Traditional leaders use archaic laws to cling to the land

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MAYIBUYE iAfrika!

This was a rallying cry that defined the struggle against colonialism and apartheid.

This slogan refers, among other things, to the land which was taken away from Africans by colonists.
But this dream has not been realised under the land reform programme post-1994 because of tension in approaches.

Traditional leaders claim that land was taken from them and should be returned to them, while rural communities argue that the land belongs to the people. Both parties reference different versions of custom in their arguments.

Rural communities base their argument on “living customary law”, recognised by the constitution. Through this approach rural communities have found support from activists, civil society organisations, academics and researchers, who say historical and ethnographic evidence shows that allocation was only rarely a function of centralised traditional authority. Land allocation occurred at a very localised level.

Traditional leaders’ claims are rooted in “official customary law” that gives pre-eminence to traditional leaders, not the people. This is the distorted version of customary law constructed by colonial and apartheid authorities as a means of controlling the African people.

The traditional leaders’ approach has been bolstered by the government’s continuing development of policies and laws that give powers to them despite these powers not being due to them under the doctrine of “living customary law”. These policies include the Communal Land Rights Act of 2004, the Traditional Courts Bill of 2014 and the Traditional Affairs Bill of 2013. All these bills and policies were overturned or blocked by parliament because they were found unconstitutional, and the government has promised to replace them.

The tension between these approaches to land reform re-emerged during an indaba hosted by the Department of Rural Development and Land Reform in Gauteng in May. Though billed as a consultation with stakeholders on the forthcoming Communal Land Tenure Policy (CLTP), the guest list mainly comprised government officials and traditional leaders. Communities, activists, researchers and academics, largely invited themselves.

The department’s key proposal under the draft CLTP is that rural communities should be given “institutional use rights” rather than full ownership of the land they occupy. The department tried hard to the sell the proposed policy, but the presentations were frustratingly condescending in tone and lacked detail and context.

Community delegates, with the support of activists, academics and researchers, rejected the department’s proposal, calling it land deprivation and a violation of section 25 of the constitution, which requires tenure security in communal land. Community delegates insisted they should be able to select the kind of land ownership and administration they wanted – including individual household title.

Some delegates went on to cite various abuses they suffer at the hands of autocratic traditional leaders, partly due to tenure insecurity. These ranged from allegations of assault and arson to forced removals.

Traditional leaders in turn fiercely opposed individual title deeds in communal land, claiming they would threaten community harmony, tradition and identity. Advocating for communal tenure under their control, traditional leaders defended their own leadership with a few best-practice examples.

Rural Development and Land Reform Minister Gugile Nkwinti said early in the meeting that allegiance to traditional leaders need not compromise constitutional rights. He was right. But addressing the apparent rift later, he turned to trite political double-speak, proclaiming that while the land did indeed belong to the people, traditional leaders should hold it on their behalf. He gave no details about what that would mean in relation to rights, ownership and administration. This lack of clarity is troubling. It leaves the central question as to who owns the land unresolved. Big business, both national and international, seems to be taking great advantage of this gap to exploit the potential of rural land. One wonders if this gap is by design.

This article first appeared in the Sowetan, 8 July 2015

opinion-grey Thiyane Duda is a researcher with the Centre for Law and Society at the University of Cape Town
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