Traditional and Khoi-San Leadership Bill: Rules of Engagement

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The Traditional and Khoisan Leadership Bill could be adopted as early as the end of the year, if the Portfolio Committee on Co-operative Governance and Traditional Affairs has its way. But if input from citizens submitted via the public hearings report to the National Assembly last week is anything to go by, there’s still a long way to go before agreement is reached on several key issues. Not least, ongoing concerns that the Bill is a thinly-veiled attempt to cement apartheid boundaries and let traditional leaders act with impunity. Will the call for “meaningful” feedback result in meaningful amendments?

Despite ongoing concerns around key aspects of the Traditional and Khoisan Leadership Bill (TKLB), it appeared to be marching, if a little unsteadily, towards the finish last week. Deliberations on the report on public hearings were conducted at the National Assembly, and feedback – to put it euphemistically – was extensive.

Officials appeared optimistic that the Bill was on the home stretch, with one reportedly saying the Bill might be adopted as early as the end of the year. Daily Maverick’s multiple attempts to verify this went unanswered.

In the meantime, however, the committee welcomed the introduction of the Traditional Leadership and Governance Framework Amendment Bill, a stopgap measure driven by “lack of adherence to time frames required by some of the provisions of the principle Act”, according to parliamentary media liaison Temba Gubula.

In terms of the Traditional Leadership and Governance Framework Act of 2003, tribal authorities had to be reconstituted and community authorities disestablished within certain time frames, which expire in 2017. Due to delays in the adoption of the TKLB, the Amendment Bill was introduced to “close the gaps identified” and – more specifically – both “[extend] time frames and [determine] that the calculation of such extended time frames will be from the date of commencement of this Amendment Bill and not from the date of commencement of the original Act”, Gubula said in a statement.

In short, it buys time.

But the need for speed is duelling with public pressure regarding both the TKLB and the consultation process. Public feedback has ranged from the (by now) well-documented complaints of inadequate consultation to whether the Bill should be separated: one dealing with Khoi-San leadership and another with traditional leadership.

The latter is probably impractical and could set a precedent impossible to uphold, say analysts. Yet grouping divergent needs has proved problematic. “A lot of people supported the move to recognise Khoi-San communities, because they have been treated as outsiders for a long time,” explains Thiyane Duda, researcher at the Land and Accountability Research Centre (LARC). “The Bill, however, also has a lot of negative implications for traditional communities. So the calls for separation of the Bill is from that point of view – while the recognition of Khoi-San communities is positive, for traditional communities there are negatives too.”

The negatives are considerable: a geographical overlap with apartheid structures, i.e. the re-creation of former “Bantustan” boundaries, traditional councils that overlap with former tribal authorities – what Duda calls “resuscitating apartheid geography”. “Tying that in with the recognition of the Khoi-san community has negative consequences,” he says.

Then there is the issue of treating the affected parties differently. About 22-million rural inhabitants stand to be affected by legislation on traditional leadership, with additional vast numbers of Khoi-San descendants. But the affiliation process is different for Khoi-San and traditional communities, and has been criticised by both sides. The geographical enforcement of traditional affiliations, says LARC, is unconstitutional and stands to further complicate already problematic land restitution. Meanwhile Khoi-San people say declaring their affiliations is unnecessarily laborious and bureaucratic, and reinforces painful apartheid identification.

In a presentation to the Portfolio Committee, the Griqua Royal House and Bruin Bemagtigings Beweging said: “While we are appreciative of the fact that efforts are made to give recognition to the Khoi-San in general and Griqua in particular, we reject the Bill in its present form… [it] fails to adequately address the issue of correcting historical injustices perpetrated against the Khoi, San, Griqua and Koranna peoples [and] adds insult to injury by denying those hitherto classified and grouped under the amorphous term Coloureds to exercise their right to self-identification […]

“Why should we … prove that we ‘have a history of self-identification and as belonging to a unique community distinct from all other communities’ as required in Section 5 of the Bill? Who sitting here can tell me that the same is required of every Zulu, Xhosa, Pondo or any other black or white person to prove his culture or identity? No white person is required to prove his white identity to a premier. Why should we?” The recognition, or lack thereof, of some traditional leaders is also questioned.

“The purpose of the Bill is to recognise the Khoi-San leadership structures and communities which have not yet been recognised in law, and to combine all the laws on traditional leadership into one law and address all problems with current laws,” the Alliance for Rural Democracy’s Sobantu Mzwakali has argued. “The point of public hearings is to allow the committee to draw from people’s input to make changes to the Bill, or even, if necessary, send it back to the drawing board.

“However, we know from the earlier Traditional Courts Bill that there is no guarantee that a committee will take people’s inputs into account in influencing the direction of legislation.”

Is this a valid concern? Daily Maverick asked Duda. He isn’t sure. “We are not done yet,” he says. The committee must meet and discuss the public’s feedback; thereafter the National Council of Provinces and the Provincial Legislature must begin their consultative processes. As yet, it’s unclear where, or whether, consultation will be improved.

The committee did not respond to Daily Maverick’s enquiries regarding the consultation process nor implementation of the suggested changes.

To date, opportunities for improvement have not been realised, says Duda. “There were three phases,” he argues. “Problems noted in the first phase could have been rectified in the second.”

Duda was present at most of the hearings and corroborates that notices for public hearings were not turned out timeously – often a day before, or sometimes online, on a Friday, for a Monday meeting. “They [public participants] find out very late,” Duda told Daily Maverick.In some cases, as was reported by Mzwakali in GroundUp, officials simply failed to arrive.

People seldom had access to the Bill, or if they did, it was not available in their own language, says Duda. “Neither the Portfolio Committee nor the Provincial Legislature provided any form of interpretation. Instead, members of the public were asked to volunteer to translate,” AllAfrica.com reported last year. If there was no capable translator available, that was that.

In some cases, the Bill was only made available at the actual hearing. A 100-page Bill, in English, in legal jargon, even where there are low literacy levels – “even for a person with legal training, to go through a 100-page Bill in two days is not possible,” says Duda. Often, the public was given the “helicopter view”, as content advisers called it.

“They were told the representatives could not come back,” says Duda. “They had to give their response based on the summary.”

Yet the fine print is crucial. First, LARC is concerned that many issues raised during the public hearings process were, while important, not related to the Bill itself – a function of inadequate engagement with the Bill.

Second, Clause 24, which will effectively deny traditional communities a host of legal rights to public participation, particularly when it comes to mineral rights, infrastructure and development, was for the most part not explained to the affected parties. Polokwane, for example, complained that the overwhelming majority of the hearing consisted of traditional council members, due to a last-minute venue change that meant the public was largely excluded. Ultimately, the meeting included mostly those who would benefit from the changes in the Bill, rather than those who would be disempowered or economically disadvantaged by it.

Moreover, says Duda, the Amendment Bill maintains the legitimacy of problem areas within the TKLB. “[Traditional] structures have failed to transform,” he says. “This Act will buy them more time. What is critical is that there are structures that have entered into deals with mining councils. If their status is invalid, those deals are constitutionally invalid. But if the Amendment Bill goes through and becomes an Act, it gives them time to reconstitute themselves, so that they are not challenged.”

LARC’s Monica de Souza Louw agrees. “The stated purpose of the [Amendment] Bill is to allow more time for traditional councils to be reconstituted since their current term is supposed to end in August,” she says. “In the meeting, the department implied that they would be able to reconstitute and transform traditional councils within the time period of a year, even though they have been unsuccessful for the last 13 years.

“The reality is that many traditional councils are already operating and transacting without any legal status since they have not met the requirements, and this is explicitly acknowledged in the Memorandum attached to the Bill. The August date is therefore only really relevant to those few councils who have actually managed to meet the requirements.”

The Bill is therefore not only trying to buy time, she says. “Instead [it] is also trying to disguise the transformation failures so far by giving failed traditional councils a new chance to comply … Moreover, [it] remains silent on the legal status of traditional councils that fail to comply even within the extended time period. This means that there is no incentive for traditional councils to transform, and even non-compliant councils could continue to represent traditional communities in important processes like mining deals.”

Disputes over mineral rights are already under way in Xolobeni and elsewhere, and will be difficult to take to court if communities are stripped of their legal rights over land use.

Chairperson of the Portfolio Committee on Co-operative Governance and Traditional Affairs, Mzameni Richard Mdakane, said in January 2017 that it was “very unfortunate” that the “blessing” of mineral resources was becoming a source of tension between communities and traditional leaders.

“Some of the divisions are caused by the minerals found in land under traditional leadership. We thought we were blessed with the natural resources, but now we are fighting over the blessings. That’s very unfortunate,” he said.

“If the relationship between Amakhosi and the people is not worked out in a manner that helps to run the country effectively, then we will have a problem. We must improve the relationship. It is very important.

“Traditional leaders must try to resolve this … traditional leaders must interact with the people and ensure that the mineral resources benefit all of us and not just a few individuals,” he said.

“This bill centralises power,” says Duda.

In terms of changes, he says, the report was comprehensive, although the flawed consultation process means the changes requested may not be an accurate reflection of the changes the public would actually want.

But the committee remains upbeat. During the public hearings, Acting Chairperson of the Committee, Amos Masondo, made an urgent call for feedback. “Please pass your submissions to us. Not even one submission will be ignored,” he said. “Let us all embrace this opportunity meaningfully.” As to what will be done with said meaningful feedback, the jury is out.

This article first appeared in Daily Maverick on 16 May 2017

opinion-grey Marelise van der Merwe writes about anything and everything. After she studied, and then studied some more, and then studied a bit more, she spent some years writing, editing, researching and teaching, before becoming production editor at the Daily Maverick. After a couple more years keeping vampire hours in order to bring you each shiny new edition (you’re welcome) she ventured into the daylight to write features. She still blinks in the sunlight.
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