by Pumla Gqola, City Press, 6 May 2012
The Traditional Courts Bill is meant to replace the Black Administration Act of 1927 with a law that is constitutional.
Instead, if passed, it will in effect strip between 17 million and 21 million people living in rural South Africa of many of the rights we enjoy in the rest of the country.
About 59% of these people are women, who, along with other members of their communities, will cease to be citizens and exist only as subjects.
As is stands, the bill creates a separate legal system for rural folk, geographically recreating the old Bantustans with no irony on the eve of the centenary of the 1913 Land Act.
Let me first dispense with the two main problems with the consultation process. The bill results from consultations between the state and traditional leader structures.
It patently ignores input by the Rural Women’s Movement based on consultation with hundreds of rural women pointing to the multitude of ways in which existing tribal hearings deliberately disenfranchise them.
Most rural folk were deliberately kept in the dark about the drafting process.
In the past few weeks, many rural communities expressed outrage when confronted with the bill for the first time.
Once again, the culturalist argument is being made for resisting this bill.
Those who oppose it are hostile to cultural African legal and dispute mechanisms, and we are reprimanded.
Yes, this bill partly recognises what is already operational in many of these spaces.
This includes royal patriarchs who explicitly endorse the kidnapping of girls into marriage – ukuthwala – as Chief Mandla Mandela does, to those who silently endorse it, such as Chief Mwelo Nonkonyana.
Many rural communities organise against repressive patriarchal practices, resisting forced unpaid labour, refusing to pay tribal levies, and in countless ways refusing to be docile subjects of chiefs who are given absolute power by this bill.
Legal researcher Dr Simiso Mnisi reminds us that ordinary rural Africans shape and reshape custom, culture and practice all the time. She calls this living custom.
Living custom enables culture and custom to continue to work in the interest of those who own it.
Academic Mamphela Ramphele has also challenged the false opposition often held up in conservative culturalist arguments between “foreign” legal systems at work in the rest of the country and “indigenous” legal systems that will be protected in the proposed bill.
She points out that our specific legal framework is home-grown.
We created our Constitution and legal framework. We did not import it from anywhere else. This is why it is the most progressive Constitution in the world and is globally recognised as such.
The creation of this document was achieved with the full knowledge of the brutality that laws can enable.
If there is any competition or doubt, it arises from various systems emerging from the same space that laws are meant to regulate.
The bill will bestow the final say on the chief presiding over a dispute.
It is a backlash against innovative applications and manifestations of culture by the majority of communities that are refusing to be held hostage.
Progressive chiefs do not need the bill in its current form to enshrine the chieftaincy of state-recognised royalty, elected leaders or other leaders who may contest the legitimacy of the ruling indunas and chiefs.
It takes power away from most rural folk and enshrines a feudal order that has no support.
I grew up in a part of the country that suddenly became a homeland at the end of one school year. Homelands benefit only those in power and their cronies.
In a democracy, all of us should have the same rights. Those who are rushing this homeland bill through require our complicity, our averted gaze.
But we can stop this bill from going through by ending the secrecy, publicly challenging it and holding our government accountable. We need to remember that the state works for all of us, not just the urban folk.
