LAW

The king’s sen­tence will serve as a re­minder to treat peo­ple hu­manely, writes

CityPress - - Voices -

It is un­com­mon for a pre­sid­ing king to be com­mit­ted to a cor­rec­tional man­age­ment cen­tre to serve a term as a con­victed and sen­tenced of­fender. I sym­pa­thise with the Thembu king­dom and her peo­ple, in­clud­ing the vic­tims of the king’s crimes. I an­tic­i­pated that the in­car­cer­a­tion of a sit­ting king would evoke mixed emo­tions.

The his­tory of the in­ter­sec­tion be­tween our Con­sti­tu­tion and African tra­di­tional (black) South African cus­toms has not re­ally been drummed into us in a man­ner that lets us com­pre­hend that, when we drafted our Con­sti­tu­tion, we also con­sciously fo­cused on cor­rect­ing some of our tra­di­tional African cus­toms.

Some of these cus­toms had in any case long fallen away in years gone by, par­tic­u­larly in ru­ral vil­lages where fun­da­men­tal hu­man rights had been less re­spected.

It is re­gret­table, in my hum­ble view, for some of our opin­ion mak­ers to posit views that in­di­cate that the in­car­cer­a­tion of King Buyelekhaya Dalindyebo con­sti­tutes a con­sti­tu­tional cri­sis for the coun­try.

Dalindyebo’s trial ran its course. Some sta­tuses, whether gained through tra­di­tional king­ship or through at­tain­ment at uni­ver­sity, re­main in­sep­a­ra­ble from the peo­ple who hold them – un­til they are de­throned, in the case of kings, or, as is the case in cer­tain pro­fes­sions, they are dis­barred from the roll for gross mal­prac­tice.

A case in point that is still etched in our mem­o­ries is that of Dr Wouter Bas­son, dubbed “Dr Death” for his evil deeds dur­ing the dark days of apartheid. He ar­gued, dur­ing his dis­ci­plinary hear­ing in­sti­tuted by the med­i­cal coun­cil, that he ex­e­cuted his or­ders as a sol­dier un­der com­mand, and not as a med­i­cal doc­tor. The dis­ci­plinary hear­ing re­jected his in­ter­pre­ta­tion and found him guilty of gross hu­man rights vi­o­la­tions and mis­con­duct.

Dalindyebo was con­victed and sen­tenced as a king – not as an or­di­nary per­son, as some an­a­lysts con­tend.

How­ever, it would be im­proper to im­ply that the king is not sub­ject to the rule of law. The process lead­ing up to and the adop­tion of the Con­sti­tu­tion of the Repub­lic of South Africa, Act 108 of 1996, was a col­lec­tive ef­fort of all South Africans, and tra­di­tional lead­ers were part of it.

Con­tex­tu­ally, our in­jus­tices of the past in­cluded some of the African tra­di­tional cus­toms, such as ukuth­wala, which forces many girls to leave school and be­come wives at a ten­der age, against their demo­cratic right of choos­ing who to marry when they at­tain the age of ma­jor­ity.

African tra­di­tional lead­ers were in­cluded in the process in sec­tion 39(3) of our Con­sti­tu­tion that “the Bill of Rights does not deny the ex­is­tence of any other rights or free­doms that are recog­nised or con­ferred by … cus­tom­ary law … to the ex­tent that they are con­sis­tent with the Bill”.

In­her­ent in the no­ble, age-old African dic­tum of ubuntu, which pre­dates our con­sti­tu­tional demo­cratic dis­pen­sa­tion of 1994, is that kings and chiefs have the obli­ga­tion to pro­tect their peo­ple and to treat them with dig­nity.

I am sure that Dalindyebo, once he starts with his re­ha­bil­i­ta­tion pro­grammes pro­vided by the de­part­ment of cor­rec­tional ser­vices, will prac­tise ubuntu re­li­giously on his peo­ple fol­low­ing his re­lease.

Ubuntu is and was prop­a­gated by sage African thinkers, among them kings and chiefs who ruled their peo­ple while fully un­der­stand­ing that the African tra­di­tional cus­tom­ary courts in the ru­ral vil­lages they presided over had to ad­min­is­ter African tra­di­tional jus­tice in a fair man­ner.

Cruel, ar­bi­trary pun­ish­ment against those who had of­fended the king or chief with­out fol­low­ing the due process of African tra­di­tional cus­tom was not al­lowed even prior to the birth of our con­sti­tu­tional democ­racy.

No king or chief had un­fet­tered pow­ers and rights to treat his or her peo­ple in­hu­manely.

Par­tic­i­pat­ing in the re­ha­bil­i­ta­tive pro­grammes dur­ing the king’s term of in­car­cer­a­tion will be to his ad­van­tage, in that at some point the king may ap­ply to be con­sid­ered for pa­role so that the bal­ance of his sen­tence can be served out­side the con­fines of the de­part­ment of cor­rec­tional ser­vices’ fa­cil­i­ties.

I be­lieve the king’s sen­tence will serve as a de­ter­rent and a re­minder to him in par­tic­u­lar, and to oth­ers in gen­eral who oc­cupy a throne like his, that we are all equal be­fore the law.

Ubuntu en­joins our tra­di­tional lead­ers, and all lead­ers, to treat the peo­ple they lead with re­spect.

Vengeance, in my view, is not what the king’s in­car­cer­a­tion is aimed at achiev­ing. Ad­vo­cate Muofhe is the spe­cial ad­viser to Public

Ser­vice and Ad­min­is­tra­tion Min­is­ter Ngoako Ra­matl­hodi. He writes in his per­sonal ca­pac­ity

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.