When old ways clash with new

Copy of xingwana Ntswe Mokoena The Minister of Women, Children and People with Disabilities, Lulu Xingwana.

Lulu Xingwana, Minister of Women, Children and People with Disabilities, has caused something of a stir by publicly rejecting a bill being sponsored by a cabinet colleague.

It is the Traditional Courts Bill, which Xingwana opposes “in its entirety” because it endangers the gains made by women in the past 20 years towards empowerment and gender equality. Her outright rejection of it is unusual, taking the fight outside the controlled environment of private meetings and collegial lobbying.

Opponents of the bill, restoring to traditional leaders the power they once had, which was manipulated by colonialists and apartheid’s practitioners, say it would impact negatively on millions of South Africans. The fear goes that people in largely rural areas would not have recourse to mainstream justice should they be deemed to have fallen foul of customary law.

A strong thrust of the opposition, backed by Xingwana, is that it would further subjugate rural women. Another concern must be that, because of the remoteness of these courts, accountability for their activities and ways of measuring the quality of their justice would be highly unlikely. The argument is that traditional chiefs would make laws, apply them, and benefit from them.

Worrying too is that the bill was drafted in consultation with traditional leaders and their institutions only, concentrating power in their hands. As such, according to the Legal Resources Centre, it was born in illegitimacy.

The bill also highlights, as the University of Cape Town’s Professor Pierre de Vos put it, the difficulties of marrying a system of traditional leadership with democracy. Traditional leadership, he proffered, was by its nature undemocratic.

De Vos has warned of its incompatibility with the constitution. Yet again, then, legal challenges await new legislation if the government brushes aside Xingwana and all the other criticism.

But Justice Minister Jeff Radebe, who introduced the bill, has acknowledged these concerns. We await his next move on the Traditional Courts Bill.


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