Why the bill is unconstitutional

2012-06-30 10:41

The debate on the Traditional Courts Bill (TCB) must be understood against the backdrop of building a democratic society that promotes and protects the freedom of all persons, as set out in the Freedom Charter, the Constitution and the Bill of Rights.

This is an important part of rebuilding our society and recovering from the legacies of colonialism and apartheid.

Why, then, are there such strong objections to the bill?

Is it true that those who are opposed to the bill are, as Nkosi Phathekile Holomisa puts it (“ANC must lead on chiefs’ bill”), City Press, June 24), waging an “unwarranted assault on the one remaining truly African institution in post-colonial, post-apartheid South Africa?”

Contrary to what Holomisa claims, in calling for the bill to be scrapped we have not positioned ourselves as opponents of traditional leaders or of African customs and practice.

But it is not difficult to see how such mischievous misrepresentation benefits those who want to distort opinions that differ from their own.

Twisting the views of those who argue against the bill does exactly what Holomisa accuses others of – it denigrates people and caricatures their views.

We oppose this bill because it is unconstitutional.

The Constitution provides the right of choice for all South Africans. It recognises separation of powers, yet the bill blurs this important principle.

The Constitution also promotes recognition of African culture and leadership within certain parameters.

To take away the right of people to opt out of the traditional court system is against the Constitution of South Africa.

It might help if Holomisa familiarised himself with the provincial mandates that were brought to the National Council of Provinces select committee on May 30.

If he did, he would realise that rural people are as capable of holding and expressing divergent views and complex thoughts as anybody else.

During the public deliberations on the bill, many people spoke of abuses under tribal authorities.

There are volumes of cases across South Africa of communities who are dissatisfied with how traditional leaders exert their authority and power in the name of culture.

Experiences of people who have to delay burial of their loved ones because of levies that are said to be outstanding are well documented.

There are unpalatable experiences of widows who are abused and dispossessed of their property and inheritance in the name of culture.

There are reports of communities whose development initiatives are frustrated by traditional leaders who want to force their way into these initiatives and take control.

We know of these cases not from media reports, but through our lived experience and direct work with people in rural and urban communities.

The possibility that Holomisa is not aware of these cases boggles the mind.

Instead of engaging with the substance of the bill, Holomisa resorts to accusing civil society activists and experts of being self-appointed spokespersons for others.

This is neither “stoic” nor “dignified”. It is one of the oldest tricks deployed by those who cannot tolerate differences of opinion.

We have taken it upon ourselves to work with communities across the country. We speak together with people who reside in both urban and rural areas.

We do so because it is our responsibility, obligation and privilege to be part of the change in our country.

We speak and bear witness to alarming levels of brutality visited upon sections of our community in the name of culture.

We shed light on the difficult issues because our freedom is linked to that of others.

Most critically, the experiences of lesbian, gay, bisexual, transgendered and intersexed communities are of deep concern to us.

Many people have fled their homes, and the plight of children who are born intersexed remains one of South Africa’s hidden shames.

The call by the National House of Traditional Leaders and statements made by Holomisa to scrap constitutional equality protections for sexual orientation is deeply disturbing.

We will speak out despite the names we will be called because violence, murder, hatred and prejudice hurts us all.

During the public hearings on the bill, many people spoke of intimidation and vulnerability.

Holomisa himself confirms to us that this fear is not unfounded when he states that “our opponents must not make it necessary for traditional leaders to prove their strength?.?.?.?and, you can be assured, such a demonstration would not be pretty”.

We join Holomisa in calling for political leadership on the role and place of African customary law and traditional authority.

We trust that the ANC and other political parties will lead in ensuring that the bill eventually passed in Parliament gives meaning to all freedoms enshrined in the Constitution.

The current bill does not do this.

That is why we stand with communities across the country who have asked, loudly and clearly, for the Traditional Courts Bill to be scrapped.

» Botha works for Sonke Gender Justice, a member of the Alliance for Rural Democracy

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