Shall the people rule?
Rural people and civil society have rallied against the Traditional Courts Bill – hence Jacob Zuma’s attack on ‘clever blacks’
The saga of the Traditional Courts Bill speaks volumes about the ANC’s fundamental approach to power.
Far from “the people shall govern”, it illustrates that the party’s default mode – and vision for the future – is about the exercise of autocratic top-down power.
President Jacob Zuma’s recent statements indicate he sees this kind of power as firmly embedded in, and justified by, our intrinsic identity as Africans.
The bill empowers chiefs to order their “subjects” to perform forced labour and strips them of their land rights. It entrenches the discriminatory practice of women being represented by male family members in tribal courts.
It makes it a criminal offence for people to refuse to appear once summoned by a chief – whether they recognise him (it is always a him) or not.
The bill also entrenches the disputed tribal boundaries that are the outcome of apartheid’s forced removals and Bantustans.
There are about 900 officially recognised chiefs in South Africa. More than 1 200 disputes have been lodged concerning their boundaries. The bill locks over 18 million South Africans in these disputed boundaries and their ascribed “tribal” identities.
The bill in effect deprives 18 million South Africans of the right to decide their own cultural affiliation and identity, and makes it impossible for them to hold state-imposed traditional leaders to account.
Rural people and civil society have rallied against the bill, which seems not only to have surprised, but also offended the government. Hence, Zuma’s attack on “clever blacks” who write in newspapers and are ostensibly “confused” about their own customs and identity.
Significantly, the president totally ignores the ordinary rural people who have steadfastly spoken out against this bill since it was introduced in 2008.
They have argued, time and again, that the bill entrenches apartheid distortions of custom that exaggerate the power of chiefs at the expense of the consensual character of precolonial customary law.
Chief Albert Luthuli said of the Bantu Authorities Act: “The modes of government proposed are a caricature. They are neither democratic nor African. The act makes our chiefs, quite straightforwardly and simply, into minor puppets and agents of the Big Dictator. They are answerable to him and to him only, never to their people.”
Yet the structure and boundaries created by the Bantu Authorities Act will be resuscitated by the Traditional Courts Bill, as will be the model of chiefs being only upwardly accountable and never to their people.
What does this mean in practice? For one, when it comes to big investment deals about land and mineral rights, only chiefs will sit at the table representing “the community” and ordinary people will be excluded. Just about the whole platinum belt is on “communal land” and so is much of the valuable tourism land around the Kruger Park and on the Wild Coast, not to mention the coal deposits in Mpumalanga and KwaZulu-Natal.
During April and May, rural people flocked to provincial public hearings on the bill, where they were often treated very badly. They insisted on telling their stories, and explaining why the bill would be the final nail in the coffin of their attempts to rein in the arrogance and greed of state-sponsored and increasingly authoritarian traditional leaders.
Rural people achieved something extraordinary. They convinced the majority of provincial legislatures that the bill is a disaster.
Even ANC legislatures such as North West, Eastern Cape and Gauteng called for the bill to be scrapped. Mpumalanga was divided and therefore could not vote, whereas Limpopo said the model of chiefs as presiding officers of traditional courts was inherently inconsistent with how custom worked in practice.
Numerous headmen said the bill was out of touch with actual custom and would undercut village-level courts.
Shockingly, this extraordinary achievement by rural people, speaking Zulu and Tswana and Tsonga in echoing rural halls, was rubbished by Parliament.
Instead of discussing the provincial mandates – which had clearly taken them by surprise – the National Council of Provinces’ select committee decided to hold yet another round of public hearings in September – presumably confident there would be a different outcome.
Again the committee was flooded with submissions from rural people – 83 in total. Yet again, Parliament chose to ignore and belittle the input of those directly affected by the bill. The committee chair instructed that only two of the 83 submissions received were to be included in the official summary of the hearings. The rest were deemed “irrelevant”.
This includes what Simangele Zungu of KwaZulu-Natal told Parliament: “I lost my father and was denied the right to bury him by the local traditional leader, who claimed my father had not paid his ‘uKhandampondwe’ (tribal head tax). Home Affairs would not give me a death certificate without a ‘proof of address’ letter from the chief, which the chief had refused.”
The Manyeleti community described how “their” chief sold their restitution land behind their backs: “Till today, we don’t know where that money went.”
The Mahuntsi traditional community of Limpopo, in their submission, said: “The principle of ‘people shall govern’ does not exist.”
What does this say about the Freedom Charter’s promise that governance will be led by the people? What we are seeing is more serious than the conscious betrayal of that principle.
Our leadership is mistaken if it thinks rural people will sit quietly and obediently while the gains they fought so hard to win are betrayed one by one. The Bantustans were dismantled less than 20 years ago. It takes longer than that to forget what it means to be second-class citizens in the land of our birth.
» Dr Ramphele is the founder of Citizens Movement (CM) and the chairperson of Goldfields Limited