Traditional leadership bill ‘fails to pass muster’
Government’s long-awaited revised law for traditional leadership, which incorporates the Khoisan communities, has been roundly rejected by academics, researchers and civil society organisations.
During this week’s parliamentary workshop, MPs were told the Traditional and Khoisan Leadership Bill as it stands now would not pass constitutional muster.
Among the strong criticisms of the bill are the assertions that it in effect reinforces Bantustan boundaries and recognises traditional leaders without taking into consideration individual communities’ approaches to traditional leadership. The bill, which was tabled in Parliament in September last year by the then minister of cooperative governance and traditional affairs Pravin Gordhan, seeks to recognise the roles and responsibilities of traditional leaders in the democratic system.
The proposed bill also marks the first time the Khoisan communities would be included in a law on traditional leadership.
The Traditional Leadership and Governance Framework Act of 2003 did not cover the Khoisan communities, which led to an outcry from them.
Professor Ben Cousins of the institute for poverty, land and agrarian studies at the University of the Western Cape warned MPs that the bill was open to a constitutional challenge because “it fails to grasp the nettle” of the freedom of association guaranteed by the Constitution, and prescribes affiliation to traditional leadership rather than leaving people to choose.
Cousins said there was also the important issue of the bill’s attempt to cement apartheid-era tribal boundaries in place. “Taking history into account, why does the bill not make the principle of self-affiliation and free choice of membership of traditional communities, as in the case for the Khoisan, applicable to all South Africans?” he suggested. Cousins said the bill envisaged two different systems for traditional leaders: one for African communities and the other for Khoisan communities.
“Thus, for Africans, the criteria for recognition as a traditional community are that people live in a ‘specific geographic area’ under the authority of a traditional leader, and that they observe customary law and have a history of living as a ‘distinct community’.
“For the Khoisan, however, a new criterion is introduced: ‘a history of self-identification by members of the community concerned, as belonging to a unique community’.”
Nolundi Luwaya of the University of Cape Town’s Land and Accountability Research Centre also called on Parliament to reject the proposed law and for the government to use living customary law, shared identity and consensual legitimacy as the basis for recognising traditional groupings and authorities.
“It is our assertion that the bill entrenches geographic boundaries derived from colonial and apartheid distortions of customary governance systems,” said Luwaya.
“These boundaries lock people into territorial jurisdictions that are used to justify unaccountable authority by traditional leaders.”
Last year, the head of the ANC’s traditional leadership forum in the national executive committee, Zoleka CapaLanga, said the bill “will have to be weighed against recognising the role and existence of traditional leaders, but will avoid the element of dictatorship”.