The amendments to the Traditional Courts Bill have been passed by the national assembly and now await President Cyril Ramaphosa’s signature. It has been 14 years since the amendments were first introduced. The committee on justice and correctional services has sourced at least three legal opinions because of concerns about the constitutionality of the bill. But these concerns have been sidelined to force through a bill that will directly negatively affect millions of black women living in rural areas.
Four years ago, those people who supported the bill argued that people should not have the option to opt out of the traditional court system. This means that more than 18-million people will be affected and the majority of them are black women.
The supporters have argued that a clause allowing people to opt out would be disrespectful and undermine the traditional court.
But how can the dignity of the traditional court supersede the rights of citizens everywhere to a fair trial? Aptly put by Fatima Osman, a senior lecturer at the University of Cape Town, forcing people living in rural areas — who are generally the poorest and most vulnerable in society — into traditional courts will subject them to a different justice system from their urban counterparts.
Because they are not required to consent to the different treatment or exclude themselves from it, there is arguably an infringement of their rights.
Traditional leadership rarely includes women. Let’s start there with the reasons this bill is based on bigotry and patriarchy and possibly exists only to appease traditional leaders and to guarantee votes for the ruling party in the general elections in 2024.
At one of the public hearings on the bill, a regional magistrate from Eshowe informed the committee that he and his colleagues had held five workshops with traditional leaders and had found that women were participating in traditional courts. Of the 256 participants, 23 were women. Are you kidding? How is this seen in any way as meaningful participation?
So many reasons have been presented to the committee about why this bill will not serve the most vulnerable in society.
The bill attempts to placate the many organisations that have fought for years for meaningful, tangible changes in the rural and cultural structures and systems that suffocate women’s rights and discriminate against them. Some of those platitudes include that women might participate in traditional courts and that it should align with the Bill of Rights and recognise human dignity, equality and freedom.
But we all know that most rural areas are not places of equality for women. The bill doesn’t take into consideration the power dynamics that are so deeply entrenched in a patriarchal society.