The Tribal Courts Bill: Sacrificing rural people's rights on the altar of power?
A bill said to be unconstitutional, to rubbish the rights of women and the vulnerable, and which makes traditional chiefs powerful overlords who aren’t subject to democratic checks or balances, is currently barrelling its way through the National Council of Provinces. Critics are saying the Tribal Courts Bill is “buying” loyalty for Zuma from tribal leaders. By MANDY DE WAAL.
The setting is a primary school in Limpopo, where a group of people are sitting in a circle on chairs in a dusty playground. In the middle of the circle two women sit on the earth and pour their hearts out. They’re giving testimony about a family dispute in the hope that it will be resolved by the traditional leaders present.
Those giving testimony are among the about 17 million people who live in former homelands across rural South Africa and who have disputes resolved by a traditional kgotla.
There are about 50 people at this traditional court, filmed by UCT’s Law, Race and Gender Research Unit, most of them men. Only a couple of women sit with the men on chairs. The remaining women sit on the edge of the circle on the floor.
Traditional courts like this are the subject of a sustained and growing protest from civil society organisations, which have formed a broad alliance to try to head off the Traditional Courts Bill before it becomes law. The bill seeks to replace the Black Administration Act of 1927 and is supposed to make traditional courts mirror the Constitution and its values more exactly.
It sparked a massive outcry when it was originally tabled in the National Assembly in 2008. The bill was withdrawn, but it wasn’t long before it made a return. It reappeared in the National Council of Provinces in January this year, and government is currently holding public hearings in rural areas across the country to move the bill one step closer to becoming law.
Critics are unimpressed and have mounted large-scale education, outreach and protest action to try to get the bill scrapped because they say nothing much has changed. The Alliance for Rural Democracy, which has been formed to petition the bill and includes over 20 civic organisations says the law must be scrapped because it is unconstitutional and damaging to rural people in general, and women in particular.
The alliance includes the UCT unit, the Rural Women’s Movement, the Rural People’s Movement, Sonke Gender Justice, the Women’s Legal Centre, the University of Western Cape’s Community Law Centre, Section 27 and the Treatment Action Campaign
“The Traditional Courts Bill is supposed to overhaul that legislation by bringing traditional courts into greater alignment with the Constitution and its values,” Sindiso Mnisi Weeks, a senior researcher at UCT unit says in the documentary shot by the unit on the bill. She says the bill should create harmony between the traditional justice system and the state court system, but does no such thing.
Mnisi Weeks says in terms of the bill senior traditional leaders alone will be allowed to form traditional courts and this means the rest of the community will be excluded from the process. “In terms of the Constitutional Court, the court has recognised that living customary law is formed by the community, so in this way the community would be denied their ability to participate in the formation of living customary law in effective terms.”
A Rhodes scholar with a doctorate from Oxford, Mnisi Weeks says being raised in relative privilege in Johannesburg made her want to secure social justice for those who hadn’t had the same opportunities as she had. Much of her work is dedicated to forging gender equality and to foster rural women’s participation in the democratic process.
“This bill creates separate categories of citizenship reminiscent of apartheid. It strips rural people of basic citizenship rights. Those living in the former Bantustan areas will be second-class citizens,with no right to the legal representation and recourse the law allows for,” she says.
Gender activists reject the bill because it appears to offer gender equality, but say the de facto effect of the bill becoming law will be gender bias, if not entrenched inequality. They say the bill will entrench the problems women encounter in trying to gain fair access to rural justice.
Section 9 of the bill states that “women are afforded full and equal participation in the proceedings, as men” and declares that a “party to proceedings before a traditional court may be represented by his or her wife or husband, family member, neighbour or member of the community, in accordance with customary law and custom.”
Mnisi Weeks says this will not be the reality should the bill become law. “Anyone who knows anything about customary law will tell you that it is unheard of virtually for a man to be represented by a woman, but women are very, very often represented by men,” she says. “Even though it suggests that formally women and men are in an equal position, the truth is that they are not. In accordance with customary law women would be represented by men and not the other way round.”
Another big issue activists have with the bill is how it has stimulated the demand for the collection of levies in rural areas by traditional leaders. Aninka Claassens, who leads the Rural Women's Action Research Project, says people in the former homelands waged a long and hard battle against the imposition of “tribal levies” during the apartheid years. But recent laws and bills that bolster the role of traditional authorities have resulted in a resurgence of traditional authorities demanding annual levies from people who are very often the poorest of the poor.
“The problem is that rural people don’t have official addresses, so when they go and apply for an identity document they have to go to the tribal office to... get a letter stamped vouching that they are a resident of that area,” says Claassens in the UCT video. “When they apply for pensions, child support grants, even to open a bank account, even to get a car licence, they have to get this stamp and you can’t get that stamp unless you are up to date with all your tribal levies. Many people have refused to pay these things for decades.”
In her paper “Resurgence of tribal levies: double taxation for the rural poor”, Claassens argues that laws and proposed laws like the Traditional Courts Bill undermine the citizenship rights of the poorest South Africans, including their ability to hold traditional leaders to account. She moots that these bills and laws have been ambiguously worded in an attempt to disguise the fact that they are inconsistent with the Constitution.
“A series of rural consultation meetings about the Traditional Courts Bill was held between 2008 and 2010 in former homeland provinces. In these meetings the resurgence of traditional leaders extorting tribal levies was raised as a serious problem, with very severe consequences for poor people, in particular women who are struggling to eke out an existence for themselves and their children,” writes Claassens.
“In meeting after meeting the point was made that people who are not 'up todate' with their annual tribal levies and other ad hoc levies or taxes are refused letters from the tribal authority or traditional council, confirming that they are known and bona fide community members.”
This letter of confirmation can be a lifeline for an impoverished person wanting to get a social grant, pension, open up a bank account or get identity documents. “People complained further that they do not receive report-backs about how the money collected through levies is spent. They expressed concern that the levies do not benefit the local communities from which they are collected. Speakers referred to tribal levies as a system of double taxation, targeting the 'poorest of the poor'. Similar problems surfaced in all the former homeland areas,” she writes.
Claassens tells the story of an unemployed woman in a village near Elim in Limpopo who was asked by the South African Police Services to apply for a job. “The application required that she provide her address or submit a form stamped by the local tribal authority vouching that she was a community member. However, the tribal authority refused to stamp the form because there was no record that her family had paid annual levies in recent years. She was unable to raise the 'back-pay' of R140 demanded by the tribal office and so, despite meeting the requirements for the job, she was unable even to apply.”
Perhaps one of the biggest blights of the bill is that it doesn’t afford people the right to opt out of customary courts. People who do so are deemed to have committed an offence and could be punished. Punishments could take the form of fines, stripping people of customary entitlements or making people perform unpaid services or labour.
The Alliance for Rural Democracy raises 18 points in response to the bill, which include: it creates a second-class justice system for over 17 million South Africans; it gives even more power to those chiefs recognised by the law and nothing to all other legitimate traditional leaders; it allows chiefs to decide what custom to apply but excludes all other members of the community, including women and young men, from decision-making.
The alliance says the bill rubbishes checks and balances on power, creates opportunities for corruption, confirms apartheid “Bantustan” boundaries and is very damaging to women in particular.
One of the bill’s fiercest critics is Mamphela Ramphele, who helped found the Black Consciousness Movement with Steve Biko. A trustee of the Rockefeller Foundation, Ramphele sits on the boards of numerous blue-chip companies and is a force behind the recently formed Citizen Movement for Social Change.
Ramphele lives in Cape Town now, but was born and raised in rural Limpopo. “The Traditional Courts Bill is ‘Goodbye apartheid in 1994. Welcome apartheid in 2012.’ It is a cruel irony that we are talking about this in 2012,” Ramphele recently told those gathered for a meeting on the bill at UCT.
“When Madiba told me that, as part of the negotiated settlement, they are going to enshrine customary law in the Constitution, I said, ‘Tata, be careful not to end up in a situation where all your sacrifices as a freedom fighter are undermined by the inherent contradictions between customary law, or traditional law, or African law, and the constitutional law under which we live.’
“This is not because there is anything wrong with African law. It is because we live in a progressive constitutional framework that seeks to establish, as Madiba said, a regime that never existed here. People revere the kind of constitutional democratic order we have. We need to remember that this order was established because of the experiences we had as subjects of authoritarian systems,” Ramphele added.
“So for Africans to say ‘No, no, no, please don’t disturb our particular form of authoritarianism,’ is odd. Because equality is better for everybody: traditional leaders, poor people, rich people, men and women. Because authoritarian systems everywhere in the world don’t just stop at imposing their will on everybody. They target the most vulnerable,” she said.
Ramphele believes South Africa cannot have a system, like the one the bill suggests, without checks and balances. “Everyone, whether you are a leader, an archbishop, a doctor – you all have to be subject to the new democratic constitutional order. This bill absolutely violates this precept,” she said as she pleaded with South Africans not to sacrifice the vulnerable on the altar of power in what appeared to be a direct petition to President Jacob Zuma.
“For the sake of those 17 to 20 million people who will be subject to this bill and who really are the most vulnerable in our society, I plead with each and every South African not to sacrifice them for the sake of staying in power in any form or shape.”
In a dialogue held by the Daily Dispatch she was much more direct.
Ramphele blasted the ANC leadership and said they were playing fast and loose with the Constitution. She urged South Africans to more actively protect their rights.
"There is enough concern about the utterances by ANC leaders and government officials to suggest that not all is well in our constitutional democracy,” she said. "There is a clash of values between those who believe in the sanctity of our constitutional democratic foundations and those who see them as an obstacle to the second transition."
Then came the stinging indictment of Zuma: "Our current president is betraying the legacy of his own party, the ANC, and unfortunately he is not alone in this betrayal." DM
- Civil society: Gender and human rights by Aninka Claassens in Mail & Guardian.
- Traditional Courts Bill out of step in Mail & Guardian.
- Allister Sparks: How Verwoerd’s Bantustans still live on in the new SA in Business Day.
- Everything you need to know about the Traditional Courts Bill at UCT’s Law, Race and Gender Research Unit.
- Watch Mamphela Ramphele talk about the Traditional Court’s Bill at the Dispatch Dialogues.
- Watch a documentary on the Traditional Courts Bill created by UCT’s Law, Race and Gender Research Unit.
Photo: Mandla Mandela, grandson of Nelson Mandela, attends a ceremony where he was installed as chief of the Mvezo Traditional Council in Mvezo, eastern Cape 1100 km (684 miles) south of Johannesburg, April 16, 2007. REUTERS/Antony Kaminju.