ANC plan to boost tribal law criticised

2012-11-02 08:24

Mzinyathi - Chief Mqoqi Ngcobo is already a powerful man, but if the ANC is successful in its bid to give tribal courts more power, he may soon be recognised as prosecutor, judge and jury under the law.

"Here we promote restorative justice, unlike the magistrate courts where they promote punishment," explained the Qadi chief, who presides over a tribunal in the village of Mzinyathi, north of Durban.
"Here people arrive as enemies and leave as friends."

From his office, Ngcobo hears cases ranging from petty theft, domestic violence, and sexual assault to inter-tribal conflicts. Serious crimes like murder are handled by conventional courts.

As villagers shift uncomfortably in their seats, the imposing chief sits behind a large wooden desk listening intently to complainants' and defendants' testimonies one-by-one, often interrupting to ask for clarity.

A typical case

One typical complainant, Mama Cele, 60, wanted the chief to stop her male neighbour from driving her off the land she inherited from her father.

No dockets or recordings are made - exposing the process to misunderstandings - yet under a law put forward by the African National Congress, her fate would be in Ngcobo's hands.

First submitted in 2008, the traditional courts bill empowers chiefs to act as judge, prosecutor and mediator, with no legal representation and no appeals allowed.

According to government, the bill is aimed at providing "speedier, less formal and less expensive resolution of disputes and promotes and preserve traditions, customs and cultural practices".

The powers proposed by the bill will affect some 19 million rural people who live in tribal lands ruled by chiefs.

The role of tribal courts

Traditional courts, often situated in remote areas where people do not have formal schooling, are conducted in only local dialects.

Ngcobo insists they play a fundamental role in dispute resolution and maintaining harmony.

In a sense a change in the law would only formalise South Africa's hybrid legal system, which already combines conventional legislation with customary laws.

Yet the law has proven controversial.

The 2008 draft was withdrawn to align it with the Constitution. Three years later it was brought back - with no changes.

Legal experts and rural activists argue the proposed law creates a separate second class justice system for rural communities, where women have fewer rights.

In some tribal lands women are not allowed to stand up when addressing men or sit in the same space as them during court proceedings.

Sindiso Mnisi, an African customary law researcher at the University of Cape Town, likened the bill to apartheid-era legislation, which forced people into self-governing rural homelands to live under separate laws.

"This bill entrenches separate categories of citizenship and disenfranchises rural people," she said.

"Separate laws determined by geographic location can't exist in harmony with the democratic values."

Traditional leaders' support

Its ignorance of legal representation and appeals processes renders it unconstitutional, she added.

The KwaZulu-Natal Rural Women's Movement complains women's rights activists were not consulted during the drafting of the bill.

While meant to "affirm the values of the traditional justice system" it would deprive rural women equal access to justice, said the organisation's director Sizani Ngubane.

Action group the Alliance for Rural Democracy also wants the bill scrapped.

"We wish for the ANC to reassert the principle of one law for one nation which represents a fundamental departure from colonialist and apartheid attempts to 'ghettoise' some sections of our nation merely on the basis of their race and location," the alliance said.

The bill is currently under consideration in Parliament, but critics accuse the ANC of trying to use it to retain support of the traditional leaders ahead of a year-end crucial ANC elective meeting.

At the December meeting President Jacob Zuma hopes to be re-elected as leader, virtually guaranteeing another five year-term at the head of Africa's largest economy.

  • nadineelvina.francis - 2012-11-02 09:46

    Banana Republic

      johny.stront - 2012-11-02 11:22

      OK..... Then Bring back the death penalty aswell.

      charlesbronson.bronson - 2012-11-02 12:06

      And here the dump-est comments again from the cANCer thief's trying to win some support ....

      alastair.grant.98 - 2012-11-02 18:04

      But this makes perfect sense! The power-base of the ANC is mainly in urban areas. This proposal will appeal hugely to traditional leaders, who will instruct their subjects (who live on tribal lands at the pleasure of the chief) to vote for the ANC. Hey presto - more ANC votes in rural areas! The genius of this move is that anyone who criticizes it is automatically racist, and disrespectful of traditional customs. Any rational discussion about conflicting legal systems, the neutrality of the chiefs in dispensing justice, the marginalization of women and so on will come across as vestiges of white supremacy. We've reached a fork in the road - one side is signposted "constitutional democracy" and the other "feudal autocracy". No prizes for guessing which way we are turning. At least we won't be alone - all of the world's banana republics are located in this direction, and none of the developed nations.

  • omge.klits - 2012-11-02 10:00

    Whats this new ANC law thing ? A new Bantu Affairs law ?

      Montagnes.Bleues - 2012-11-03 06:17

      Where the hell have all you people been these past 20 years? Complacently bumbling and dithering along each morning bumper to bumper without any regard as to what 'paradise' these craven curs have been silently and surreptitiously planning for you or taking an interest in affairs of state and your neighbour and their neighbours' neighbours too, right through to the skwattkamps and tribal country estates?

      harold.parsons.37 - 2012-11-03 12:07

      Yes this is in preparation to starting the Bantustans up again.

  • hasani.malungana - 2012-11-02 10:19

    lets debate this our African Customary laws were not taken into account when modern courts and laws were formulated. Every thing that is African was regarded as barbaric.It was not given a chance to evolve and develop.We must remember that even the English and Roman Dutch laws started from customary laws and evolved over the centuries. We can have a debate than dismiss Zuma's attempts to recognize our customs and values.They are instances where they can be implemented and we can do away with those that discriminate on the basis of gender. Like the ones that regard women as minors and under the perpetual tutelage of a man. Those are opressive and have no place in our constitutional democracy. Certain customary laws may be infused with modern laws so as to give credence to all values and in line with the society in which we live.Just as much as we recognize the importance of African language.

      raymond.dick.12 - 2012-11-02 15:07

      I agree, it has a place BUT the 'magistrate' must have a suitable legal degree and be appointed by the judiciary. Appeals must be possible but via a 'higher' court. The idea is not so outlandish, however as usual, the ANC have gone at this in their traditional half-assed way. Many issues that lead to strife can be dealt with before things get out of hand. If the person of the chief is of traditioonal importance, he can be part of the process, but under the direction of the 'legal eagle'

      alastair.grant.98 - 2012-11-02 18:14

      Hasanima - yours is a very rational post. And if the ANC were proposing a programme to codify traditional laws in such a way that they are compatible with our constitution, and then to train traditional leaders in the application of these laws, I would be the first to support this idea. But that isn't what they are doing. They are using a cheap trick to get votes in rural areas. Real progressive change, whether it relates to land reform, legal reform, educational reform or any other type of progress takes a huge amount of ground-work, and the ANC has consistently demonstrated that it isn't prepared to do this. It's all cheap propaganda, designed to fool an uneducated electorate.

      andre.c.79 - 2012-11-02 18:32

      This may be a rational post, but the diatribe later is something special.

      alastair.grant.98 - 2012-11-02 21:09

      Ah, I see what you mean. What a pity.

      kseyffert - 2012-11-03 01:46

      Hasanima, yes and no. We have a constitution and all laws in the land have to be formulated within the bounds set by that same constitution. While I agree that African tribal law has probably gotten the short end of the stick in our legal system, this does not mean that we have to automatically accept it as is either. Certainly aspects of it can be formulated into our legal system but I see no way they can be dropped in as a "black box" which is what will happen if you have something called a tribal law bill. It really is past time we kept doing this. modify our legal system by all means but don't keep making exceptions for different racial groups. This divides our country. That is after all what apartheid was and look at the fall out from that! As for letting the local chief hold all the legal powers in his hand...that way leads to trouble not matter how you look at it.

  • shayne.farrell - 2012-11-02 10:38

    From his office, Ngcobo hears cases ranging from petty theft, domestic violence, and sexual assault to inter-tribal conflicts. Serious crimes like murder are handled by conventional courts. So sexual assault and domestic violence are not a serious crimes, typical black male mindset.

  • johan.jacobs.5680 - 2012-11-02 10:57

    Will justice fairly be served.?

  • danie.smit.587 - 2012-11-02 11:09

    If a traditional healer can issue sick notes , why cant a chief punish his people ? Afran healers are as uneducated as chiefs, besides them all driving a merc, watching TV and using a cell phone

  • jacqui.daanevanrensburg - 2012-11-02 12:29

    Maybe the chief will have better results. I'll be all ears when Zuma has to appear before him.

  • darryl.earnshaw - 2012-11-02 13:17

    So if a chief says this land was taken from my ancestors, they can take it back without consulting the law? NERVOUS days indeed

      raymond.dick.12 - 2012-11-02 15:09

      Ag kuck man. Read the article properly

  • jaun.lombard.9 - 2012-11-02 13:33

    Why is the KwaZulu-Natal Rural Women's Movement complaining? THE ANC WOMAN LEAGUE IS SUPPORTING IT! They want Zuma and all of his policies!

  • johleneh - 2012-11-02 13:57

    "From his office, Ngcobo hears cases ranging from petty theft, domestic violence, and sexual assault to inter-tribal conflicts. Serious crimes like murder are handled by conventional courts." So sexual assualt is not a serious crime anymore... go figure.

  • TheSingingHorse - 2012-11-02 14:18

    Ok , as long as they do not increase taxes of any kind or ask for Western Donors for funding.Will he hear my case? Cannot afford it a lawyers. I can donate my neighbours dog.Its a good watch dog. Barks a lot.

  • gwilym.howes - 2012-11-02 17:10

    And so we take another step back in time...

  • francois.dames.7 - 2012-11-02 17:41

    The traditional healer, big chief whatever it is you wanna call him didn't really help the Marikana chaps... Purely the ANC trying to get votes.

  • enlightened.bowman - 2012-11-02 17:41

    If I read this right, on eimplication would be that The spear would somehow be able to put himself beyond prosecution. It would be perfectly in line with porkers line of actions. Any comments?

  • andre.c.79 - 2012-11-02 18:25

    or spend the money on improving the current legal system. This is after all the 21st century.

  • Pierre-Andre - 2012-11-02 21:05

    Currently in many rural areas the customary law is already seen as above the constitution. I live in the Transkei, and here we have young girls abducted,taken into a different area and forced into marriage. When their family finally finds them, the police refer them to the tribal chiefs because it is 'cultural' and then they are offered a small peace offering...Without the girl being returned... This is wrong, and should not be perpetuated by allowing the traditional leaders more power...

  • kseyffert - 2012-11-03 01:14

    hmmmm, it seems the ANC have not learned from the mistakes of the NP. You cannot separate our people and expose them to different sets of legal process and expect any good to come of it. Whether you like it or not this is apartheid and its most basic form...

  • Montagnes.Bleues - 2012-11-03 06:20

    Zuma's single most serious ASSAULT AGAINST DEMOCRACY now out in the open. His tide of crimes and theft and making a mockery of Justice and the legal system with every unscrupulous criminal lawyer was just for openers

  • asdhasgd - 2012-11-03 08:09

    What actually gives chiefs and kinds the right to prosecute >:(

  • godrick.mlambo - 2012-11-03 10:45

    Education is eminent in the anc.....disappointed!!!!!!!!!

  • godrick.mlambo - 2012-11-03 10:50

    Why anc undermine people in rural areas.....

  • ppisciotta - 2012-11-03 13:28

    Blacks prove again and again they are uncivilized and incapable of earning respect in todays' world. They fail and fail again - so now? They legitimize their bush mentality. To hell with them - let them kill each other then civilized humans can return to S. Africa.

      themba.thwala.775 - 2012-11-03 16:08

      Hey idiot, you should stay in America and keep your ignorance there.

      dan8472 - 2012-11-04 22:39

      PAP - I'm sorry to say but it is you who has a rather disgusting mentality. You most certainly are not "civilised".

  • johan.jacobs.5680 - 2012-11-03 14:50

    Africa's largest ecomomy,for how much longer.?

  • richard.turner.7792052 - 2012-11-03 15:36

    CitiicisedIt should be treason that statement. Treason you agent!

  • amanda.matthews.14811 - 2012-11-03 16:10

    Oh well, if the simple folk are not happy with customary laws then let them become subjected to being less than serfs living in a Feudal System. Somehow I dont think this idea is going to catch on with the young voters in the rest of the Country. This sounds very KZN Tribalist to me. It can only appeal to the Zooma supporters. Shame! Talk about going back to the Middle Ages or should I rather say the dark ages??

  • amanda.terblans - 2012-11-04 12:45

    Umm worked rural for years the indunas and nkosi's in most areas are corrupt as hell .... giving them more power over the people that live rural is ludicrous !!! this is becoming a circus !!!

  • dan8472 - 2012-11-04 22:37

    So sexual assault is not deemed a serious crime then? Cry the Beloved Country!!

  • dave.loubser.9 - 2012-11-04 23:07

    Slowly, little by little democratic SA slides down the slippery slope to becomming just another failed African state, that started life with all the advantages of great infrastucture, good educational facilities and a rosy future......

  • mshiniboys - 2012-11-05 08:46

    Since when? I thought that the government was planning a ban on African tradition.Now that people are becoming clever and are starting to know politics and the fraud inherent in it people are making means to "return back to our roots" and closing down schools so they can breed ignorance which will allow them to continue lying to the "masses".

  • zondra.hoffmann - 2012-11-05 09:33

    Excuse me? Where am I living? In Lala land where every person has the right to be judged differently, no matter what the law of the land prescribes! This is now really becoming a joke. We already have to tolerate so-called "Kings" and "Princes" who suck our economy dry with all their demands, with wives and children galore and now Chiefs have to be added to our burden!!! Eventually no-one will be held responsible for anything because their particular custom or tradition allow for that not to be regarded as a crime!! Ludicrous, idiotic reasoning is rampant in our country. PLEASE SAVE US, SOMEONE, SOMEWHERE, SOMEHOW!!!

  • silas.mapuroma - 2012-11-05 09:53

    We must stop ANC in the next Election, Zuma has lost the plot. This failed count how many clans killings during the Zulu kingdom. Peolple get oppressed by this Cangaroo courts

  • Mogomebad - 2012-11-05 11:08

    let'em go to study law first.

  • Mogomebad - 2012-11-05 11:16

    Our president tries by all means to resurrect the apartheid legislations...

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