Alternate Dispute Resolution Law at Eswatini
Alternate Dispute Resolution (ADR) Law in Eswatini
In Eswatini (formerly Swaziland), Alternative Dispute Resolution (ADR) is increasingly recognized as a key method to resolve civil and commercial disputes outside the formal court system. Here's an overview of the ADR framework in Eswatini:
1. Legal Framework and Recognition
Eswatini’s legal system is a dual legal system, consisting of Roman-Dutch common law and Swazi customary law. ADR mechanisms are recognized under both systems but are more formally integrated under common law.
The Constitution of the Kingdom of Eswatini (2005): Although it does not specifically mention ADR, it promotes access to justice, which supports ADR mechanisms.
High Court Rules and Magistrates Court Rules: These provide for the referral of cases to mediation or arbitration.
Arbitration Act (1904) (as amended): This colonial-era act governs arbitration proceedings but is considered outdated and has limited modern application. There is an ongoing call for reform and enactment of a modern arbitration law.
2. Types of ADR Used in Eswatini
Mediation: Commonly used, especially in labor disputes. It involves a neutral third party helping parties reach a mutual agreement.
Conciliation: Often used in employment and family law matters.
Arbitration: Used in commercial contracts, particularly those with foreign investment components. Governed by the Arbitration Act.
Negotiation: Informal but widely used method, particularly within the traditional/customary system.
Traditional Dispute Resolution: Conducted by chiefs’ courts under Swazi law and custom. These are significant in rural areas and for matters involving community or family disputes.
3. Institutions Involved
Commission for Mediation, Arbitration and Conciliation (CMAC): A key statutory body for labor disputes. It offers mediation and arbitration services under the Industrial Relations Act, 2000.
Eswatini Law Society and Judiciary: Promote the use of ADR through court-annexed mediation and training programs.
Chiefs’ Courts: Handle disputes under customary law with reconciliation as a major goal.
4. Advantages and Challenges
Advantages:
Cost-effective and time-saving
Confidential process
Reduces backlog in courts
Supports cultural reconciliation methods
Challenges:
Outdated legal framework for arbitration
Lack of a centralized ADR policy or modern legislation
Limited public awareness and training
Customary practices can conflict with international human rights standards
5. Reform and Future Outlook
Calls for Modern ADR Legislation: Legal professionals and international partners (like UNCITRAL and the SADC) recommend Eswatini adopt a modern Arbitration and Mediation Act aligned with international best practices (e.g., UNCITRAL Model Law).
Capacity Building: Ongoing efforts to train mediators and arbitrators.
Court-annexed ADR: Expansion of mediation programs in civil courts is being explored.
Conclusion
ADR in Eswatini is a growing field, with roots in both modern and traditional systems. While institutions like CMAC have made significant progress in labor-related mediation and arbitration, there's a clear need for legal reforms and capacity building to fully modernize ADR mechanisms and make them more accessible across all sectors.
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