Red flags have been raised over the Traditional and Khoisan Leadership Bill. Photo: supplied
Red flags have been raised over the Traditional and Khoisan Leadership Bill. Photo: supplied

Khoisan bill a ‘continuation of apartheid’

By Marianne Merten Time of article published Oct 2, 2015

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Cape Town - Red flags have been raised over the Traditional and Khoisan Leadership Bill, criticised for effectively entrenching bantustan boundaries and leadership structures that may not be in line with today’s practices.

University of Cape Town Centre for Law and Society (CLS) legal researcher Michael Clark said the definition of traditional communities – as associated with specific geographical areas and specific traditional leaders – was “problematic” and “contrary to customary law”.

“It seems ironic this Bill is aligned to (a definition of) traditional leaders that simply isn’t the case for all traditional communities. It speaks to a continuation of the apartheid understanding of traditional leaders,” he said, adding the geographic boundaries “closely mirror the boundaries created under the bantustans”.

While the Bill seeks to bring Khoisan communities into the governance fold, it places more onerous conditions on them. Unlike traditional communities, which are simply deemed to be valid, Khoisan communities must prove their members voluntary affiliation, and must do so every year. “Why are we making it so difficult for Khoisan communities to be recognised?” Clark asked.

The Bill came to Parliament a month after a ground-breaking Eastern Cape High Court ruling that a community at Cala was entitled to elect its own headman and leaders in accordance with its customs.

The judgment of the full Bench went against the premier, who had appointed a leader on the argument that no consultation was necessary in terms of customary or statutory law.

Parliament’s Co-operative Governance Committee chairman Richard Mdakane said while the committee must still draft a programme to deal with the Bill, the public hearing process would give everyone an opportunity to be heard. Traditional leadership was accommodated in the constitution.

“Traditional communities must be respected, but that does not mean they must be treated differently,” he said. “It’s a very complex issue. I hope they (traditional leaders) are progressive and will assist us.”

Currently on oversight visits to KwaZulu-Natal and the Eastern Cape, Mdakane added MPs would also pay courtesy visits to traditional leaders and engage them on various issues.

Co-operative Governance Ministerial spokesman Dumisani Jele said as the Bill had been tabled, it was now subject to parliamentary processes and time frames. “Through the parliamentary process, and more directly, we will continue to engage with all stakeholders and emerge with legislation that enhances democracy and the values of our constitution,” Jele added.

The Traditional and Khoisan Leadership Bill comes as the Traditional Courts Bill is being reworked for re-submission. A previous version was slammed for being unconstitutional and for creating a separate justice system for those living within the former bantustans, and for its bias against women. It was withdrawn after a minority of provinces supported it after extensive public hearings.

It is understood in some circles there is a push to speed the draft law through Parliament ahead of next year’s local government elections. Traditional leaders and rural communities are widely regarded as a key voting block for the ANC.

According to ANC discussion documents for its upcoming national general council (NGC), or mid-term review, the National Executive Committee (NEC) on Legislature and Governance is drafting a discussion paper on traditional leadership “which enables the NEC to take decisions on the outstanding issues of traditional leaders”.Following a special summit, the NGC would receive a “comprehensive report” according to the discussion documents.

The documents contain a 10-paragraph section on traditional leaders.

“Traditional leaders’ closeness to the people is typically regarded as one of the key advantages of the institution,” these say, citing constitutional rights to dignity, self-respect and integrity and the country’s drive for unity in diversity.

“Traditional leaders’ role in representing and preserving the culture and identity of community members may be a key driver of development in rural areas.”

In the past 18 months, President Jacob Zuma’s administration has made conciliatory gestures towards traditional leaders, who have frequently spoken of their various dissatisfaction.

Earlier this year, in a meeting with traditional leaders at Parliament, Rural Development Minister Gugile Nkwinti indicated possible changes to the Spatial Planning and Land Use Management Act after traditional leaders complained the law ignored them as custodians of the land.

Cape Argus

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