The 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. The bill will bestow the final say on the chief presiding over a dispute.
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.
Mamphela Ramphele challenged this 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 Bill lists criminal offences that can be heard by a traditional court. The Bill allows for the minister to appoint a traditional leader as the presiding officer of the court—without community input. The Bill does not allow a defendant to have an attorney, nor does it give a defendant the option of being tried in a mainstream court.
Dr Sindiso Mnisi Weeks, senior researcher at the law, race and gender research unit of the University of Cape Town, said "It centralises power to a single individual who may have conflicts of interest.”
Mazibuko K Jara, of the Democratic Left Front, said that for the past month he had “listened to harrowing stories from many women and other rural dwellers about the conditions they face living under unaccountable and undemocratic chiefs. The struggle for democracy has only just begun again in rural areas.”
Nomonde Mbelekane, president of the Rural People’s Movement, testified in 2010 about injustices at the hands of traditional leaders. “Some of the chiefs in Peddie have said that women are impure, dirty and involved in witchcraft. In Prudhoe village, an eight-month pregnant woman was called to the Dabi tribal court. She had tried to claim damages from the man who made her pregnant. The court decided that she was just accusing the man and dirtying his name. The court said the man’s father is rich and important; he cannot just have his family name pulled through the mud. She was then sentenced to corporal punishment.”
Other activist groups such as the Association for Rural Advancement, The Rural Women’s Movement and the Landless People’s Movement also expressed concern about the proposed law.
The situation gets even worse for women. In many traditional courts, women are not allowed to represent themselves or even speak during proceedings. This bill reinforces this by allowing for women to be represented by their husbands or family members (the bill prohibits legal representation in traditional courts) – entrenching existing discriminatory practices. Women’s groups and particularly rural women’s groups are justifiably outraged. 18 years into democracy, women in rural areas are about to be declared second-class citizens by their own government. In practice, many rural women already struggle with decisions by traditional authorities that regularly attempt to strip them of things like land access and inheritance rights. This will only get worse when women find themselves stuck in a system that refuses to recognise their right to speak for themselves or provide legal protections from the very people now making legal decisions. Other gaps include the fact that there is no explicit recognition of crimes such as physical and sexual abuse which are currently considered private or ‘domestic’ matters not fit to be brought before a public court.
There also appears to be no opt-out clause. Anyone whose civil or criminal matter arises in the jurisdiction of the traditional court (i.e. Chief) can be summoned to the court and failure to show up carries whatever penalties the chief sees fit, up to and including those he (and it will almost inevitably be ‘he’) could hand down in sentence. People living in areas control by chiefs won’t have the option of choosing to have their cases heard in a magistrate’s court, like other citizens, without first going through the traditional court process, and even then can only appeal on limited grounds. While everyone else in South Africa has one legal system, these people have another.
Those who support the bill vehemently argue that this is a necessary part of respecting traditional culture and that it is important because constitutional authority has undermined the power and authority of the chiefs. Those opposing it point out that the bill takes us right back to the era of a separate legal system for black people – an era that was problematic precisely because those living in the homelands, those who were deemed (through no will of their own) to fall under the authority of traditional leaders, were not equal before the law. South Africa is a complicated country and the careful balancing of the rights of different groups is inevitably necessary. For this democracy to work, however, the rights of an individual to have a say in his or her future, to be treated equally before the law and to be recognised as part of the same system as everyone else, rather than being regarded as a subject with no say in the matter, have to be secure.
10 problems with the Bill
1. It creates a second-class justice system for over 17 million South Africans.
2. It gives even more power to those chiefs recognized by the state law and nothing to all other legitimate traditional leaders.
3. It allows these chiefs to decide what custom means.
4. All other members of the community, including women and young men, are not included in decision making.
5. It removes checks and balances on power, creating room for corruption, including the power to demand illegal levies.
6. It confirms apartheid “Bantustan” boundaries.
7. It negatively affects women, especially by supporting rules that prevent women from representing themselves.
8. It allows for forced labour and removal of customary benefits as punishments.
9. It applies to everyone; you cannot opt out even if you have valid reason.
10.Regardless of what charge you are facing, you can never ask for legal representation
Last year the Malawi government was widely condemned over local courts bill that gave legal authority to ‘lay courts’. Part of the reason for the criticism was the bizarre crimes that were recognised, such as “writing or uttering words with intent to wound religious feelings” and “fouling the air”, but the more important problem was that it created a parallel, largely unregulated local legal system.