The Deputy Minister of Co-operative Governance and Traditional Affairs, Obed Bapela, sought when he introduced the Traditional and Khoisan Leadership Bill to MPs today, 27 October, 2015, to address some of the main objections raised by rural and traditional communities.
In most instances, his explanations failed to reassure critics of the Bill or the many traditional and Khoisan leaders who attended today’s meeting of the portfolio committee on Cooperative Governance and Traditional Affairs.
Mr Bapela and the Director General of Traditional Affairs, Charles Nwaila, briefed the portfolio committee on the motivation for and details of the Bill, which has been five years in the making.
Mr Bapela said the main purpose was to give official recognition to Khoi-San communities, which officials estimate to include about 350 000 people. The new TKLB also seeks to combine provisions of the existing Traditional Leadership and Governance Framework Act, which it would repeal, and legislation providing for houses of traditional leaders.
“What we do is to recognize diversity and also the individual and his rights,” Mr Bapela said in his introduction. “We no longer have rulers in South Africa. We do not have a monarchy, but we do recognize the traditional form of existence.”
The Deputy Minister acknowledged criticisms raised by traditional communities, civil society and academics, but sought to argue that they were unfounded.
Dr Aninka Claassens, director of the Rural Women’s Action Research programme in UCT’s Centre for Law and Society, said one of the primary concerns Mr Bapela and his team failed to address adequately was the charge that the TKLB re-enforces Bantustan jurisdictions that subject the 18 million South Africans living in the former homelands to the status of tribal subjects – as opposed to being equal citizens of one united South Africa.
Mr Bapela said that this concern did not take into account that people chose the places they wanted to settle long ago and that these settlement patterns cohere over time, as did the different identities of people living in England, Scotland, Wales and Ireland.
“What he left out, of course, is that three-and-a-half million black South Africans were forcibly removed from ‘white South Africa’ into the Bantustans between 1960 and 1980,” Dr Claassens said.
“All of these people were put within the jurisdiction of one or other ‘Bantu Authority’ despite massive rebellions against the imposition of Bantu Authorities in rural areas as wide flung as Pondoland, Sekhukhuneland, Lefurutshe and Herschel.
“Clause 70 of the Bill deems these apartheid-created tribes to be the traditional communities of the future. The Bill reiterates time and again that the only customary and traditional communities that qualify for official recognition are those headed by the traditional leaders recognised during the apartheid era,” she said.
Why is this important? Complementary legislation such as the Communal Land Rights Act of 2004 and the Traditional Courts Bill (TCB) of 2011 exemplifies the ruling party’s attempt to lock South Africans living within the former Bantustans into ascribed tribal identities that seal democracy out.
Many people dispute the validity and legitimacy of the tribal boundaries that lock them in. This Bill provides them with no mechanism for opting out of disputed tribal boundaries or contesting the authority of traditional leaders imposed on them by apartheid geography.
If you live within a former apartheid homeland then, according to the proposals in this Bill, you are a member of the traditional community in the area and subject to the authority of its leader. You cannot opt out.
The Communal Land Rights Act would have transferred title to all the land in the former Bantustans to traditional leaders had it not been struck down by the Constitutional Court in 2010. The TCB, had it not been rejected by a majority of provinces, would have made it a criminal offence for people to resist the authority of traditional courts empowered to impose sentences of forced labour.
Revised versions of both these pieces of legislation are expected back in Parliament this year.
“The TKLB attempts to circumvent oversight by the Courts and Parliament. It provides for the delegation of roles to traditional leaders, and for opaque partnership agreements with municipalities, government departments and ‘any other person, body, or institution’,” Dr Claassens said.
“There is already a serious problem of traditional leaders purporting to have the power to enter into unilateral mining and other deals with investors that see ordinary people not only losing their homes, fields and graves, but also shut out of receiving any revenue from investments on their land,” she said.
Clause 24 of this Bill explicitly authorizes traditional councils to enter into such deals without consulting, or obtaining the consent of those directly affected. The terms of such deals and delegations are not even made public, except to the Minister.
The Auditor General’s office has admitted that none of the tribal accounts of the 102 traditional councils in North West has been audited since 1994. This, in the midst of the biggest platinum boom in the world, is an invitation to continued elite capture and impoverishment in the name of upholding ‘tradition’.
It also contradicts Mr Nwaila assurance to the committee during his presentation that: “The functions and roles of traditional leaders and councils… are of an advisory, facilitative, supportive and participatory nature.”
The Bill overrides the true nature of customary law, which requires consensual affiliation, consultation and consent before people’s indigenous rights to natural resources can be abrogated.
The Objects of the Bill are stated as creating an ‘integrated approach’ to traditional affairs within both Khoi-San communities and pre-existing traditional communities. Mr Bapela was asked why in that context, the Bill treats the Khoi-San so differently. He purported to be unaware of any differences. This is a startling statement given that existing traditional leaders are given jurisdiction over the tribal territories inherited from apartheid, and thereby over all the people who find themselves within those boundaries, whether they agree or not. Khoi-San traditional leaders by contrast, are given jurisdiction over only the people who choose to affiliate with them, and not over land.
This is actually a much better approach as it reinforces the consensual basis of customary law, and gives effect to the proverb inkosi yinkosi ngabantu – a chief is a chief by the people, or a leader’s power depends on the strength of his or her support.
Instead of the TKLB making traditional leaders accountable to ordinary people, it makes them accountable only to government. Nowhere, not once, does the Bill require traditional leaders to consult with, or obtain consent from ordinary people.
“In that context, for it to entrench the superimposed tribal boundaries of the apartheid era on the 18 million most marginalised South Africans is a recipe for disaster. What is good enough for the Khoi-San should be good enough for all,” Dr Claassens said.
Committee chairman Mzameni Richard Mdakane said he expected the consideration of the Bill to be thorough and extensive and cautioned that it could change substantially if public consultations showed opposition to its existing provisions.
He said he expected a process of public consultation in provincial hearings to begin in Limpopo around the end of November and to continue into next year.
For more information, contact
Nolundi Luwaya 083 7903662
Dr Aninka Claassens 0845102333
Brendan Boyle 082 4428676
Centre for Law and Society
University of Cape Town