EC traditional council hearings invalid

THE Eastern Cape portfolio committee on cooperative governance and traditional affairs conducted 11 public hearings on the Traditional Leadership and Governance Framework Amendment Bill in March – all of them falling fatally short of the standards set by the Constitutional Court in a seminal 2016 judgment.

The Bill seeks to buy time for untransformed tribal authorities and improperly constituted traditional councils – and to validate their actions that might otherwise be unlawful – pending the adoption of a completely new law governing traditional leadership.

But without the “meaningful” public hearings required by the Constitutional Court ruling in Land Access Movement of South Africa and Others vs Chairperson of the National Council of Provinces and Others (Lamosa judgment) in 2016, the Eastern Cape legislature’s handling of the Bill is unconstitutional.

The hearings were convened in venues across the province, including the Great Places of Bumbane, Qamata, Nqadu and Mngqesha, where the majority of inputs came from traditional leaders.

Rural-based and civil society drew attention to the absence of community members and asked the committee conducting the hearings to account for this.

In Tsolo near Mthatha, a representative of Ntinga Ntaba kaNdoda from Keiskammahoek flagged the domination of traditional leaders while community members were absent, but was shut down by the chairman, Michael Masonwabe Peter.

When this issue was raised again in Nqadu, the committee’s legal advisor, Ncedisa Stuurman, responded that “…this Bill concerns traditional leaders only”.

She said that was why Great Places were chosen as suitable venues.

In its Lamosa ruling, which struck down the Restitution of Land Rights Amendment Act on the grounds of inadequate consultation, the Constitutional Court set the standard for public hearings, saying “…the Constitution demands that the public must be afforded a meaningful chance of participating in the legislative process”.

The court rejected the argument that the public need not participate in the legislative process as its elected representatives spoke on their behalf.

“…it is beneath the dignity of those entitled to be allowed to participate in the legislative process to be denied this constitutional right,” the court said.

Underplaying the exclusion of communities, the committee said the March hearings would not be the end of the public participation process. Traditional leaders would call meetings and talk to people about the Bill, whereafter community members could make their inputs in written submissions.

By relying on traditional leaders to talk to communities about the amendment Bill, the Eastern Cape legislature effectively handed over its constitutional duty of facilitating public participation in lawmaking to traditional leaders.

Furthermore, it was not clarified exactly what “speaking” to community members about the Bill would entail.

The legislature itself has a team of legal advisors who presented the Bill at the different hearings and responded to legal questions.

Will traditional leaders also have people with legal training to handle these responsibilities?

Does this process even qualify as public participation?

How will the legislature know that traditional leaders “spoke” to the people about the Bill?

The Eastern Cape legislature must know that it has violated the constitutional rights and dignity of rural citizens by denying them the right to participate in public hearings.

In Tsolo, MPL Deborah Komose said “…even if community members were to attend the hearings, they would need transport and they do not have money to pay for the transport”.

The Lamosa judgment is clear, however, that “provincial legislatures have a duty to play their part properly in affording the public an opportunity to participate in the legislative process”.

If the legislature was aware of transport challenges keeping communities away then it should have made arrangements to get them there.

When these concerns were raised in Mngqesha, Prince Burns Ncamashe, who was chairing the hearing, responded that “traditional leaders in their own right are office bearers and they have a constitutional duty to take the information to the people”.

This was echoed by the committee’s legal advisor, Qabane Mafuya, who asked traditional leaders to speak up if they did not understand the committee’s presentation on the Bill.

He also encouraged them ask their children to explain the Bill to them.

The Constitution recognises traditional leadership and customary law. Traditional leaders also have the right to be consulted on all laws pertaining to customary law. This Bill was referred to the National House of Traditional Leaders, whose proposals were discussed and accepted by the National Assembly’s portfolio committee on cooperative governance and traditional affairs in June last year.

However, not a single community member made a submission to this committee. The Land and Accountability Research Centre (LARC) was the only stakeholder to make a submission before the Bill was adopted by the National Assembly on June 22 2017 and sent to the National Council of Provinces, which referred it to the provincial legislatures for public consultation.

Traditional leaders do have a duty to consult their communities, but in terms of the Constitution they are not law-makers. Law-making is the constitutional duty of the National Assembly, National Council of Provinces and provincial legislatures.

In handing the responsibility for public participation to traditional leaders, the Eastern Cape legislature is giving them law-maker status, which is unconstitutional.

The absence of community members at the Eastern Cape hearings was evident in the issues raised by traditional leaders, who focused mainly on the benefits promised to them by government.

These included infrastructural development of traditional council facilities, payments of traditional council members, filling vacant positions in traditional councils and increasing the 60% allocation of members of directly appointed to traditional councils by the traditional leader.

No traditional leader showed any interest in how the Bill would impact on communities.

Tamara Xhanti, a member of the Eastern Cape legislature, acknowledged that community members should be in the majority at the public hearings, but said it was difficult for the legislature to reach all parts of the province.

In the Lamosa judgment, however, the court said the contribution of provincial governments to participatory democracy could not be overstated because, compared to parliament, public participation facilitated by provincial legislatures enabled direct input by affected people into the legislative process due to legislatures’ ability to reach the most remote areas of the country.

Xhanti said also that the NCOP had imposed short timeframes for hearings. Once again, in the Lamosa judgment the court is clear that provincial legislatures can object to the NCOP’s timelines if they make it impossible to conduct public hearings properly.

It is clear the Eastern Cape legislature had no intention of consulting communities on this Bill, other than traditional leaders. The legislature abdicated its constitutional responsibility for public participation to traditional leaders, who have no constitutional mandate to legislate.

The Eastern Cape Legislature denied the people most directly affected by this Bill the opportunity for the meaningful consultation demanded by the Constitutional Court.

Should this Bill be taken to court, it is most likely to be declared invalid on the grounds of inadequate public participation, just like the Restitution of Land Rights Amendment Act in 2016.