It has been just more than a month since South Africans affirmed their commitment to democracy for the sixth time since apartheid ended 25 years ago. Unsurprisingly, many eligible voters did not participate. Primarily, the reasons given were grounded in disappointment in the failure of democracy to deliver on its promises.

In the weeks before the poll, South Africans were given further cause for disappointment, with the National Assembly approving the Traditional Courts Bill [B1-2017] — despite its key tenets having been rejected by the public in national and provincial consultations, in 2008 and 2012 respectively.

Contrary to the principle of “government based on the will of the people”, promised in the preamble to the Constitution of the country, the African National Congress-led government has spent 16 years fighting for a version of the bill that is opposed to the will of the people who live under traditional leadership, and that fails to ensure that “every citizen is equally protected by law” — a second promise of the Constitution.

Efforts to regulate traditional dispute management forums were first explored by the South African Law Reform Commission between 1998 and 2003. A report and a draft bill were drawn up, but the Department of Justice abandoned the commission’s preliminary work and came up with a separate regulatory framework in the first incarnation of the Traditional Courts Bill in 2008. What had happened to the law reform commission’s draft Bill that was based on such extensive and inclusive consultation? No one has been able to explain why the problematic Traditional Courts Bill was introduced in its place.

One other peculiarity about the Department of Justice’s abandonment of the early work is that the commission had left many important questions open to the department to decide, often providing constitutional options to consider and select. The draft had made a concerted effort not to be overly prescriptive and to balance the interests of traditional leaders with those of the public. Despite claims that it was indeed drawn from the law reform commission draft, the department’s 2008 bill was demonstrably an unrelated bill based on a much weaker consultation process and with a largely pro-traditional leader bias.

Since the 2008 bill, withdrawn after criticism and protest and then reintroduced in 2012, there has been another new draft. This 2017 bill — while not perfect — showed much promise. It made a conscientious effort to address the concerns strongly voiced by members of the public in National Assembly consultations around the 2008 version, and National Council of Provinces delegate responses to the 2012 version after provincial consultations.

Yet, it is the 2017 version’s two primary and related areas of the greatest promise that were abandoned by the portfolio committee on justice and correctional services before the National Assembly adopted the Bill in March.

The committee altered it by casting traditional courts as “courts of law” under section 166(e) of the Constitution, much like magistrates’ and high courts, and by removing clauses that permitted citizens to opt out of their jurisdiction. With these alterations, 11 years after the first Traditional Courts Bill, what amounts to effectively the same Bill that was so vociferously rejected by the public in repeated consultations has been passed by the National Assembly. It needs only to be approved by the NCOP before it will go to the President for his signature into law.

The “will of the people” has been systematically ignored in favour of the will of the traditional leader lobby. ANC representatives have gone to great lengths for this, as was clearly demonstrated during consultations in March 2018, when the previous chair of the parliamentary committee lambasted participants with anything but wholly positive comments about traditional courts and simply denied some potential participants the opportunity to be heard. And in March 2019, when a quorum had not been achieved in the National Assembly, the House Chair retrospectively counted herself for the quorum and then cast a supportive vote — ensuring the narrowest margin of victory was secured for the Traditional Courts Bill: one vote.

Passing the bill in its current form ignores the expert advice provided to the committee that, if traditional courts are “courts of law” in terms of section 166(e), then people appearing before them with criminal matters must have legal representation as provided for by section 33 of the Bill of Rights. It also ignores the wisdom that denying people the right to opt out of traditional courts not only violates sections 30 and 31 of the Bill of Rights, which make practising custom a choice, it also violates the very core values of customary law itself, which is based on elective association.

Part of the department’s justification for not defending the “opt out” clause against Parliament’s axe was that a person would still be allowed to take their matter to the Magistrate’s Court. But this disregards the fact that such a person would have to go through the entire hierarchy of traditional courts before this would be an option. That is a curtailment of the person’s right to choose, and it is a violation of the “equal protection” prescript governing citizenship under the Constitution.

In ignoring the elective association principle of customary law, the bill creates a legislative contradiction that is compounded by the fact that the Traditional Leadership and Governance Framework Act 41 of 1993 makes no provision for the determination of traditional leaders being subject to consultation, approval or acceptance by the people they are to govern. The newly approved Traditional and Khoisan Leadership Bill, that now awaits the President’s signature, does worse still by expanding the powers of traditional governance structures while reducing their accountability to their people and to government.

The Traditional Leadership Bill fully revives separate territorial enclaves in which poor, black people are stripped of their citizenship rights (such as the right to speak for themselves) and are instead forced to be governed as subjects by imposed authorities that the government names “traditional”. It gives these authorities un-traditional and undemocratic “roles, functions and power” to wholly speak on behalf of “their people” as so-called “custodians of our culture” and “custodians of our land”.

This, alongside the insistence of Parliament (on the recommendation of traditional leaders), that allowing people to opt out of the jurisdiction of traditional courts would undermine the courts’ power, results in a dangerous re-enactment of core apartheid principles.

By not signing these regressive bills into law, President Cyril Ramaphosa would serve the best interests of the rural people of South Africa if he could bring into play the core principles of democracy that he helped secure in the country’s founding document when he chaired the Constitutional Assembly 25 years ago. Both bills fail the test of constitutionality. DM