By Khulekani Nene
Eswatini is globally renowned as a wildlife sanctuary thanks mainly to its stringent ant-poaching laws. However, this feat of conservation has been achieved on the back of gross human rights violations – including allegedly extrajudicial killings.
For decades, game rangers in eSwatini’s predominantly white-owned game parks have killed dozens of suspected poachers – some as young as 16 years old. The right to life is seemingly not sacrosanct in the tiny kingdom. Indeed, the country’s Game Amendment Act indemnifies game park owners and rangers against legal liabilities for killing or maiming suspected poachers.
Though there are no available authoritative statistics, human rights defenders estimate that dozens of suspected poachers have been killed in the last 30 years – forcing many children into orphanhood.
Human rights defenders have condemned what they have described as the extrajudicial killings of suspected poachers but the main players in the eSwatini game conservation industry are adamant that their stringent and apparently brutal anti-poaching tactics are necessary to protect the country’s wildlife from would-be poachers.
Human rights defenders on the other hand believe that the right to life cannot be sacrificed at the altar of game protection. The government and the justice system seem to be on the side of the game conservation industry, human rights defenders say.
They have called for an amendment to the Game Act.
The Game (Amendment) Act (1991) is administered by a private entity (Big Game Parks) and not the government and such an arrangement means Big Game Parks can escape parliamentary scrutiny and accountability on how it runs its affairs.
The Act was passed following what was called ‘the rhino wars’ (1988-1992), a period when eSwatini (then Swaziland) lost 80 per cent of its rhino population to commercial poachers. The Act was enacted primarily to clamp down on commercial rhino poaching and to conserve other endangered species. However, over the years, the Game Act has been criticised by human rights defenders who believe some of its provisions create the space for rangers to kill with impunity.
Section 23 (3) of the Game (Amendment) Act (1991) grants game rangers the authority “to arrest without a warrant any person suspected upon reasonable grounds of having contravened any of the provisions of this Act or regulations made thereunder” and “to use reasonable force necessary to effect the arrest of or to overpower any person who resists arrest and who is suspected on reasonable grounds of having contravened any of the provisions of this Act”.
The same section of the Act reads: “A game ranger or person acting on the instructions of a game ranger shall not be liable to prosecution in respect of any act or omission done in the exercise of his powers…”
It is precisely this section that ostensibly gives game rangers a licence to kill suspected poachers without fear of consequences. Legal experts say that the Game Act is unconstitutional because it contradicts the eSwatini Constitution, which came into effect in July 2005.
The eSwatini Constitution guarantees the right to life, further providing that any law that contradicts it shall be effectively null and void. According to the Constitution: “This Constitution is the supreme law of Swaziland and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void”.
Human rights lawyer Sibusiso Nhlabatsi concurs that the Game Act is unconstitutional and that it gives rangers a licence to kill. Says Nhlabatsi: “The Game Act is unconstitutional in that it gives game rangers a licence to kill. The purpose should be to effect an arrest and follow due process of the law. However, that they are immune from prosecution is a travesty of justice as they have to be prosecuted and be vindicated by the courts. The law gives them an upper hand to perpetuate lawlessness”.
Nhlabatsi adds: “(The Game Act) is constitutionally void. It is wrong to indemnify someone from prosecution. If people know that they cannot be prosecuted, then they can do any sort of criminal conduct. So the sections affront the right to equality before the law. By act of the rangers the right to life is also violated accompanied with the right to dignity”.
The Game Act is not only unconstitutional but it also violates international human rights treaties, which eSwatini has ratified. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) reads: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”.
Eswatini ratified the International Covenant on Civil and Political Rights on 26 March 2004, according to the International Commission of Jurists (ICJ). Eswatini has also ratified the African Charter on Human and People’s Right which states that: “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right”.
However, these treaties and conventions on human rights have been disregarded in eSwatini as the extra-judicial killing of suspected poachers continues unabated. The Eswatini Human Rights Commission concurs that some sections of the Game Act are unconstitutional.
Phumlani Dlamini, the Legal Advisor for the Commission of Human Rights and Public Administration Integrity, confirmed that section 23 of the Game Act is in conflict with the constitution.
Speaking through one of the investigators at the Commission, Dlamini stated that their observation as a Commission was that section 23 of the Game Act is unconstitutional since it contravenes section 15 of the constitution, which guarantees the right to life.
So how has an unconstitutional statute remained in effect for so long? Well, the monarch has a stake in the game conservation industry. In fact, Big Game Parks, which runs most of the kingdom’s game parks, in answerable only to the king, and not the government. According to the organisation’s website, “Big Game Parks is the delegated authority on the Game Act and CITES and operates a highly effective anti-poaching unit, all directly answerable to the King’s Office”.
The Big Game Parks website further states: “The strong Royal support also provides our dedicated rangers the necessary encouragement and determination to safeguard Eswatini’s wildlife heritage against unspeakable odds. And this is precisely what Big Game Parks does”.
The relationship between Big Game Parks and the Eswatini monarchy began decades ago during the reign of late King Sobhuza II, the father of the current king. In 1967, King Sobhuza II appointed Ted Reilly, the founder of Big Game Parks, to manage one of the King’s game parks. That game park is now called Hlane Royal National Park and is still managed by the Reilly family through Big Game Parks.
The close ties with the monarchy has immensely benefited Big Game Parks as the entity is now in absolute control of the game conservation industry in eSwatini. Additionally, doing business with the monarchy has shielded the entity from public criticism and scrutiny because criticising Big Game Parks would be tantamount to chastising the king.
In eSwatini, criticising and/ or challenging the monarchy in any way is not only culturally taboo but can also attract sedition and treason charges. As such, most families of the victims killed by game rangers have opted not to institute legal suits or lay criminal charges against game parks. In cases where some survivors of the game ranger’s brutality have instituted legal suits, the justice system has ruled in favour of Big Game Parks. For instance, in one case brought to court by a survivor, the Eswatini High Court upheld that: “game rangers can lawfully shoot a person who is reasonably suspected to have contravened the Game Act and resists arrest by escaping”.
The court held further: “That the shooting of the plaintiff is also justified under the common law powers vested in a person in the protection of his property, and that game rangers are under a contractual duty to secure game on behalf of their employer, Action dismissed with costs, including costs for counsel”.
Nhlanhla Magagula (46) had sued Big Game Parks after he was shot by game rangers about three kilometres away from Hlane Royal National Park. In his court papers, Magagula told the High Court that “due to the injury he sustained, he cannot walk properly and needs the support of crutches, and that he suffered a permanent disability on the left knee and cannot perform a physical job expected of a man”.
However, the High Court ruled in favour of Big Game Parks. Human rights defenders believe such rulings have emboldened game park owners to continue with the extrajudicial killings of suspected poachers.
Khulekani Nene is an OSF fellow at the University of Witwatersrand, Johannesburg
Source of pictures (Internet)