Traditional leaders, excluded from real power since the interim constitution was replaced by the permanent version, are looking for a 'Zuma dividend'.
If they get their way (and right now their chances are looking better than at any point over the last decade) they will again become rulers in more than just name, with broad and deep control over the lives of a not-insignificant portion of South Africa’s population. This, in turn, could make them a crucial ANC constituency, and so cement that power.
Two pieces of legislation are central to this emerging strategy: the controversial Traditional Courts Bill, currently in a public consultation phase, and the comparatively under-the-radar requests for amendments to the Constitution.
In submissions made to Parliament’s constitutional review committee last year, the largely ceremonial National House of Traditional Leaders and its Mpumalanga branch argued that municipalities should be replaced by traditional councils as service providers in their areas of control, rather than work in parallel. This, the bodies say, would ensure rapid service delivery. But it would also channel all the money for infrastructure development through the councils, and make them responsible for the payment of local civil servants.
Under the current framework for traditional governance, 60% of the members of such traditional councils are appointed by the “senior traditional leader”. The remaining seats are supposed to be filled through local elections, as part of efforts to partially democratise traditional leadership, but to date attempts at holding such elections have largely failed. That it opens the door for a second crucial proposal by traditional leaders: that the Independent Electoral Commission manage elections “in consultation with traditional councils”.
If those proposals pass, they could effectively give kings, chiefs and headmen control over local revenue collection, local spending of money – including grants from provinces and the national fiscus – and at least some control over the election of council members supposed to counterbalance the power of hereditary leaders.
Securing the flow of money is a critical part of the revivalist agenda. Traditional leaders are largely funded from provinces, which means huge discrepancies in budgets and resulting envy among both leaders and their subjects who see different levels of spending in different areas. Raising taxes and levies, though technically allowed in traditional areas, have proven difficult.
“These days everybody expects the government to do things for them, so it is difficult for a traditional leader to collect money and mobilise the community to build public amenities,” said Phathekile Holomisa, president of the Congress of Traditional Leaders of South Africa and an MP. “Communities know the government has the money and that it just doesn’t reach them, so they aren’t enthusiastic about paying for things themselves.”
In addition, traditional leaders have requested small changes to the wording of the Constitution, which would have the effect of turning traditional leadership from something that exists largely at the sufferance of the government to permanent institutions. That, too, would have a funding component, providing national government support for the infrastructure for bodies that would most likely lobby on behalf of traditional leaders.
Power of traditional leaders
The separate but parallel process of the Traditional Courts Bill seeks to reinstate the power of traditional leaders to make law and adjudicate everything from property disputes to marriage issues in their jurisdiction. Critics say this will be a blow to women’s rights, often neglected or worse under traditional law, and give chiefs a dangerous level of control. But supporters, who cite advantages, such as community involvement in justice and a less alienating and expensive process to achieve it, this week received a boost to their argument.
On May 8 the South Gauteng High Court ruled in favour of a woman who had been informally adopted and faced eviction by a cousin from her family home of almost 15 years because the arrangement had never been officially recorded. Her recognition as a customary law heir prevented that eviction.
In general, however, customary law tends towards extremes of conservatism relative to current jurisprudence. One example: traditional leaders want protection of individual rights on the basis of sexual orientation stripped from the Constitution, lest they be forced to protect homosexuals from discrimination in traditional policy and courts.
ANC sees a problem
In private, some traditional leaders say they hope to cement their position before Jacob Zuma loses control of the ANC, as they fear could happen at the end of the year. As a Zulu traditionalist, he has little choice but to support them, they believe. As a politician, however, that may not necessarily be the case.
Even some traditional leaders concede that the ANC has an urban bias and that the influence of the ANC Women’s League means traditionalists have to keep their heads down; by law 30% of traditional councils must be women, a matter of some contention. If chiefs can regain political control they could, perhaps, become an important swing vote in KwaZulu-Natal and the Eastern Cape, which in turn are crucial to ANC elections. But to get there they would first have to navigate their way through the ANC’s policy conference in the middle of this year, an arena where they have historically failed.
“If you look at the ANC resolutions over the years, you won’t find anything that speaks positively about traditional leadership as an institution,” said Holomisa.
“In the ANC it is seen as a problem rather than a tool of development and democracy.”