Response to king’s actions may shape customary law

A number of commentators have sought to justify King Buyelekhaya Dalindyebo’s actions against his subjects on the basis that he was acting as a judicial officer. 

Court records show the king failed to convene a customary court to hear and decide the outcome of the crimes his subjects are alleged to have committed.

His failure to do so goes against the well-established practices and traditions of customary courts.

Customary courts have always been open forums where people can answer to charges levelled against them, and where decisions about punishment are made by a collective. These courts, which are composed of respected community members, cross-examine witnesses, hear the defence of the accused and attempt to mediate disputes so that all can live with the outcome. They are the hallmark of the famed restorative justice approach which characterises customary law.

Dalindyebo acted directly against people without giving them a chance to defend themselves in a customary court forum. This means he did not, in fact, act in the capacity of a judicial officer. He failed to convene the very forum that would have given him authority to act in the capacity of a “judicial officer” overseeing a customary court. The king instead ignored and bypassed essential elements of the inclusive restorative justice process that traditional leaders are quick to laud.

Prince Langalibalele Mthunzi Ngonyama [“Why jail sentence is such a bitter pill for our king” DD, March 22] offers a further justification for the king’s actions by arguing that the gravity of the crimes committed by the accused was such that it outweighed all considerations of “due process” under custom.

He asserts that when presented with these transgressions there was an expectation on the king to act swiftly.

The process of convening a customary court forum offers vital protection and safeguards to the accused and to the king. The accused can defend themselves in an open forum and the king can determine how to set things right for those who have been wronged in consultation with his council, as opposed to on his own. Allowing arguments of urgency and gravity to justify flouting this process is problematic and strikes at the heart of what sets these forums apart from western forums.

The highly praised restorative nature of customary law is reflected in the processes that it sets out. Circumventing these robs people of the chance to benefit fully from customary dispute resolution processes. Yes, the actions of those brought before the king were grave, but that does not make it acceptable for the king to ignore customary law in addressing them. The seriousness of what he saw could not outweigh his obligations under customary law.

In defending Dalindyebo’s actions by asserting that his role as a judicial officer should offer him protection from prosecution, his supporters are defending Western constructs of judicial power. They are entrenching the oversimplification that judicial power resides in the person of the judge, and not in the integrity of the processes that judges oversee.

A comparison of the king’s actions to those of a judge delivering sentence after a proper court process is deeply problematic. In the first place it implies that there was nothing wrong with the punishments Dalindyebo meted out. Beyond that it conceals and trivialises the fact that he did not hold a public trial in accordance with customary law processes. This is an attempt to legitimise criminal conduct by dressing it up in the clothes of judicial power. The inevitable implication is the status of “judicial officer” puts all traditional leaders beyond the reach of law, even when they flout the basic principles of customary law.

In fact, what supporters of the king are defending is a distorted conception of traditional leadership that gave leaders unilateral power. This conception was entrenched by apartheid and resoundingly rejected by people living under customary law both historically and in the present.

The recent Traditional Courts Bill that was defeated in parliament made the same mistake. It centralised judicial power in presiding officers who are senior traditional leaders, rather than recognising the role of councillors in hearings and deciding disputes. This is one reason why the provinces voted against the Bill.

The mandate of Limpopo for example, stated that training programmes should not be limited to kings, queens and senior traditional leaders but should be extended to all other members of the court. The mandate goes on to state that the Bill goes against tradition in so far as it envisages traditional leaders as presiding over the proceedings of customary courts. It says tradition does not ascribe such a role to traditional leaders, whose role is to endorse court decisions that are made in council.

Ngonyama points out that the king is being punished for action that he took in the protection of others and not for self-gain. He points out that in fact these actions were selfless.

The constitution clearly protects the right to bodily integrity. This means that no matter the intention behind it, selfless or otherwise, corporal punishment inflicted as punishment for a transgression contravenes the constitution. It is also a departure from the restorative justice that underlies customary law.

That the king was acting in the interests of others does not make his actions lawful. At the heart of the justification offered by Ngonyama is a question about the type of customary law we as a country seek to develop.

If we accept that the king was acting to protect others are we then accepting that the type of customary law we seek to shape is one that endorses physical violence in the name of justice?

It is disappointing that traditional leaders would rally around a leader who departed so fundamentally from the deeply humanist principles of customary law.

It begs the question: what type of customary law are these leaders endorsing? One which justifies the burning down of people’s houses? Are they defending a customary law system in which a traditional leader is above the law and can act with impunity against his community? Have these leaders abandoned the inherent people-centric conception of customary law captured in a saying such as inkosi yinkosi ngabantu (a chief is a chief by the people)?

Turning a blind eye to the ways in which Dalindyebo’s actions in this instance undermine customary laws and principles, does not do the institution of traditional leadership or communities living under customary law any favours. It distracts us from interrogating the institution of traditional leadership and the worrying trend that traditional leaders can mistreat their communities with no consequences. It distracts us from interrogating recent laws and policies that embolden traditional leaders while stripping communities of their ability to hold their leadership accountable.

These are issues which require important conversations – ones that are not aimed at eradicating traditional leadership, but which aim to strengthen the institution by calling on it to put rural people first.

This article was first published in the Daily Dispatch on 23 March 2016 

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