Bill will reverse fruits of freedom

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THREE woman work in one of the community's sweet potato gardens. The vegetable is one of the most successful crops cultivated in rural Maqumbi

Whatever is unnamed, undepicted in images, whatever is omitted from biography, censored in collection of letters, whatever is misnamed as something else, made difficult to come by, whatever is buried in the memory by the collapse of meaning under inadequate or lying language – this will become not merely unspoken but unspeakable.

Adrienne Rich, the American poet, reminds us of the importance of creating a milieu in which different voices and experiences must find expression. Her words resonate with greater urgency in the context of the proposed Traditional Courts Bill (TCB), which has largely been invisible in the mainstream debate during the past four years.

To a large extent this is a reflection of the extent to which we are preoccupied with what is in our line of vision. It is also a result of the manner in which public discourse is framed on these issues. There is a predominant view that only people who live in rural areas should speak on issues of this nature.

True, those who are directly affected must speak for themselves and make their choices democratically. However, we also have to bear in mind that there is no law that will apply in one corner of this country which will not affect all of us.

Citizenship was at the core of the struggle against colonialism and apartheid. By design and conception, the TCB denies this common citizenship and silences large numbers of South Africans, especially those who live in rural areas.

Even before it is enacted into law, TCB is plagued by controversy. Those who have been monitoring the public participation processes have been sending press reports of their observations of lack of commitment to a transparent and participatory process.

In some areas members of the Alliance of Civil Society Organisations have reported incidents where some members of the legislature have blatantly refused to listen to those who do not support the bill.

Their reports confirm the concerns expressed by members of different communities. Solom Mabuza of the Nkomazi Local Municipality says: “This law (TCB) will bring strife in our community.

“Already, we are frustrated because the local tribal authority undermines our efforts to build co-operatives. For example, our initiative to start a tobacco project in partnership with foreign investors has been suppressed. This means we have to depend on government grants, something we find unsustainable and undesirable. We fenced our fields. iNkosi ordered the fence to be removed because he says he controls the land.”

Mabuza is not the only person who has reported the selling off of communal land and the frustration of efforts to gain title deeds to the land in which people live and invest.

Lamson Maluleke of Makuleke in Limpopo says they have taken the land dispute with the traditional leader to the Traditional Chieftaincy Commission.

“We are not against traditional leadership. We are against its distortion and abuse of people. We know customary law and we know who are our traditional leaders, and many of them are marginalised. We would like people to come and see what is happening in our communities. Perhaps (then) the government will think again.

“Does the government know that our efforts to bring development for our children are being destroyed (by) the Traditional Courts Bill (which) will destroy everyday relations in our community? How can a government for which we voted bring a law like this? Who have they consulted?”

Professor Loren Landau of the African Centre for Migration Studies at Wits University draws our attention to the vulnerability of communities of immigrants who live in rural parts of SA.

“The question of traditional authorities outlined in the bill and, indeed, other forms of communal regulation raise fundamental questions about the possibility of reconciling the power of traditional courts with principles of tolerance and social inclusion. While ‘traditional’ areas (such as former Bantustans) are more likely to be places people leave than destinations, in-migration exposes one of the bill’s more vexing elements. To be sure, people arriving in a new community must recognise and, to some degree, respect their hosts’ values and practice. However, that is deference with limits,” says Landau.

“As I read the bill, traditional courts will effectively have absolute power to regulate and exclude people who may, in fact, come from radically different ‘traditions’. Whether another South African ethnic group, a sexual minority, or a Somali trader, there are few restrictions from what arbitrarily selected judges can do in the name of social cohesion.”

Landau adds that while they may not be able to exclude their own ‘tribe’, “there’s nothing stopping them from booting out or censuring almost anyone else in the name of peace and harmony. Given the strategies of exclusion we have already seen when local authorities feel empowered to exclude, we may essentially be legitimising a form of monoculture mania.”

While it is important to recognise the right to cultural freedom, belief systems and the role of traditional leaders, this must be done within the constitutional framework. Otherwise, there is a danger of giving free rein to leaders who may abuse their authority and power without any recourse for the public. This is the critical problem with the TCB.

As we celebrate our freedom, it is important to acknowledge the challenges that face our society and the shortcomings of post-apartheid society. It is through this public engagement and airing our vulnerable parts as a people that we can attempt to deepen the meaning of freedom. A crucial question for our society today is: What is the meaning of freedom and democracy?

We need multiple public forums and platforms to confront the challenges of today, be they the Traditional Courts Bill, the information bill, corruption, leadership and its role in bringing us closer to our desire: freedom. South Africans and all those who live here must engage openly and freely to build a stronger democratic society. We also need fearless imagination that will take us beyond what is familiar so as to find a new language through which we can express our desire and commitment to freedom and equality.

n Gasa is a researcher and analyst focussing on gender, politics and cultural issues.