned by the monarchy, which in turn is supposed to hold the land and associated profits on trust for the nation. Tibiyo’s proceeds (which includes from Swaziland's only diamond mine) goes to the "Swazi Treasury", which means, it goes to the King. The entity is independent of Parliament, doesn't pay tax, and its account books and slush fund are not for public use.
(This opacity, by the way, is why what everyone thought was SNL can suddenly turn out to be private land without anyone being able to be certain either way, and why it's been pretty much impossible to stop mass evictions of people.)
The Tibiyo website has a self-serving blurb justifying its royal ownership(see here: http://ww2.tibiyo.com/home.asp?pid=9. (NB: "Ingwenyama" is the title for the King).
*
When it came to independence, the British wanted to know where mineral royalties should go, as in most systems such royalties would go to central government coffers to run the government machinery. King Sobhuza II felt, in his wisdom, that having started the Lifa Fund, such mineral royalties should vest in him.
This he did having regard to the expense attendant to very important customs and ceremonies such as the annual Incwala and Umhlanga ceremonies, with attendant escalating costs over time, and the people no longer able or willing to offer cattle or monies every year to fund these important traditional ceremonies.
King Sobhuza II felt that there should be an entity that should be a custodian of these very important and sacred activities of the Swazi Nation, and thus the organisation was created and called Tibiyo Taka Ngwane Fund. …
The British noted the idea but rather wondered how they could be confident that these monies would not end up in some Swiss Accounts. The idea of a fund akin to a trust whose assets would vest in the Ingwenyama as Trustee for the Swazi Nation was then conceived, and Tibiyo was born by Royal Charter as a legal body, to be a development agent and also a custodian of tradition and cultural activities.
By falling under the Ingwenyama in Trust for the Swazi Nation, Tibiyo is therefore not required to table her Financial Statements and Budget to Parliament as do Parastatals (Govt Corporations). These are instead presented to the Ingwenyama in person, who has to approve the same once advised.
*
Amazing, huh?
I wonder, if my original residents are battling SNPF, and their neighbours are battling Tibiyo, maybe the argument is that both those entities are de facto State organs or agencies, and bound by the Constitution. (Have I just turned this into a test case for whether His Majesty is bound by the Constitution and the rule of law?)
P.S. I have another new idea from today's public holiday endeavours (today is the day that Jesus ascended to heaven, apparently, so everyone but me has spent it in church).
ReplyDeleteI'm not sure if it's within the scope of an amicus intervention, but perhaps I could just run a simple argument that the residents settled on what they thought was Swazi National Land because the Chief held it out as Swazi National Land, and the Chief was himself held out by the King to be someone authorised to permit settlement. Consequently, the families should be entitled to the beneficial provisions of the Constitution providing compensation for the deprivation of use of Swazi National Land, just as if it really had been Swazi National Land... The compensation should be calculated as including the negative human rights implications.
I favour the third approach.
ReplyDeleteEveryone's real beef is with the Chief. No one else has done anything wrong.
The Chief stuffed everything up by representing that the land was Swazi National Land and that it was okay to settle there. He did so as the King's representative.
An order for compulsory acquisition would make good the Chief's representation and put everyone in the position they would have been in had the Chief's representation been true.
The squatters will have the use of the land and SNPF will have the value of the land in compensation (or possibly the value of the development).
There's a small possibility SNPF might even agree to that course.
It's not clear to me whether s 19(2) grants standing to private individuals to seek such an order - reading (b) and (c) together seems to imply that the acquisition must be made both "under a law" as well as "under a court order", and I am not sure how that would occur - but I know nothing about the law of Swaziland and I assume you are on top of that.
Having now read your other comments, two further points:
ReplyDelete1. My previous comment has to be read subject to your other comments about the ownership of SNL and whatever consequences flow from that.
2. I agree with your other compensation idea. I think an argument under s 211(3) would have prospects - all that section seems to require is a 'deprivation' of 'land' - and I don't see why, in circumstances where the King's representative induced the squatters to settle on the land, an order for eviction could not in principle involve the taking away of de facto land use rights. The value of the improvements made to the land and the loss of use of the land as a residence should both be recoverable.
Both of my suggestions are really just backdoor ways of running an estoppel argument and holding the state responsible for the squatters' loss, which I think is the answer to the problem.
So long as SNPF owns the land, and it affords procedural fairness and gives sufficient notice to the squatters, I do not think there is really any basis for resisting an order for eviction. The right to evict and exclude people from the land is a necessary incident of ownership. The exercise of the right might be governed by a need to have regard to certain interests but restraining the exercise of the right in all circumstances is tantamount to a divestiture of title.
Go for compensation.