The Traditional Courts Bill must start with women's rights
I was born in the early 1960s and have lived in a rural village all my life. From an early age, I witnessed traditional court proceedings.
I am currently serving on a traditional village committee that presides over disputes between community members.
In a report on the Traditional Courts Bill in the Mail & Guardian (“Boost for traditional courts”, May 24), it was claimed that women in Limpopo’s Vhembe district have come out in support of the aims and objectives of the Bill. This sweeping statement deserves clarification, because it gives a skewed picture of the Bill, the public hearings in that province and the issue of how it will affect women’s rights.
Contrary to the report, the Limpopo legislature, in its presentation to the National Council of Provinces on May 30 and what flowed from its hearings and deliberations on it, said that “the Bill was received with mixed feelings, and some people felt that the Bill must not be proceeded with, especially in Vhembe district”.
I was present at the hearing in that district on May 17. There were a number of women in attendance. They were mainly silent, but many men said that the Bill should be stopped for several reasons, including its discrimination against women. Only one woman spoke positively about the Bill.
In Limpopo and elsewhere, rural women are calling for more powers within traditional practices and for some of them the aims and objectives of the Bill appear to address this. Therefore, many women would appear to support the aims and objectives of the Bill in the hope that the Bill will satisfy their demands.
But this is not the case. Part of the disinformation, also being put out by many chiefs, is to emphasise the aims and objectives of the Bill as compliant with the Constitution, while obfuscating the Bill’s provisions, which in fact work against constitutional rights.
The Vhembe district comprises Tsonga and Venda-speaking communities, each with their distinct traditional practices. I have visited a number of traditional councils in both communities and I am not aware of a female Venda chief or a woman presiding in a traditional court.
Since 1994, there have been many Tsonga-speaking communities in the Vhembe district where widows of deceased chiefs have acted as traditional leaders on behalf of their minor sons, but not as presiding officers in the court. I know many women who do not want to take their cases to traditional courts, preferring social workers and magistrate’s courts because of the view that traditional courts are biased in favour of men. There is little reason why these women would push for more cases to be dealt with in traditional courts.
Throughout the provinces, discussions on the Bill are bringing to the surface underlying tensions and disputes in traditional communities.
The Limpopo legislature also stated in its submission that “the Bill is contrary to custom in that it provides for traditional leaders to preside in traditional courts. According to practice, a traditional leader is only informed of the judgment for them to enforce or amend.”
The fact that the drafters of the Bill are apparently unaware that traditional leaders do not ordinarily preside over traditional courts shows how out of touch they are with customary law. They are simply repeating the colonial precedent of the Black Administration Act of 1927, which turned chiefs into judges, like those in Western systems.
To fix this serious misconception about the role of chiefs as presiding officers would require rewriting the current Bill from scratch.
One of the things that people object to is the way that the Bill overlooks the crucial role played by council and community members and, instead, centralises all power and authority in the chiefs’ hands.
It is only recently and because of organisations that teach rural communities constitutional values that in some cases women are now allowed to appear before the court in the company of any relative, regardless of their gender, and to participate in court proceedings. This is a new development in those communities who are willing to adapt to democracy but some traditional leaders still strongly resist it.
I am also a chairperson of the royal family in my community. The women on our committee participate in trying cases before the traditional court, yet they continue to be undermined by men, who dominate the court proceedings.
The Traditional Courts Bill raises the broader issues of gender inequality, abuse of power and ongoing divisions over the legitimacy of traditional leaders.
The Bill must be scrapped and started afresh, with human rights and equality, particularly for women, at the heart of the drafting.