Tra­di­tional lead­er­ship bill ‘fails to pass muster’

CityPress - - News - AN­DISIWE MAKINANA an­disiwe.makinana@city­press.co.za

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”.

Nolundi Luwaya

Ben Cousins

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