Mbabane: In what would come as nothing but bad news to the ears of those regarded as farm dwellers, government has clearly come out and laid bare her intention to prevent passage of the Farm Dwellers Amendment Bill, 2019 into law.
With this intention, government is obviously hell-bent on depriving the citizenry’s right to housing through allowing the forced evictions of those residing in farms, referred to as farm dwellers. All what it means, the current government is in full support of forced evictions without compensation.
This is contained in the 43-page document which government has christened the Post Covid-19 Recovery Plan.
The bid to thwart the Bill is presented as one of the key strategies that will ensure the protection of private property rights. Protection of private property rights (Protecting Minority Investors) is one pillar in the World Bank Ease of Doing Business where Eswatini is poorly ranked and subsequently affect the inflow of greenfield investors into the country. Under the protection of minority investors, Eswatini ranks 138 out of 189 economies.
Government is of the view that without these key enabling mechanisms in place, Eswatini will continue to trail behind on its rankings on the Ease of Doing Business, and as a result, private sector investment will continue to be stifled.
According to the document, government’s key concerns on this Bill stem from its vagueness; obligation of the farm owner; procedure for the sale or purchase of a farm; and the relevant provision of the Eswatini Constitution.
Commentators hold the view that the contents of the Bill were contentious because they are not protecting farm owners’ rights over the immovable property. In simple terms, the Bill are taking away the right of the owner to decide what to do with the farm more especially if they have either legal or illegal squatters.
According to the Bill, farm owners who intend selling their farms could be legally obligated to give dwellers, Swazi Nation Land (SNL) chiefdoms or government first right to make an offer to purchase that farm through a fund.
It should, however, be noted that while preference could be given to dwellers, the dwellers or group of farm dwellers would also be expected to cooperate and move to an off-site development consequent to a final decision of a tribunal, court of law or the fund as guided by the fund regulations.
Under the section outlining procedure for the sale or purchase of a farm, it is stated that: “Where a farm is put up for sale, the owner will, in writing, give the farm dwellers residing in the farm the first right to purchase the portion upon which they reside.
“If two or more farm dwellers organise themselves into a group, they shall, in writing, be given by the farm owner the first right to purchase either their collective portions of land or the whole farm if they indicate their intention to purchase the whole farm in writing.”
The Bill also proposes that where more than five families who resided openly on a farm for more than five years had a desire to purchase the farm, the owner would have the duty to seriously consider the offer and respond within 30 days and provide cogent reasons for refusal to sell.
“Where a farm owner declines to sell a farm dweller or group of farm dwellers have the right to revive their offer to purchase once every twelve months, if the farm or portions they are interested in remain unsold,” read part of the amendments.
Responding to this intended move by government, the Human Rights Commission of Eswatini has come out guns blazing, saying : “The commission has always been of the opinion that whether the Farm Dwellers Amendment is passed into law or not it does not address the issue of land and land rights in the country.”
The commission further expressed its strong view that the Bill itself is not in line with the provisions of Section 96 of the Constitution which enjoins the State “takes appropriate steps to expeditiously address the land problem including the issue of land concessions so as to foster the socio-economic development of the nation.
Again, the commission is of the opinion that the Farm Dwellers Control Act of 1982 (and its proposed amendment) is heavily influenced by our colonial history and is fraught with countless challenges and does not adhere to the human rights standards and constitutional principles.
The commission stated that there are very few if any ‘dwellers’ in the sense of the word, if any in the country today. “The Commission notes that these are mostly indigenous emaSwati who have acquired land through the authority of chiefs’ i.e through the kukhonta system. Some have lived on the farms for period ranging from 10 – 80 years. Also, in some instances people have lived on the land for generations and consider the farmland as their ancestral home with their family graveyards on the farm. Furthermore, as a result of past racial discriminatory laws, most people living in farms are poor, do not have alternative land and cannot afford to build a home outside the farm due to their socio-economic status,” said the Commission.
The Commission went on to state that the farm Dwellers Control Act, as it stands perpetuates inhumane treatment and poor living conditions for persons residing in farms by embedding the denial of basic services such as access to water, sanitation, roads, schools, health and electricity which are given at the discretion of the farm owner. “In addition, through the implementation of the Act, many people have been evicted from their homes and pushed into poor living conditions including job losses and homelessness,” the Commission said.
Furthermore, the Commission has observed that the country has been slow to develop the relevant laws and policies to prevent forced evictions and ensure the security of tenure for people residing in farms, which in itself has hampered the economic development of the nation.
The Commission pointed to the fact that this has a negative impact in the adherence of the SDGs and the attainment of vision 2022 as a polity. It was highlighted by the Commission that for an economy to recover effectively, there is a need to look into the land tenure system of the country as a whole as per the constitutional dictates and any action should put the people first; people should be at the centre stage of any decision making.
In this regard, the Commission recommends for a comprehensive overhaul of the legal framework as opposed to a piecemeal approach, adding that the exercise should aim to ensure compliance with the Constitution and international human rights standards on land and housing rights.
“In particular, the Commission notes that the existing laws on land have not incorporated the relevant constitutional provisions and do not recognize the institutions which have been set up by the Constitution to deal with land,” said the Commission.
Additionally, the Commission stated that it is unfortunate that although the stand to oppose the amendment has been taken, there is no alternative solution to deal with the plight of the people who find themselves in this predicament. “Much against the fact that Swazi Law and Custom has (which permits khonta system) is recognized as law according Section 252 of the Constitution.”
The Commission reiterated its stance, saying: “The Bill maybe opposed, but then government and Parliament is encouraged to come with a lasting and systematic solution to deal with the issue and to adhere to the constitutional dictates. Section 59(6) of the Constitution provides that the State shall endeavour to settle the “land issue” and the issue of land concessions expeditiously so as to enhance economic development and the unity of emaSwati.”
In Eswatini, communities continue to be at risk of forced evictions. Around 85 families in at least two communities faced imminent evictions without being provided with alternative housing or adequate compensation.
Although the Constitution prohibited arbitrary deprivation of property without compensation, in practice the lack of legal security of tenure left people vulnerable to forced evictions. In a judgment in April 2018, a High Court ruled that the constitutional provision of compensation to evicted residents was limited to evictions carried out by the state; residents affected by forced evictions carried out by private actors were excluded from access to certain remedies.
In Madonsa in the Manzini region, at least 58 families were at risk of imminent eviction after the Swazi (Eswatini) National Provident Fund (SNPF), a government parastatal, claimed ownership of the land on which they resided. After a protracted seven-year legal process, the High Court ordered in 2011 that the families be evicted without compensation or alternative accommodation. They remained on the land to date.
In Mbondzela, in the Shiselweni region, 27 families threatened with eviction began proceedings against a private company which sought to appropriate their land for the development of a game park. On 19 October, 2018, the Central Farm Dwellers Tribunal dismissed their case and allowed the eviction, ruling that the private company should provide the residents with building material to construct homes elsewhere.
On 9 April 2018, at least 61 people in the Emphetseni farming area in the Malkerns town were forcibly evicted by the Deputy Sheriff of the Mbabane High Court along with 20 armed police and bulldozers and in the presence of members of private company Umbane Limited. Those removed from their land included 33 children and comprised three generations living in four homesteads. Their homes were then demolished.
Each homestead consisted of a single mother, some of whom had short-term seasonal contract jobs. The families were subsistence farmers. People in each homestead said that they had been living on the land since 1956. According to the affected families, at least 40 graves of family members are situated on the homesteads.
In 2014 at Nokwane (situated some 15km east of Manzini town, in the Manzini region in the centre-west of Eswatini) at least 19 homesteads were demolished, impacting at least 180 people between September and October 2014.
Once known for its pineapple plantations, Nokwane is today a 159 hectares construction site of the Royal Science and Technology Park (RSTP), a government-led development initiative, inaugurated in April 2018. The Ministry of Information, Communication and Technology (MICT) secured a court order for eviction, and the area’s residents were then forcibly evicted by a delegation including MICT government officials and the police.
In 2018, Amnesty International, a global movement of more than 7 million people over 150 countries and territories who campaign to end abuses of human rights came to Eswatini where it wanted to have a clear picture of the reported evictions in the country.
In both the Nokwane and Malkerns cases, some of the families claimed to have been allocated the land by a chief through the process of kukhonta, and others said that they had a verbal agreement with a previous owner of the land to live there. In both cases, the residents went through a protracted court process, which ultimately ended in their evictions and the demolition of their homes as they were unable to provide any formal proof of security of tenure.
International human rights standards are unequivocal: protection from forced evictions is available to all, even to those without a legally recognized right to the house or land that they occupy. Further, the UN Committee on Economic, Social and Cultural Rights in its General Comment 7 stresses that even when an eviction is considered justified, “it should be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with the general principles of reasonableness and proportionality”.
According to international human rights law as outlined in General Comment 7, the threshold for lawful evictions includes seven elements: genuine consultation; adequate and reasonable notice; information on the proposed eviction; government officials to be present during evictions; evictions not to take place in bad weather or during the night; provision of legal remedies; and provision of legal aid. The Committee also emphasizes in General Comment 7 that no one should be rendered homeless or vulnerable to other human rights violations as a result of an eviction. By then, Amnesty International made recommendations which included that:
• The Prime Minister to declare a nationwide moratorium on all evictions until adequate legal and procedural safeguards are in place to ensure that all evictions comply with international and regional human rights standards. This should include a public announcement and immediate measures that the government should take to ensure that those under threat of eviction are protected.
• The Prime Minister to immediately provide reparations for forcibly evicted families in the Malkerns and Nokwane. Such reparation should include adequate alternative housing for those rendered homeless, rehabilitation, compensation for all losses and guarantees of non-repetition.
• Immediately after national elections the Attorney General to begin the process of drafting legislation which explicitly prohibits forced evictions in all circumstances and sets out safeguards that must be strictly followed before any eviction is carried out. This law should be in strict compliance with Eswatini’s Constitution and international and regional human rights law and standards, including in respect of the provision of effective remedies. Linked to this process, the Attorney General should expedite the finalization of the land policy and bill and ensure they are compatible with international human rights obligations arising from the right to adequate housing.