WeeklyWorker

04.07.2019
‘Traditional’ courts empower tribal chiefs

Force the ANC to retreat

Going back to apartheid practices means denying democracy. Peter Manson looks at the ‘traditional peoples’ legislation

South Africa is currently embroiled in controversy over two bills relating to the rights of “traditional peoples” - in reality the privileges of tribal chiefs. Both the Traditional and Khoisan Leadership Bill and the Traditional Courts Bill have been approved by the national assembly, but neither has yet completed the legislative process.

The Traditional and Khoisan Leadership Bill, passed by the national assembly in February, gives full legal recognition to the powers of tribal chiefs within certain rural enclaves. As a result, many people will be stripped of certain rights, and subjected to the diktats of “traditional” authorities, which will be fully empowered to speak on behalf of ‘their people’. Meanwhile, the Traditional Courts Bill - passed by the casting vote of the chair in a poorly attended national assembly session in March - fully recognises unaccountable tribal institutions as “courts of law”.

A clause that would have permitted citizens to opt out of the jurisdiction of such courts was removed during the drafting process. Moreover, although the South African Bill of Rights gives citizens the right to legal representation throughout the judicial process, this will not apply to such “traditional courts of law”. And the legislation is also said to violate other clauses of the Bill of Rights, which make following and practising custom a choice. According to Sindiso Mnisi Weeks, writing on the website of the online ‘unorthodox’ Daily Maverick newspaper,

Part of the department’s justification for not defending the ‘opt-out’ clause against parliament’s axe was that a person would still be allowed to take their matter to the magistrate’s court. But this disregards the fact that such a person would have to go through the entire hierarchy of traditional courts before this would be an option.1

As for the Traditional and Khoisan Leadership Bill (the Khoisan being South Africa’s original inhabitants - now very much in a minority), this is intended as a reform of legislation introduced in 1993, during the death throes of apartheid. The 1993 act, writes Weeks, made no provision for “the determination of traditional leaders being subject to consultation, approval or acceptance” by those they were governing. However, the new bill “does worse still by expanding the powers of traditional governance structures, while reducing their accountability to their people and to government”.

Weeks is among several commentators who stress that the overall effect of the two bills would result in “a dangerous re-enactment of core apartheid principles”:

The new Traditional and Khoisan Leadership Bill is based on the same hierarchy of leaders and authority as the Traditional Leadership and Governance Framework Act, which it replaces. And that, in turn, is based on colonial and apartheid-era definitions.

She also points out that women, who “are not well represented in customary forums or in the new bills”, would in particular be adversely affected: “Almost all traditional leaders in South Africa are male. And traditional courts are typically made up of men, excluding women from participation other than as parties to cases or witnesses.”

Corruption

She contends that the ruling African National Congress is supporting such changes, because “it believes the traditional leaders who pushed for them deliver rural voters”. And those unelected “traditional leaders” have an incentive to back such legislation - they are paid government salaries, along with other benefits. Heading the ‘traditional leader’ lobby is Inkosi Patekile Holomisa, who was recently appointed the new deputy minister of justice and correctional services by president Cyril Ramaphosa.

The Alliance for Rural Democracy - a campaign formed to oppose the proposed new laws - labels them “Bantustan bills”, which would see a return to the “apartheid era”. It correctly pointed out in 2017:

In the past, traditional courts were a part of the way that traditional communities functioned. They are not the same as state courts. They don’t judge. Rather, they are places where people manage disputes through processes combining negotiation, mediation and arbitration.2

However, colonialism - and apartheid in particular - changed all that:

We are all aware that the colonial and apartheid laws created big problems for rural communities. It created communities inside other communities, changed customary law to suit the apartheid agenda and changed traditional leaders into government officials with salaries and took away the rights of rural citizens to hold their leaders to account.

But now, says the Alliance for Rural Democracy, “Government is choosing to ignore the people and their dreams of a democratic country, and want to lock them under untransformed authorities.” Under the new legislation, ‘traditional councils’ will be empowered

to conclude agreements with any institution or entity, including mining companies, without any requirements for consultation with residents living within the boundaries of traditional communities (previously known as ‘tribes’) that make up the former homelands. This denies and undermines the land rights of people who were previously dispossessed of their rights during colonialism and apartheid.

SACP

What is the position of the South African Communist Party in relation to the two bills? The SACP is, of course, a very important component of the ANC, with a significant representation in its parliamentary contingent, including six government minsters.

At the beginning of the decade, when such legislation was first discussed, the SACP was strongly opposed to it. At its 13th national congress in 2012 a resolution was agreed which stated that the “Traditional Courts Bill before parliament undermines [the national democratic revolution] and socialist objectives”. The resolution committed the party to oppose the bill and concluded: “The SACP must spearhead the mobilisation of rural dwellers living as ‘subjects’ under traditional rule in order for them to lead the struggle for their own self-emancipation.”3

Well, that was 2012, but what about now? I am afraid to say that neither the party nor any of its top leaders has issued any statement or declaration on the legislation, as far as I know. There is certainly nothing on the SACP website and a Google search also draws a blank. I do not know how SACP MPs voted on the two bills, but there have been no reports of a rebellion within the ANC on this issue.

So what now? The Traditional Courts Bill must still be approved by South Africa’s ‘upper chamber’, the National Council of Provinces (NCOP), while the Traditional and Khoisan Leadership Bill awaits only the president’s signature before becoming law, having already been passed by both houses.

Let me conclude by briefly discussing these two processes, as the role of both the NCOP and the president in enacting legislation is potentially highly reactionary.

First, the NCOP, to which each province sends delegates. Each delegation must reflect the proportional representation of each party in the various provincial assemblies, to which members are elected at the same time as a general election. Each of the nine provincial assemblies selects 10 delegates to the NCOP - irrespective of the province’s population and therefore the size of its electorate. So Gauteng, where 4.6 million voted in the May 8 provincial elections, has equal representation on the NCOP with the North Cape, where the total votes cast amounted to a mere 400,000 - less than a 10th!

Up to now this has not mattered very much (in fact the NCOP role is hardly ever mentioned), as the ANC has enjoyed a clear majority in both houses and, as I have pointed out, each of those nine lists of NCOP delegates must reflect the proportional representation of every party in the province in any case. So, up to now, the NCOP has acted as a mere rubber stamp, automatically approving bills passed by the ‘lower house’ in line with ANC discipline.

However, if, say, the largest opposition party, the Democratic Alliance, were to narrow the gap between itself and the ANC, one could envisage this affecting the national balance on the NCOP. For example, in Gauteng the ANC recorded just over 50% of the votes cast in May, as did the DA in the Western Cape - the only province it won. In both cases the largest party was entitled to five of the ten NCOP seats, but the total ANC vote in Gauteng (2.2 million) was almost exactly double that of the DA in the Western Cape (1.1 million). In other words, in terms of these two provinces’ representation on the NCOP, an ANC vote was worth half of a DA vote.

But why should the nine provinces have a theoretical veto over proposed legislation in any case? It is not as though any of the provinces represent a separate ‘people’ with its own interests - they are largely artificial constructs. The answer is to do with the usual fetishisation with ‘checks and balances’, just in case the national assembly ‘gets it wrong’. In other words, checks and balances against democracy.

Then there is the small matter of the national president. Even after a piece of legislation has been voted through by the NCOP, it still needs the president’s signature. While, strictly speaking, he has no power of veto, he may refuse to sign if he believes the proposed legislation is in some way unconstitutional - in which case the bill must go back before the national assembly. While that has never yet happened (Why should it? The president is also the leader of the ANC and will have approved every piece of legislation within the party before it has come before parliament), several laws have been subject to delays of months (including in fact the Traditional and Khoisan Leadership Bill), when for whatever reason the president has claimed he needs more time to consider the constitutional implications.

In the current case, many groups, including the Alliance for Rural Democracy, are calling on Ramaphosa to reject both bills, claiming - legitimately, it would seem - that they would infringe the constitutional guarantee that “every citizen is equally protected by law”. I would certainly approve of this call, but what is really needed is a mass campaign - yes, as the SACP stated back in 2012, the “mobilisation of rural dwellers living as ‘subjects’ under traditional rule”, but also, and more importantly, solidarity action from the working class. The ANC should be told in no uncertain terms that such legislation is unacceptable and must be withdrawn.

We should demand that the traditional structure of rural dwellers should apply on a totally voluntary - and democratic - basis. A local body should have the right to establish rules and impose sanctions on its members in the same way as a chess club or debating society should - the difference being, of course, that individuals must have the right to withdraw from such bodies at any time.

peter.manson@weeklyworker.co.uk


  1. www.dailymaverick.co.za/opinionista/2019-06-18-traditional-leadership-bill-is-a-dangerous-throwback-to-core-principles-of-apartheid.

  2. https://allianceforruraldemocracy.org/2017/10/31/submission-on-the-traditional-leadership-and-governance-framework-act-amendment-bill-b12-2017.

  3. www.sacp.org.za/docs/decl/2012/13th_congress.pdf.