Xolobeni community member against mining (Paul Botes/M&G)
The Traditional and Khoi-San Leadership Bill is dangerous. The Inyanda National Land Movement is campaigning to stop it before it is passed into law. If Parliament does pass this Bill, the struggle for rural democracy will continue in the courts, in Parliament and in thousands of rural villages across our country. The Bill, which is undergoing public hearings, is against the democratic spirit, letter and intent of our Constitution. It will benefit elites, such as those hovering over the Wild Coast seeking yet more mining profits at the expense of our people and ecology.
Through provisions in the Bill, these elites will be able to negotiate and reach unaccountable partnership agreements for mining of communal land with so-called traditional leaders at the expense of people’s customary rights to land for identity, settlement, grazing, cultivation and foraging.
The Bill shows that government is determined to have two separate systems of governance in South Africa. The one system is a formal democracy and largely urban. The other, largely rural and undemocratic, is born from colonialism and apartheid. This means the people of Cala, Giyani, KaNgwane, Matatiele, Nquthu, Ramatlabama, Taung and other former homeland villages will continue to be treated by the law as subjects. In contrast, the people who live in Botshabelo, Cape Town, Grahamstown, Seshego, Soweto, and other urban areas have full rights as citizens.
To rephrase academic, author and political commentator Mahmood Mamdani, we actually have a bifurcated neo-apartheid dispensation. How can that be in what is supposed to be a dispensation of democracy, freedom, rights and transformation? All this is shocking – it removes any doubt about the rot, decay and near-death of the 1994 promise of freedom.
Even more shocking are the colonial and apartheid foundations of the Bill. These are present in its renewal of tribal boundaries etched into existence by the infamous Black Authorities Act of 1951. It was these tribal boundaries that formed the basis of the hated tribal authority system and the Bantustan system as a whole. Together with this was a distorted form of communal land tenure, which led to tenure insecurity for those living in the former homelands. This system as a whole served as the main instrument of social control exercised by the apartheid state over the rural population.
The 1951 Act and other apartheid-era laws were developed to misappropriate customary law and co-opt chiefs to be unaccountable servants of the apartheid regime on a tribal basis. All this disrupted and malformed the indigenous, evolving customary systems of self-governance and accountability. The 1951 Act applied to the infamous 13% of the land that remained in the hands of the oppressed. Like the Traditional and Governance Framework Act of 2003, this Bill gives a new lease of life to these tribal authorities.
By its nature, customary law is living, evolving and dynamic. It is developed and shaped by the people themselves, informed by broader social, economic and political changes. Yet the Bill ignores this.
Just as colonialism and apartheid perverted customary law, this Bill effectively blocks the democratic and progressive evolution of customary law. Like the colonial and apartheid dispensations, the Bill centralises power in the hands of an autocratic tribal chief, who is primarily accountable upwards to the state and not to the people. The chief is now given unaccountable power to define the essence, content and practice of customary law.
This inordinate power imbalance is reinforced by the Bill’s extension of further unaccountable governance, quasi-judicial, prosecutorial, custom-making, land administration and developmental powers to tribal chiefs. The Bill allows unaccountable partnership agreements, as stated, as well as provisions enabling any government department, municipality or state entity to delegate any of its powers, roles and functions to a chief. In essence, this means that chiefs will have significant powers they have never had, without any rigorous systems of checks and balances. This goes against the principle of separation of powers that is at the heart of our country’s Constitution.
All this means chiefs can take major decisions that affect customary rights, access to land and other rights without consulting their communities. In effect this Bill creates a fourth tier of government, which is not provided for in the country’s Constitution.
Further, the Bill fails to provide for meaningful and substantive consultation with people in these areas. The Bill represents a major crisis for our democracy yet it is not visible and understood as such in the mainstream media and discourse.
The Bill confirms how the post-apartheid elite has failed to even imagine deepening direct popular democracy, let alone opening space for realising it.
The Bill’s legitimation and renewal of the apartheid system of tribal rule confirms that the native reserves of the past have not been dismantled. The Bill and its predecessor, the Traditional Leadership and Governance Framework Act, keep them intact.
How can our democratic government today revive the apartheid system of tribal authorities?
This and other questions become even more pertinent when we recall that the majority of chiefs acquiesced and collaborated with colonial and apartheid governments. Many were also corrupt. This fact of history is conveniently forgotten in government and chiefly discourses.
Further, the enduring role of these tribalised geographical spaces in the political economy of the country is exactly about the reproduction of rural areas as the main reservoir of the largely permanently unemployable reserve army of cheap black labour.
It then becomes possible to understand the role of autocratic tribal authorities as an exercise in social control that manipulates tradition, custom and welfare to contain such an army of cheap black labour. But this is within a shifting demography: many informal settlements, townships and inner cities also play this role. Those who occupy these spaces often leave rural areas and usually find themselves in complex patterns of circular migration between rural and urban spaces.
Government argues that converting tribal authorities into traditional councils is sufficient democratisation. How can that be so when the Bill stipulates that the majority of council members are solely appointed by the chief without even stipulating what criteria would be considered in such appointments? Only 40% of the members will be elected. From past elections conducted under the Traditional and Governance Framework Act, such traditional council elections have been severely flawed, poorly resourced and open to manipulation and control by chiefs. There is nothing in the Bill that shows how these flaws will be addressed.
It is a mistake to believe that the Bill is the piece of law to address the genuine grievances and demands of the descendants of the first peoples of our country (the Khoi and the San). Far from addressing Khoi and San issues, the Bill merely co-opts a segment of Khoi and San leaders (some of whom are self-proclaimed) into an often unaccountable, autocratic system of rule within untransformed apartheid geography and land ownership patterns.
At the heart of this system is reactionary and regressive tribal and ethnic identity, which goes against progressive nation-building.
Government’s persistence with the Bill ignores mass struggles for rural democratisation that are bubbling underneath the radar, such as the anti-mining struggles in Babanango, Fuleni, Xholobeni and along the platinum belts of the Limpopo and North West provinces.
To paraphrase the Communist Manifesto, these struggles are part of uninterrupted, now hidden, now open struggles, which have not yet ended.
It is high time that rural people openly acted to advance their views, aims and interests, and to deal with the fable that tribal chiefs are the sole custodians of identity, culture and rural life. Let us confront this tale with our manifesto of a transformed countryside, starting with a powerful campaign to stop the Bill and advance people’s alternatives for democratic rural self-governance.
Public hearings mock democracy
The first round of public hearings on the Traditional and Khoi-San Leadership Bill, held in Mthatha on December 5 last year, was a manifest failure in public consultation. The hearings lasted for no more than three hours. They ended with many rural people not having had a chance to speak or comment on the Bill.
Parallel to the hearings, three members of Parliament held a separate meeting with traditional leaders at another venue. When these MPs rejoined the hearings, they did not report back on their private meeting with the chiefs.
The parliamentary committee did not present the Bill in the detail required. A brief and unsubstantial overview of the Bill was given, omitting some of its key provisions.
After a few people had made comments, a state lawyer with the committee was supposed to give a summary of people’s inputs to the Bill. But he tried to shift people’s focus away from the Bill, claiming that people were not commenting directly on the Bill but were referring to communal land — which is supposedly dealt with in a different piece of legislation.
The national co-operative governance and traditional affairs department primarily consulted tribal chiefs, government departments and other stakeholders who are not representative of rural people.
This is profoundly undemocratic, given that the Bill will affect more than 18-million people in rural areas.
Also, the announcement and notice of the public hearings was limited.
The failure of the public hearings such as that in Mthatha to listen to the people is compounded by the fact that the Bill is not available in isiXhosa, Sesotho or other languages. — Mazibuko K Jara and Vukile Macingwana
Mazibuko K Jara and Vukile Macingwana are members of Ntinga Ntaba kaNdoda, a rural movement in the Eastern Cape and part of the Inyanda National Land Movement