Traditional bill ‘dead in the water’

2012-06-02 15:57

It’s back to the drawing board for justice department as most provinces reject proposed legislation

The controversial Traditional Courts Bill is still with us – albeit mortally wounded and limping painfully towards the parliamentary cupboard.

After weeks of countrywide public hearings on which hundreds of thousands of taxpayers’ rands were spent, the department of justice and the select committee on security and constitutional development received a rude wake-up call this week.

Most of the provinces either rejected the bill or asked for massive changes.

In what can be described as a victory for rural women, who have waged war against the bill since it was tabled in 2008, the department of justice will have to go back to the drawing board.

Rural women’s organisations have fought against the bill, mainly because of its reliance on the restoration of apartheid-era homelands and its empowerment of a deeply patriarchal system of chieftainship.

On Wednesday, the select committee met in Parliament and admitted that they did not deal with the public submissions they received. They also conceded that the public hearings held thus far were insufficient and that more were needed.

The select committee received 57 submissions – all vehemently opposed to the bill becoming law.

The committee asked for a postponement, probably until December next year.

Off the record, lawyers in attendance and even a department of justice official involved in its drafting said the bill was “dead in the water”.

Four provinces – Eastern Cape, North West, Gauteng and Western Cape – rejected it outright. The Eastern Cape legislature said the bill was “fundamentally flawed and no number of amendments would be able to remedy it”.

Limpopo and Mpumalanga said in their submissions that they were ambivalent towards the bill and the other provinces proposed amendments that
were not in line with the Constitution.

The North West provincial legislature said 2 050 people attended their public hearings, with 95% of communities rejecting the bill. The 5% in favour were, almost exclusively, chiefs and members of royal households. This was also the trend in other provinces.

The only province whose legislature supported it was Free State. However, its delegate at the select committee this week criticised the bill, saying “the department of justice was not serious about the bill because it had not yet, four years since it was drafted, translated the bill into any language other than English.

Another reason for the postponement was the fact that Women and Children’s Minister Lulu Xingwana, who publicly said the bill should be scrapped because it was “discriminatory and oppressive towards women”, had asked for a meeting with the committee.

But the select committee members were not all happy with yet another postponement. Xolile Nqata, chairperson of the portfolio committee on Local Government and Traditional Affairs of the Eastern Cape, asked what would happen with the views expressed if new public hearings were held.

“Are you going to incorporate the views already heard if we now go back (to rural areas)?”

Committee member Dennis Bloem of Cope said: “Why do we have this bill anyway? I propose that we withdraw it. Are we really going back to apartheid 18 years into democracy. This bill is unconstitutional.”

In a jubilant statement, the Alliance for Rural Democracy, a grouping of 24 NGOs and rural organisations, said the bill was “resoundingly rejected”.

“We reject the decision by the committee to reopen the public hearing process.

“The bill was sold by traditional leaders as upholding African customs, dignity and tradition. Yet it was roundly rejected by rural people, particularly women, on the basis that it does nothing of the sort.

“Instead, it seeks to entrench colonial and apartheid distortions embedded in ‘official’ customary law at the expense of women’s rights and equal citizenship. It creates a separate and highly coercive legal regime for those living in the former Bantustans.”


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