The democratisation of traditional leadership structures and communities in South Africa is hobbling along, hampered by vague provincial legislation, a lack of electoral oversight and ongoing tension caused by the contradiction between the Constitution and customary law and traditional practice.
The election of 296 traditional councils in KwaZulu-Natal last Sunday is the only one completed in South Africa so far.
But even this election was beset by problems, according to independent monitors and researchers. The province’s MEC for traditional affairs, Nomusa Dube, announced that half the 500 000 registered voters had made their mark by lunch time. But Michael O’Donovan, an election researcher attached to the University of Cape Town who monitored the elections, said their trumpeted success was relative and a “red herring”.
“There are about 2.2-million people of voting age in KwaZulu-Natal who live in tribal areas, so even if the Independent Electoral Commission announced a 100% turnout [of the half-million], it would nevertheless be a minor turnout,” said O’Donovan.
However, the spokesperson for the provincial traditional affairs department, Lennox Mabaso, said the department was buoyed by the turnout because it had been “working tirelessly” to raise awareness about the elections.
“This exercise is vital in strengthening the relationship between municipalities and traditional structures so that we can unlock land and developmental opportunities more cohesively,” he said.
The official figures and results of the traditional council elections are expected to be released on March 5, according to the department, but anything would appear to be an improvement on the last elections, held in 2006. According to Jean Redpath, an independent researcher, “less than 2% of the potential electorate” turned up at the polls in the previous KwaZulu-Natal election. In September last year Redpath published an article titled “Past KZN Traditional Council Elections Flawed” in Law, Custom and Rights, the publication of the University of Cape Town’s law, governance and gender research unit.
The reasons for the poor turnout vary. According to O’Donovan, “there is incredibly little at stake when voting for a minority element within an undemocratic institution and where being elected doesn’t provide income, high office or long-term prospects. But while there is very little at stake, one must differentiate that from traditional councils not having power. They do. They do institute taxes and levies and if you have an insensitive traditional council, that can be detrimental to your wellbeing,” said O’Donovan.
He said other factors responsible for the low turnout included candidates not having the “resources” of political parties to canvass voters. Party agents, said O’Donovan, were also instrumental in ensuring that there were no irregularities at polling stations. This safeguard was missing from traditional council elections.
The traditional councils, according to the Traditional Leadership and Governance Framework Act, are constituted by 60% of the councillors being appointed by a senior traditional leader and the remainder elected by the communities. There is also a requirement for 30% female representation.
According to the Act, the councils are intended to work with municipalities on matters such as land usage and government development programmes, especially in areas where land is held by tribal authority trusts.
Redpath described it as “overlay[ing] the system of elected local government with a map of separate tribal identities”. She also noted that the Act “entrenches the controversial tribal boundaries inherited from apartheid as the areas of jurisdiction of traditional leaders”.
A reason many experts suggest for the reticence of communities to become involved is the fact that, in some cases, they remain the subjects of traditional leaders who collaborated with the apartheid government, or were imposed on them after the enactment of the Bantu Authorities Act in 1951.
According to Shirhami Shirinda, a researcher with the Legal Resource Centre, which is involved in legal and advocacy work with traditional communities, elections in Mpumalanga have stalled, in some provinces they are incomplete and in others they have failed outright.
Shirinda attributed the failure to “impracticalities of the electoral regulations”. As an example he cited the Eastern Cape, in which regulations called for nominations and elections to take place on the same day, which prohibits canvassing and the authentication of voters’ rolls.
Another problem is that elections have rarely been conducted by the Independent Electoral Commission. According to Redpath’s paper, the 2006 KwaZulu-Natal elections were reportedly conducted by the commission but, when contacted, the organisation claimed “no organisational memory of the election” and “could not attest to its probity”. Redpath noted that although the commission’s ballot boxes and banners were used in 2006, there was no evidence of a voters’ roll being compiled.
In “Confusion Marks Traditional Council Elections in the North West”, also published in Law, Customs and Rights last year, researcher Lisa Heeman noted that the main problem affecting last year’s elections in the province was the “lack of transparency and clarity” in terms of electoral rules, regulations and guidelines, as problems emerged over who was eligible to vote.
According to Heeman, the “absence of clear and accessible guidelines” meant rural communities were “barred from meaningful participation”. She pointed out that the transformative imperatives in introducing a pseudo democracy to traditional structures were being undermined as “experiences of nominations and elections in the North West as well as in other provinces show that the voices of women, youth and other marginalised groups are often not heard and excluded from the process”.
Heeman also said the agency contracted by the provincial government to run the elections, the Electoral Institute for the Sustainability of Democracy in Africa, “had no grounding to play its role”.
Traditional councils serve five-year terms. According to Shirinda, some of these terms have lapsed, whereas others have never been the product of elections, which means “many of these councils are acting illegally according to statutory law”.
O’Donovan said there was a “marked improvement” in the recent KwaZulu-Natal election, but the underlying problems remained. These included the concept of “voting for a guaranteed minority in an undemocratic institution”.
Another was that the current system was “open to abuse” because of a lack of trained oversight at polling stations and the use of local youths as election agents. This, according to O’Donovan, created the possibility of “societal pressure” when attempting to adhere to regulations such as ensuring potential voters are on the roll or can produce relevant identity documents.
The lack of transparent, effectively run elections, said O’Donovan, raised the question of why rural communities, “the most vulnerable in the country”, should be treated differently in terms of their rights.
Is the installation of traditional councils merely a case of pandering to outdated notions of hereditary hierarchy and the compromise provisions of the Constitution? This while rural communities have another layer of government foisted upon them?
Shirinda said archaic demands, such as the requirement by traditional leaders that people get permission from them to hold meetings, infringed their freedom of association and the majority of councils violated the equality clause of the Act by having an insufficient number of women on board.
Bullet Rikhotso, a member of the Mahatlani tribe in Limpopo, said development in his community had “been very, very bad” because of contestation over the community being “lumped together with the Bungeni Tribal Authority” rather than retaining its tribal autonomy.
“This is a historic struggle that goes back to the Bantu Authorities Act [of 1951] when we were classified as part of the Bungeni Tribal Authority, which we never were. We have been fighting this since then, but nothing has happened. We now have a court case pending.”
Rikhotso said being “lumped” with the Bungeni meant that the Mahatlani community had to get permission from that tribal authority for development projects like building infrastructure.
“The process is slow and sometimes we find that even after we have got approval and money to build a school, it happens in another area because of the tribal authority.”