archive > Other > General > D-day for the Traditional Courts Bill, but will Parliament listen?

D-day for the Traditional Courts Bill, but will Parliament listen?

Released by the Alliance for Rural Democracy

The day many rural South Africans have waited for is finally upon us.
On 24 October the National Council of Province’s Select Committee on Security and Constitutional Development will discuss the public’s response to the Traditional Courts Bill.

Will the Committee listen to the voices of the people who made submissions during the provincial hearings that took place in April and May?
Will they finally consider the negotiating mandates of the provincial legislatures, four of which rejected the Bill outright and three proposed conflicting amendments?
Will the Committee take seriously the harrowing experiences that rural communities shared with them at the national hearings in September?

“The ball is now in the Committee’s court. We will be watching closely to see if the legislature listens to what we have said about this Bill, and how it is a setback for democracy and justice in the rural areas,” says Connie Mogale from the Land Access Movement of South Africa.

Minister Radebe and Minister Xingwana hold opposing views on the Bill. On 24 October the public will finally hear where the Committee itself stands on the matter.

The legislative process to date has followed a peculiar trajectory. Instead of debating the provincial mandates immediately, the Committee opted to hold yet more public hearings.
These turned out just as damning of the Bill as the previous two rounds of public hearings (both in 2008 and earlier this year in the provinces).

The Department of Justice has finally admitted that the Bill is fatally flawed and that it cannot pass constitutional muster as it is. However, instead of withdrawing the Bill and tabling a new version, the Department made a lengthy submission to the Committee proposing substantial changes, including changing the name of the Bill. This appears to be an attempt at directing the committee by remote control, putting the onus on Parliament to redraft and fix the mess created by the Department’s intransigence since 2008. This has compromised the validity of the legislative process and places the Committee in an awkward position. After all, it is Parliament and not the Department that will take the fall when the legislative process is challenged, as it surely will be.

“The Committee’s job is not to follow the lead of government ministers, but to debate both the content of the submissions received from the public, and the mandates put forward by the provinces,” says Aninka Claassens of the University of Cape Town’s Law, Race and Gender Unit.

As the Alliance and many others have repeatedly stated, the Bill is not about customary law as some argue. It is about bolstering the power of some traditional leaders to act autocratically. Only leaders who do not enjoy legitimacy and support need laws like this to prop up their disputed authority. The public hearings exposed that there are many such chiefs, and that abuse of power and lack of accountability is widespread. Those who summoned the courage to speak out publicly at the hearings did so in the belief that the legislative process will protect them and be influenced by their submissions.

Sizani Ngubane, founder of the Rural Women’s Movement, says that “women living in the rural areas went to Parliament, like we did back in 2008, to say that this Bill must be stopped. We told the lawmakers that our rights as women must be taken into account and supported by the law. This Bill does the opposite – it threatens the rights we have gained.”

People invested time and courage to travel to the provincial hearings, and to Cape Town for the national hearings, to put their submissions to the Committee. They did so in the confidence that their views would be taken seriously. The did so in the hope that once Parliament was informed of the challenges they face, it would take steps to ensure that that a new Bill is developed – one based on proper consultation and taking customary law, not chiefly power, as its starting point.

“We expect the Committee not to sacrifice rural people and constitutional democracy at the altar of political expediency,” say Nomboniso Gasa from the Council for the Advancement of the South African Constitution.

The Alliance’s reiterates its positions on the Bill:

It creates a second-class justice system for 18 million South Africans that live in the former Bantustans, and is in contradiction with the Constitutional principle of one law for one nation.
It re-imposes apartheid’s tribal identities and authority structures on rural people without their choice, and therefore denies people the right to determine their own cultural identity and customary affiliation.
Forcing tribal identities and chiefs onto people contradicts the underlying nature of customary law, which is based on consensual affiliation and free choice.

It fails to promote women’s equality and to address the ongoing abuse and prejudice women face in customary contexts. It also excludes women from equally contributing to the development of customary law in ways that reflect their concerns.
It was drafted in a top-down manner and without adequate consultation with rural people, particularly women.
It is unconstitutional and should be immediately withdrawn. New legislation needs to be drafted that takes as its starting point Constitutional principles, as well as the rights of ordinary rural people to participate in the formulation of laws that affect them.

END: 22 October 2012

For more information contact:
Nomboniso Gasa: 083 451 9321 or 083 7791435
Sizani Ngubane: 073 8405151
Mbuyiselo Botha: 082 5181177

The Alliance for Rural Democracy (ARD) is a cross-section of civil society organisations sharing a common concern about the detrimental effects that the Traditional Courts Bill will have on the rural constituencies they serve and support. The ARD includes the following organisations: Association for Rural Advancement (AFRA); Centre for Human Rights, University of Pretoria; Community Law Centre, University of the Western Cape (CLC);Corruption Watch; Co-operative Policy Alternative Centre (COPAC); Council for the Advancement of the South African Constitution (CASAC);Democratic Governance and Rights Unit, University of Cape Town (DGRU); Embrace Dignity Campaign; Empilisweni AIDS Education and Training Centre; Greater Rape Intervention Programme (GRIP);Institute for Justice and Reconciliation (IJR);Justice and Women (JAW); Land Access Movement of South Africa (LAMOSA);Law Race and Gender Research Unit, University of Cape Town (LRG); Lesbian and Gay Equality Project; Masimanyane Women’s Support Centre; Open Democracy Advice Centre (ODAC);Rural People’s Movement; Rural Women’s Movement; Section27; Sonke Gender Justice; South African Constitutional Literacy and Service Initiative (CLASI); Students for Law and Social Justice (SLSJ); Thohoyandou Victim Empowerment Project (TVEP);Treatment Action Campaign (TAC);Triangle Project; Tshwaranang Legal Advocacy Centre (TLAC); Unemployed People’s Movement; Women’s Health Research Unit in the School of Public Health and Family Medicine, University of Cape Town; Women’s Legal Centre Trust. The Legal Resources Centre (LRC) acts as legal advisor to the Alliance.