Apartheid enforcers hope to gain by a dubious law

When the Constitutional Assembly drafted the final constitution in 1994 and 1995, it dragged its feet in finalising the provisions dealing with traditional leadership because it was not clear how such a system could be accommodated – except in a purely symbolic way – within the democratic system of government established by the constitution.

In the end, chapter 12 of the constitution, which contains provisions regarding traditional leaders, provided for such leaders in rather wishy-washy language, stating (in section 211(1)) that “the institution, status and role of traditional leadership, according to customary law, are recognised subject to the constitution”.

Given the fact that section 1 of the constitution states unequivocally that SA is one sovereign democratic state founded, inter alia, on the values of non-sexism, universal adult suffrage, and a multiparty system of democratic government to ensure accountability, responsiveness and openness, section 211 guarantees no more than a symbolic or ceremonial role for traditional leaders.

This is because traditional leadership is by its nature undemocratic and not accountable, responsive or open and hence not compatible with democracy if such leadership is going to be given a governance role.

The fact that traditional leadership has survived at all in the democratic era is quite remarkable. This is because – as in most other parts of Africa – SA’s traditional leaders were co-opted by the colonial powers to help it govern rural areas.

Ugandan academic Mahmood Mamdani famously described colonial tribal rule as “rule by decentralised despots”. This was also the case in SA. In particular, from the early 1950s, under the apartheid government, the development of legislative and administrative structures in the homelands saw traditional leadership used to enforce apartheid and to act as local government rulers in homelands and retain control over black South Africans living in rural areas.

The central government’s power of patronage (which remains to this day in the form of the payment of large “salaries” to traditional leaders) was encapsulated in the apartheid government’s power to depose and install chiefs, making the chiefs an effective tool in implementing apartheid policies.

Under the corrupt apartheid system, the rewards for compliance could be great. In the Transkei, where 30 chiefs were deposed between 1955 and 1958 for resistance to the demands of the apartheid government, Kaiser Matanzima of the lesser Thembu royal house won the favour of the apartheid authorities and later became president of the homeland.

It is surprising that traditional leaders have managed to ingratiate themselves with the ANC in the post-apartheid era. They did so by forming the Congress of Traditional Leaders of SA (Contralesa) in 1987, just as the uprising against the apartheid state was reaching a new intensity.

Chiefs saw the writing on the wall for the apartheid system (in addition the money stopped rolling in because of the collapse of the pass law system, which generated much of the chiefs’ income) and turned to the ANC.

Nevertheless, during the constitutional negotiations, gender activists and “modernists” outwitted and outvoted the chiefs.

Thus the tepid endorsement of traditional leaders in chapter 12 of the constitution as well as several provisions in the Bill of Rights, which made clear that cultural rights as well as customary law would henceforth be subject to the discipline of the other provisions of the Bill of Rights – including section 9, which prohibits unfair discrimination on any grounds, including sex, gender and sexual orientation.

These provisions were unsuccessfully challenged by Contralesa during the certification of the 1996 constitution by the Constitutional Court.

In that judgment, the court made the following statement about the difficulties of marrying a system of traditional leadership with democracy: “In a purely republican democracy, in which no differentiation of status on grounds of birth is recognised, no constitutional space exists for the official recognition of any traditional leaders, let alone a monarch. Similarly, absent an express authorisation for the recognition of indigenous law, the principle of equality before the law… could be read as presupposing a single and undifferentiated legal regime for all South Africans with no scope for the application of customary law – hence the need for expressly articulated CPs (constitutional principles) recognising a degree of cultural pluralism with legal and cultural, but not necessarily governmental, consequences.”

Yet, despite the incompatibility of undemocratic traditional leadership with a constitutional democracy, some elements of traditional leadership and customary law were retained.

This attempt to accommodate the chieftaincy – despite its tainted past as enforcers of apartheid – was animated by both emotional as well as a practical considerations.

Given the colonial encounter and the devastation it wrought on Africans, traditional leaders have been able – despite their dark collaborationist past – to promote themselves as symbols of the dignity of African communities and cultures, supposedly untainted by colonialism.

Although it is, of course, not possible to return to a pre-colonial era in which traditional leaders, applying customary law untainted by the ravages of capitalism and the greed and dishonesty that always accompany it, there is a strong yearning – sometimes expressed and sometimes unspoken and unexamined – for such a symbolic return to a different way of life that would signal some kind of rejection of colonialism and European imposed structures and legal regimes.

Second, millions of South Africans still live under a system of customary law, which often provides an easy and cheap mechanism to resolve disputes.

Given the fact that many rural citizens are not able to gain access to magistrate’s courts because such courts are far away from where they live and because they lack resources to make effective use of such courts, and given the fact that, culturally, the common law or the legislation passed by Parliament do not always speak to the ways they live, organise their lives or their attitudes towards those in their community, customary law still thrives in some parts of SA.

It is against this background that traditional leaders (who are the main interpreters and enforcers of customary law) are making a political comeback.

But because many aspects of customary law are incompatible with the constitution, given that traditional leaders are not democratically chosen and are in no way independent (because they are paid and can be removed by the government) and given, further, the fact that many traditional leaders have been corrupted by money and greed, there are serious problems with the system relied on by so many people living in rural areas. While the system works relatively well in some places, in others it has been abandoned.

It is therefore curious that with the Traditional Courts Bill, the government is seeking to reimpose a fundamentally undemocratic system that is incompatible with the separation of powers and an independent judiciary – even on those communities who have rejected it.

The Traditional Courts Bill in its current form is clearly incompatible with the constitution and even if it is passed it will never stand the test of constitutionality.

Why some in the ANC therefore seem to be hell-bent on passing this law – despite the dubious gains – remains a mystery.

l Professor Pierre de Vos is deputy dean in the Department of Public Law at UCT