SEAP - Policy, Legal and Institutional Working Group Report

Contents | Introduction | Chapter One | Chapter Two | Chapter Three | Level One | Level Two | Level Three | Level Four | Annexures | Glossary and Acronyms

CHAPTER ONE

Legal Frameworks for Environmental Management

The full legal framework for Environmental Management is of necessity complex, as "Environment" is defined in the Swaziland Environment Authority Act as meaning, without being limited to:

"The atmosphere, water in all its forms, land, soil and subsoil flora, fauna, energy sources, minerals, topographical formations with energy potential, geothermal resources, living resources, landscape resources and other elements and factors such as residues, garbage, waste and refuse, noise, living conditions in human settlements and man-made products."

However, the existing legal framework could be simplified significantly, including as it does many statutes whose provisions are obsolete, or which are not efficiently enforced.

The reader is referred to the Aitken report on Land-related Legislation (May 1995), which provides a summary of legislation and reports which have any relationship to land, together with recommendations as to their consolidation into a draft Land Act therein, their amendment or repeal, etc. This report is a source document for much of the information below. It is regrettable that such legislative stocktaking is yet to occur in other environment-related areas. As a step towards this goal, a list of statutes identified as having direct or indirect environmental effects is appended (Appendix A).

The following selection of eight pieces of legislation (Fakudze, 1996) provides some examples of statutes relevant, or potentially relevant, to environmental issues, to highlight the multifarious legislative challenges ahead in this Swaziland Environmental Action Plan

1. Swaziland Environmental Authority Act No. 15 of 1992

The Act makes provision for the establishment of the Swaziland Environment Authority, its functions and powers, composition, meetings, appointment of Director, preparation of annual reports, remuneration of members, offenses and fines, appeals by aggrieved persons, making of regulations, and supremacy.

Section 5 gives amongst the functions and powers of the Authority:-

(1)(a) "to establish standards and guidelines relating to pollution of air, water and land as well as those relating to noise and other forms of environmental pollution"

(1)(j) "without prejudice to the economic and social advance of Swaziland, to ensure the observance of proper safeguards in the planning and execution of all development projects, including those already in existence, that are likely to interfere with the quality of the environment"

(1)(i) "establish guidelines for preparing Environmental Impact Assessments on all development projects"

(1)(n) "control all forms of environmental pollution including pollution caused by the discharge of toxic waste into the air, water and land in the manufacture of toxic or hazardous chemicals"

(1)(o) "institute measures for the co-ordination and enforcement of environmental protection legislation ... and for the prosecution of the offenses in co-operation with relevant bodies and police forces"

(2) This sub-section deals with impact of projects on the environment.

(3) ".... the Authority may delegate to another body or persons any of its functions under this section and may impose conditions with respect to the exercise of such delegated functions as it may think fit".

(4)(a) "The Authority as any other body or person authorised by the Authority may:-

"(ii) enter and inspect any premises where the Authority has reason to believe the provisions of this Act are being contravened or are reasonably likely to be contravened".

(iii) ... close any premises or stop any operation, works or project that is in its opinion causing or is reasonably likely to cause damage to the environment or the public".

COMMENTS AND RECOMMENDATIONS

• The Act appears to provide adequate powers for implementation of many of the recommendations of this Action Plan, but not necessarily all of them (for example, the land tenure-related issues). The phrase "without prejudice to the economic and social advance of Swaziland" in section 5 (1)j is unfortunate insofar as it opens the SEA to challenges from those with the financial wherewithal to mount same. Insertion of the word "sustainable": before "economic" would pre-empt such a potential, and is more consistent with the national responsibilities under Agenda 21.

2. The Water Act (Natural Resources) No. 25/1967

An Act to consolidate and amend the laws in force in Swaziland relating to the control, conservation and use of water for domestic, agricultural, urban and industrial purposes and to make provision for the control of certain activities on or in water in certain areas.

Part I deals with interpretation and definitions include:"land right" means:-

"a) a right to land derived from a concession making a grant.

b) a right to land derived from a concession conveying a lease or grant of land for a limited period if freehold title may in terms of any law be issued in respect of such land.

c) the right to land held under a freehold grant made in terms of any law or under a deed of transfer of such a grant or under a certificate of title.

d) the right of the Government to any land vested in the Government whether or not an original grant has been made in respect of such land.

e) the right of the Swazi nation in respect of any Swazi area but shall not include any right to graze animals or to cut timber on any land.

Part II deals with general powers of the Minister.

Part III deals with control and use of private and public sector.

Part IV deals with establishment and functioning of the Water Appointment Board.

Part V deals with the establishment and operation of Water Courts.

Part VI deals with Government Water Works and Government control of water.

Section 68 deals with expropriation of land and servitudes."

Part VII deals with water sports control areas.

Part VIII deals with irrigation boards.

Part IX deals with servitudes.

Part X covers general and miscellaneous matters including: delegation of powers, rights of entry on land, and offences and penalties.

COMMENTS AND RECOMMENDATIONS

This Act is currently being reviewed. Armstrong notes that the Act:-

1. blocks development of SNL.

2. makes no provision for water charges.

3. provides lack of control over water use.

4. provides lack of control over private and ground water.

5. possibly stifles control of water on SNL."

The penalties provided under section 128 are low and need revision.

Lack of enforcement of the anti-pollution provisions of the Act due to:

1. Inconsistent data from the Water Pollution Control Board, due to inadequate personnel provision and dated equipment;

2. The Act does not identify the enforcing body.

Human fatalities and incapacitation due to water contamination emphasise the urgency of addressing this problem. In developing countries worldwide, an estimated 80% of all diseases and over 33% of all deaths are caused by drinking contaminated water. Everywhere, a strong, well-enforced Water Act is fundamental to environmental health.

3. The Mining Act No. 5/1958

An Act to enable the holders of certain mineral concessions to commute a contingent liability.

The Act contains 130 sections, arranged into twelve parts:

Part I General Sections 1-26

Part II Prospecting Sections 27-37

Part III Mining Sections 38-53

Part IV Disputes Sections 54-58

Part V Possession, purchase and sale of minerals Sections 59-70

Part VI Inspections and accidents Sections 71-77

Part VII Passageways and roads Sections 78-83

Part VIII Prospecting & mining on mineral concessions Sections 84-91

Part IX Swazi Affairs Sections 99-101

Part X Taxation of mining rights Sections 102-103

Part XI Registration Sections 104-109

Part XII Miscellaneous Sections 110-130

COMMENTS AND RECOMMENDATIONS

• It has been observed that not a single mining company has thus far adhered to the provisions of this Act concerning restoration of land surfaces upon cessation of mining, upon the assertion that operations may resume in the near future.

See 3.1.4.0 below concerning the recommended Action Plan, including legislative review.

4. Factories Machinery & Construction Works Act and Regulations No. 17/1972

An Act to provide for the registration of factories and the regulation of working conditions and the use of machinery at factories, construction works and other premises subject to this Act, and for matters incidental thereto.

The Act contains 34 sections, arranged into four parts:

Part I Preliminary Sections 1-10

Part II Registration & regulation of factories Sections 11-18

Part III Notification & investigation of accidents & industrial diseases Sections 19-24

Part IV Procedure & miscellaneous Sections 25-34

COMMENTS AND RECOMMENDATIONS

• The notification and investigation of industrial diseases is allowed under this Act. Its definition of "industrial diseases" is those mentioned in the First Schedule of the Workmen's Compensation Act No. 4/1963 that is: hookworm from mining, anthrax from animal products, cyanide rash, industrial dermatites, and lead or mercury poisoning or their sequelae. Industrial diseases are not recorded in the Annual Bulletin of the Central Statistics Office.
• This schedule is completely inadequate in the light of research carried out subsequent to the promulgation of the 1963 Act. Moreover, it confines itself to claims from workers, not those in the public domain who may suffer "industrial diseases" as a result of industrial activity.
• This is therefore another example of the urgency of revision of much current legislation.

5. Swazi Land Settlement Act & Rules (Swazi Affairs) No. 2/1946

THE ACT

An Act to provide for the establishment, control and development of a land settlement scheme for the Swazi Nation.

Section 2 deals with interpretation and definitions.

Section 3 defines areas described in LN18/1966 set aside for Swazi land settlement and vested in the Ngwenyama as Swazi Nation Land in trust for the Swazi Nation.

Section 4 provides for control of land settlement areas by Permanent Secretary Agriculture.

Section 5 restricts residence, cultivation or use of land without written permission of PS Agriculture.

Section 6 prohibition of persons on land settlement areas without a certificate of occupancy.

Section 7 allocation of land for allotments, afforestation and commonage.

Section 8 allocation of land for special purposes including burial grounds, churches, schools, health centres etc; register to be kept by PS Agriculture.

Section 9 right to construct roads etc across allotments.

Section 10 rights of entry.

Section 11 control of grass burning.

Section 12 liability of residents to communal labour.

Section 13-15 rights and liabilities of settlers (defined as holders of certificate of occupancy).

Section 16 grants of allotments (defined as a piece of arable land which has been defined and beaconed).

Section 17 prohibition of alienation, transfer, mortgage or subletting.

Section 18 re-allotment in case of death of settler.

Section 19 rights of occupation to be free of rental.

Section 20-21 demarcation and control of grazing areas.

Section 22 provides for consultation between PS Agriculture and Ngwenyama.

Section 23 gives powers to make rules.

Section 24 provides penalties for offences.

Schedule I lists some 29 lots as being set aside for land settlement in Hhohho, Lubombo, Manzini and Shiselweni.

Schedule II lists three lots that are the subject of the grant of deeds of transfer to other persons.

COMMENTS AND RECOMMENDATIONS

• This legislation was introduced for land settlement schemes on freehold farms purchased by the Government and vested in the King as Swazi Nation Land. It applies only to SNL as defined in the Act but does not apply to SNL set aside under the Definition of Swazi Areas Act 41/1916.
• It is understood that the Act has not been a success mainly due to administration problems. MOAC is however currently reviewing policy on Government Farms and the Act could well be resurrected in connection therewith.
• The penalties prescribed in section 24 are outdated and require revision.

THE RULES

Rules made under Section 23 of the Swazi Land Settlement Act 2/1946 by the Ministry of Agriculture with the approval of the Ngwenyama in connection with land settlement areas for the better carrying out of the objects and purposes of the Act.

Rule 1 provides for registers, records and forms.

Rule 2 size of allotments no agricultural allotment to be less than 0.4047 hectares when combined with a garden.

Rule 3 grants of allotments.

Rule 4 valuation of improvements.

Rule 5 construction of buildings.

Rule 6 maintenance of buildings.

Rule 7 powers to order demolition.

Rule 8-13 stock and grazing.

Rule 14 conditions as to occupation.

Rule 15 absence of settler.

Rule 16 maintenance of contour of grass strips etc.

Rule 17 restriction against residence and construction.

Rule 19 cancellation of rights of allotment.

Rule 20 surrender of allotments.

Rule 21 right of occupation and compensation for improvements.

Rule 24 rights of appeal.

Schedule: gives form of Register. Form of certificate of occupancy and form of individual record.

COMMENTS AND RECOMMENDATIONS

• As noted in the comments to the main Act, the legislation has not been a success but may be resurrected in the light of MoACs current review of Government Farms, and recommendations in the Agriculture, Land and Rural Development Committee Report of the National Development Strategy. Rules 4 and 21 deal with valuation and compensation matters and it is recommended that provision is made for the Government Valuer to act on Governments behalf.
• The Rules were supposed to control overstocking hence overgrazing on communal land. Under Rule 8, the PS has a right to state the number of stock allowed to graze on commonage and to order the sale of excess stock. However, setters with more than one wife can graze more stock, and only the minimum, not the maximum, number of stock allowed is stated: another reason for this Act being dormant.
• Despite its unsuccessful history, this Act could yet prove to be a useful resource document in addressing current concerns even if only (at worst) to highlight the gap between producing legislation and implementing it, to discover why it failed, and to consider the costs that have accrued to the nation from its non-implementation.

6. Flora Protection Act No. 45/1952

An Act to protect the indigenous flora of Swaziland.

Section 2 deals with interpretation and definitions.

Section 3 refers to a Schedule of plants, and establishment of indigenous floral reserves.

Section 4 prohibits the plucking, etc of protected flora.

Section 5 allows for permits to be issued to harvest protected indigenous flora.

Section 6 prohibits the export of protected flora without a permit

Section 7 prohibits the unlawful plucking etc. of protected flora in designated flora reserves.

Section 8 prohibits the unlawful sale of protected flora.

Section 9 allows permits to sell protected flora.

Section 10 provides for the cancellation of permits.

Section 11 provides for the seizure of protected plants.

Section 12 orders persons in possession of protected flora in designated flora reserves to give their names and addresses.

Section 13 allows a presumption of guilt in incriminating circumstances.

Section 14 provides for penalties.

The Schedules provide the common name, Swazi name and Scientific name of the protected flora.

COMMENTS AND RECOMMENDATIONS

• This Act, though law, has as far as is known never been enforced. Indiscriminate cutting of protected flora, for example the Kiaat and Fever trees, is rife. It has been suggested that the police may be either unaware of their role as provided in the Act, or be too undermanned to adequately fulfill their mandate.
• It is recommended that the Act be revisited and activated.

7. Protection of Freshwater Fish Act & Regulations No. 75/1937

An Act to make provision for the Protection of Freshwater Fish.

Section 2 deals with interpretation and definitions.

Section 3 provides for closed seasons and prohibited fishing.

Section 4 provides the power to make regulations.

Section 5 allows the exemption of officers and others for special purposes.

Section 6 makes it unlawful to catch a fish in the closed season.

Section 7 makes provisions regarding non-indigenous fish.

Section 8 prohibits all means of catching fish but those provided for in the Act.

Section 9 explicitly forbids the use of explosives, poisons, etc.

Section 10 makes it unlawful to possess, sell etc. unlawfully acquired fish.

Section 11 gives power to the police to demand the name and place of abode of suspects.

Section 12 describes the powers of police and honorary fisheries officers.

Section 13 makes it an offence to obstruct an officer in the performance of duty.

Section 14 makes it an offence to obstruct fish in the water.

Section 15 makes it an offence to damage property for the purpose of taking fish.

Section 16 provides the penalties.

Section 17 protects the existing land and mineral rights of owners against this Act.

The regulations are in five parts:

Part 1 Preliminary.

Part 2 Stocking or removal of fish.

Part 3 Cultivation of fish.

Part 4 Dealing in fish.

Part 5 Fishing as a sport.

COMMENTS AND RECOMMENDATIONS

• This act is presented here as a further example of one which, with activation and possibly revision, could provide both environmental and touristic benefits.

8. National Trust Commission Act No. 9/1972

An Act to provide for the operation of cultural institutions and the proclamation of national parks, monuments and matters incidental thereto.

Part I preliminary matters.

section 2 deals with interpretation including:

"owner" in relation to land means a person who has title thereto and any person who has any right or interest in such land.

"property" includes any interest in or right over immovable property. The section also provides that subject to the proviso in section 27(a) the Act "shall not apply to such land as is sacred or has a special significance according to Swazi law and custom: provided that in the event of any doubt as to whether such land is sacred or has such special significance, the Minister shall obtain the decision of the Ngwenyama in writing".

Part II deals with the Swaziland National Trust Commission, including establishment, constitution, members not to be remunerated, functions, officers and employees, and limitation of liability and actions.

Provision is made for the Commission to acquire and alienate movable and immovable property subject to ministerial approval.

Part III deals with the Swaziland National Centre and declared institutions, including the establishment of the centre, proclamation of declared institutions and appointment of curator and his functions.

Part IV deals with National Parks including establishment and areas of parks, noting of proclamations in deeds office, acquisition of private land for a park, functions and powers of Commission in respect of national parks, delegation of powers, appointment of Director of National Parks, restriction on entry in a park, rights of certain owners and occupiers of land included in a park, purposes for which permission to enter or reside in a park may be granted, penalties,, and powers of game rangers to arrest, search and seize.

section 12 provides for the procedures for proclaiming a national park. Subsection (d) provides that in the case of SNL, the Minister shall not proclaim any area of land ... without first having obtained the written permission of the Ngwenyama who may therein impose such restrictions or limitations as he may deem fit".

section 14 provides for acquisition by agreement or expropriation.

Part V deals with National Monuments, Relics, and Antiques including powers and duties of Commission, acquisition of land and rights for the purposes of a monument, relic or antique, survey and deeds office notification, protection of monuments, powers of entry upon land, assumption of control of monuments under control of local authorities, prohibition of removal or export of monuments, relics or antiques, and penalties.

Part VI deals with financial provisions including financial year, revenues, application of funds, investment of funds, annual report, accounts, and exemption from duties, taxes and fees.

Part VII deals with general matters including acquisition of property and regulations.

section 42 provides that the provisions of the Acquisition of Property Act 10/1961 shall apply.

COMMENTS AND RECOMMENDATIONS

• It is recommended that this Act be reviewed together with all environmental legislation as there appear to be overlaps with the Natural Resources Act 71/1951 and the Swaziland Environment Authority Act 15/1992. It is suggested that the Government valuer should be involved when matters of acquisition arise.
• The last Act we will highlight for individual attention is the Health Act, with its particular relevance in addressing some of the starkest manifestations of environmental indifference the tragic toll in crippled human potential, even death as witness the appallingly high infant mortality rate prevailing in Swaziland on a GDP/capita comparison with other countries.

9. The Public Health Act No. 5/1969

Swaziland Public Health concerns, and ways of dealing with them, have been expressed in the principal legislation; the Public Health Act 5 of 1969. The Act defines the Authority for prescribing and enforcing preventative and remedial measures for the protection of Public Health in Swaziland. However in recent years there has been increasing concern expressed by the environmental health officials, health officers and others that the Act fails to provide the back-up required to control risks to public to Public Health, and that it fails to meet the present day environmental health needs.

The Act is supreme in health matters and this primacy over other legislation in the area finds expression in Section 32, the very last provision of the Act. It reads "Save as specially provided in this act, this Act shall be in addition to and not in substitution for any other law which is not in conflict or inconsistent with the Act, and where any other law is in conflict with or inconsistent with this Act, this Act shall prevail".

This provision however, could create potential problems of interpretation and enforcement. For example: in the absence of a specific reference to the laws over which this Act enjoys supremacy there is an administrator able to tell what these are laws are? Does any subsequent inconsistent Act, in accord with the rule of Statutory interpretation that parliament cannot bind its successors, impliedly repeal the relevant provisions of this Act?.

Structure of the Act.

The Act is set out in four parts.

Part I covers preliminary matters.

Part II covers communicable and notifiable disease.

Part III deals with nuisances.

Here although the overall responsibilities to deal with all factors leading to the deterioration in health standards lie with the Ministry of Health, that Ministry must liaise with the Ministry of Housing and Urban Development and the Local Authorities, as in terms of the Urban Government Act 1969 Section 55(1)(c), they are responsible for the Abatement of all Public Health Nuisance

Part IV Titled "General Provisions"

Covers a lot of matters which directly infringe upon environmental health. These include buildings used for storage of food, rooms for food storage, power of entry, inspection, regulations, penalties, burden of proof as to knowledge of infection, service of notices and protection of officers.

The Ministry of Health is in the process of reviewing The Public Health Act 5 of 1969. Amongst reforms made in Part III under nuisances is suggested Section dealing with Food Hygiene, Meat Hygiene, Toxic and Hazardous Materials, Water Borne Wastes, Air Pollution, Refuse, Factories and Work Places, Public Buildings, Schools/Creche, Water Resource Development, Barber Shops and others.

Under the new Section "Toxic and Hazardous Materials" it is proposed to cover issues such as Importation, Transportation, Handling, Processing, Production, Treatment, Disposal, Licensing, Permitting, Monitoring and Surveillance, Enforcement, Inspection, Responsibilities, Damages, Reporting.

Under the New Section "Refuse" it is proposed to cover Related Legislation, Classification, Handling, Disposal Site Selection, Control & Management Sites, Standards of Disposal Sites, Transportation, Littering, Incineration, Permitting and Licensing, Enforcement, Inspection, Responsibilities, Reporting.

Under the New Section: "Factories and Workplaces" it is proposed to cover related Legislation.

Infectious Materials Fumes

Dust Noise

Silicates/Asbestos Temperature

Toxic Materials Safety.

(See the Factories Machinery & Construction Works Act highlighted above).

These examples are typical in their interrelationships and partial or complete obsolescence or inadequate implementation. Many more of the Acts referred to in Appendix A display similar deficiencies to those mentioned above. For example, section 3.3. of the Aitken Report refers to "Legislation relevant to environmental matters requiring review and possible part consolidation" as including:

• Building and Housing Act 34/1968 (and related Regulations)
• Control of Tree Planting Act 7/1972
• Swaziland Environment Authority Act 15/1992
• Fencing Act 7/1904 (in relation to rural areas)
• Human Settlements Authority Act 13/1992
• Kings Order in Council 4/1954
• National Trust Commission Act 9/1972
• Natural Resources Act 71/1951
• Natural Resources (Public Stream Banks) Regulations 71/1951(1)
• Private Forests Act 3/1951
• Swazi Administration Act 79/1950
• Swazi Administration (Amendment) Act 1979
• Swazi Graves Act 18/1909
• Swazi Land Settlement Act 2/1946 (and Rules)
• Town Planning Act 45/1961
• Urban Government Act 8/1969
• Water Act 25/1967

Moreover, environment-related legislation that possibly conflicts or overlaps is specified in part 3.13 as including:

• Natural Resources Act 71/1951 with:
  • Water Act 25/1967
  • Land Speculation Control Act 8/1972
  • National Trust Commission Act 9/1972
  • Swaziland Environment Authority Act 15/1992
  • Swazi Graves Act 18/1909
• Human Settlements Authority Act 13/1992 with:
  • Town Planning Act 45/1961
  • Building and Housing Act 34/1968
  • Sub-Division of Land Act 7/1957
  • Urban Government Act 8/1969
  • Crown Lands (Temporary Occupations) Act 22/1964
• Crown Land (Temporary Occupations) Act 22/1964 with:
  • Building and Housing Act 34/1968

It can be safely generalised from the above analyses that there is a good deal of both "wheat" and "chaff" in Swaziland's existing stock of environmentally-related legislation. The Aitken Report goes some way towards sorting the wheat from the chaff, but much work remains to be done.

This task of legislative review and updating will never be completed, as changes in policy require concomitant changes in legislation. For example, the European approach of discouraging pollution by taxation should be investigated for its potential applications here. However, this review avers that there is currently a huge backlog in legislative maintenance which, if cleared, will allow significant benefits to emerge not only environmentally, but also socially and economically. Institutional changes are required to ensure that such a backlog does not occur again.

Such a task will be directed by policy decisions. For now, it is important that the current draft legislation be informed by the Action Plans herein. As the plan unfolds, the policy recommendations in this report will require legislative changes, both in the amendment of old legislation and the introduction of new legislation.

Legal Institutional

The working group recognised the need for legislative institutional review to ensure: firstly, that not only the abovementioned backlog does not occur again, but also that when a policy change occurs the appropriate legislative changes can be comprehensively addressed; and secondly, that feedback mechanisms on legislative implementation be institutionalised. In this latter respect, a Land and Environment court was mooted in the committee, but no agreement was made as to its desirability, or even the practicality of its insertion into the existing legal framework.

However, with the potential exception of the 1992 SEA Act itself, it is clear from the researches of this Working Group that legislative change and legislative enforcement have thus far proven to be inadequate in meeting the environmental challenges already faced by Swaziland. Yet far greater challenges are likely in the future, given the high population growth rate and the country's projected demographic distribution.

Addressing legislative change and enforcement mechanisms is therefore submitted as a task of the highest priority for the implementation phase of the SEAP.

THE SEAP RECOMMENDATIONS FOR LEGISLATIVE CHANGES

The chart below is only the beginning of a more in-depth review, which is recommended by this report, and as such is presented without prejudice; it is a lay review. Only the Attorney-General's Office, or a legal consultant commissioned by government, can assume professional responsibility for a review of this nature.

Examples of policies within the following Action Plan proposals which will or may require legislative enactment and/or amendment include: (Again, kindly note that the list is indicative, not comprehensive).

Land-related

Tourism-related

Manufacturing-related

Biodiversity-related

Mining-related

Water Resources and Climate-related

Kindly note that there are many proposals within this document with possible legislative impacts; the above more general points should capture same.

Human Settlements, Infrastructure and Urbanisation-related

Environmental Health-related