'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.
