The new Traditional and Khoisan Leadership Bill is honest at least about one thing: It dispenses with the preamble about democracy and transformation in the 2003 Traditional Leadership and Governance Framework Act it sets out to repeal.
While the TKLB seeks to enable national and provincial government to empower traditional structures, through opaque delegations of governmental power, nowhere – not once – does it require traditional councils or leaders to consult with or obtain the consent of their subjects in respect of decisions that will radically affect livelihoods and land rights.
To appear evenhanded the drafters explain in their memorandum on the Bill: “All of these (traditional and Khoisan) councils must keep proper records and their financial statements must be audited. The councils must at least once a year meet with their respective communities to give account of its activities and finances.”
Traditional Leaders such as kgosi Nyalala Pilane of the Bakgatla ba Kgafela in North West have tried to expand the somewhat limited power conferred on officially recognised traditional leaders by the existing Framework Act. They insist they are the only people with the legal standing to call meetings or to represent the community in dealings with investors.
Pilane has successfully interdicted members of his community from calling meetings to discuss accountability for community revenues a number of times. Fortunately, his version of customary law has since been rejected in two Constitutional Court judgments about the Bakgatla ba Kgafela, and in a recent judgment in the Eastern Cape finding that people in Cala have the right to elect their leaders.
Problems of accountability in relation to unilateral chiefly decisions about valuable community resources are much wider than the Bakgatla only. There are 102 traditional councils in North West. Research by the Centre for Law and Society recently confirmed that not one of them has been audited by the Auditor-General since 1994. Nor has the national or provincial government ever intervened to ask: Why not?
Despite the massive platinum mining boom that generated sky-high profits for some and fuelled the destruction of the houses, fields and graves of many others, neither the government nor the people of the province have been given any accounting for the revenues due to traditional communities that host the mines.
Current legislation, though largely ignored, requires every traditional community to deposit all revenues from whatever source into an account opened and monitored by the premier of the relevant province. The TKLB, which will repeal the existing law, requires only that communities should maintain proper financial records which should be audited at unspecified intervals.
Rural communities complain repeatedly that only a small elite benefits from mining on their land while those directly affected get poorer, and are shut out of any information about the deals being done on their behalf.
The TKLB offers them no comfort.
This article first appeared in the City Press on 11 October 2015