UGANDA 2017/2018 RULE OF LAW SNAPSHOT

LLI-LD.UG.Mid-2018

The rights to freedom of expression, association and assembly were restricted. Journalists and others who criticized the President or his family were arrested, detained and harassed. There was a sharp rise in the number of women killed, some of whom were subjected to sexual violence. 

The government said it would investigate and prosecute those responsible. Draft constitutional amendments to the land laws gave the government authority to expropriate private land. Uganda hosted the largest number of refugees in the region, including over 1 million from South Sudan.

  Freedom of expression

On 19 March, immigration officials at Entebbe International Airport prevented academic Stella Nyanzi from boarding a flight to the Netherlands to attend a conference. This followed her criticism of the President and his wife, the Education Minister, for the government’s failure to fulfil a 2015 commitment to provide sanitary towels in girls’ schools.


On 8 April, police arrested Stella Nyanzi for insulting President Museveni on social media. She was charged under the Computer Misuse Act of 2011 and detained for 33 days in Luzira Maximum Security Prison in the capital, Kampala, before being released on bail. The charges against her were later dropped.


On 8 April, Nation TV journalist Gertrude Tumusiime Uwitware was abducted, blindfolded and interrogated by unknown assailants for several hours, after she had posted her support for Stella Nyanzi on social media. The spokesperson for the Kampala Metropolitan Police promised to investigate the incident but there was no further information on its progress by the end of the year.


On 27 September, the Ugandan Communications Commission threatened to revoke or suspend licences of media outlets which broadcast live parliamentary debates on a proposed constitutional amendment to remove the presidential age limit of 75 which was passed by Parliament in December and, according to the government, became law in the same month. The Commission said that such broadcasts promoted a “culture of violence”. The opposition viewed the amendment as a means to enable President Museveni to stand for re-election in 2021. He had already been in power for 31 years.


On 10 October, the police summoned editors Arinaitwe Rugyendo of the Red Pepper newspaper and the online Daily Monitor, and Charles Bichachi of the Nation Media Group which owns the Daily Monitor, about stories they published on the age limit debate. Police questioned them after an MP, who was leading on moves to remove the age limit, filed a complaint claiming that the stories tarnished his reputation. They were charged in connection with these allegations under Section 27A of the Police Act.


On 24 November, after Red Pepper published an article alleging that the President was involved in a plot to overthrow Rwanda’s President, the police searched the newspaper’s office including computers and mobile phones, and closed it down. At the same time, they arrested Arinaitwe Rugyendo and other members of staff Richard Kintu, James Mujuni, Patrick Mugumya, Richard Tusiime, Johnson Musinguzi, Ben Byarabaha and Francis Tumusiime. They remained in detention at the end of the year.

Freedom of association

On 2 and 20 September, approximately 20 police officers and security officials raided ActionAid Uganda’s offices in Kansanga, an area of Kampala, preventing staff from leaving the premises for several hours. The police warrant stated that ActionAid was being investigated for “illicit transfers of funds to support unlawful activities”. The police removed documents and confiscated the organization’s laptops and mobile phones belonging to staff members. On 9 October, the Bank of Uganda froze ActionAid’s bank accounts. On 13 October, the NGO Bureau, under the Ministry of Internal Affairs, sent a letter to 25 development NGOs demanding their bank account details.


On 20 September, police raided the Great Lakes Institute for Strategic Studies offices with a warrant to search computers and mobile phones as well as financial and banking documents. The raid came after the organization’s executive director, Godber Tumushabe, spoke against the proposal to lift the presidential age limit.

Violence against women and girls

According to the police, 28 women were killed in Entebbe town in Wakiso District. The media reported that a man had confessed to killing eight of the women on the orders of a local businessman. 

In a public statement on 3 September the police spokesperson said that four categories of murder had been identified and that 13 people had been arrested and charged in connection with the 28 killings. Twelve of the victims had been raped or sexually assaulted before they were killed; four of them were killed by their husbands or partners; one woman was killed by her two brothers in what the police classified as a revenge killing; the other cases were described as “ritual murders”.


The body of one of the victims, Rose Nakimuli, was discovered on 24 July in a banana plantation in Wakiso District.

Right to housing and forced evictions

In July, the government tabled a bill to amend Article 26(2) of the Constitution. This would allow compulsory acquisition by the government of private land for infrastructure projects without providing prompt, prior and fair compensation to the owners, and potentially while negotiations on compensation were pending.


Under existing law, the government can acquire private land only after the payment of “fair and adequate” compensation has been made. If the owner disputes the compensation amount, a High Court can block the government from acquiring the land until a resolution is reached. If passed, the new law would increase the risk of forced evictions and undermine the ability of those facing eviction to participate in consultations over acquisitions. 

It would also frustrate transparent and fair negotiations on compensation, and the possibility of appeal. Marginalized groups, including people living in poverty, and in rural areas, would be particularly affected.

Right to health

On 10 October, the doctors’ union Uganda Medical Association (UMA) declared an indefinite strike protesting against low salaries and shortages of essential supplies. However, they continued to provide services to children, pregnant women and emergency accident victims.


President Museveni said the strike was illegal and ordered the doctors to return to work or face disciplinary action. The government said it would increase doctors’ salaries only after the outcome of a salary review conducted by a commission set up by the President to review salaries of all civil servants.

Refugees and asylum-seekers

As of 10 November, Uganda hosted around 1,379,768 refugees and asylum-seekers. Some 1,037,359 were from South Sudan, 348,782 having arrived between January and September; 61% of them were children, mostly unaccompanied or separated from their parents. Around 236,572 of the refugees were from the Democratic Republic of the Congo (DRC); 39,041 were from Burundi (see Burundi entry); 35,373 were from Somalia; and the rest were from various other countries.


Asylum-seekers from South Sudan and the DRC were granted prima facie refugee status, and those of other nationalities underwent an individual refugee status determination process conducted by the Refugee Eligibility Committee. The government had revoked the automatic refugee status for Burundian asylum-seekers in June.


Under the 2006 Refugee Act and the 2010 Refugee Regulations, refugees were allowed relative freedom of movement, equal access to basic services, such as primary education and health care, and the right to work and establish a business.
 
In May, the World Food Programme was forced to cut cereal rations by half for over 800,000 South Sudanese refugees.

Appeals for funding from international donors to address the regional refugee crisis failed to secure adequate funds. This proved to be the most significant challenge to Uganda’s refugee response. In June, the Uganda Solidarity Summit on Refugees had rallied for international support, but as of November 2017, the South Sudan Refugee Response Plan (a joint government/UNHCR initiative) secured only 68% of the funds needed; and the Burundi Refugee Response Plan secured only 20%.


In October, there was a temporary 50% reduction in food assistance to refugees due to donors’ payment delays. The cuts led to riots and protests by refugees in Nyumanzi settlement in Adjumani district.

South Africa's Rule of Law challenge

LLI.Legal Affairs.28.Aug.2018 SA Beaural. 

South Africa has, over the years, built a robust and independent judiciary essential for respect for the rule of law; but in 2017, the government’s record on human rights and respect for the rule of law was poor.  Corruption, poverty, including high unemployment, and crime significantly restricted South Africans’ enjoyment of their rights.

On October 13, the Supreme Court of Appeal (SCA) upheld a High Court decision to prosecute President Jacob Zuma on 18 charges and 783 counts of fraud, racketeering, and money laundering. Zuma and the National Prosecuting Authority (NPA) had asked the SCA to overturn the High Court decision, which found that the NPA’s 2009 decision to drop corruption charges against Zuma was “irrational.” Zuma called the SCA decision disappointing, and the NPA, due to procedural delay, has yet to reinstate the fraud and corruption charges against him at time of writing.

The government failed to realize the right to education for many children and young adults with disabilities. The absence of a national strategy to combat the high rate of violence against women, and the continued under-reporting of rape, remained a concern.  In 2017, the government continued to send mixed signals on its support for the International Criminal Court (ICC), following a decision by domestic courts that the government’s notice of withdrawal from the court was unconstitutional and invalid.

At the end of the year, the government indicated it would pursue the withdrawal through a future bill to be presented to parliament.

In August, South Africa took over as chairperson of the Southern African Development Community (SADC) for a year, but during 2017 did not use the leadership role to promote and support human rights improvements in the region.


Disability Rights

In October, the South African Human Rights Commission (SAHRC) highlighted estimates that half-a-million children with disabilities still do not have access to education, with 11,461 children with disabilities on waiting lists for school placements (up from over 5,500 in 2015). The SAHRC expressed concern that children with disabilities constantly experience barriers to the enjoyment of basic human rights, including the right to education, healthcare, and family care.

Despite the government’s international and domestic obligations, many children with disabilities do not have equal access to primary or secondary education, and face multiple forms of discrimination and barriers when they do access schools. They are turned away from mainstream schools, denied access to inclusive education, and referred instead to special schools by school officials or medical staff simply because they have a disability. The referrals system needlessly forces children to wait up to four years at care centers or at home for placement in a special school.

While education in public schools is free, children with disabilities who attend government special schools are required to pay school fees, and many who attend mainstream schools are asked to pay for their own class assistants as a condition for admission. In mainstream schools, many children with disabilities do not have access to the same curriculum as children without disabilities. In addition, many children with disabilities are exposed to high levels of violence and abuse by teachers and students.

In 2017, the government did not complete its efforts to publish accurate data on how many children and young people with disabilities are out of school across the country. It also failed to implement key aspects of the 2001 national policy, which calls for the provision of inclusive education for all children with disabilities, and is yet to adopt legislation that guarantees the right of children with disabilities to inclusive education.

However, the government continued to implement the Screening, Identification, Assessment, and Support (SIAS) policy designed to ensure that children with disabilities are provided full support when accessing education. The majority of the government’s limited budget for students with disabilities continued to be allocated to special schools rather than to inclusive education.

In October 2017, an arbitration process, presided over by retired deputy chief justice Dikgang Moseneke, began between the state and families of former hospital patients who died following the Gauteng provincial government shut down of the Life Esidimeni psychiatric hospice complex in Johannesburg, where more than 2,000 people with psychosocial disabilities lived.

Between March 2016 and October 2017, 141 former patients of the hospice died after about 1,700 patients were transferred to smaller institutions while others were discharged, sometimes without their families being notified. The Gauteng government, which terminated its contract with Life Esidimeni in October 2015 citing financial reasons, had a responsibility to ensure the hospice had adequate resources to support the patients.

Accountability for Xenophobic Attacks on Foreign Nationals

Despite recurring waves of xenophobic attacks on businesses and the homes of refugees, asylum-seekers, and migrants, authorities appeared reluctant to even publicly acknowledge xenophobia and take decisive action to combat it, including ensuring proper police investigations. Virtually no one has been convicted over past outbreaks of xenophobic violence, including for the Durban violence of April 2015 that displaced thousands of foreign nationals, or the 2008 attacks, which resulted in the deaths of more than 60 people across the country.

In February, a group calling itself “The Mamelodi Concerned Residents” marched in Pretoria to protest against African immigrants in South Africa, blaming them for crime and stealing jobs meant for South Africans. The march triggered a wave of violent clashes and looting of shops owned by foreign nationals. In December 2016, Johannesburg Mayor Herman Mashaba made reckless public statements blaming illegal immigrants for crime and calling on them to leave the city.

In July 2017, the SAHRC condemned Deputy Minister of Police Bongani Mkongi’s July 14, 2017 statement saying of Johannesburg: “How can a city in South Africa be 80 percent foreign national? That is dangerous. South Africans have surrendered their own city to the foreigners.” The commission said the statement was inaccurate and could fuel xenophobia. The government took no action against Mkongi.

At time of writing, the government had yet to finalize the draft national action plan to combat racism, racial discrimination, xenophobia and related intolerance, or provide a mechanism for justice and accountability for xenophobic crimes.

Women’s Rights

Violence against women, including rape and domestic violence, remain widespread and underreported. According to research findings published in August 2017 bythe Centre for the Study of Violence and Reconciliation and Oxfam South Africa, one in five women older than 18 has experienced physical violence, and three women die at the hands of their partner every day. The government has yet to introduce a national strategy to combat violence against women.

Sexual Orientation and Gender Identity

In September, the Western Cape High Court ruled that individuals have the right to amend their gender description even if they were married as heterosexuals. Three women and their spouses had taken the Department of Home Affairs to court after it refused to change their gender description. Local rights group, the Legal Resources Centre (LRC), filed the case on behalf a client who had their marriage deleted from the National Population Register‚ and two others whom the department advised to get a divorce in order to give effect to their gender rights.

South Africa has a progressive constitution that prohibits discrimination on the basis of sexual orientation and protects the human rights of lesbian, gay, bisexual, and transgender (LGBT) people. The Department of Justice and Constitutional Development has taken significant steps to improve coordination between government and civil society in combatting violence (including rape and murder) against lesbians and transgender men.

In a historic victory for transgender students, in May 2017 the Seshego Magistrate’s Court in Limpopo ordered the Limpopo Department of Education to pay R60 000 (approximately US$4,500) in personal compensation for discrimination to Nare Mphela, a transgender woman from Ga-Matlala village. The case was lodged by the SAHRC in November 2016 under the Promotion of Equality and Prevention of Unfair Discrimination Act (The Equality Act).

Foreign Policy

In 2017, South Africa missed key opportunities to consistently place human rights at the center of its foreign policy. In August, the country took over the SADC for a year, but has refrained from criticizing Zimbabwe’s poor human rights situation.

Although South Africa’s governing party, the African National Congress, called for Swaziland to be referred to SADC for abuse of human rights and suppression of dissent in July, the government did not use the SADC chair to press for human rights respect in Swaziland. In October, President Zuma, during a visit to the Democratic Republic of Congo, did not publicly raise human rights concerns with President Joseph Kabila.

In his address to the United Nations General Assembly in September, President Zuma called on the UN to support the African Union (AU) to resolve conflicts on the continent through promoting "African solutions to African problems and challenges." He said South Africa stands ready to work with the UN to promote peace, human rights and sustainable development.

In February, South Africa’s North Gauteng High Court ruled that the government’s attempt to withdraw from the ICC was unconstitutional and invalid, as the government issued its withdrawal notice without consulting parliament. The court ordered President Zuma and the Ministries of Justice and Foreign Affairs to revoke the notice of withdrawal. The ICC debacle further dented South Africa’s international image as a champion of human rights and international justice. The government proposed legislation to parliament on withdrawal, but removed it from consideration in March. In December, the government indicated at the ICC’s Assembly of States Parties in New York that it would indeed pursue its intent to withdraw.

In July, the Pre-Trial Chamber of the ICC ruled that South Africa violated its legal obligations to the court in failing to arrest Sudanese President Omar al-Bashir in June 2015, when he attended the AU Summit in the country. Al-Bashir is the subject of two ICC arrest warrants on charges of genocide, crimes against humanity, and war crimes allegedly committed in Darfur. South African courts had previously confirmed the government had a duty to arrest al-Bashir. The chairperson of the ANC International Relations subcommittee, Edna Molewa, in an op-ed published a week later, said the domestic court rulings on al-Bashir’s arrest vindicated the ANC’s initial decision to withdraw from the ICC.

In May 2017, UN member states recommended the implementation of measures to ensure inclusive education for all children with disabilities during South Africa’s Universal Periodic Review before the UN Human Rights Council.

Some of South Africa’s votes at the UN were inconsistent the country’s stated human rights principles, including the vote against a resolution at the Human Rights Council to renew the mandate of the Commission of Inquiry on Burundi. 
 

Legal Link International SA.Beaural.

THE LAND LAW AND QUESTION IN SOUTH AFRICA

LLI.04.Jun.2018-Jberg.SA.

South Africa Has All Legislative and Policy Tools for Land Redistribution - Politics, Patronage and Governance Paralysis Have Made It Impossible So Far

There is much noise around land expropriation without compensation, including from the self-serving bands of politicians gearing up for the 2019 elections. The blunt reality is that the legislative and policy tools for land redistribution, restitution and reform to redress landlessness and inequality have existed for most of democratic South Africa. That little, if anything, has taken root has more to do with competing political interests, patronage networks and governance paralysis.

Land is complex. It is a vortex of deep-seated lingering pain among black South Africans arising from colonial and apartheid dispossession and loss – and the fundamental need for social justice alongside constitutional imperatives of redress – but also power politicking and patronage. It is steeped in clashing economic interests, with those already holding power, be they white farmers or traditional leaders, enjoying a leveraged position to maintain privileges, and also the blunt reality of 21st century financial services based on loans against assets, mortgages and lasting liabilities.

The governing ANC, coming from its land consultative workshop in late May 2018 into a subsequent National Executive Committee (NEC) meeting that approved the workshop resolutions, acknowledged that more needed to be done, and it should be done immediately.

That in itself is an appreciation that the necessary tools are there. But that recognition is not only tempered by political power broking – security of tenure for some 17 million South Africans living on communal land where traditional leaders hold sway has again been kicked for touch – it also is steeped in political sophistry.

And so there was a call for the speedy passing of legislation that simply does not exist even on a drafter’s notepad in some departmental back office – the land redistribution law. Yet redistribution is an established, and funded, policy dating back to the 1997 White Paper on Land Reform. The rules of governance mean that once policy is adopted by Cabinet, it can be, and is, funded from the national coffers. No law needed.

That’s why South Africa between 1998 and 2000 had (The Settlement Land Acquisition Grant) SLAG, then The Land Redistribution for Agricultural Development (LRAD) and since 2006, Proactive Land Acquisition Strategy (PLAS). That these land redistribution programmes did not yield the aspired levels of redistributed acreages is intrinsically enmeshed in governance paralysis, including agricultural extension officers’ inability to provide the legislated support, and the ANC’s ideological mutation, despite the pro-poor and dispossessed political rhetoric, moved the focus on economic agricultural activity. Initially, SLAG provided a grant for the poorest of rural residents. But LRAD and PLAS farmed out grants and subsidies to encourage black emerging and commercial farming on redistributed land. These subsidies frequently provide instead a field day for unscrupulous, politically connected, often urban-based business people.

Also funded from the national purse are subsequent other land redistribution policy initiatives like the 50/50 policy so farmworkers could co-own farms with the current owners, have a say and share profits. Officially called the Policy Framework on Strengthening the Relative Rights of People Working the Land, it dates back to 2014, and has clocked up mixed results.

A one-stop-shop type piece of land redistribution legislation might be nice to have. But the range of issues involved in redistribution mean the law the ANC is now talking about could turn out a beast of scores of pages – once drafters get down to putting pen to paper. And given the governance track record, it could take several years from the first departmental draft to the presidential signature into law.

Realistically speaking, the horse has bolted. The deadline set to receive any new draft laws for Parliament to process these before it rises ahead of the 2019 elections was 31 May 2018. And so it’s a political, and procedural, pipe dream for the ANC to think that the urgency of the land issue, and its numerical dominance in the national legislature, might provide a different outcome. Co-incidentally, parliamentarians are on a two-month extended constituency period, effectively called for electioneering, and will return only in mid-August.

The only plausible motivation for calling for such a land law: elections. It has happened before: land restitution became a 2014 election issue amid promises of another window to lodge such claims by black South Africans dispossessed because of racially discriminatory laws since 19 June 1913, when the Natives’ Land Act came into force. The first claims window under the 1994 Restitution of Land Rights Act closed on 31 December 1998, with subsequent persistent complaints that many had missed the deadline, or of claims being lost in the process. Just before the 2014 elections Parliament passed the Restitution of Land Rights Amendment Bill and it was signed into law by then president Jacob Zuma a month afterwards, opening the new lodgement window from 1 July 2014.

Some 170,000 new claims were lodged, but these fell into limbo after a successful Constitutional Court challenge in mid-2016 over the inadequate public consultations. The court gave Parliament two years to fix this defect.

Governance paralysis meant the private members’ Bill the ANC introduced in 2017 to fix the legislative defects has gathered dust in Parliament since. When in July 2018 the court deadline for the national legislature to remedy the law expires with action still pending at Parliament, all new lodged claims will lapse.

Those who believed the land restitution 2014 election promises remain empty-handed.

Also left empty-handed are some 17 million South Africans living in traditional communal areas, vulnerable, without tenure security. In rural areas, one instrument of power is land, and traditional leaders have made much of this.

It’s a political pickle for the ANC, which counts traditional leaders amid their core support bases, particularly in elections. The ANC consultative workshop decided on what’s called “further engagement” on communal tenure security.

Although communal tenure reform has been a central land reform policy for the past 22 years, it took almost a decade after the democratic transition to produce a law, the 2004 Communal Land Rights Act (CLARA). In 2010 the Constitutional Court declared it invalid on procedural issues as at the time – lower courts had upheld communities’ arguments that giving traditional councils land administration rights undermined living customary law – as the then land affairs minister told the Constitutional Court the law would be redrafted in any case.

That has not yet happened, despite then Chief Justice Sandile Ngcobo’s injunction in the 2010 judgment:

“The core problem created by colonial and apartheid geography is that millions of African people were forced into labour reserves that were distant from employment opportunities, impoverished and overcrowded. The repressive machinery of apartheid, from the pass laws to forced removals, evolved in a way that restricted those affected to these impoverished zones.

“African communities were uprooted from their land and dumped onto foreign land. They were denied secure tenure in these areas. While the deep sense of humiliation and untold suffering cannot be fully compensated, at the very least, lost dignity can be partially restored by providing for security of tenure.

“Land restitution and security of tenure must be given priority. We are mindful that Parliament’s legislative plate is overflowing. These matters have, however, now become pressing and should be treated with the urgency that they deserve.”

Eight years later, and after a 2013 initiative that essentially vested land administration with traditional councils like the (invalid) 2004 Act was dropped, another legislative effort remains incomplete.

The July 2017 draft Communal Tenure Bill is still in the departmental public comment stage. It has yet to go to Cabinet for approval before it can be tabled in Parliament. And again it has not let go of being in charge of land in communal areas. These councils, headed by traditional leaders, are one choice for a community vote of no less than 60%. Community property associations, frequently disliked by traditional leaders who see these as rival power centres, or “any other entity”, are the other options.

Meanwhile, the Ingonyama Trust, which owns large swathes of land in KwaZulu-Natal, has started converting traditional tenure rights, usually formalised though “permissions to occupy”, to leases carrying a 10% annual escalation. Essentially this is a commercialisation of historic land tenure rights for the benefit of the trust

King Goodwill Zwelithini ka Bhekuzulu arrives at the Chief Albert Luthuli Hospital in Durban and is received by Deputy President David Mabuza, Chair of the South African National AIDS Council (SANAC), KwaZulu-Natal Premier Willies Mchunu and the Minister of Health Dr Aaron Motsoaledi during the World TB Day Commemoration held in Durban, Kwa-Zulu Natal

The only recourse for anyone opposed to this is the 1996 Interim Protection of Informal Land Rights Act. Passed to provide legal protection in terms of Section 25(6) of the Constitution to those without secure tenure rights, this temporary measure is basically the only one, 22 years on, for millions of vulnerable South Africans.

Meanwhile, the romanticised view by many in the ANC, and other others, like the IFP, that traditional leaders act as custodians of the land owned by the people, is blown to smithereens by research and grassroots testimony, also in Parliament, of how traditional leaders without consultation, or with limited consultation, determine how land under their control is used, often evicting people to make way for others, including mining companies.

In the North West platinum belt communities have been left broke as mining royalties have disappeared; the public protector’s probe into the D-Account goes some way towards uncovering this. In Xolobeni, on the Eastern Cape’s Wild Coast, the pro-mining traditional leaders and the community, which is advocating for sustainably agriculture and tourism, remain at odds. The dispute – in 2016 Amadiba Crisis Committee community activist Sikhosiphi “Bazooka” Radebe was killed, his murder still unsolved– is now in court.

In sun glasses is the late ‘Bazooka’ Radebe.

As a law that could secure tenure, and a real say in rural land use, for a third of South Africa’s 52-million strong population remains steeped in politicking, democratic South Africa also has yet to get constitutionally compliant expropriation legislation.

It’s not for want of trying. In 2008 the Expropriation Bill was withdrawn when Public Works declined to fix what parliamentary law advisers pointed out as a constitutional defect – lack of recourse to the courts. After revision, the Expropriation Bill was re-tabled in 2013, and passed by both of Parliament’s Houses in 2015. But it was returned to Parliament in February 2017 by Zuma, due to concerns over consultations, particularly with the National House of Traditional Leaders.

That was done. But the Bill, while on the National Assembly legislative calendar, remained unattended, in no insignificant part because of the factional policy proxy battles in the run-up to the ANC December 2017 national conference.

The ANC NEC’s call following its consultative land workshop, that the Expropriation Bill should speedily be passed, creates parliamentary and legislative headaches. As the draft law is before Parliament, Public Works can no longer simply amend it to capture the most recent ANC call for action, particularly in urban areas: expropriation of unused buildings – actually, that’s already possible by getting a court order – land held for speculation, or unused land.

As part of the public hearings that are part of the legislative process, the ANC or someone else could make these proposals for MPs to take on board. Or the ANC could bring another private members’ Bill, although that didn’t really work out on the restitution legislation. But there’s time pressure: Parliament is in recess until mid-August, breaks again for the year-end recess only to return in early February, after another extended so-called constituency period, and rushing public consultations has proven a no-no.

Meanwhile, it has emerged that many ministers, premiers, mayors and others in the ANC fold did not know, or pretended not to know, they already have expropriation powers.

That law could have been used – and its use tested in the courts – even if it is tricky because it does not take into account key redress provisions of Section 25, the property clause, of the Constitution, including public interest, which is defined as part of a national commitment to ensure equitable access by all South Africans, and “fair and equitable” compensation.

Using the courts to test the law was touted as a key government strategy arising from the ANC consultative land workshop and ANC NEC.

It’s somewhat ironic.

When the opportunity arose in 2013 to test the “willing seller, willing buyer” policy in the controversial just short of R1-billion settlement deal for the Mala Mala game reserve on the borders of the Kruger National Park, Rural Development backed out and settled out of court. And by then the willing seller, willing buyer policy had been jettisoned by the ANC, as far back as its 2007 Polokwane national conference. The claim by the Mhlanganisweni community was not disputed.

Instead it was left to labour tenant Philemon Msiza to challenge the issue of compensation in a claim brought by his father who died in the over decade-long saga. And in July 2016 the Land Claims Court determined that market value was not an overriding criterion and ordered a settlement of R1.5-million for the owners, who had wanted R4.4-million.

But ignorance of the law, real or for convenience’s sake in the various power games and patronage networks, also emerges over the Spatial Planning and Land Use Management Act, or Spluma, in place fully since 2015. It is opposed by many traditional leaders because it could mean sharing their powers over land with municipalities. But it also appears to have been largely ignored by provincial and municipal governments, where it’s meant to be a tool to address apartheid spatial distortions that see working-class and social housing erected at cities’ outskirts, away from job, education and other opportunities.

The Act, in its preamble, specifies it’s there “to provide for the inclusive, developmental, equitable and efficient spatial planning at the different spheres of government; to provide a framework for the monitoring, co-ordination and review of the spatial planning and land use management system… to address past spatial and regulatory imbalances”.

It’s a legislative tool that could have been wielded in urban and rural areas across provinces for at least the past three years, as could have been the 2007 Government Immovable Asset Management Act, governing donations, leases and exchanges of state-owned land. Although it does not expressly mention State-owned Enterprises (SoEs), which often own well-situated land, it could be used. However, SoEs have rebuffed such approaches, unless their land is bought at market prices, it emerged in a Public Works pre-budget debate briefing in May.

Land is complex. And too much is drenched in politicking, power broking and patronage – and trapped in governance paralysis.

In the bruising factional ANC policy proxy battle, land expropriation without compensation was at a stalemate at the governing party’s July 2017 policy conference between those arguing it’s possible under the current dispensation and those touting expropriation without compensation as key to radical economic transformation (RET). It was an 11th hour push by the RET lobby, accompanied by roiling tempers and fisticuffs, that led to the ANC resolution for land expropriation without compensation,qualified by references to food security, agricultural productivity and consultation.

Politics being what it is, it didn’t take long for the EFF to take advantage. Land expropriation without compensation is one of its seven cardinal pillars – and it had always promised to lend its 6% to the ANC’s 62% in Parliament to amend Section 25 of the Constitution.

In late February 2018 the ANC supported an EFF parliamentary motion for land expropriation, having successfully ensured that key amendments that effectively watered down the EFF’s push in line with its national conference resolution.

That parliamentary motion gave rise to the constitutional review committee process, which will hold public hearings across South Africa in June and July 2018. These come against the backdrop of a longstanding argument by lawyers, researchers and others that the “just and equitable” constitutional provisions would allow for a zero rand determination. The public hearings also are set to unfold amid continued politicians’ politicking over land.

The ANC now is describing this process as an assessment of whether a constitutional amendment is needed, not one determining the details of expropriation without compensation. Emphasising illegal occupation of land would not be tolerated; the governing party instead has announced “title-deed Fridays” to hand over these legal documents amid the recent call on its structures in provinces and municipalities to provide serviced sites.

The EFF has upped the ante in Parliament during the Presidency budget vote debate with chants of “Occupy unoccupied land”, before behind ordered out of the House. And it seems to be shifting its goal posts: from expropriation without compensation to what party leader Julius Malema in early May publicly described as “nationalising the land and everything that comes with the land underground‚ not these things on top”, like houses for which bonds would still be valid, though “discounted” by the value of the nationalised land.

There’s nothing to indicate the EFF would change tack. Other political parties, like the DA, which repetitively touts its track record of handing title deeds where it governs, without providing numbers, and the Freedom Front Plus with its insistence that Afrikaners and farmers could not be prejudiced, have in many ways failed to grasp this political tipping point.4

Land is set to become a driving issue in the 2019 elections. But politicians’ promises at the hustings are one thing. The hard task of governance is quite another

Research & Policy Directorate-Legal Link International,SA Beaural