The recent presentation of a certificate of recognition to AmaZulu King Misuzulu Sinqobile kaZwelithini by President Cyril Ramaphosa and swearing him in by Judge Isaac Madondo has brought the precarious state of African custom to the fore.

King Misuzulu was sworn in at the Moses Mabhida Stadium in Durban and handed a certificate of recognition, ostensibly legitimising Misuzulu as the only isilo (king) of the Zulu nation.

I was there to represent AbaThembu King Zwelinbanzi Dalindyebo who had other royal duties.

The way in which the Zulu nation presented their heritage, including their traditional dances, was amazing. However, there were several mind-blowing contradictions in terms of protocol.

For starters was the matter of timing. The event at the Moses Mabhida Stadium took place two full months after the king had completed the ukungena esibayeni (entering the kraal) ritual. This ritual is always — and should always be — the final step in ordaining, and thereby recognising, a Zulu king.

Prince Mangosuthu Buthelezi said as much in an interview with the SABC prior to the certificate of recognition being handed over. He said King Misuzulu had ascended the throne after completing ukungena esibayeni on 22 August 2022. 

The certificate of recognition had no meaning in terms of Zulu customary law, he said. It was not a requirement, nor did it have any bearing on Misuzulu becoming king. Indeed, had the government so wished, it could simply have sent the certificate to the king via the post, he said. 

For the state, the certificate was for the purposes of gazetting the king’s position and formally announcing him as king.

I fully concur with these views. The point is that it is up to the royal family and not the state to have the final say in endorsing and recognising the respective monarch.

This discrepancy might not have been so bad had it not been for another aspect of the state’s 29 October ceremony.

I refer to King Misuzulu taking an oath before the Deputy Judge President of the KwaZulu-Natal high court. The king swore to uphold the law of the land. Now I must emphasise that I have no problem with the contents of the oath. Nor do I wish to imply that the king should be above the law.

But nowhere in customary law — which enthrones a king — is there a requirement for a king to swear an oath to protect the laws of the country. Nor does custom say that the king must be sworn in by a judge, let alone be handed a certificate of recognition by the President in order to reign.

My point is that it is only the royal family that has the authority to appoint or recognise a king. And it is only the royal family that can ask a king to take an oath, if they think it is important to do so. Nobody else can decide for them.

Yet, the entire country witnessed the peculiar phenomenon of a judge — who is not a member of the AmaZulu royal family and who has no say or role in customary processes — swearing in a king. And we saw a President handing over a certificate of recognition to a king who had already assumed the throne.

This posed two key questions. First, to whom is the king accountable?

Unlike government ministers and deputy ministers who take an oath to serve the country, who have clear authority to run national departments and form policies, and who answer to the executive, kings do not serve the President. Kings serve their nations.

Are we to assume that kings have now become accountable, not only to their nations, but to the state Cabinet too? It seems to me that this matter needs to be clarified.

Second is the question of who enforces this oath. Should a king ever breach the law and land up in jail, it is the royal family alone that has the authority to depose him. This is according to the Traditional Leadership Framework Act. It is not within the domain of a judge, nor a state president, to enforce the kind of punitive measures that would strip a king of his royal status.

The matter becomes even more tangled because a royal family is only able to effect punitive measures against a king should that king violate the customary laws that have made him king in the first place.

My point? Why do we have a king taking an oath before a judge and in the presence of the state president when that oath cannot be enforced, by any of them?

To the best of my knowledge, the king’s father was never subjected to a swearing-in ceremony. King Goodwill Zwelithini had already assumed the throne when the KwaZulu-Natal Traditional Framework Act was passed in 2005. If taking an oath was so vital in terms of Zulu custom, he would surely have been sworn in once the act became effective, yet no such ceremony took place.

This brings me to why the ceremony at the Moses Mabhida Stadium blew my traditional mind. There is no gentle way to say this. Taken together, the actions of the two arms of the state — the executive and the judiciary — gave the clear impression that it was conditional for a king to swear an oath in order for the state to recognise him as king. In other words, that the authority of the royal family had been usurped.

How are custodians of custom supposed to reconcile themselves to such events?

In conclusion, let us consider the powers and functions of a king. By virtue of becoming king, Misuzulu now has some authority to help create stability on issues affecting his kingdom. But these powers and functions are not clearly defined and protected in the Constitution.

For one thing, while the Constitution recognises traditional bodies as Chapter 12 institutions, it has no definition for the word “kingdoms” — as it does for “national government”, “provincial government” and “local government”. Could it be that the Constitution recognises kings but does not recognise their kingdoms?

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And while it clearly defines and protects the functions and powers of all heads of national, provincial and local government, the heads of traditional institutions and kingdoms are left wanting.

The first African leaders (AmaKhosi) who governed nations prior to and during the colonial era were kings, not party-political leaders. They were pushed from their land, their land administration powers were stripped away and they were forced to surrender their judicial authority to magistrates appointed by a foreign Roman-Dutch law system.

The democratic government of 1994 extended the system of administration by political parties. It gave all races the right to vote for a democratic government, unlike the situation under apartheid. But when the descendants of kings who lost everything still lie bleeding, the changes of 1994 cannot be described as the end of colonialism.

The power of kings to govern, to administer land and to defend their people has not been restored. Instead, these critical tasks have been transferred into the hands of government heads.

The state needs to rectify the anomalies around traditional institutions if it wishes to show itself serious about recognising the role of kings. I believe that these issues have not been adequately addressed, partly because the government does not want to be perceived as being hostile to traditional leaders, as was the case under apartheid.

Yet in a practical sense, the state reduces kings to the level of public servants. For instance, the state recently demanded that AbaThembu King Buyelekhaya Zwelinbanzi Dalindyebo disclose all gifts given to him, as per the requirement for government employees and office holders. But throughout history it has been customary to offer gifts to a king. Is custom now to be curbed?

Finally, when it comes to setting budgets for kings, the state does not seem to see kings as needing departments to manage kingdom affairs, such as land claims, chieftainship disputes, land administration, economic development (to fight poverty), safety and security etc. Apparently, the state thinks that a king needs only a small office.

Is it possible that the state does not view kings as having the function of running kingdoms? If so, what is the significance of giving a king a certificate of recognition and having him swear an oath? DM