Who killed the Traditional Courts Bill?

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IOL mar 2  Parliament Independent Newspapers File photo: Matthew Jordaan

It is important to state clearly that the Traditional Courts Bill did not lapse. It actually died, says Nomboniso Gasa.

First they whispered “the TCB has lapsed”. Then they sowed doubt in the minds of some media outlets: “No, that is not so. We are still waiting for provinces.” Finally, the chairman of the select National Council of Provinces committee on safety and security spoke loud and clear: “Yes, the TCB has lapsed.” Oops, they ran out of time, said others.

It is important to state clearly that the Traditional Courts Bill (TCB) did not lapse. It actually died. What does it matter, the bill will not be passed, you may ask. For people whose lives have been disrupted in more ways than legislators and even some public commentators can ever imagine, it matters a great deal.

Who killed the TCB? The people who took great risks and refused to be hoodwinked into believing that the bill was about their culture, custom and affirmation of traditional leadership. These are the people who travelled to hearings again and again, thirsty, without travel money, and relied on the help of others.

The people who killed the TCB were those who were momentarily blinded by dust as cavalcades of cars with important people passed them on the way to and from the public hearings.

Despite being drowned with new information as the bill they had never seen was read to them in those public hearings, they listened carefully and voiced their objections.

To go with the story that “the TCB lapsed” is to deny the courage of these people in face of great humiliation and intimidation in some of the public hearings, including in Parliament. They are South Africans who live in the “back of beyond”, who are often blurred in national consciousness. Despite being told in public hearings, “Tata, asithethi ngezikhalazo zakho phatsi kwentlalo yeNkosi” (Father, we are not speaking about your complaints about your chief here), they were not deterred. They continued to give their reasons for rejecting the bill. They know their customs and live in these communities.

The presiding officers, often younger than their sons and daughters, did not hesitate to cut in on them in mid-sentence: “I said three minutes, time up.”

This was in direct contrast to the time allocated to iiNkosi. They spoke as long as they wanted. The inequality in treatment was palpable and often crudely expressed, for example, in whether you had water or not. The women whose experiences of abusive chiefly power often saw them unable to bury their husbands because of outstanding illegal levies did not allow themselves to be browbeaten by officialdom. They too spoke. When they were “advised” that culture did not discriminate against women, they retorted, “Mhlali ngaphambili, andithethi ngaleyo, mna ndithetha ngeyam intlalo” (Chair, I am not talking about that; I speak of my lived experience).

For these people, not to name what has happened to the TCB and what led to its demise, is to continue their erasure in the public discourse. Some of the objections to the TCB are as follows:

* It balkanised South Africa according to the old Bantustan lines. Now these are called ‘traditional communities’.

* They rejected the TCB, not the institution of traditional leadership, because the bill undermined their citizenship and denied them rights guaranteed in the constitution, including the right to legal representation.

* The powers given to traditional leaders to develop customary law distort the role and custom of many communities. The bill provides no countervailing power to create balance in their communities.

* Instead of conciliatory justice its wide powers promote unconstitutional and punitive measures. These include being sentenced to forced labour and banished from their villages.

* The denial of the right to ‘opt into custom’ as provided for by the constitution was another reason to reject the TCB.

* The review and provisions in the bill make it difficult for people to pursue this option. It is therefore unconstitutional.

* The provision on women’s participation before the traditional court is framed in a manner that will, in reality, discriminate against women and is unconstitutional.”

The death of the TCB marks an important turning point in our democracy.

For the first time, those who live in rural communities have forced the hand of lawmakers. They insisted on being seen and heard. This has not been easy for them. Even after they travelled to Cape Town – for some a first trip out of their villages – the select committee sought to silence their voices.

When the summary of public hearings was made, the chairman of the National Council of Provinces (NCOP) select committee instructed the Department of Justice to summarise only the presentations by Minister Lulu Xingwana and the Human Rights Commission. Whether it was in fact procedurally correct for the Department of Justice and Constitutional Development to be given this role, is another matter.

But for our purposes, let us concentrate on the meaning of that decision by the chairman.

“We know others were here, but their views are not worthy of summary or being heard. Their harrowing reports of their experiences with some traditional leaders do not matter.”

In effect, that is what the chairman was saying. He was forced to reconsider this and included the voices of all those who presented. But first, they had to fight to be heard, even in Parliament.

The grounds given by those who rejected the bill were confirmed by the parliamentary and state law advisers who advised the committee on the implications of the provincial mandates. Consistent with the way in which this committee has operated, the document from the parliamentary and state law advisers was not given to members during the meeting. This did not make for a happy house.

Speaking shortly after the presentation, John Gunda said: “Chair, we must not deliberate on this bill. South Africa has rejected this bill. We must start afresh and consult people properly.”

He was right. The TCB cannot be redrafted. It has to be scrapped and started afresh. The question we must consider is whether recognition of traditional leadership and management of traditional courts requires a law in the first place. This is a matter of regulation of the operation of courts and bringing them into line and helping with their efficiency.

To do this, the Department of Justice and Constitutional Development knows that it needs to come up with a regulatory framework.

Instead, under the pretext of scrapping sections 12 and 20 of the Black Administration Act of 1927 and affirming customary law, it came up with a bill whose powers are so far-reaching it creates a parallel legal system.

Worryingly, the Department of Justice and Constitutional Development seems to have bought into the colonial construction of customary law and identity. The notion of balkanised communal identities and assumption that all people who speak a certain language and live in a particular area are homogenous is a legacy of colonialism. Equally, looking at customary law as a parallel system, frozen in time, ghetto-ises it in the same way it was done by colonialists.

Yet people who live in these communities cut through the legal jargon and told politicians loud and clear, “this is not our custom. This is not who we are.”

Many of these people still live with the scars and realities of dislocation from forced removals. For some of them, the very traditional leaders who were given such wide-ranging powers are in fact not theirs.

They were imposed by the apartheid government after they deposed those who did not want to do the government’s dirty job.

The NCOP tried to sidestep these issues and decided to send the bill back to the provinces for consideration of mandates after the legal opinion was given to them.

That was February 19 this year. On February 21 the NCOP started whispering that the TCB had lapsed.

Clearly, a closer examination of provincial mandates and the legal opinion finally forced the lawmakers to see the writing on the wall.

The suggestion that the TCB has “lapsed” denies the agency of some of the most vulnerable members of society, who showed their power.

Whatever the machinations behind closed doors, it is clear that politicians have started to realise that rural communities can no longer be taken for granted. The penny finally dropped that pushing the TCB may cost them votes. That is what killed the TCB.

One of my young colleagues went to Parliament bedecked in her best outfit, a long two-piece in African print with Basotho hat patterns. I exclaimed, “What is the occasion?” She replied, “Today, we are burying the TCB. This is my celebratory dress.” She expected the TCB to die on February 19. When the committee decided to avoid making the decision, she was not deterred. It would die soon. For now it has.

As we celebrate the demise of the TCB, we are “girding our loins” for future battles. Whether the TCB will have yet another of its many lives depends on whether elected representatives are capable of learning from these hard lessons.

Hopefully, the Cabinet and lawmakers will reflect long and hard before imposing future “colonial- inspired” projects like the Traditional Courts Bill.

* Nomboniso Gasa is a researcher and analyst on gender, politics and cultural issues. She is a senior research associate at the Centre for Law and Society, Faculty of Law, UCT.

** The views expressed here are not necessarily those of Independent Newspapers.

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