The chorus of government voices accusing whites – especially former President de Klerk and The Spear artist Brett Murray – of perpetuating colonial stereotypes of black people has become deafening. How ironic then that the same government should promulgate legislation premised on key pillars of colonialism and apartheid: The Traditional Courts bill. It is thanks to colonialism that, if this bill becomes law, women in KZN will probably be the biggest losers, given the legacy of codified customary law which shaped generations of perceptions about their status. This legislation is an insult to rural residents.
The basis for what are now termed traditional communities was laid in the newly established colony of Natal in the mid nineteenth century. The British government, busy helping itself to land, sought to contain the indigenous inhabitants in Reserves it set aside for them. Control in these areas would be exercised by chiefs (traditional leaders) and, in areas where none existed (tens of thousands lived without them) Sir Theophilus Shepstone, who administered these ‘tribes’, created new ones. Indirect rule demanded that all indigenous Africans be subjected to chiefs, who were themselves accountable to government functionaries. The African saying that ‘a chief is a chief by his people’ spells out the historical criterion for political leadership, for prior to colonial controls populations could vote with their feet and move away from the jurisdiction of an unpopular leader. Compliance with colonial policy, as opposed to popular support, became the new criterion for holding office as a chief. Those who did not toe the line were removed.
This policy – control over movement (influx control) and indirect rule – was extended to the area north of the uThukela after 1879 and, following the formation of Union in 1910, to the whole of South Africa. Reserve areas became the basis for the Bantustans, where chiefs who were appointed to the legislatures outnumbered members who were placed there following elections (in which few voted).
Chiefs were essential cogs in the Bantustan bureaucracies where, as during colonial times, they were obliged to toe specific political lines. The reserves/Bantustans are now termed traditional communities.
To add insult to injury, black people who had lived on freehold land they had acquired prior to 1913, or lived on white owned farms, who had not been subject to chiefs, were forcibly removed to Bantustan reserve areas at the height of apartheid. People living in these traditional communities, on which this legislation plans to impose customary law, are not necessarily where they are by choice. While there is now freedom of movement, their often tenuous right to land (which traditional leaders have been known to deprive them of) may be their only basis of subsistence, especially in the absence of gainful employment.
What of the ‘customary law’ which these chiefs’ courts will administer? Historically the nature of customary law is that it is unwritten, so it is fluid and flexible, and inextricably linked to other shared ideas (culture) of the society of which it is part. The approach of the colonial government to customary law is summed up in Shepstone’s argument that it should be recognised ‘to control the natives’. In 1878 the government’s interpretation of this customary law was written down as the infamous Natal Code – the white man’s view of what is good for Zulus, as one legal academic put it. For decades this not-very-customary-law Code remained the only enactment of customary law by a legislature in Africa. It was this Code which consigned women in what is now KZN to perpetual servitude as minors, subject to the control of a male relative. While this provision was done away with by the KwaZulu government in the mid 1980s, the damage to perceptions about women, and their subservient status vis a vis men, had been done. Entrenched ideas do not change overnight simply because the law changes. Women’s struggle for true emancipation is far from over, particularly in the traditional communities with which this legislation deals.
What largely escaped attention when the KwaZulu Code changed the legal status of women was the enactment, in the context of the growing liberation momentum, of new, extremely repressive, policing powers for chiefs.. Unsurprisingly a number of these leaders were deeply implicated in political violence and earned reputations as warlords.
Apartheid continued and refined the politicisation of chiefship, with those who opposed the status quo either being removed from office or not allowed to succeed to it in the first place. Chiefs wielded great power over their disenfranchised subjects, including through controlling their movement into ‘white’ areas to seek work. The post 1994 government could have depoliticised traditional leadership, as had other post-independent African countries (Swaziland being an exception) In Botswana, e.g. one cannot be both a political incumbent and a chief. Most African countries confine chiefly activities to ceremonial and input on development. However, instead of removing traditional leadership from the sphere of party politics, the ANC has sought to win over IFP supporting leaders in KZN, including through patronage.
The degree of community support for traditional leaders depends on whether they are seen to be acting in the interests of their constituencies (patronage also helps). Some are still widely feared. Some break the law with impunity, including by removing people from their ancestral land. Action is not taken against errant chiefs. One leader, whose involvement in horrific violence is well known, continues to break the law with impunity : His recent transgressions include being in contempt of court, perjury, and making a false declaration to the legislature. The MEC responsible for ensuring that leaders comply with the law does not even respond to letters pointing out breaches of governing legislation.
How can traditional leaders act impartially when they are caught up in party political battles? Or when they themselves are accused of complicity in ukuthwala (abduction of young women or girls)? What sort of treatment would they meet out to gays given that a representative body (CONTRALESA) wants constitutional amendments regarding sexual orientation? Totally unacceptable provisions of the legislation include allowing chiefs to hear minor criminal cases, the ban on legal representation, and limitations on the right to appeal. It is completely contrary to the human rights ethos of our Constitution that rural residents should be obliged to submit to the type of travesty of justice envisaged by this legislation. Under no circumstances should traditional leaders be given any more powers than they already posses. While credible leaders can play a valuable role in mediating minor civil disputes this service should be optional for those who wish to use it, and should not exclude appeal to a properly constituted court. The ends of promoting peace and harmony in rural communities would be far better served by removing leaders from the sphere of party politics than increasing their judicial powers.