Rural people travelled hundreds of kilometres to voice their objections at South Africa’s parliament about a new bill that threatens to impose a separate and unequal legal system on them — just to hear that their submissions are being blocked.
The Traditional Courts Bill uses apartheid-era Bantustan jurisdictions to reinstate a legal system that deprives black rural South Africans from citizen’s rights enjoyed by their urban counterparts. Some 22 million people are affected – almost half of the country’s population.
Women are not usually allowed to speak in traditional courts – male relatives talk on their behalf
The bill empowers traditional leaders, who are unelected and predominantly male, to act as judicial officers in disputes. Penalties can be imposed that range from banishment to hard labour.
Critics have pointed out that the bill continues a colonial practice that violates the principle of the separation of powers by concentrating executive, legislative and judicial functions in the hands of traditional chiefs.
Chiefs dispense executive governmental functions, including allocating land and access to water. Customary law is understood as “living law” developed by communities and is therefore not written down. The bill will allow chiefs inordinate say when applying customary law while also appointing them as presiding officers in such legal matters.
Rural women are particularly adversely affected because they are usually not allowed to speak in traditional courts, and therefore cannot defend themselves. Instead of entrenching women’s right to speak this bill exacerbates this situation by allowing others to speak on women’s behalf. In practice these “others” will be male family members – frequently the same people who have in interest in depriving a woman of her house or land after her husband’s death.
Traditional leaders have been using their influence in the ruling African National Congress (ANC) to drive the bill. The drafters from the department of justice and constitutional development consulted only traditional leaders in the drafting process, and not those most affected – rural people.
South Africa’s constitution obliges its parliament to hear the public’s views about legislation. Parliament held public hearings across the country in April and May this year where many rural people resoundingly rejected the bill.
The hearings were flawed, as traditional leaders arrived with large entourages and tried to prevent community members, especially women, from speaking in some cases. There have been suggestions that many rural people were not informed of the hearings while those who attended were frequently misinformed about the implications of the bill.
The public hearings culminated in September in Cape Town, the seat of the South African parliament. Again, rural women and men travelled from far-flung areas to tell the select committee on security and constitutional development how the bill would exacerbate current power abuses by traditional leaders.
The committee received almost 70 written submissions while more than 20 oral submissions were heard over a four-day period. The vast majority of the submissions demanded the scrapping of the bill and the drafting of a completely new bill
However, it emerged on Wednesday (24 October) that the committee has decided to only consider the submissions made by two government departments and the South African Human Rights Commission (SAHRC), a constitutional watchdog body.
The committee chairperson, Tjetha Mofokeng (ANC), told committee members that he had instructed justice department officials to compile a “working document” for them. On his instruction, the document was limited to summaries of the submissions from the justice department, the department of women, children and people with disabilities and the SAHRC.
Mofokeng, supported by ANC committee members, questioned “the relevance” of the 60-plus submissions by non-state representatives.
Opposition party parliamentarians objected, pointing out that the overwhelmingly negative response from rural participants has to be taken into account.
Dennis Bloem from the Congress of the People (COPE) argued:
Chair, I want to put it clearly, it will be an insult to all the other organisations that have made inputs here to say that it is not relevant. We have spent taxpayer’s money to have a whole week of public hearings to listen to what the people have said. That is the essence and the reason for having public hearings.
The Alliance for Rural Democracy, a group of 30 civil society organisations including the 50,000 member-strong Rural Women’s Movement, called Mofokeng’s actions “brazen” and “deeply insulting”. The alliance called on parliament to clarify its position on the unconstitutional stance taken in the committee, which amounts to silencing citizens’ voices.
Christi van der Westhuizen is Index on Censorship’s new South African correspondent
