Traditional bills will bring divide and rule through the back door

The group of Khoisan who have staged a sit-in at the Union Buildings in Tshwane to demand recognition of their culture and language. Picture: Tebogo Letsie
The group of Khoisan who have staged a sit-in at the Union Buildings in Tshwane to demand recognition of their culture and language. Picture: Tebogo Letsie

Another fissure in the policy and ideological structure of the ANC became evident in a small way this week when its members, along with a few supporters, picketed outside Parliament against the probable passing of two bills dealing with traditional issues.

Opponents, led by the Stop the Bantustan Bills Coalition (SBBC), which was set up by concerned ANC members, have pointed out that the Traditional and Khoisan Leadership Bill and the Traditional Courts Bill acknowledge South Africa’s former “tribal” divisions.

These were the Bantustan territories created by the apartheid government on the basis of similar divide and rule tactics employed earlier by British colonialism.

Many traditional leaders, reliant on the largesse of the state, were also appointed by the colonial and apartheid regimes.

Systems of “tribal courts” were also encouraged and recognised.

These often placed extensive and dictatorial powers on the recognised – in fact, compliant – tribal rulers.

Ironically, about 20 years ago and again in 1998, in papers produced for the ANC, warnings were given that this effective Balkanisation of the country could prove disastrous.

One of the leading figures in articulating these warnings was Pallo Jordan, who is one of the patrons of the SBBC alongside veterans such as Nomboniso Gasa and Mavuso Msimang.

There is a clear attempt to rush the bills through, arguably to ensure that traditional leaders will rally their subjects to vote for the governing party on May 8, but also to mollify mining companies that are keen to exploit “tribal” land.

An amended clause (24) of the Traditional and Khoisan Leadership Bill allows for retroactive action, meaning that, effectively, recent court rulings in favour of communities – Xolobeni in the Eastern Cape being a classic example in which the community successfully opposed mining on its land – can be overturned by parliamentary diktat.

Critics, led by the SBBC, maintain that such action is undemocratic and unconstitutional. Many lawyers agree.

However, if either or both of the bills are passed – the Traditional Courts Bill effectively removes about 17 million citizens from the general rule of law – they will come into force until such time as the inevitable Constitutional Court challenges are heard.

But, by then, the election will have come and gone and mining companies may already have broken ground in traditional areas on the sole say-so of traditional leaders.

And that is why there was a protest outside Parliament, says an SBBC spokesperson: “This is a step back into the Bantustans.”

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July 2020

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