Proposed laws intended to set right past wrongs would only perpetuate models that were colonial creations, writes Thuto Thipe.
Many of the Traditional and Khoisan Leadership Bill’s core features are much older than they appear to be from the proposed legislation’s text. The primary “traditional” institutions and leadership positions on which the bill relies for implementation were introduced in legislation 1927.Under the bill, the tribes and chiefs created by the Black Administration Act would be known as traditional communities and senior traditional leaders.
The bill’s proposed traditional councils are based on “tribal authorities”, the local governance structures of the Bantustans, introduced by the 1951 Bantu Authorities Act.
The boundaries of the tribal authorities made up the boundaries of the Bantustans.
One of the key objections to the Traditional Courts Bill during Parliament’s 2008 and 2012 public hearings was that it would perpetuate apartheid geographies. This was one of the reasons why the bill was not passed.
Given the Traditional and Khoisan Leadership Bill’s reliance on this same geographic jurisdiction, these boundaries and the old tribal model that puts traditional leaders at the centre of the exercising of power will probably be opposed when public hearings begin next month.
The 13 percent of South African territory set aside for black people under the 1913 Land Act and 1936 Natives Trust and Land Act provided the geographical basis for tribal authorities.
Through the Black Administration Act, the state decided which groups of black people would become “tribes”, who their leaders would be, and what land they could occupy.
To give effect to this, hundreds of thousands of people were removed from their homes and sometimes relocated hundreds of kilometres away, forced to identify with the tribal government assigned to them, and merged with or separated from groups with which they had historically identified.
These processes of tribal formation provided the state control over black collectives, and imposed tribes as the only model for their being organised socially, culturally and politically, despite the history of a diversity of governance systems and organising models before and during colonialism.
An example of resistance to the tribal model were cases in which black people sued or formally petitioned for recognition of their property rights in the former Boer Republics and later the former Transvaal.
In many of these cases, African groups successfully formed syndicates to buy land, often outbidding white buyers. Repeatedly, judges forced such land-buying groups to affiliate with or constitute themselves as tribes. This maintained segregated property systems: ownership for white people and tribal tenure for Africans.
Other forms of resistance to tribalism abounded throughout the country, reflecting the diverse histories of different regions. All major players in the liberation movement rejected tribalism. Much of this resistance focused on how tribalism obliterated understandings and expressions of black identity, forcing dynamic meanings of personhood, community and heritage into the confining and shallow category concocted by white supremacist regimes.
Part of the answer to the question of how we arrived at the model that privileges former tribal authorities lies in the drafting documents of the 2003 Traditional Leadership and Governance Framework Act. Recognising the past distortions of customary law, the drafters of the act were committed to defining “the place and role of traditional leadership within the new system of democratic governance”.
Throughout its development, the act’s drafters condemned past regimes’ disfigurement of traditional leadership governance structures, including the appointment of chiefs who would be sympathetic to the state rather than their people, the destruction of vibrant accountable governance systems, and the exploitation of African people through a separate and subordinate system that denied them full rights.
Despite these positive intentions, the drafters came to some troubling conclusions. The draft documents argued that because pre-colonial groups had inhabited only parts of present-day South Africa, it would be appropriate for traditional leadership laws to apply only in certain parts of the country.
They made the inaccurate assertion that tribal authorities were structures that survived from the pre-colonial era, along with kings, chiefs and headmen, and these structures and positions should be recognised to restore the integrity of traditional leadership.
Over the decades of state-enforced tribalism, meanings of race, tribe, space and freedom of movement came to rely on and reinforce each other.
The separate and undemocratic governance systems that people lived under in the Bantustans were justified through the meanings of blackness that the state defined.
By linking blackness to tribalism the state used fictitious histories of tribal territorial occupation to explain why black people were confined to small geographic spaces and again relied on constructions of the “nature of natives” to justify restrictions on freedom of movement and property ownership.
The justifications for the use of traditional councils as the foundation for current laws on traditional governance are historically inaccurate and politically cynical.
At a time when local government is failing in many rural areas, it is cause for concern that the bill places such emphasis on bodies that administered the Bantustans under apartheid.
Some of the largest known mineral deposits are located in the former homelands.
Communities around the country are struggling to retain their homes and agricultural land as mining companies negotiate with traditional councils, often without adequate consultation with traditional communities.
While echoes of our painful past reverberate through the bill, this wave of tribalism is born out of and reflects the challenges and compromises of the present political reality.
The construction of tribal identities and the creation of tribal subjects were protracted, violent and constantly contested processes. They were central to the colonial and apartheid white supremacist projects.
The insidious connecting of black with tribalised identities in established and proposed legislation is cause for concern. The continuation of these categories and related structures threaten to perpetuate the material inequality, vulnerability and violence that have characterised these peoples’ history.
This article was first published in Sunday Independent on 13 December 2015
Thuto Thipe is a doctoral student with Yale University’s department of history. She was previously a researcher with the University of Cape Town Rural Women’s Action Research Programme at the Centre for Law and Society.