On Thursday 21 October 2013, the Portfolio Committee on Local Government and Traditional Affairs of the North West Legislature held four simultaneous hearings on the Traditional Courts Bill [B1-2012] (TCB) across the province. These hastily-convened hearings have caused alarm for many citizens and civil society organisations that have been following the process of passing the TCB into law since it began in 2008.
The alarm has been caused by the disregard shown by lawmakers to the clear direction given to them by rural communities and civil society organisations on the Bill. When the Bill was introduced in the National Assembly (NA) in 2008 it was roundly criticised and rejected by a wide range of representatives of community-based organisation, political parties, Chapter 9 institutions and NGOs.
Objections to the Bill were that it would:
- entrench the controversial boundaries set in place by the Bantu Authorities Act (BAA) of 1951 and enable traditional leaders to order forced labour by anyone within the boundaries as punishment;
- make it a criminal offence to not appear when summoned to come before a traditional court;
- allow traditional courts to strip people of customary entitlements such as land rights;
- do nothing to stop the practice of women being represented by men in customary courts with very serious implications especially for widows who are commonly not allowed to appear before such courts; and
- create a segregated legal system, subjecting rural citizens to traditional leaders who, in many cases, were complicit in forced removals in order to gain power.
The end result of the initial parliamentary process in the NA was the withdrawal of the Bill. But to the surprise of all who had voiced their concerns about the Bill, the very same Bill was introduced unchanged in the National Council of Provinces (NCOP) in January 2012. All the objections that had been raised were simply disregarded. Public hearings on the Bill followed in the provinces and produced negotiating mandates on the basis of which the Bill should have been discussed by the NCOP’s Committee on Security and Constitutional Development at the end of May 2012.
At that point the process took another surprising turn. The mandates showed that four provinces – Eastern Cape, North West, Gauteng and Western Cape – rejected the Bill; another four provinces – Limpopo, Free State, Northern Cape and KwaZulu-Natal – supported the Bill, but suggested wide-ranging and conflicting amendments; and Mpumalanga requested an extension. Instead of negotiating based on the mandates received, the NCOP sent the Bill back to the Provinces for further consultation. The Bill then went into limbo towards the end of 2012.
To the shock of all who have watched the process, the Bill was resuscitated in October 2013. It suddenly appeared on the schedule of the NCOP’s Select Committee on Security and Constitutional Development. Provincial mandates were to be discussed at a meeting on the committee on 15 October. As it turned out, 5 provinces now rejected the Bill and only 2 were in support. Yet when the meeting took place the mandates were not discussed. Instead, the committee decided to refer the Bill back to the provinces again for further consultation, ostensibly to “clarify” mandates. But, except for those from KwaZulu-Natal and Mpumalanga, the mandates were already clear. For instance, 95% of participants in the hearings in the North West had rejected the Bill according to the province’s mandate.
Why should we be alarmed by this return of the Bill to the provinces and the announcement of further public hearings in the North West?
Rural people have explicitly and repeatedly said that the TCB will take them back to Bantustan dynamics. The Bill relates to issues of citizenship which were at the heart and are symbolic of the transition from apartheid to democracy in 1994. Instead of creating common citizenship for all South Africans, the recreates a separate system for rural people in much the same way that apartheid laws like the BAA did. Who can forget that until 1994 black people were denied equal citizenship within South Africa, and instead relegated to being subjects of one or other Bantustan?
This TCB continues in the vein of the Traditional Leadership and Governance Framework Act of 2003, which has maintained the Bantustan boundaries established by the BAA. In many places the Traditional Courts Bill further locks people into the jurisdiction of chiefs under whom they were placed through apartheid forced removals. As such then it is further reward for sell-out chiefs at the expense of those who stood firm against the Bantustan agenda. It would give these chiefs draconian powers to silence legitimate grievances in the same way chiefs were given powers by colonial and apartheid laws.
Another reason to be alarmed is that there seems to be a predetermined outcome that the process of public hearings is meant to achieve. The more people in provinces reject the Bill the more it keeps getting shoved back at them. Whose interests does Parliament serve when it keeps sending the TCB back to the provinces that have already unequivocally rejected it?
It is becoming clearer as this irregular process continues that both the process and the TCB are not about what citizens in rural areas want. The exercise is not about these citizens defining the forms of citizenship and governance that best serve their interests. The TCB and other laws demonstrate that the intention of government is to re-establish traditional leadership that is accountable only upwards to the state rather than downward to citizens. And if anybody steps out of line and challenges such leadership, traditional courts presided over by the same chiefs are being given powers to whips them back into line.
Ultimately the TCB is not about undoing colonial and apartheid distortions of African modes of governance and justice. It simply re-imposes the distortions through its one-size fits all model of how all traditional courts should function uniformly throughout the country, regardless of the histories and cultural milieus out of which various customary legal systems came into existence. Indications are also that a small and powerful lobby of traditional leaders is imposing itself and getting its way to the detriment of over 16.5 million people in rural South Africa.
As we head towards elections, party leaders should take note that public hearings since 2008 have indicated that bolstering autocratic versions of chiefly power is likely to infuriate rather than woo rural voters. People have said loudly and clearly that they do not want laws taking them back to the same Bantustans which they defeated in 1994. Through the TCB and the process surrounding it, the state is messing with what is at the heart of what was won during the transition to democracy – the issue of equal citizenship for all South Africans, and of redress and restitution for past dispossession. Rural voters will not take kindly to being taken for fools in this way.