Ambiguity of the Traditional Courts Bill

2012-02-04 11:54

The South African government’s continuous efforts to reconcile the irreconcilable demands of traditional leaders and opponents to traditional institutions of governance lead to ambiguity, confusion and contestations in those communities which both factions claim to be representing.

The Traditional Courts Bill – about to be resubmitted to the National Council of Provinces after being withdrawn in 2008 – shows the conflict between the principles of communality and of individuality in the way society is governed. Both principles are constitutionally and legislatively enshrined in our legal system, although democratic principles remain proscriptive.

The recognition of traditional leadership as public entities in chapter 12 of the Constitution has led to expectations among traditional leaders about an active role in governance – a role not denied by opponents of the act. Traditional courts are a mechanism to provide justice at a local level as they are cheap, fast, use local vernacular and aim for harmony between claimants.

Traditional leaders claim that traditional courts are a type of “African democracy at community level”.

But according to the Law, Race and Gender Research Institute, many traditional courts are oppressive, not regulated by law, over-whelmingly male dominated, and discriminate against women. Also, many traditional leaders use these courts to promote their power positions, as fines can be in the form of free labour or forfeiting of communal rights such as the use of communal land.

There is an irreconcilable contradiction between the patriarchal hereditary nature of traditional leadership and the democratic principles enshrined in our Constitution deemed unacceptable in the rural context, where most households are headed by women. Opposing civil society organisations and many women in traditional communities argue that such courts are prejudiced against women, and that the bill reaffirms such practices.

Of even greater concern is that the bill does not provide for opting out of the traditional court system, which is a denial of a basic human right.

A dilemma is that in-depth research into claims by these two important sectors of society is insufficient for robust conclusions. There is also some doubt about the validity of surveys to test the opinion of community members where traditional women do not have a free voice and research language is often inadequate.

In the reformulated bill government has taken note of objections to the 2008 bill, but several crucial issues remain.

The singular role of senior traditional leaders as presidents of the court has been extended to include headmen, but the role of local municipal councillors in the traditional courts has been ignored. Representation of women has been opened up, but in practice will remain closed as long as women are not sufficiently included in the traditional court council.

And why has a submission by the South African Law Reform Commission, Project 90, been largely ignored when it addressed many of these concerns?

The flawed process of the reconstitution of traditional councils to align them to democratic representation – as is demanded by the Traditional Leadership and Governance Framework Act of 2003 – shows that law on paper is not necessarily easy to implement.

And it may not be fair to expect traditional institu-tions which have evolved over centuries to adjust to democratic principles in two decades.

A wide consultation process has to be followed at provincial and local level. Rather than arguing from entrenched positions – be it pro or anti – the government has a duty to listen to those most affected , namely the community members who approach such courts.

» Meyiwa is a research professor at the Human Sciences Research Council

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