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IN RESPONSE to the overwhelming opposition to the Traditional Courts Bill that surfaced during recent public hearings, the Department of Justice has finally acknowledged that the problems with it are “serious and insurmountable”.
However, instead of scrapping the bill and starting afresh, the department has put forward a document with “revised policy options” as the basis for amending it. These options fall woefully short of addressing the problems that the department’s document acknowledges, illustrating that nothing short of a new process can fix the underlying problems with the bill.
There is general agreement that the two most fundamental problems are the bill’s impact on women and its resuscitation of apartheid tribal boundaries as domains of autocratic chiefly power.
The bill puts at risk the hard-won advances rural women have made since 1994 and establishes a separate legal regime for the 18 million South Africans living in the former bantustans. In effect it reintroduces the divided citizenship of the bantustan era.
By adopting the definitions used in the Traditional Leadership and Governance Framework Act, the Traditional Courts Bill piggybacks on the discredited structures and boundaries that section 28 of the act resuscitates. Can the Justice Department really believe that such obfuscation will absolve it of responsibility for creating a segregated legal system for the former bantustans?
It is true that it is the act, not the Traditional Courts Bill, which resuscitates the boundaries. It is the bill that empowers chiefs to unilaterally define the content of customary law within those boundaries.
The alternative is for the jurisdiction of customary courts to be determined by people’s free choice to make use of such courts. This approach would be consistent with the inherently consensual nature of customary law as an opt-in system. The resilience of customary law is derived from people identifying with its values and drawing on it in their day-to-day lives. Its inherently participatory nature was, however, undermined by apartheid laws that sought to use it as a vehicle of indirect rule.
The Constitutional Court has reiterated time and again that customary law must be dealt with on its own terms. It has repeatedly warned of the distortions that inevitably arise when customary law is approached on the basis of apartheid precedents and external legal categories.
Those who oppose the bill are not opposed to customary courts per se. We recognise that these courts are here to stay and that many millions of people choose to use them. They are an integral part of our legal system and need to be recognised as such.
The recent public hearings highlighted the abuses that take place within these courts and the need for regulation and reform to address this. We argue that the place to start with this task is current practice – as opposed to bantustan precedents.
The bill cannot escape its origins as the product of a closed conversation between the Justice Department and the National House of Traditional Leaders. This followed traditional leaders’ rejection of a more nuanced draft bill that had been formulated by the SA Law Reform Commission and tabled in 2003.
The traditional leaders objected to the commission’s recommendation that people be allowed to opt out of traditional courts on the basis that this would undermine their authority. The bill builds on the framework set up by the Traditional Leadership and Governance Framework Act by giving chiefs with substantive powers within the disputed tribal boundaries that act entrenches. None of these laws makes sense except as components of a package of laws that would, in effect, reintroduce authoritarian powers for chiefs within the former bantustans.
The Traditional Leadership and Governance Framework Bill was roundly rejected by chiefs when it was first introduced in 2003. They said it provided no substantive powers to traditional leaders. It was only when the Communal Land Rights Bill was amended to provide traditional leaders with exclusive control over communal land that they changed their tune and accepted the framework bill.
Both the Communal Land Rights Act and the Traditional Courts Bill elicited outrage from civil society when they were introduced in Parliament.
One reason the Traditional Courts Bill was so fiercely rejected by rural people during recent public hearings is that they have had time to make sense of this legislative package since the enactment of the Traditional Leadership and Governance Framework Act in 2003 and provincial laws that bolster chiefly power in 2005.
These laws have elicited a return by some chiefs to the abuses of the bantustan era and have given rural people a bitter foretaste of what is in store if the Traditional Courts Bill is passed.
Why is the Justice Department so intransigent about admitting defeat, scrapping the bill and starting again?
The only plausible explanation is that the bill embodies a political deal struck between the ANC and the traditional leader lobby. The deal appears to be that the chiefs will deliver rural votes in exchange for the outsourcing of the governance of 18 million of the poorest.
The question is whether the votes the ANC intends winning through a sweetheart deal with traditional leaders will offset the damage this causes to its symbolic capital and the disillusionment of rural voters.
The ANC’s symbolic capital is its pivotal role in the transition from apartheid to democracy. Central to that was dismantling the bantustan system and creating equal citizenship for all South Africans – black and white, urban and rural. The strongest support for the ANC in the 1994 elections came from rural voters who had been engaged in fierce anti-bantustan struggles. Can the ANC afford to take their continued support for granted, given the rural outcry against the Traditional Courts Bill?
l Claassens is a long-term land rights activist and a senior researcher in the Law Race and Gender Unit at the University of Cape Town.