Bill to align traditional law with constitution
THE newly-revised Traditional Courts Bill will ensure no one found guilty at the traditional courts is punished or sjambokked, Deputy Minister of Justice and Constitutional Development, John Jeffery said.
The revised bill will regulate traditional courts by ensuring they dispensed justice in line with the Constitution. The department consulted with traditional leaders and civil society before finalising it. “Under the bill, no one found guilty in the traditional courts can be punished or sjambokked. “Instead, the legislation stipulates that a form of compensation could be imposed on the guilty party.”
Payment of compensation may not exceed the value of the damage, said Jeffery.
The previous bill provided for the imposition of fines and the deprivation of customary law benefits, he said.
“The main objective of the bill is to create a uniform legislative framework, regulating the role and functions of traditional courts in the resolution of certain disputes, in accordance with constitutional imperatives and values.
Jeffery said the department avoided the creation of a new justice system, deciding to regulate the existing traditional courts system instead.
“In terms of customary law, there is no distinction between criminal and civil law. You can actually deal with a dispute that may have arisen from a criminal act.”
The bill took into consideration the roles of women at the traditional courts. “The courts are required to promote the representation and participation of women as parties and members of the courts.
He said the bill required the ministry and the Commission for Gender Equality put measures in place to promote gender equality in these courts and to report annually to Parliament.
Parties making use of the traditional courts have the right to opt out of the system.
“The party could opt out of the system before the commencement of the any proceedings in a traditional court but not during proceedings,” according to the bill.
The revision of the bill was necessitated because of the outcry by communities deprived of their rights in the courts. “The emphasis is on restorative justice measures, for instance compensation and redress, which are aimed at restoring relations between parties and promoting social cohesion.”
The department would make sure traditional leaders receive adequate training on the envisaged traditional court, he added.