The government’s approach to traditional affairs runs counter to the guarantee of equality for all.
Something is stirring in rural South Africa. Many people are asking: Where is our government taking us in terms of how we are governed and how our land is managed? The death of the Traditional Courts Bill in Parliament on February 19 is an occasion to celebrate – and to reflect.
The Bill was introduced in 2008 and allowed to lapse last week after being heatedly discussed at meetings of the National Council of Provinces' committee on security and constitutional development over the past three weeks. Its end marks a major victory for rural people, who have opposed it since 2008.
They organised and went to public hearings again and again to voice their refusal to bow to laws that would put them under the heel of unaccountable traditional leaders. They told Parliament and the provincial legislatures that a law that oppresses women, enables chiefs to order forced labour and makes it impossible to opt out of chiefs' courts is not their custom.
But the department of justice continued to push the Bill. Its political sponsors went so far as to manipulate the provincial public consultations. The North West province, for instance, changed its mandate from loud opposition to support – after an unprecedented third round of public hearings (which were hasty and cursory). The province's original mandate said 95% of the people at the first round of detailed discussions rejected the Bill.
In October last year, five provinces had mandates to vote to scrap the Bill. Only two were in its favour, and they did not support all the Bill's provisions. On Wednesday last week, the parliamentary legal adviser found many of the provinces' concerns valid and provisions unconstitutional. This encouraged MPs to call for the Bill to be withdrawn. Faced with increasingly outspoken objections to the Bill across the political spectrum, the chairperson adjourned the meeting.
The justice department's persistence in the face of opposition from the provinces returns us to the question many rural people are asking: Where is the state going with a law that would bring back oppression by unaccountable leaders, many of whom are apartheid appointees? Put differently, the question is: 20 years into democracy, has the promise of equality for all South Africans been realised? Have Bantustans been abolished? And is the government committed to the equal citizenship promised by the Constitution?
The answers looks bleak if we consider that government departments and Parliament, which are supposed to be two separate spheres, seem to have been working in tandem to do exactly what citizens don't want.
In 2003, the department of co-operative governance and traditional affairs gave us the Traditional Leadership and Governance Framework Act, which locked rural people into the tribal boundaries created by the 1961 Bantu Authorities Act. So post-apartheid law resuscitates the boundaries of the old Bantustans and seems to see chiefs as a fourth sphere of government within them.
The then department of land affairs produced the Communal Land Rights Act. Enacted in 2004, it undermined security of land tenure for people in the former Bantustans by giving control of land to traditional councils – apartheid-era tribal authorities by another name.
The Act was struck down by the Constitutional Court in 2010 but the department of traditional affairs persists in giving chiefs management powers over restitution of land.
Parliament is meant to listen to the people when it conducts public hearings on Bills. But the Traditional Courts Bill was sent back to the provinces by Parliament for more public consultation each time it was rejected. When it became clear that the required majority of provinces would not support it, the Bill was allowed to "lapse" rather than to go to a vote that would have defeated it.
This is cowardly, designed to save face, when Parliament should rather have celebrated this triumph for democracy in practice.
Developments to do with laws for rural South Africa and the tendency to suppress rural voices should alarm us all. They show a reversal of the democratic gains that promised equal citizenship for all.
Policymakers' flawed notions
Policymakers have deeply flawed notions of rural citizens as the subjects of chiefs and internalised colonial and apartheid notions of how precolonial African societies were organised. We know from the work of scholars such as Mahmood Mamdani that colonial officials turned every kind of African polity into a tribe to make it "legible" under indirect rule. The post-apartheid state is pushing rural citizens back towards being tribes.
The rollback will be completed by the Traditional Affairs Bill if it ever becomes law. But rural citizens are pushing back and using every avenue available, including Parliament, to oppose it. The defeat of the Bill attests to this. We cannot go back to divided citizenship.
Dr Mbongiseni Buthelezi is a senior researcher for the Rural Women's Action Research Programme at the Centre for Law and Society, University of Cape Town