The incarceration of the abaThembu king, Buyelekhaya Dalindyebo, has not only touched a raw nerve among traditionalists in South Africa, but will also reverberate throughout the continent where many tribes still believe in the divinity of monarchs.
It brings into sharp focus the place of reigning kings in a constitutional democracy.
Since the first countries won independence from colonialism in the 1950s, Africans have always tried to go back to their roots to find their identity. But their attempts have been hampered by the reality that political systems in which leaders hold office solely through birthright do not guarantee peace and stability.
The judgment delivered by the Supreme Court of Appeal against Dalindyebo reads: “Almost all of the witnesses on behalf of the state who had encounters or exchanges with the king, testified that he was a man who ruled by fear and intimidation and would brook no resistance.”
History is replete with stories of how societies chose to abolish kingship precisely because of its authoritarian nature, the last vestiges of which are to be found in my home country of Swaziland where King Mswati III is an absolute monarch, the only one in the world today.
The French Revolution of 1789 came about because of the repressive reign of the monarch Louis XVI, who was dethroned and then executed. The Russian Revolution of 1917 also brought a monarchy to an end. The British were more benign, reducing theirs to a constitutional monarchy between the 18th and 19th centuries.
Since independence from colonialism, Africans have considered the possibility of returning to the system of kingship to reclaim their identity. However, this idea has always been met with practical difficulties. African leaders are refusing to leave office at the end of their terms, thus creating a mini-monarchy out of their regimes. A current example is the political crisis in Burundi, where President Pierre Nkurunziza has sought a third term in office by brute force. He has gone on a murderous rampage against his own people to stay in power.
Uganda’s President Yoweri Museveni runs the country like a monarch, having taken power by force in 1986. In the Democratic Republic of Congo, following the death of Laurent Kabila, his son Joseph took over to continue a dynasty and keep power in the family. He has been in office since 2001.
With Robert Mugabe defying nature and still running Zimbabwe in his 90s, it is now emerging that his wife, Grace, may take over from him when he eventually leaves office, either through natural attrition or the casket. This, again, is a move that smacks of kingship succession rather than the growth of a democratic practice.
Swaziland has tried to sell itself to the world as the last bastion of traditional values at work, but it has been repressive and has shut out the participation of citizens in the running of the country. The deliberate suppression of the Constitution is the country’s Achilles heel.
Lesotho, on the other hand, has remained politically unstable ever since the government of Leabua Jonathan seized political power from King Moshoeshoe II in 1970 and rendered the monarch a figurehead.
The conviction and sentencing of Dalindyebo sparked a debate on social media among some Swazis, particularly lawyers, who were astounded that a king could be jailed. One asked on Facebook: “… how do you reconcile kingship (and the traditional law associated with that institution) with the concept of a republic? Last time I checked, kings operate within kingdoms and a legislative framework that entrenches certain fundamentals inherent in the institution.”
Despite the powers of the Swazi king being defined in the Constitution, Mswati is able to exercise authority outside the law and, even if he were to behave as Dalindyebo did, would never have to answer for his transgressions.
Those who have rallied against Dalindyebo’s incarceration argue not from the standpoint of his guilt or innocence, but from his assumed divine right as a ruler of a tribe to exercise his authority without consequences.
During a brief period in 1995, Dalindyebo went on a brutal mission to assert his authority among the abaThembu people living on a farm called Tyalara where, among other things, he burnt down people’s homes and beat up two young men and “only stopped because he was physically exhausted”, according to witnesses. The court found that “the totality of the evidence presented a picture of a king who ruled as a merciless despot”.
Professor Digby Sqhelo Koyana told the court: “Customary law demanded that a king ensures the maintenance of law and order, protects the life and security of his people, and acts compassionately with due regard to the dignity of his subjects.”
Evidence suggests this was not the case. Dalindyebo’s claim before court that he could not be found guilty of arson because he had burnt down property that belonged to him by virtue of the fact that Tyalara farm, where the incidents occurred, was registered under his name in the title deed, is more in line with the understanding of kingship.
The powers that kings wield cannot be underestimated. Persistent claims that utterances about foreigners by Zulu King Goodwill Zwelithini triggered xenophobic attacks in South Africa last year bear testimony to this fact.
A witness in the trial of Dalindyebo told the court that he “would cut the throat of a person with a knife if so ordered by the king”.
When a king goes to jail because he has broken the law, it is testament to the supremacy of the law. But it also brings in a new challenge to the operation of the law. Henceforth, the law cannot be seen to pick and choose who will be prosecuted for its breach.
As the court noted in its judgment: “The lesson that cannot be emphasised enough is that persons in positions of authority … are obliged to act within the limits imposed by the law and that no one is above the law.”
Bheki Makhubu edits The Nation magazine in Swaziland