Abuse risk in amakhosi law

2009-09-17 00:00

ALERT to the need for more consultation on the contested Traditional Courts Bill, which will give traditional leaders new powers as offi­cers of the court, the Justice and Constitutional Development Portfolio committee is to consult the National Council of Provinces (NCOP) on how to proceed.

The controversial bill, widely criticised by gender and civil society acti­vists, was put on hold last year when the previous Parliament was unable to complete its deliberations.

It surfaced again earlier this month at a briefing session of the new post-election portfolio committee.

The proposed legislation aims to replace the apartheid-era Black Administration Act 38 of 1927, while still preserving the traditional African justice system, partly by bringing its courts in line with the Constitution.

But critics believe it has the potential to concentrate sweeping powers in the hands of a few senior traditional leaders and deny women in rural area­s equal representation.

They argue that certain provisions, such as a ban on legal representation in criminal matters and forced labour as punishment, are in fact antithetical to the Constitution.

It also emerged during last year’s deliberations that although traditional leaders themselves were consulted during the drafting process, local communities, who would be directly affected by the laws, were not.

This raised widespread concern around the amount of consultation that had ta­ken place.

A report by the portfolio committee in March this year noted that there has been “more consultation on the traditional courts bill than has been made out in the public hearings, but less consultation than there should have been.”

On substantive issues, critics say the bill contains insufficient mechanisms to ensure women are able to participate in court proceedings as equal participants.

“It is problematic to say, as the bill does, that a party can be represented in a traditional court by a family member,” explained Henk Smith of the Legal Resources Centre, which made a submission to the portfolio committee last year.

“In the case of a woman in a rural area, that is likely to be a male family member. It makes nonsense of the claim elsewhere in the bill that the rights of women are protected,” he told The Witness.

Smith said the bill also does not respect what happens in “living” customary law.

Instead, it concentrates authority in the chief’s court without acknowledging other dispute resolution mechanisms, such as the institution of the headman or woman and family courts, which also play a role in resolving disputes.

KZN anthropologist and resear­cher Mary de Haas recently added her voice to concerns around the proposed act.

In a written submission to the portfolio committee this month, she said the bill, despite aiming to be non-sexist, “does not recognise the extent to which women in many rural areas are oppressed by the highly authoritarian system of traditional leadership”.

“There is no real democracy in a number of traditional areas, and councils are appointed by leaders based on a system of patronage,” she said.

De Haas said the proposed legislation rests on “two pillars of colonia­lism and apartheid — artificially constructed tribes and traditional leaders, both of which were designed to facilitate indirect rule.”

The legislation, she argued, forces people living in traditional areas to “comply with directives given by leaders and does not give them the choice of opting out of a system which can be extremely repressive”.

According to De Haas, the legislation may jeopardise people’s land-related security because of penalties traditional leaders may impose.

If passed, she said, the bill would “perpetuate and entrench” abuses already taking place by traditional leaders.

She said that government functionaries, who have oversight functions over traditional leaders, seldom take action against them when such leaders break the law.

Already overdue, the bill is expec­ted to be passed into law by the end of the current year when the statutory deadline for the saved provisions of the repealed Black Administration Act kicks in.

Portfolio committee chairman Ngoako Ramatlhodi told The Witness that the parliamentary process will determine the outcome and “no possibilities are ruled out on the matter” of when the bill is passed.

Portfolio committee member and Democratic Alliance sha­dow justice minister Dene Smuts told The Witness last week that the referral of the bill to the NCOP for discussion would have the likely effect of speeding up the bill’s passage rather than slowing it down.

“We need to establish to what degree the proposed legislation has changed since it was first introduced and to what degree we can acceptably proceed with the bill without having to delay it further by physically going back out to rural communities to consult,” Smuts said.

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