Voices that matter: Law-making and the Bantustans, 100 years on

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In the same chamber that the 1913 Natives Land Act was passed, Parliament marked its centenary with a workshop on “Redressing the legacy of the 1913 Land Act” on June 7-8. Present were parliamentarians, traditional leaders, civil society and rural delegates, all of who were invited to contribute their views on land reform. The make-up of the room could not have looked more different than it did 100 years ago. And yet, even with the gains and advancements that have come with democracy, echoes of apartheid’s disenfranchisement could still be felt.

Disenfranchisement in South Africa was perpetrated using more than Casspirs and teargas. A more subtle form of violence did the work: the violence of exclusion. The process of categorisation into “tribes”; the related assignment to the artificial boundaries of “homelands”; the instalment of chiefs; and the imposition of official “customary law” – all these were achieved through the suppression of contrary and diverse voices.

It is for this reason that our Constitution provides not only for the right to vote, but also places an obligation on Parliament to actively facilitate public participation in the legislative process. This right is crucial to making a clean break with the past. Its value is not just symbolic, but ensures that the content of law is informed by those most affected by it. The Constitutional Court held in its Doctors for Life judgment that the right fosters active citizenry and enhances the dignity of those who participate. It ensures that all people’s voices are heard and taken account of. The right also serves as a counterbalance to lobbying and “influence peddling.” Most importantly, though, the right is intended to empower those previously excluded from the legislative process.

Where rural land, leadership and identities are at stake, the disparity between the empowered and the dispossessed is marked. Rural women and men in the former Bantustans bore the brunt of the Land Act and profoundly felt the imposition of tribal boundaries. It is in this context that participation of the disenfranchised is vital to an active citizenry and functioning democracy. Yet, this is unfortunately not what we have witnessed.

In a petition soon to be lodged with the National Council of Provinces, the Rural Women’s Movement (RWM) has documented its interactions with Parliament. The RWM, a non-governmental organisation based in KwaZulu Natal, seeks to eliminate poverty and enhance women’s participation in local governance. It has interacted with Parliament on many occasions, including when the Traditional Leadership and Governance Framework Act and the Communal Land Rights Act were passed, the Black Administration Act repealed and the Traditional Courts Bill introduced. The RWM’s experience is that public hearings are not adequately advertised, insufficient notification is given, hearings are held in far-flung places, and inadequate education on bills’ meanings is provided.

Most insidious, though, is the privileging of chiefs’ voices over those of other rural people. Chiefs’ transport to hearings is paid for by government, chiefs are allowed to harass participants while they speak, and they are consistently given the last word. On one occasion, a member of the provincial legislature who was a chief reported an RWM member’s testimony in Parliament to the chief in her (the RWM member’s) area.

RWM founder Sizani Ngubane was one of the rural delegates invited to the weekend’s workshop. She spoke to issues that women face in rural areas. Ma Sizani was joined by Mmuthi Pilane and Lamson Maluleke who, respectively, related their experiences of corruption by some traditional leaders in the platinum belt and of communal property associations.

Traditional leaders were again given the last word at the workshop. Kgosi FS Makgeru, a representative of the National House of Traditional Leaders, took the opportunity to say, “Parliament needs to hear it from the horse’s mouth. The horse does not reside in Cape Town. The horse does not drink from the pond in Cape Town.” He concluded, “In Parliament, we are over and again subjected to the voices of those who are rented.”

ANC MP R Mahlobogoane then proceeded to remind workshop delegates that not every traditional leader was bad, and that we shouldn’t “paint everybody with black paint.” Mid-sentence, she corrected herself, saying that we should perhaps not allow all traditional leaders to be painted with “white paint.”

The combined impact of these comments was to undercut the rural delegates’ voices. The implication in Makgeru and Mahlobogoane’s comments was that the delegates’ voices were not their own. Such claims are not dissimilar to President Jacob Zuma’s deeming of those who criticised the Traditional Courts Bill as “clever blacks.” In this way, traditional leaders are re-entrenched as the custodians of custom and rural experience, and those who offer countervailing voices are accused of being inauthentic.

Undermining voice in this way locks people out of the law-making process. To meet its constitutional obligations Parliament must hear from those who have most at stake. Where laws concerning traditional leadership and land administration are concerned, Parliament must conduct effective consultations in rural areas. The content of bills must be clearly explained in a way that people can understand. Proper notice must be given about the hearings. Parliament cannot pay for the transport of chiefs if it doesn’t pay the transport costs of ordinary people, and it cannot allow chiefs the last say on the matter.

Effective public participation may require that women be given separate spaces in which to make submissions. It might also mean that MPs who are chiefs are barred from the hearings or, at the very least, are barred from speaking. Rules protecting those who make submissions from victimisation are essential, as are measures to protect the safety of people when they return to their communities and are once again within the realm of the traditional leaders’ power. Without these measures in place, Parliament is doing nothing but paying lip service to the idea of participation in law making.

opinion-grey Frances Ann Eberhard is a researcher with the Rural Women's Action Programme at the Centre for Law and Society, University of Cape Town
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