President Jacob Zuma’s recent address to the National House of Traditional Leaders in which he suggested that only ‘‘clever blacks’’ oppose the Traditional Courts Bill, is an attempt to silence and delegitimise rural South Africans who, since 2008, have consistently voiced their resistance to the bill.
It is not, as Zuma would have us believe, “clever blacks” (a terms reminiscent of the racial stereotyping of apartheid), who reject what many call the “Bantustan bill”. It is black rural people – and they have serious and compelling reasons for doing so.
In his submission to Parliament in 2008, Patrick Mashego from Limpopo said: “This bill destroys the dream we fought for over many years. Instead of making rural people equal citizens in a unitary South Africa, it makes us subjects of chiefs who are given the coercive power to get rid of those who try to hold them to account. It is true that not all chiefs are bad, but it is only bad chiefs who need laws like this.”
Many others have echoed this view.
Back in 2008, the joint monitoring committee on improvement of quality of life and status of women told Parliament that the bill had been drafted in consultation solely with traditional leaders, and that the opinions of rural communities had not been engaged.
Four years later, with the same bill now before the National Council of Provinces (NCOP), rural communities have yet to be properly consulted.
The Rural Women’s Movement has collected testimonies from across KwaZulu-Natal that illustrate how the bill does not adequately address the daily discriminations experienced by many rural women within the traditional justice system.
They have argued publicly that the bill will lend legitimacy to unequal, patriarchal power relations, and further limit rural women’s access to justice.
Rural citizens have demanded that the bill be redrafted because, as Charlotte Mokgosi of North West stated in her submission, the bill ‘‘will only make matters worse”.
People’s rejection of the bill is not about being opposed to custom, as Zuma is suggesting.
Rather, it is about protecting and advancing the consensual and participatory elements of custom against the colonial and apartheid distortions that the bill entrenches.
Monoko Thomas Moshitoa from Limpopo put it neatly in his submission: “It is only chiefs who do not enjoy the support of their people who need the government to prop them up with laws like this.
‘‘This law will add nothing to the proper functioning of good customary courts of which there are many. It will take us back to the abuses of the apartheid era.”
Mashego pointed out how custom can be distorted to suit the powerful: “The bill ignores all the customary courts that exist at village level and concentrates power in the hands of the senior traditional leader as presiding officer of the only court that is recognised, the tribal authority court.
‘‘This is different from existing customary practice where villagers and councillors participate in dispute resolution forums in the villages. Through active participation they manage to develop and adapt customary law to reflect the views and values of all the people engaged in the process.”
Despite what most public submissions have said, the ANC seems hell-bent on pushing the bill through, and has effectively ignored the views and experiences of rural people who have, over four years, told MPs of the dangers of the bill and its threat to democracy and rights in rural areas.
The bill enables traditional leaders to interpret customary law in a way that fulfils narrow self-interests and shuts out the voices of ordinary people.
The legislative process, too, has shut out these voices as evident by the NCOP’s select committee on security and constitutional development having dismissed the more than 65 public submissions on the bill as “irrelevant” at its October 24 meeting.
Contrary to what Zuma infers about the bill’s detractors, those who oppose it are not confused about their identity or culture.
Rather, it is the drafters and defenders of the bill who are beset with such confusion. They justify the bill as a defence of African custom, yet at the same time they are championing a law that bolsters the autocratic, patriarchal and tribally divisive forms of rule introduced during colonialism and apartheid.
Submission after submission from rural communities across the country highlights how the bill would give traditional leaders more powers than they had during the homeland days.
The submissions also show that it will destroy the indigenous accountability mechanisms that mediate power and protect those who try to hold leaders accountable.
Moshitoa submitted to Parliament: “The bill takes us straight back to the system of forced labour in the chiefs’ fields that we fought so hard to end during the rural rebellions in the 1980s.
‘‘It enables autocratic chiefs to summon those who resist abuse of power to their courts, fine them and strip them of their customary entitlements.’’
Does Zuma really think African custom is best served by imposing on rural people a separate and authoritarian legal system based on apartheid’s homeland boundaries?
It is clear from the public participation process, despite its flaws, that many people from the rural areas think not.
Zuma’s attempt to cast the debate about this bill in terms of “white law” and “black law”, and “clever blacks” and “stupid blacks” is a dangerous diversion.
What is at issue here is not the acceptance or rejection of African identity and customary law.
It is whether rural people should enjoy the same protections, rights and benefits of every other South African.
Or, whether they should be relegated to second-class citizenship to bolster the self interests of politicians and some traditional leaders.
l Luwaya is a researcher at the Law, Race and Gender Research Unit (LRG) of UCT. The LRG is a member of the Alliance for Rural Democracy, a group of civil society organisations and communities that are opposed to the Traditional Courts Bill.