By Nkosikhulule Nyembezi
In the many years since I studied the public participation comments in legislative processes involving customary law in Parliament, I can see another daunting set of circumstances for an ANC president aspiring to re-election to tackle issues affecting rural communities.
It is as if all the problems of the past colonial years in South Africa have once more descended on us in one fell swoop.
Is it any wonder the Stop the Bantustans Campaign – initiated by the Alliance for Rural Democracy – says the passing of the Traditional Courts Bill on September 8 mocks the tireless efforts and submissions made by rural citizens to Parliament to safeguard their democratic rights?
They are correct, and we should support them in calling on President Cyril Ramaphosa not to sign the proposed legislation’s current version into law. He must instead refer it back to Parliament or the Constitutional Court for consideration because it does not include, among other crucial issues, the opt-out clause stakeholders have fought for since 2008.
The history of this legislation is contentious, and rural people vigorously and successfully opposed Parliament’s attempts to pass an unconstitutional version of the bill in 2008, and again in 2012.
There are valid reasons to be concerned about the current version of the bill that might never genuinely facilitate access to justice for rural citizens or preserve the integrity and dignity of traditional courts, as unashamedly claimed by Parliament.
But history shows us that problems do not necessarily bring down governments, and how unresponsive politicians deal with them usually determines their political destiny, and ours.
For example, voters have since 2008 switched allegiance from the ANC when it ignored their views on the demarcation of cross-border municipalities in places such as Matatiele, Vhunani, Merafong and Bushbuckridge.
Also, the same happened to the IFP in 2004 when it lost control of KwaZulu-Natal because it was perceived to oppose the child support grant on the mistaken grounds that it promoted promiscuity.
So here are four areas that should preoccupy President Ramaphosa’s administration, Parliament, the various houses of traditional leaders, and the broader civil society formations.
First, all South Africans need urgent reassurance that the Traditional Courts Bill upholds the principle of voluntary affiliation to that court system, and respect for constitutional rights and living versions of customary law.
They are looking for legislation and accompanying regulations that skilfully infuse community-enhanced information that considers our shared understanding of the challenges rural citizens face in accessing justice in rural communities.
Second, the Ramaphosa administration must properly tackle the issue of the importance of public participation in legislative processes. We have to radically improve co-operation and our social partner relationships. We have to agree to safe and legal routes for those rural citizens who are genuinely fleeing persecution and require the adjudication of courts to enforce their constitutional rights. Above all, the government must commit substantial resources to building human and infrastructure capacity in traditional courts.
Although there is no reason why the state needs to overcompensate in legislating for rural communities, we need total transparency of the rationale of choices made, institutional capacity-building commitments and efficiencies, so that these traditional courts operate openly and wholly in the public interest.
Third, the executive and legislature must improve their relationship with civil society organisations and traditional leaders. Politicians’ general denigration of organised civil society organisations over recent years during the drafting of this bill (and yes, without cause) has fed into an unhealthy disrespect for the current administration.
Not the least of the reasons for the apprehension of the demise of the proposed legislation’s intentions will be the government’s apparent tacit view on several issues.
Rather than being protectors of constitutional rights and living versions of customary law, traditional courts could continue to discriminate against women by allowing for demeaning forms of punishment, and subject people living in the former Bantustans to a separate legal system.
By restricting rural citizens to the jurisdiction of traditional leaders based on geography instead of voluntary affiliation, the bill undermines the nature of living customary law and the freedoms introduced by the Constitution.
The bill, in its current form, risks starting on a wrong footing by creating suspicion of prejudice against vulnerable individuals, as even the traditional courts must administer justice without bias or favour. The Stop the Bantustans Campaign aptly expressed its agitation, saying “this betrayal diminishes our faith in the current government”.
Fourth, the executive and legislature must stop perceiving human rights advocates for rural communities from all sides of the political divide as an irritating nuisance.
Where cross-party policy development takes place, the government should show more respect and genuine interest, while accepting that Parliament can be a helpful ally in its constitutional role as a representative of the people, and is not always a difficult and uncomprehending opponent.
Finally, what is the lesson for the Ramaphosa administration as he seeks a historic second term in the ANC and government? I have studied the public participation comments in legislative processes involving customary law in Parliament for many years.
While Ramaphosa may not be Jacob Zuma, who enticed traditional leaders with patronage and no substantive institutional infrastructure to exercise their powers, I see signs of great danger for the ANC’s persistent mishandling of customary law institutions.
South Africa is a nation of different cultures united in diversity – with customary law forming an integral part of our legal plurality. Wise leaders recognise the importance of respecting these different strands.
As citizens, we should not – must not – allow the replication of the circular firing squad that characterised the Mbeki-Motlanthe-Zuma 1999-2018 period of ANC government. Our current leader must set about the serious and urgent task of sorting out the nation’s myriad problems. They can only succeed with the backing of a united voice of social partners and an empowered Parliament that takes seriously its legislative role on matters affecting rural communities.
Our country and the ANC’s destiny depend upon it.
Nyembezi is policy analyst and human rights activist