The debate on the Traditional Courts Bill has brought into sharp relief the fact that, even though our Constitution is supposed to reflect sufficient consensus among South Africans about what country we envision for ourselves and what binds us as a people, we remain confused about the meaning and content of our basic law.
Hyperbolic claims have been made by organisations and activists that the Bill harks back to the apartheid Bantustan system, perpetuates the exclusion and oppression of women, allows for forced labour and prevents those who live in rural areas and do not wish to defer to the authority of traditional leaders from opting out.
Professor Thenjiwe Meyiwa said in City Press there was an “irreconcilable contradiction between the patriarchal, hereditary nature of traditional leadership and the democratic principles enshrined in our Constitution”. On Independent Online, gender activist Nomboniso Gasa argued that “changing the Constitution, or enacting legislation to give effect to a constitutional provision, may in some cases undermine the principles of equality, dignity of all persons and access to justice and thus be an attack on the Constitution”.
Nkosi Phathekile Holomisa is sailing against the tide of what appears to be established opinion. In Business Day he wrote that there “is also the matter of the tiresome accusation of African culture being anti-women. This accusation is often accepted as fact by people who are supposed to be wise because they are educated. When people break Western law they are brought to court. Yet when people pervert customary law the conclusion is that it is so bad it warrants abolition.”
The Bill is part of a broader policy objective relating to the full implementation and development of our Constitution. It is one more step in a long, complicated process of accommodating traditional leadership in our constitutional democracy.
Houses of traditional leadership
The history of this search includes discussion of this at Codesa that led to chapter 11 of the 1993 interim Constitution. It provided for the recognition of traditional authorities and the establishment of the provincial houses of traditional leadership. These provisions were included and augmented in the final Constitution of 1996. The clauses acknowledge that traditional leadership is historically part of our national landscape.
When the ANC adopted its first constitution in 1919, it provided a forum known as the upper house of chiefs. Some of the iconography of liberation included the names of illustrious kings and queens. As Thabo Mbeki said: “I am the grandchild of the warrior men and women that Hintsa and Sekhukhune led, the patriots that Cetshwayo and Mphephu took to battle, the soldiers Moshoeshoe and Ngungunyane taught never to dishonour the cause of freedom.”
The discussion at Codesa and then in the constitutional assembly was not about whether traditional leadership had to continue to exist. It was accepted implicitly that traditional leadership contributed immensely to the development of systems and a body of knowledge for dispute resolution, thereby contributing to communal harmony. It was accepted that the processes by which lineage disputes were resolved and how genealogies were preserved and used constituted a body of knowledge to be preserved.
Accordingly, the transformation of traditional leadership, especially between 1997 and 2003, sought to bridge the gap between hereditary and democratic leadership. It sought to undo the legacy of the 1927 Black Administration Act, the 1951 Black Authorities Act and the many other “homeland” laws that sought to exploit traditional leadership to further the goals of indirect rule.
The task of accommodating traditional leadership had to contend with challenging questions such as how to comply with the Bill of Rights, which prohibits discrimination on the basis of gender. This was done by bringing a gender balance to an institution based on male lineage. The Traditional Leadership and Governance Framework Act of 2003 addresses it.
The opposition to the Bill is led by people who claim to be ardent supporters of the Constitution. What none acknowledges is that the defence of constitutionalism and of the Constitution implies support for the provisions relating to traditional leadership. The real betrayal of the Constitution occurs when we pick and choose those sections we like and denigrate those we do not.
No doubt, when the Bill becomes law it will face a constitutional challenge. However, there are two things worth noting. The first is that on September 6 1996 the Constitutional Court certified the new Constitution, including the traditional leadership provisions in chapter 12.
It is also worth noting that the constitutional validity of the Traditional Leadership and Governance Framework Act has not been challenged. If anything, the decision of the Constitutional Court on June 4 2008 in Shilubana vs Nwamitwa may confirm the soundness of this legislation.
Contrary to the view that the Bill is “bringing back” traditional courts, they have existed since time immemorial. The state is merely regulating and transforming them “in line with … constitutional imperatives and values” and “to enhance customary law and the customs of communities observing a system of customary law”.
A balanced debate on traditional leadership must acknowledge that it has bequeathed to us the legacy of consensual decision-making, a critical element in our endeavour to enhance the discourse of democracy and nation-building. The spirit of give and take embodied in our tradition of ubuntu, which has enabled us to develop institutions of governance based on a vision all of us can buy into, is, to a significant extent, the result of the influence of the institution of traditional leadership.
Monde Nkasawe works in the office of the premier of the Eastern Cape