New Khoi-San law ‘frees ru­ral lead­ers’

Business Day - - FRONT PAGE - Bekezela Phakathi Par­lia­men­tary Writer [email protected]­

Pres­i­dent Cyril Ramaphosa should have re­ferred the prece­dent-set­ting bill that gives statu­tory recog­ni­tion to Khoi-San com­mu­ni­ties back to par­lia­ment.

Pres­i­dent Cyril Ramaphosa should have re­ferred the prece­dent set­ting bill that gives statu­tory recog­ni­tion to Khoi-San com­mu­ni­ties back to par­lia­ment, civic groups say.

The groups, led by Cor­rup­tion Watch, said on Mon­day while the Tra­di­tional and KhoiSan Lead­er­ship Bill has good in­ten­tions, it tech­ni­cally strips or­di­nary peo­ple in the for­mer home­lands of their land rights.

The bill gives tra­di­tional lead­ers the right to en­ter into agree­ments on the use of land with­out the con­sent of the most af­fected groups. This ef­fec­tively en­ables tra­di­tional lead­er­ship struc­tures to dis­pos­sess peo­ple of their land, Cor­rup­tion Watch said. While the bill is os­ten­si­bly aimed at giv­ing au­ton­omy to Khoi-San com­mu­ni­ties, the same ab­ro­ga­tion of rights will take place in those com­mu­ni­ties as well.

Ramaphosa signed the bill into law last week de­spite ob­jec­tions by var­i­ous groups. The act seeks to trans­form tra­di­tional and Khoi-San in­sti­tu­tions in line with other con­sti­tu­tional im­per­a­tives, such as the Bill of Rights and re­store the in­tegrity and le­git­i­macy of tra­di­tional and Khoi-San lead­er­ship in­sti­tu­tions in line with cus­tom­ary law and prac­tices, the pres­i­dency said.

“While cer­tain tra­di­tional struc­tures and lead­er­ship po­si­tions have been recog­nised by law in com­pli­ance with con­sti­tu­tional pre­scripts, there has never be­fore been statu­tory recog­ni­tion of the Khoi-San. To this end, the for­mal recog­ni­tion of the Khoi-San com­mu­ni­ties, lead­ers and struc­tures re­quired en­abling leg­is­la­tion, to which the pres­i­dent has now as­sented,” the pres­i­dency said.

Cor­rup­tion Watch said Ramaphosa should have re­ferred the bill back to par­lia­ment af­ter two panel re­ports warned that pro­vi­sions in the bill are in breach of fun­da­men­tal con­sti­tu­tional rights.

Re­ports by both pan­els, one in 2017 chaired by for­mer pres­i­dent Kgalema Mot­lanthe and the other in­sti­tuted by Ramaphosa, said these pro­vi­sions in­fringe on cus­tom­ary and in­for­mal prop­erty land rights pro­tected by sec­tion 25 (6) of the con­sti­tu­tion.

“It is not the Khoi-San peo­ple who will achieve au­ton­omy; it is the Khoi-San tra­di­tional lead­ers whose ef­fec­tive au­ton­omy from those that they pur­port to gov­ern is now con­firmed and strength­ened,” the or­gan­i­sa­tion said.

“Our work in min­ing com­mu­ni­ties has taught [us] that SA’s vaunted democ­racy ends at the bound­aries of the big cities. SA’s ru­ral pop­u­la­tion, who do not have ready ac­cess to civil rights lawyers and sup­port­ive NGOs, do not en­joy the same ef­fec­tive rights as the rest of the pop­u­la­tion. This is par­tic­u­larly true of those com­mu­ni­ties sub­ject to the rule of tra­di­tional lead­ers. We can scarcely credit the pres­i­dent’s de­ci­sion to sign this ap­palling act into law and will op­pose it,” Cor­rup­tion Watch’s David Lewis said.

The Land and Ac­count­abil­ity Re­search Cen­tre at the Univer­sity of Cape Town said nu­mer­ous sub­mis­sions warned that the bill un­der­mines the cus­tom­ary and in­for­mal prop­erty rights pro­tected by the con­sti­tu­tion.

“When law en­ables dis­pos­ses­sion with­out con­sent or ex­pro­pri­a­tion, as the [Tra­di­tional and Khoi-San Lead­er­ship Bill] permits, vi­o­lence, in­clud­ing state vi­o­lence, is the in­evitable con­se­quence,” the cen­tre said.

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