The new Traditional Courts Bill reflects the interests of traditional leaders and overlooks the interests of others, particularly women.

Public consultation has begun on a new Traditional Courts Bill, which is deeply flawed and inconsistent with the constitution and even with customary law itself.

When this draft law was first introduced in the National Assembly in 2008, it provoked an outcry from civil society, including the few rural people who were able to participate in the process. One concern was that consultation had been limited exclusively to traditional leaders, excluding the ordinary people who would be affected by the law. The bill thus reflected the interests of traditional leaders and overlooked the interests of others.

Surprisingly, in December 2011, the Department of Justice reintroduced the very same bill in all its inadequacy, which is now scheduled for public consultations.

Predating the Traditional Courts Bill, the SA Law Reform Commission conducted research and consultation with rural people on the issue of customary courts and reported that customary law is an important mechanism for ordinary people to access justice; that the 1927 Black Administration Act, which currently governs this arena, is inadequate; and that the way in which customary courts operate should be aligned with the constitution.

Traditional leaders objected to the draft bill put forward by the commission, which disappeared to be replaced by the present draft.

The Traditional Courts Bill must be understood in relation to the Traditional Leadership and Governance Framework Act of 2003, which resurrects the boundaries of former homelands and resuscitates tribes of old and related traditional structures. It deems the tribal authority of old to be the traditional council of today, and the tribe under apartheid to be the traditional community of today. Under this act, traditional leaders are recognised as they were recognised in the past.

As such, the map of the former apartheid homelands has become the map of the traditional councils of today. The new courts bill further entrenches these apartheid boundaries, the jurisdiction of the courts a mirror of jurisdictions established by the 1951 Bantu Authorities Act.

The Traditional Courts Bill centralises all power in the senior traditional leader as the presiding officer. No functions, powers or recognition are given to community councillors who participate in customary dispute resolution processes at various levels of the community – as practised today – and this despite the Law Reform Commission’s recognising that councils are an intrinsic part of the traditional justice system and should be representative of the community’s demographics.

The centralisation of power envisaged in the new courts bill effectively defies the constitutional principle of separation of powers aimed at mitigating the abuse of power, enabling the government to allocate a range of administrative functions to traditional councils and traditional leaders concerning health and education, service delivery, land administration and the management of natural resources.

On top of that, the law will extend legislative powers to traditional leaders. Since customary law is not written, the person who gets to define this law in a case – namely the traditional leader – gets to define its content and thereby legislate it. Traditional leaders would be empowered to apply it in disputes that may arise in relation to their own administrative functions, so the three arms of government (legislative, executive and judicial) are embodied in a single person – extensive and unchecked powers are centralised and assigned to the traditional leader.

For example, a traditional leader can order any person, not just parties to the case, to perform unpaid labour, or he can deprive people of customary entitlements. This could include stripping people of community membership or depriving them of their land rights.

The draft law makes it a criminal offence not to appear before the traditional council when summoned by a traditional leader. This applies regardless of whether a person owns the land on which the dispute arises (if the traditional leader has jurisdiction over that area, he may deprive them of rights as punishment), or if they do not recognise the traditional authority assigned to dealing with disputes and claims arise in their area.

The Law Reform Commission recommended that people be permitted to opt out of customary courts in favour of others such as magistrates’ courts, which traditional leaders objected to on the grounds that it would undermine their authority.

No lawyers and legal representatives are allowed in traditional courts, a provision that disregards section 35 of the constitution, which allows for criminally accused persons to be represented if they so wish. It cannot be acceptable that the denial of legal representation is imposed on people along with a limited right to appeal, and that the traditional court’s decision is final.

Women aren’t afforded adequate protection in the bill. Traditional courts comprise mostly men who tend to find in favour of men. The Law Reform Commission proposed including women – given that women make up 59 percent of the population in rural areas – and that councillors possibly be elected in order to facilitate gender representation.

In some areas, women are not permitted to attend customary courts, or, if they are permitted, are not allowed to represent themselves and must be represented by a male relative. Widows in mourning are considered “unclean” and are not permitted to enter the “sacred space’’ of the traditional court.

There is no direct provision in the new draft law for women to be included in the composition of the court, nor to be able to represent themselves. The law perpetuates discrimination against women. The overarching consequences of the bill are that it creates a separate legal regime for people living in the former homelands – it enables corrupt practices, shields abuses of power and undermines the equal citizenship of rural people.

It fails to take advantage of the valuable aspects of customary law, such as dispute resolution, in which debate is encouraged and consensus is built through discussion.

On the ground, women’s voices are being heard more and more in traditional communities, but the new law would silence them and reverse the advances made in women’s participation. The Traditional Courts Bill is inconsistent with the constitution and with customary law itself, which the Constitutional Court has repeatedly defined as “living” customary law – practised and developed not just by traditional leaders, but by the ordinary people who live by and determine customary systems.

l Dr Sindiso Mnisi Weeks is senior lecturer in African customary law in the department of private law at UCT.