An affront to customary lawComment on this story
Zuma’s letter to the AbaThembu king is a symptom of a bigger problem, writes Jongisilo Pokwana ka Menziwa.
Durban - President Jacob Zuma’s letter to AbaThembu King Zwelibanzi Dalindyebo, asking for reasons why he should not withdraw his certificate of recognition, have shocked the AbaThembu nation. But there are other vital issues surrounding this which we must contemplate.
Even on a legal level, the letter – dated July 23, citing section 10.2 of the Traditional Leadership and Governance Act 41 of 2003 – poses significant challenges to customary law. And this is important, as that act is the instrument by which Zuma is attempting to remove the king.
There was some vindication on Sunday when thousands of AbaThembu descended on Nkululekweni grounds just outside of Mthatha to support the king. They came from across Thembuland and KwaZulu-Natal, pledging unwavering support.
This puts Zuma and his advisers, whom he claims to have consulted in his letter, in a difficult position.
The AbaThembu king was also supported by the presence of AmaMpondo people and AmaMpondo chiefs.
The 30 days given to the king to respond by Zuma are ticking away and we must carefully examine Act 41 of 2003, which does not provide channels for recourse should it be decided that recognition of a traditional leader be withdrawn. Further, section 21, chapter 2, suddenly leaps ahead and talks of “dispute resolution”.
This empowers a premier or a president to withdraw the recognition of a sitting traditional leader, thereby short-circuiting traditional processes and leaving the family mired in a dispute.
Even though the president in this case gave the king time to respond, the president is free to go ahead with the monarch’s removal, having made some token gesture that is not even provided for in the act.
We believe the entire act must be reviewed.
The crux of the problem faced by the AbaThembu is embedded in contradictory laws that relate to and govern traditional leadership and customary law.
We need to look at the brains behind these laws in order to understand how these laws came about. Professor Herbert Vilakazi, at the national conference on the promotion of the diversity of cultural contents and artistic expressions and the role of culture in Nepad at Unisa in November 2004, raised the question: Where are the uncertificated African intellectuals from the countryside?
Vilakazi asked this question because he was trying to understand why it was that some of the critical subject specialists on the matter being discussed were not present.
Where are the subject specialists so that we can stop having reporters referring to the king of a nation as a chief, or to “mourning” as the sole responsibility of a widow?
Professor Pitika Ntuni, in his paper titled “Speaking truth to power: A challenge to South African intellectuals”, argues that: “In pre-colonial society the role played by modern intellectuals was in the hands of healers, divine queens and kings, priests, healers in initiation schools and secret societies.
“These personages still exist and still wield large influences. However, there is a rupture between them and present-day intellectuals.”
Some argue that we do have the right skills, knowledge and attitudes in various spaces of societal influence and leadership. But how does it happen that you have the right people and wrong results?
This is what we believe has happened around the future of the king.
Mamphela Ramphele, in her address at UCT in March 2012, said: “The Traditional Courts Bill is: ‘Goodbye apartheid in 1994, welcome apartheid in 2012’. It is a cruel irony that we are talking about this in 2012… When Madiba told me that, as part of the negotiated settlement, they were going to enshrine customary law in the constitution, I said: ‘Tata, be careful not to end up in a situation where all your sacrifices as a freedom fighter are undermined by the inherent contradictions between customary law, or traditional law, or African law, and the constitutional law under which we live.’”
What contradictions are these? Why do they even exist? What is the basis or foundation of our constitutional law?
Does this constitutional law recognise that we live in an African country in which the majority of the people are indigenous Africans who have held their customs and traditions for centuries?
Or does this constitutional law simply impose a new system in which all things Africanist are lost, in which case customary law and traditions must really feel privileged to be remembered every now and then?
I must hasten to remind that the very foundation of the struggles for and the fruits of the new democracy that we all enjoy today is traditional leadership.
among our breed of new leaders, you find those whose education meant that the African in them had been removed, that the false ideology of a barbaric and neurotic African culture and tradition was successfully installed in their minds, and that they are as a result almost certainly on the path of advancing the new stage of colonialism and imperialism.
Some of them occupy seats in our legislatures, right up to National Parliament. They occupy leadership positions in provincial and local government, in government institutions and state-owned enterprises, in big business – everywhere. They are part of the ruling class and have huge influence in various spaces, including law-making in South Africa.
Whether you look at the Traditional Leadership Governance Framework Act, the Traditional Courts Bill or even the terms of reference for the Commission on Traditional Leadership Disputes and Claims, you realise that there is a trend that the government is ensuring it has total control of all matters relating to traditional affairs and who occupies which positions.
The Eastern Cape Commission on Traditional Leadership Disputes and Claims came to introduce itself to the Kingdom of AbaThembu on May 3, 2012. The king welcomed the commission and clearly articulated his concerns.
His submission was a question: Shouldn’t the commission be dealing with the cases that the kingdom was not able to deal with for one reason or another?
The Traditional Courts Bill, among others, seeks to make the traditional councils, among other things, a sub-office of the small claims court instead of capacitating the traditional courts to function fully and adjudicate on matters like any other court does.
Clearly, we have a problem in the law that disadvantages the king.
This only adds weight to the view that Zuma is using the law to settle a score with the king because he has shipped out of the ANC.
If allowed to proceed, this approach will create a dangerous precedent and disempower the central pillar of traditional leadership across the board.
* Jongisilo Pokwana ka Menziwa is from Pokwana Traditional Council in kwaZangashe, chief executive of the Vusizwe Foundation for Oral Historical Research and regional chair of Contralesa, a council member of the Eastern Cape Provincial Archives & Records Service.
** The views expressed here are not necessarily those of Independent Newspapers.