Last week's public hearings on the Traditional Courts Bill were dominated by the testimonies of rural people describing various forms of abuse by traditional leaders and traditional courts. These included the extortion of tribal taxes and excessive fines, women being treated with derision, the banning of community meetings, the sale of community land and high-handed chiefs engaged in corrupt mining deals.
Speaker after speaker said that the Bill would exacerbate these abuses by providing chiefs with more autocratic power than they had under apartheid. They stressed that the actions they complain of are a distortion of the character of true customary law and that the Bill would enable chiefs to override indigenous accountability mechanisms.
Speakers called for the Bill to be withdrawn and replaced by one based on widespread consultation and close attention to the actual nature of living customary law, including the in-built checks and balances that mitigate abuse of power.
Minister of Justice Jeff Radebe is adamant, however, that the Bill will not be withdrawn. He acknowledges that there are serious problems in the current version but insists these should be addressed by amendment, rather than a clean start that breaks with the autocratic interpretation of customary law contained in the Bill and the Traditional Leadership and Governance Framework Act of 2003.
At the Women's Parliament in August, Radebe put forward two reasons for insisting that the current Bill be retained, despite strong objections from civil society and Minister of Women, Children and People with Disabilities Lulu Xingwana. The first was that this would avoid a new approach being negotiated in "dark corners", away from the glare of public scrutiny in Parliament. The second was that the abuses currently taking place require urgent intervention and that starting from scratch with a new Bill would delay this very necessary intervention.
At last week's public hearings the justice and constitutional development department presented a "submission" proposing extensive changes to the Bill . This document is fundamentally inconsistent with the explanations used to justify Radebe's intransigence. In the first place, it was overtly drafted in a "dark corner" with no input from civil society or those who oppose the Bill. Those making submissions at the public hearings were explicitly prohibited from commenting on the department's proposals. I know, because I tried.
As for the urgent need to deal with the abuses that have come to light – the new proposals say absolutely nothing about them or how they should be dealt with.
The obvious way to deal with such abuses is by vigorous prosecution through the criminal justice system. None of the identified abuses are authorised by the provisions of the Black Administration Act that currently govern traditional courts. It is disingenuous to use that law as an excuse for making haste to enact the Bill. The Bill provides chiefs with far more autocratic powers than the Black Administration Act ever did.
Around the time of the transition in 1994, there were remarkably few of the kinds of abuse recounted at the public hearings. At that time, most traditional leaders sought to distance themselves from their Bantustan past, and to exhibit their commitment to gender equality and democracy.
The balance of power shifted, however, when the Framework Act and the Communal Land Rights Act were enacted in 2003 and 2004. Section 28 of the Framework Act entrenches the disputed tribal boundaries inherited from our apartheid past – boundaries established in terms of the hated Bantu Authorities Act of 1951 – and the outcome of the forced removal of more than 3.5-million black South Africans. These boundaries coincide exactly with the boundaries of the former homelands. The Communal Land Rights Act provided traditional councils with control over the land within those boundaries – despite the outcry from rural people when it was debated in Parliament.
These laws, together with the Traditional Courts Bill, have emboldened some (not all) traditional leaders to revert to the excesses of the apartheid era. They have elicited the resurgence of the extortion of tribal "taxes", and contributed to the overweening arrogance of a new breed of traditional leaders epitomised by Buyelekhaya Dalindyebo and Nyalala Pilane.
The new laws convey the message that the former homelands are the preserve of traditional leaders rather than of lawful state power. The most effective way to deal with abuse of power would be for the government to send a strong message that traditional leaders are subject to the Constitution and the laws of the land. Radebe's insistence on pushing ahead with the Bill sends the opposite signal.
The justice and constitutional development department's submission attempts to sell itself as a synthesis "solution" that addresses the key complaints raised in respect of the Bill. This is simply not true. It recommends that traditional courts be subsumed into the traditional councils that exist wall to wall within the former homelands. In this way it reinforces the fundamental flaw that was raised in submission after submission – that of the Bill imposing a segregated legal system on those living in the former homelands.
At the heart of the controversy are opposing views concerning the nature of customary law. Those who oppose the Bill argue that customary law derives its meaning and power from people's affirmation of their mutual interdependence and shared identities. It is thereby an inherently consensual system based on freely given support that affirms, expresses and transmits shared values and identities from generation to generation. The new laws, by contrast, impose apartheid-created tribal identities on all those living within the former homelands, whether they like it or not.
The hearings illustrated very powerfully that many do not like it at all. This is not to say they do not like customary law: the primary complaint is about chiefs being given autocratic powers over people forced within tribal boundaries that they reject and dispute.
The Bill ensures that those who challenge abuse of power or ascribed tribal boundaries are firmly under the thumb of the chiefs they reject. The Bill makes it a criminal offence not to appear once summoned, and empowers traditional leaders to strip people of their customary entitlements, including land rights.
The Bill of Rights provides that everyone is entitled "to participate in the cultural life of their choice". This is turned on its head when tribal identities are created out of forced removals and imposed by law, as opposed to voluntary affiliation. The justice department justifies the retention of traditional councils and their controversial boundaries on the basis that traditional councils are "democratic institutions where all sectors of society are represented". Again, this is very economical with the truth.
The Framework Act provides that 30% of the members of a traditional council must be women, and 40% of the members must be elected. Most, however, have not complied with these requirements. Nine years after the Act was introduced, the required elections have not yet taken place in Limpopo, and a report by Quanta Research Services shows the elections that have taken place to be seriously flawed.
Radebe's attempt to avoid a legal challenge to the Bill by empowering traditional councils to act as traditional courts may yet backfire spectacularly. It provides the perfect course of action to challenge the controversial Framework Act itself.
The alternative approach would be to make a decisive break with apartheid boundaries, and follow the lead taken by ordinary rural people in crafting solutions that reconcile custom and rights. At this level there is much to be hopeful about, as shown by the strides made by single women in securing land rights. Studies document how women have combined customary entitlements and equality claims in securing residential sites.
Instead of resuscitating old divisions, we should seek to give effect to the Constitutional Court's vision in its Alexkor judgment of indigenous law feeding into, nourishing, fusing with and becoming "part of the amalgam of South African law". The state courts have much to learn from customary values that prioritise claims of need. That path is pre-empted however, by the justice department's recalcitrance with regard to the Bill.
Aninka Claassens is a long-standing land-rights activist and a senior researcher in the law, race and gender unit at the University of Cape Town, a member of the Alliance for Rural Democracy