'We need no mourners in our stride; No remorse, no tears. Only this: Resolve. That the locust shall never again visit our farmsteads.' The above excerpt from a poem by Odia Ofeimun at the end of the Biafra War in Nigeria comes to mind as I grapple with the contestation on constitutionalism, constitutional democracy, majoritarianism and legislative changes under consideration in South Africa.
Ofeimun’s poem reminds me that at the core of this debate lies the refusal or inability to reflect critically on our complex history and its potency on the present and future.
The choice for a constitutional democracy based on one law for one nation, separation of powers – a value system that protects all persons’ dignity and rights – was carefully considered as the basis on which we built a post-apartheid society.
True, the constitution is a “living document“ which must be reviewed and refined as part of strengthening our democracy and nation-building process. However, we have to “get to grips“ with the meanings of a “living document“. Diverse groups of people and stakeholders may understand this differently.
For example, changing the constitution, or enacting legislation to give effect to a constitutional provision, may in some cases undermine principles of equality, dignity of all persons and access to justice, and thus be an attack on the constitution. It also spurns the legacy of the South African struggle and our journey as a people, which the preamble of the constitution enjoins us to respect and honour.
Among several proposed laws and reviews SA is discussing today is the Traditional Courts Bill (TCB).
The TCB purports to acknowledge the “traditional justice system and its values, based on restorative justice and reconciliation; to provide for the structure and functioning of traditional courts in line with the constitutional imperatives and values; to enhance customary law and the customs of communities observing a system of customary law”.
On the face of it, there appears nothing wrong with this. Chapter 12 of the constitution provides for recognition and promotion of traditional leaders and customary law.
This is an important provision, considering the impact of colonialism on indigenous cultural systems.
The TCB is premised on the need to repeal the Black Administration Act, 1927 (BAA), which is long overdue. However, the question is why repeal the BAA and replace it with something that does what the BAA was created to do and more?
Why do we repeal a law that provided for a different administrative system for Africans and replace it with a law that strips 18 million people, 59 percent of whom are women, of their citizenship, just because they happen to live in rural communities that were once defined as “homelands”/Bantustans?
In essence, there will be a different law for South Africans who are based in what the TCB defines as “traditional communities”.
Those who reside in these areas have no right to opt out in the proposed bill. This undermines a very basic principle of the constitution and post-apartheid South Africa – that of one nation, one law.
The TCB has interpreted the constitutional provision for ”traditional leaders” in a manner that directly contradicts and undermines Chapter 12 of the constitution.
The constitution makes it clear all provisions shall be subject to the constitution. It also makes no provision for separate traditional courts.
Section 211 (3) of the constitution states: “The courts must apply customary law when that law is applicable subject to the constitution and any legislation that specifically deals with customary law.”
Thus, while special legislation may be enacted, the constitution anticipates this as integrated within the overall South African law and not as separate phenomena. And even if there are variable elements, the constitution is supreme.
The TCB undermines the supremacy of the constitution for those who reside in areas designated as traditional communities as well as those who may be visiting these communities.
The boundaries on which the TCB is based provide a sense of what this means for a significant number of South Africans.
Derived from the Traditional Leadership and Governance Framework Act of 2003 – which in essence used apartheid spatial geography to define traditional communities – the TCB brings back the Bantustan system (as can be seen from the maps).
The TCB goes much further than the Black Administration Act and gives traditional leaders sweeping powers. Effectively, it will erode local government powers and jurisdiction. This is unconstitutional.
Even if we read the TCB from the standpoint of those who argue for strong assertion and promotion of customary law, there are disturbing questions which cannot be ignored.
Firstly, the TCB goes against the very spirit of living customary law as we know it.
The TCB centralises power in the hands of “senior traditional leaders“, who will implement and develop it subject to customary law.
Centralisation of power in one individual, even though the bill provides for “traditional councils“ contrary to customary law and the cultural ethos from which it is derived.
The central role played by traditional leaders in the development and interpretation of customary law is in fact a colonial invention. Processes and resources which guided customary practices and developments are not provided from the bill. In many areas these have been eroded over time.
For example, izanusi in Zulu communities were known as the wise ones, who could advise not only traditional leaders on matters pertaining to custom, tradition and culture.
In many instances, the traditional councils are not elected on the basis of the knowledge they have acquired or their ability to provide guidance to communities.
Many obtain these positions through patronage systems, which discriminate against those who may be poor or not see eye to eye with the dominant traditional leaders in some areas.
Despite a conscious effort to take constitutional principles into consideration, it is clear these are not thought through and will in fact be jettisoned while the bill becomes an act. This is clear where the bill refers to dominant customary law in the area.
What does it mean in terms of the constitution if it is the traditional leaders’ view that certain people cannot represent themselves directly – especially women, as in some areas women are not allowed to enter certain spaces because they are considered impure when they are in mourning – or because some traditional courts are in spaces not open to women?
The TCB prohibits legal representation in the traditional court. It relies on the use of relatives and community members as adequate where such representation is needed. This is not only unconstitutional, it also reveals some of the contradictions in the bill.
Surely legal representation cannot be seen as undermining the coherence of customary practices.
Further, while the bill states “a party to proceedings before a traditional court may be represented by his or her wife or husband, family member, neighbour or member of the community, in accordance with customary law and custom“, it is clear women are prohibited from direct participation.
In many hearings, traditional leaders expressed themselves very strongly on this.
Whatever is said in the bill, being in accordance with customary law and custom, it erases women and exposes the bias on which the bill is premised.
The emphasis on dominant customary law of the area also raises a number of concerns in direct conflict with the constitution.
Many of these communities have gone through serious changes and comprise people of different belief systems, including immigrants who are already vulnerable.
The refusal to allow people to choose the law which may apply to them does not advance constitutional democracy nor promote development of customary law.
It takes us back to an era which we hoped we had left behind.
For those of us who grew up in the Bantustans, we know what this is about. It is about forced labour, which the bill proposes as part of remedial action in situations of disputes. It reminds us of levies and corporal punishment, which are already applied in some areas.
We have been there before and it did not serve us well.
That we are contemplating this bill during the centenary of the ANC – the movement which was built on the dream of freedom for all people and a South Africa that belongs to all – is a mockery of our history and political heritage.
It is not possible to build a new house on foundations that are shaky.
The locusts must never again visit our farmsteads in whatever guise they may come.