Back to the dark day

“I find this insulting and affecting my dignity. I can speak wherever I want to and I didn’t come here as ‘your woman’. We are not your women. We come as citizens of this country. We are equals.”

This is not how the leader of the Congress of Traditional Leaders of South Africa (Contralesa), Inkosi Mwelo Nonkonyana, is used to being addressed by his rural subjects. But Gender Equality Commission chairperson Nomboniso Gasa was taking no prisoners.

Nonkonyana and Gasa faced off at hearings of Parliament’s justice committee on the controversial Traditional Courts Bill, which will give traditional leaders sweeping powers over 22-million rural South Africans.

The Contralesa general secretary had clearly not bargained for the barrage of opposition, mainly led by women, to the proposed law. “Those in authority and who hold power must treat us with respect. I will absolutely not go to your court! I will not support this Bill,” Gasa shouted.

The Bill proposes to give traditional courts powers to sentence offenders to forced labour and to strip people of their customary entitlements to land, water and community membership. It also gives the findings of traditional courts the same weight as those of magistrate’s courts.

According to civil-society activists the Bill entrenches the geographical jurisdiction of traditional courts, often according to the boundaries drawn by the apartheid authorities.

The activists’ main concern is that the new law will make all rural people into tribal subjects and give chiefs the power to interpret and enforce customary law. The trigger for the legislation is the repeal of the Black Administration Act (BAA), which has regulated traditional courts since 1927.

This week’s two-day hearings made it clear the new Bill was aired with the amakhosi but not with rural communities, despite the justice department’s assurance that the legislation and its policy framework are the “outcome of extensive research and consultation”.

The department said eight workshops were held on the Bill with traditional leaders in the various provinces. But speaker after speaker attacked the lack of consultation and the effect the legislation will have on rural women.

ANC MP Lydia Ngwenya told the committee: “In our culture women don’t go to these courts and when one does go she sits in isolation with her head down to show respect. How can women go to these courts—particularly if we’re not involved with the drafting? Go back and consult the women ... hear their voices.”

The justice department’s advocate, JB Skosana, said the Bill will “revive social cohesion and move away from traditional courts—its view is to promote peace and harmony in the community and seek to promote restorative justice”.

Skosana’s view was rejected by Cosatu, which called for the Bill to be scrapped, as well as by the Legal Resources Centre, the Gender Commission, the Women’s Legal Centre and the Rural Women’s Group .

“I am absolutely shocked and depressed that the democratic government we fought for can introduce this Bill,” said headmaster Monoko Moshitoa from Rakgwadi, Limpopo. “It will have a devastating effect on power relations in rural areas.”

Moshitoa said section 10 of the Bill took South Africa “straight back to the system of forced labour in the chief’s fields that we fought so hard to end during the rural rebellions in the 1980s”.

It empowered “autocratic chiefs” to summon those who resisted this abuse of power to their courts, to fine them and to strip them of their customary rights. Speaking on behalf of “rural people [who] have fought so hard for equal citizenship in a democratic South Africa”, he pleaded for the Bill to be withdrawn.

Said Charlotte Mokgosi from Makgobistad in the Mafikeng district: “This Bill came as a real surprise to us.

We’ve never heard about it before. It comes across as a real shame to the progress we thought we’ve made as South Africans.”

Patrick Mashego from the Letebejane Village in Limpopo told the committee: “You may say that not all chiefs are bad. That is true, but only bad chiefs need laws like this.”

Justice committee chairperson Yunus Carrim said the committee will not be able to meet the legislative deadline of the end of June, forcing Parliament to extend the BAA for another year.

He proposed setting up a committee with three representatives each from the amakhosi and civil society to find consensus on how to proceed. Nonkonyana objected. “Nothing will stop this Bill from being passed this year,” he said. “It’s long overdue.”

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