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Try as I might to think of a cogent reason why a modernising constitutional democracy such as ours should need a Traditional Courts bill, I can’t think of any.
Except perhaps political expediency by some leading lights in the ANC keen to pander to tribal chiefs in the belief they will deliver the vote of the rural masses at election time.
But there surely must be plenty of other pressing matters that should be occupying the minds of politicians than the proposed law.
The bill, if it becomes law, will subject more that a third of our fellow citizens to a parallel legal system and the whims of traditional leaders and their tribal courts. It is being debated at public hearings taking place throughout the country.
In terms of the bill, the traditional courts headed by tribal chiefs would be able to hear cases, levy fines and issue other penalties against persons found guilty of wrongdoing.
What sticks in the craw, among many other problematic areas, is that there is no provision for an accused to bring a legal representative to argue their case. There is also no mechanism for appeal, the traditional courts being the final arbiters in cases before them.
Elements of the bill would not be new to people who have lived in rural areas under tribal chiefs – now called amakhosi – during apartheid.
The amakhosi and their courts have always mediated in tribal disputes, levied fines or confiscated property of those found guilty.
There have also been tragic cases, albeit few – where a person “found guilty of witchcraft” would be exiled from the community and their homestead razed.
Opponents of the bill have raised the matter of the status of women in traditional communities. No matter what the proponents of the bill say, the reality is that women are not regarded as equals of their menfolk in traditional communities. Indeed, when they have appeared before the tribal courts, women have needed to bring along a male representative to speak on their behalf.
There is also the reality that some chiefs still behave and act like the feudal lords of old in areas under their jurisdiction and the people unfortunate to live there are subject to their whims.
Take the case of a prominent chief in Zululand who, in breach of the law and the human rights of his subjects, simply will not allow them to hold family functions on Saturdays.
A member of the Nazareth Baptist Church, he believes Saturdays are holy days of rest, and has banned his subjects from working the fields, getting married or burying the dead on that day.
In spite of threats by government officials and the SA Human Rights Commission that he will be punished for violating the rights of his people, nothing has come of the noises. He is untouchable and no one in that community will dare lay a complaint against him for fear of reprisals.
And this is just one case where a chief brazenly breaks the law and gets away with it.
It needs to be asked why 18 years after political freedom, when thousands of people are leaving rural areas for better opportunities in the cities, the ANC finds it appropriate to resuscitate and legitimise an oppressive legal system that does not sit well with our progressive constitution and bill of rights.
Sunday newspapers report that Human Settlements Minister Tokyo Sexwale still has ambitions to be our first citizen and plans to challenge Jacob Zuma for the presidency of the ANC in December. He apparently plans to hitch his coat-tails to the so-called Anyone But Zuma lobby which is gaining ground in several provinces. It’s going to be a fascinating seven months before the ANC elective conference. A competitive contest is what the country needs.