The chairperson of parliament’s portfolio committee on traditional affairs said on the eve of public hearings on the Traditional and Khoi-San Leadership Bill (TKLB) that he was open to a radical review of the government’s draft.
Richard Mdakane said in an interview at Parliament his committee would be willing even to challenge the reaffirmation of former homeland geographic borders and imposed traditional authority, as proposed in the TKLB.
“We are lawmakers really. We should be able to amend any Bill,” he said.
The TKLB was introduced in September 2015, but was stalled in Mdakane’s portfolio committee on Cooperative Governance and Traditional Affairs for more than a year until public hearings were announced a week ago. Mdakane’s committee was scheduled to hold the first hearing on the new Bill in Kimberley’s Galeshewe township on November 24, followed by hearings in Upington, Kuruman and Springbok. Hearings will be held in the Western Cape and Eastern Cape this year and in other provinces early in 2017.
The TKLB provides for the recognition of Khoi and San communities as traditional communities of similar status to the traditional communities that exist wall-to-wall in South Africa’s former apartheid homelands. All would fall under a single National House of Traditional and Khoi-San Leaders.
However, while the new Khoi-San communities would be made up of individuals who opt to join, people in the former homelands would continue to be assigned to traditional communities purely on the basis of where they live. Under the new law, as under present legislation, they would not have a right to opt out of the jurisdiction of a traditional leader.
Mdakane said the processing of the TKLB created an opportunity for MPs to assess all aspects of traditional governance, including provisions carried over almost exactly from the Traditional Leadership and Governance Framework Act, which it would replace.
“Our view is that we have to relook at the entire Act in processing this issue. At the policy level, we are clear – traditional leaders are there forever. But how do we all make sure that they operate in a manner that is in line with the Constitution of the country. The South African society must discuss what we do with traditional leadership,” he said.
Mdakane said the question MPs would have to consider is the scope of the authority given to traditional leaders. He said he would propose that his committee should convene a national discussion on the role of traditional leadership after passage of the TKLB in whatever form it takes after the public hearings.
Chapter 12 of the Constitution adopted in 1996 recognised the system of traditional leadership: “The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.” It was left to Parliament to decide the nature of that recognition.
“The thing that we are always stuck on is when people think we can’t transform traditional systems of governance, but the experience all over the world, people have gone through this and they have transformed. That is the challenge,” Mdakane said.
Traditional leaders themselves would need to recognise that custom was not a static thing: “It is evolving. It’s not that you can say this is what happened in 1880 and you can’t do anything. It can’t work that way because we are a constitutional democracy and it should work within the Constitution of the country.”
Traditional leaders will be among those making submissions at public hearings and some would be likely to resist change, Mdakane said.
Asked whether they would be able to veto changes demanded in submissions to the public hearings, he said: “I always take the view that democracy should triumph. If a majority of the people say this is how they want things to happen, their views must be respected. Otherwise there would be no use to talk about democracy. In my view, that is going to force the traditional leadership themselves to democratise the way they do things.”
The existing Framework Act and the TKLB both stipulate that traditional communities must have a traditional leader, but Mdakane conceded that this is not in line with the custom everywhere. Giving people the right to opt in or out of traditional governance regardless of where they live would begin to reform the system.
“I think generally we should move on that situation. This gives us the opportunity… The freedom of choice should be guaranteed. No one should be forced. That would be my view, anyway,” Mdakane said.
It would be important also to separate identity from geography and to undo the mechanism that assigns a tribal identity to anyone in a former homeland purely as a result of where they live.
“The identity issue can’t be limited to the boundaries. It must be broader than the boundaries. If I voluntarily say I like this traditional system of government, I want to participate fully in it, I should be allowed to do so. If I think this thing is undemocratic, it is undermining my rights, then I must be allowed to opt out of it,” he said.
Mdakane acknowledged that traditional leaders might oppose such changes, but said it was Parliament’s job to encourage them to move forward. “We must nudge them, we must persuade them,” he said.
Brendan Boyle – Senior Researcher, Land&Accountability Research Centre