“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.”
Phakama Shili, advocacy officer at Swaziland’s Media Institute of Southern Africa (MISA-Swaziland), writes a weekly column for daily newspaper Swazi Observer. The column, ‘Constitutionally Speaking’, considers human rights and the quest for democracy in Swaziland.
27 June 2013. This article will discuss human rights and then contrast these with the rights of animals, otherwise known as animal welfare. This will be attained by reviewing the Constitution of the Kingdom of Swaziland, especially chapter three which deals with human rights protection.
I also strive to demonstrate that the Game Act 1992, which provides immunity for game rangers who kill 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.
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 who kill people, comes in.
The rationale for this provision is to guarantee 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 days. 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: 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. Our justice system 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, but that 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, thus game rangers should not be treated differently.
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 to ensure the rule of law is upheld and provide means to protect the rights under threat. Whereas 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. What’s more, 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.) And 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 recognise that animals can be used for reasonable purposes, but should not be abused. Hence in protecting wildlife, the rights of human beings should be not be relegated.
You will find all of Phakama’s Constitutionally Speaking articles by clicking here.