Human Rights versus Animal Welfare.

Analysis of killings by game rangers

The intention of this article is to gain familiarity with the fundamental concept of human rights in contradistinction to animal welfare. This will be attained by reviewing the Constitution of the Kingdom of Swaziland Act, 2005 especially chapter three which deals with human rights protection. In the process I will strive to demonstrate that the provisions of the Game Act of 1992 which give impunity to game rangers for human rights violations caused to suspected poachers violates the bill of rights. Essentially all laws that hamper the enjoyment of fundamental rights as enshrined in the Constitution should be abolished or amended to comply with the supreme law of the land.

The Constitution seeks to re-order and improve human interaction and the environment by ensuring that people are able to enjoy their basic human rights. Our Constitution does not have a provision on environmental rights hence animal welfare should not override human rights. The rights to life and dignity are the most important of all human rights and the source of all the other personal rights, thus the state has a duty to ensure their full realization. According to section 15(1) of the Constitution, a person shall not be deprived of life intentionally except in the execution of a sentence of a court in respect of a criminal offence under the laws of Swaziland of which that person has been convicted. The Constitution goes on to state that the death penalty shall not be mandatory. These provisions clearly demonstrate the extent to which extrajudicial killings are condemned by the Constitution, as the taking of human life is only permitted under exceptional circumstances which involve the justice system. However, the Constitution goes on to provide other circumstances under which the right to life can be taken, amongst of which is self defence.

Self Defence.

As a rule, our law does not support community justice, vigilantism or self- help, requiring rather that citizens resort to the law.  However, it is recognised that there are circumstances when an individual has to gain necessary and/or immediate redress that will not be achieved by waiting for the law to intervene.  In such circumstances, the law permits the individual a right to resort to self-defence (Jonathan Burchel on Principles of Criminal Law; 2005). This is where section 23(3) of the Game Act which provides immunity for game rangers come to play. The provision guarantees the safety of game rangers in protecting themselves against any unlawful attacks from poachers. However this does not give them a general licence to kill suspected poachers as we have seen in the past. In our criminal law, self defence is treated as a ground for justifying an otherwise unlawful act (e.g murder). Thus, when self-defence is raised in evidence, the accused person is, in fact, seeking to negate the element of unlawfulness from his/her conduct by claiming that his/her action, despite meeting the definitional elements of the crime, is nevertheless justified and, consequently, not unlawful.

The process of proving whether the act is justifiable in law should be done by the courts which are the ultimate interpreters and enforcers of the fundamental freedoms that are enshrined in the Constitution. Therefore, the impunity that is enjoyed by game rangers is not only unconstitutional but also offends the basic principles of justice and fairness. The law sets a threshold that must be met by a person seeking to apply self defence to justify his/her unlawful action. For instance, it must be proved that the defence was necessary to protect the interest threatened, and there must be a relationship between the attack and the defensive act. 

This implies that for the game ranger, shooting to kill must be the only available remedy to defend his/her life and that of the wild animals under attack. In fact, self-defence requires that a person should rather flee than kill his assailant where he can save himself by flight, however, no one is expected to take flight to avoid an attack where flight would not afford him a safe way of escape (Shiba v. Rex 1977-1978 SLR 16). Furthermore, the law requires that the retaliation be proportionate or rather the method used to avert the attack must be reasonable under the circumstances and if excessive force is used, the plea of self defence fails. Therefore, it suffices to say that shooting to kill is not sensible to protect wild life since there are always other available alternatives to track down suspected poachers especially when they are using vehicles to escape. In fact even police officers fire warning shots in the air before shooting at suspects,  this should be the same approach with game rangers.

In line with the United Nations Universal Periodic Review recommendations on Swaziland’s human rights status, the country must amend the Game Act to comply with section 15 of the Constitution protecting the right to life. This will help in ensuring the rule of law and provide means to protect the rights under threat. Since Swaziland is party to the International Covenant on Civil and Political Rights (acceded to on 26 March 2004) and the African Charter on human and Peoples’ Rights (ratified 15 September 1995), the state is obliged to investigate and prosecute game rangers who exceed the permissible confines of self defence. Additionally efforts must be made to rejuvenate the co-existence of wildlife and human beings in order to create a more self-sustainable environment. This can be achieved if the Swaziland National Trust Commission can intensify its efforts to implement a policy that will ensure the participation of the communities neighbouring game parks in order to protect wild life. Studies indicate that a high level of community participation in nature conservation has a positive impact in reducing the rate of poaching. For example, in Zambia as a result of a national policy of wildlife management called the Administrative Management Design (ADMADE) in a three-year period, poaching of elephants declined by over 90 percent in one wildlife area where local participation was actively promoted. 

Furthermore, the communities must be assisted to establish projects that will enable them to have alternative protein sources other than game (i.e. introduction of fish farming, more intensive farming of plant protein species, etc.) Furthermore, game parks must allot a sustainable quota of animals to the local communities for food purposes, and employ the community members to guard the game and further assist them to establish strong community policing mechanisms. Ultimately the communities will have a sense of ownership and work together to protect the wildlife in their communities. Since animals do not have rights in the way that humans do, we should recognize that animals can be used for reasonable purposes, but should not be abused. Hence in protecting wildlife, the rights of human beings should not be relegated.

CELEBRATING THE SWAZI CHILD

CELEBRATING THE #SWAZI CHILD

The 16^th of June marks an important day for children in Africa. Countries celebrate the African child by commemorating the courage of the youths of South Africa that lost their lives in the streets of Soweto in 1976. In a march more than half a mile long, they protested the inferior quality of their education and demanded their right to be taught in their own language. Hundreds of young boys and girls were shot down by security forces. In the two weeks of protest that followed, more than a hundred people were killed and more than a thousand were injured. To honour the memory of those killed and the courage of all those who marched, the Day of the African Child has been celebrated on 16 June every year since 1991, when it was first initiated by the Organization of African Unity (now the African Union).

The theme for this year's event is Eliminating Harmful Social and Cultural Practices Affecting Children: Our Collective Responsibility. I’m very much inspired by the last part of the theme which charges the nation with the collective responsibility of protecting children. The idea of collectivity is embedded in the African and Swazi way of life through the concept of buntfu or the respect for the humanity of every human being. The day of the African child comes at a time when the lives of some of our children are threatened. I refer to the children who are victims of the impending evictions at Malkerns, Madonsa and KaShali. I must point however that there is nothing sinister about the recent Supreme Court judgment where the eviction of four homesteads was ordered.

I must emphasize that the government has done well in formulating laws and policies to protect children. These include the promulgation of the Child Welfare Protection Act, the provision of free primary education and the establishment of child friendly court systems. Despite the significant progress that has been made in addressing the rights and needs of children, including the progressive legislative frameworks and programmes that have been put in place, Swazi children are still faced with formidable challenges. 

This I say because notwithstanding the country being signatory to the Convention on the Rights of the Child(CRC-ratified 7 September 1995)  which obliges states parties to ensure that in every transaction involving children, the best interest of the child take precedence, children threatened with evictions continue to be neglected. This principle (best interest of the child) must be integrated in all legislative frameworks, programmes, projects, services and decision-making processes affecting children. Therefore in matters of evictions, the best interest of the child should be considered and such children must be treated with dignity and protection. Evictions are not only a threat to the education and social development of children but also pose a danger to the lives of such children. The traumatic experiences that the children go through has a potential to destroy them for the rest of their lives, hence the need for intervention cannot be overemphasized. These children also stand the risk of losing their education as they would have to relocate with their parents at times to places remote from their schools as a consequence of the evictions. Furthermore the risks of sexual violence and child trafficking are more likely for such children as they become more vulnerable in the transition stage where their parents go through depression. The CRC and the Constitution protects children against any form of discrimination in the application and the enjoyment of their basic freedoms hence the state should provide equal protection to children threatened with evictions.

As the country celebrates the day of the Swazi child it is necessary to take positive action towards ensuring that children threatened with evictions are protected. Accordingly, government should ensure that eviction judgments are not executed in a way that will have a negative impact on children and formulate land reform policies that will foster equal access to land by all citizens. The land question has been avoided far too long amid the rampant evictions that are taking place in the country.  One of the reasons could be that perhaps the majority of Swazis who are living on communal land (Swazi Nation Land) believe they are safe from eviction as they are protected by chiefs. However, the rise of chieftaincy disputes and concealed demarcations could result to many Swazis facing evictions and the lives of many children will be put at risk as a consequence. Hence the eradication of harmful social practices for the development of children cannot be isolated from the broader national development plan that would be achieved through the collaboration of grassroots structures (including families) and the government. The realisation of children’s rights is not only fundamental for their development and well-being; it is also pivotal to creating a world of peace, equity, security, freedom, respect for the environment and shared responsibility. Umntfwana ngumliba loya embili – children are the future and the vehicle to development therefore we have the collective responsibility to protect them.

 Human Rights are #Swazi

This article was published by the Swazi Observer on 13 June 2013.

African cultures have rightfully been criticised for not respecting fundamental rights especially the rights of women, mostly because of harmful practices which negate gender equality. Many campaigns have been launched against these practices and laws have been passed to ensure that women enjoy the same rights as their male counterparts. Having discussed the key provisions of the preamble in the previous article, it is necessary to examine constitutional provisions that secure Swazi cultural practices and norms which promote human rights. The ultimate aim for this discussion is to identify the good cultural norms that can be promoted for human rights protection and national development. Culture can be understood to be the foundation of society; integrating the values, customs and characteristics of a people, and promoting interaction and dialogue amongst people is necessary. This is the reason in Swazi culture we have the saying that goes; ‘injobo itfungelwa ebandla’ (issues are better resolved through consultation and people involvement). Within this value of consultation or public participation there is the essence of the respect for the worth of every human being in society, hence it is encouraged for leaders to involve their communities in the decision-making processes.

Swazi customary law is entrenched in the Constitution as one of the laws in force in Swaziland although it is subjected to the provisions of the Constitution (section 252(2). This therefore means that customary law is recognized but its application is limited by its consistency with the Constitution. The Constitution further subjects customary law to other laws, natural justice, morality and humanity. It is necessary therefore to identify the cultural values that comply with the Constitution and use them to promote fundamental freedoms. For instance the principle of humanity is embedded in the Swazi way of life through the spirit of buntfu(humanity) which stems from the idiom that a person exists in unity with other people (umunftu ngumuntfu ngebantfu). The spirit of humanity acknowledges both the right and responsibilities of every citizen in promoting individual and societal wellbeing. This concept is about the individual being so rooted in the community that your personal identity is defined by what you give to the community. A person with buntfu is open and available to others, affirms and respects others, does not feel threatened by others’ strengths or abilities, because he or she recognises that we all belong to a greater whole.

The erosion of the spirit of bunftu and moral degradation has led to the many human rights violations that we see almost every day. Domestic violence, child abuse, harassment, property grabbing, ritual murders have become a norm as a consequence. Swazis of the past used to respect the country and its people; live liyengcayelwa is the essence of respect for the people, land and the environment. With this kind of respect people would treat each other in a spirit of brother/sisterhood knowing that if you harm your fellow human being you harm yourself. This approach can also be adopted to solve the many social ills we experience today. The society of Swaziland (especially the older generation) must revive the good cultural values that define the true Swazi way of life. Those in leadership (from community level to national government) must formulate and implement moral regeneration programmes that seek to counteract the social ills faced by our societies.  These very cultural norms can be used to send the right messages that build and unite society instead of creating division among people. If children are indeed the future (umnftwana ngumliba loya embili) they should be trained the right way and not be used as instruments to promote division and hatred in society. Live linye ngetjani; the strength of a nation is derived from its diversity in opinions and experiences hence the respect for freedom of expression, opinion, assembly and association. It is necessary to blend the good institutions of traditional law and custom with those of an open and democratic society in order to promote development (paragraph 5 preamble of the Constitution). Thus traditional practices like those regulating the land tenure system under communal land (kukhonta) can be merged with the right to property and equality as enshrined in the Constitution (sections 19 and 20 respectively). Government must undertake research to establish the number of people who do not have access to land and work together with traditional leaders to ensure that such people are assisted at a low cost to obtain land to build their households. This will reduce the alarming rate of evictions and demolitions as well as guarantee the well being of the people. Therefore, culture should serve the great cause of holding the Swazi people together and strengthening their unity in diversity: whether within families, public life, communities or organisations. As the election process advances it is imperative for the people of Swaziland to rejuvenate the fundamental values that promote a sense of community and be wary of people who rush to serve the king without having done any service to their chiefdoms because it is through selflessness that a nation can prosper. Therefore cultural norms and values should help the nation to make a sense of itself in order to assert its roots, reflect on its troubles and forge a better, safer and prosperous way forward through a shared vision.

Food for votes poisons democracy and violates human rights.

CONSTITUTIONALLY SPEAKING

This article was published by the Swazi Observer on May 30 page 11.

Food for votes poisons democracy and violates human rights.

It is an honour to have this space to share ideas and provoke discussions among my fellow citizens on matters affecting our everyday life with the understanding of our Constitution. Our Constitution may not be the best in the world but it does aspire to meet some of the internationally recognized standards. For example, the Constitution in chapter 3 provides a comprehensive bill of rights protecting among others, freedom of thought and expression – which I seek to exercise in this column. These rights are further emphasized in many other provisions, including the right to vote, found in section 85 of the Constitution. Swaziland’s Constitution, like many others all over the world, declares and guarantees the right to life, liberty, free speech, free thinking, association, and dignity. As we move into the elections mode, it is important for us to be fully armed with the necessary knowledge in order to exercise our right to vote, knowing that elections are not the end but the beginning of a long journey to self governance.

Since our Constitution is similar to those in other countries, both internationally and regionally, why is it that we are not able to meaningfully enjoy the bill of rights? Some of our neighbours are able to freely express themselves (in both speech and art); many are more free to question and to be questioned; meet and discuss issues; elect and recall leaders. Does this mean that there is something wrong with our Constitution?

In an attempt to deal with this question one is reminded of Burmese democracy activsit Aung San Suu Kyi, a Nobel Peace Prize Winner and longtime prisoner of conscience, who said: “Within a system which denies the existence of basic human rights, fear tends to be the order of the day. Fear of imprisonment, fear of torture, fear of death, fear of losing friends, family, property or means of livelihood, fear of poverty, fear of isolation, fear of failure. A most insidious form of fear is that which masquerades as common sense or even wisdom, condemning as foolish, reckless, insignificant or futile the small, daily acts of courage which help to preserve man's self-respect and inherent human dignity.”

She continues, “It is not easy for a people conditioned by fear under the iron rule of the principle that might is right to free themselves from the enervating miasma of fear. Yet even under the most crushing state machinery courage rises up again and again, for fear is not the natural state of civilized man.” 

It becomes clear, therefore, that fear is the greatest enemy of human rights. In the past weekend the African Union celebrated its 50^th Anniversary with one clear message: “One Africa for Prosperity and Peace”. This theme was complemented by other messages, freedom and liberation from colonial powers to name two. We might have fought and received liberation as Africans to be independent and govern ourselves but the bigger picture is the full attainment of individual freedom to enjoy the fundamental rights as enshrined in our Constitutions. For Swaziland it has been 45 years since independence and almost eight years after the adoption of the Constitution.

Does independence of the nation, achieved in 1968, also mean independence and freedom for the individual? Have we taken steps as a country and as Swazi citizens to realise our individual freedom? It’s from this point – individual autonomy – that a stronger, more unifeid country can be built.  

From my experince of working with Swazi communities, we have a way to go before we reach individual liberation. Many people confuse human rights with favours from government. Some believe that kindness from government or other individuals is akin to the protection of human rights. 

This perception exacerbates the many human rights violations being commited every day. Newspapers report stories of ministers, MPs and powerful individuals who use the name of poverty as a stepping stone to enter parliament.

It is clear that behind this kindness is a wish to be elected to parliament and possibly, the thought of enriching oneself ahead of the consituuceny.

The Elections and Boundaries Commission (EBC) is franticically attempting to caution Swazis, especially law-abiding citizens without much power, to refrain from influencing people to vote for them before the actual campaigning period begins. However we cannot blame the EBC, nor the law breakers for this – it is a true reflection of our society.

It is government’s job to provide for basic welfare needs, such as maintenance of the elderly and other underprivileged groups in society; not to supoort – directly or otherwise – law breakers who pose as good samaritans.

People have a right to adequate standard of living, including the right to enough food, as protected by Article 11 of the International Covenant on Economic Social and Cultural Rights which Swaziland acceded in 2004. Therefore, whether people buy votes with food or money, they do not take away the obligation of the government because poverty and hunger will remain even after elections if the electorate does not have ideas that will influence the positive implementation of the national poverty reduction strategy.

The EBC must stand up and protect poor Swazis from manipulation because the success of the electoral process will not only be determined by the number of voters but by also the quality of leaders that will be produced. Yet we cannot keep blaming the EBC for the indifference of our people but instead we should be reminded of our obligation to respect the rights, freedoms and legitimate interests of others, and generally refrain from doing acts that are detrimental to the welfare of others (section 63(d) of the Constitution).

Food for votes is poison to democracy and a serious violation of human rights. The only sure bulwark of continuing liberty is a government strong enough to protect the interests of the people, and a people strong enough and well enough informed to maintain its sovereign control over the government, as said by former US President Franklin Delano Roselvelt.

Or, as Nelson Mandela put it : To be free is not merely to cast off one's chains, but to live in a way that respects and enhances the freedom of others.

Phakama Shili; Advocacy Officer, MISA-Swaziland

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