Traditional and Khoi-San Leadership Bill needs tweaking
The bill is set to replace the 2003 Traditional Leadership and Governance Framework Act.
One of the significant assertions made in submissions at these hearings is that the bill entrenches tribal boundaries that were initially drawn as part of the apartheid homeland strategy.
At stake are the rights of 18 million rural South Africans who are at risk of becoming subjects - without their consent - of traditional leaders and their councils. Under the bill, traditional leaders are slated to win substantial new powers over the ultimate owners of land in the so-called “traditional territories”.
It therefore undermines the right to own property for individuals, families, kin groups, as well as communal property associations that have regained land rights under the land restitution programme.
The bill does not only entrench colonial boundaries, however. It adds a new dynamic to the power of traditional councils: the ability to enter into “partnerships” with “any person, body or institution” (Section 24(2)(c).
Over 20 years since the advent of South Africa’s democracy this is an unprecedented change. Certainly, the subtlety of this addition is a strategic move to understate its significant consequences.
We can see the uniqueness of these provisions in the bill by putting it in the context of a long line of government-funded research, bills and policy dealing with the role of traditional leaders in South Africa’s democracy and the related property rights of rural South Africans living in communal areas.
These include the Status Quo Reports on Traditional Leadership and Institutions (1999), the White Paper on Traditional Leadership and Governance (2003), the Traditional Leadership and Governance Framework Act (2003), the Communal Land Rights Act (2003), the Communal Land Tenure Policy (2015), and the very recent introduction of the re-drafted Traditional Courts Bill (2017).
In this context, Section 24(2)(c) of the new bill comes completely out of the blue.
In a word query of all the documents listed above, the word “partnership” is barely mentioned. For example, in all six volumes of the Status Quo reports, which are to date the most significant research reports on the status of traditional governance in post-apartheid South Africa, the word “partnership” is used only once.
In the 2003 White Paper on Traditional Leadership and Governance, “partnerships” are referenced seven times in reference to partnerships with elected government bodies such as municipalities and local government.
“Partnership” is used merely four times in the 2003 Traditional Leadership and Governance Framework Act, also in reference to partnerships with government bodies.
In the new bill, however, partnerships are referenced 25 times, marking both the sudden introduction of the new actors listed above as well as a substantial increase in the attention and detail attributed to “partnerships” that traditional councils enter into.
One would expect that the increased attention would include an obligation to consult the rural peoples whose land would be impacted by these “partnerships”, but no obligation exists.
Why are “partnerships” introduced so significantly now, when the entitlement of traditional councils to enter into partnerships with a broad range of institutions was not an issue in past government reports, policy or bills?
One may have seen the introduction of the ability of traditional councils to enter into partnership agreements foreshadowed in a growing body of independent research that highlights an increase in partnerships between traditional councils and mining companies and the importance of the resultant revenues for traditional leaders’ personal coffers.
Numerous reports by the Society, Work, and Development Institute at Wits University and the Land and Accountability Research Centre at the University of Cape Town are illustrative.
Recent proposed changes to the Traditional Courts Bill, introduced to the National Assembly on January 30 2017, provide some inspiration.
The bill allows people and communities the right to decide which court will hear their disputes will be dealt with in - traditional or state. It recognises that communities may have leaders who are not recognised by the government and that these leaders are legitimate, rather than imposing “traditional leaders” according to territorial designations deriving from apartheid. It therefore puts power back in communities.
Just as the bill allows people to choose who their leaders are and which court their disputes can be heard in, they should have the right to consultation and the right to refuse “partnerships” entered into by traditional councils. Recent Constitutional Court judgments recognise the role of communities in the ongoing development of “living customary law”.
This refers to law that people use as they negotiate their daily lives in response to changing social and economic conditions. It is distinct from approaches to customary law that codify and standardise it, as it was under colonial governance structures and as it is set to remain if the current draft of the bill is signed into law. An acknowledgement of living customary law would certainly entail a recognition that ongoing community participation is an essential characteristic in the governance of partnerships.
As we are learning in hearings around the country, rural peoples won’t sit silently as their lands are exploited by traditional councils claiming to represent them.
There is an urgent need to introduce clear steps to ensure that rural peoples are included in the negotiation of partnerships and that they share in profits deriving from their lands.
* Huizenga is a post-graduate student in Canada, currently working in South Africa on issues of SA land policy.
** The views expressed here are not necessarily those of Independent Media.
The Sunday Independent