Alliance for Rural Democracy questions whether government has listened to the will of the people in new Traditional Courts Bill
The Alliance for Rural Democracy (ARD) notes the press briefing on Monday 23 January 2017 by the Minister of Justice and Correctional Services to introduce a new Traditional Courts Bill (TCB). We have concerns about whether government has honoured the will of the people who have been speaking against the TCB for almost a decade.
The Traditional Courts Bill has a long history in Parliament. It was introduced in the National Assembly in 2008 and, after being rejected by most public submissions, was withdrawn in 2011. Without making any changes to the Bill, government again introduced the TCB in the National Council of Provinces in 2012.
There was massive opposition to the TCB during public hearings held across the country. People in rural areas said that the TCB would betray their customs by locking them into institutions and boundaries that were set up during apartheid, and giving extensive powers to traditional leaders without corresponding ways for ordinary people to hold them accountable. The TCB failed to protect women from discrimination in traditional courts, allowed punishments like forced labour and the taking away of land rights, and violated the right to legal representation. Parliament’s own advisors admitted that the TCB was unconstitutional!
The TCB could not get enough votes from the provinces to pass in Parliament. It lapsed in 2014 before the national elections. Now government is saying that it has made corrections to the Bill that address all of the people’s concerns.
Constance Mogale, National Coordinator of the Alliance for Rural Democracy, and Sizani Ngubane, Chairperson of the ARD and Founder of the Rural Women’s Movement, participated in a reference group set up by the Department of Justice and Correctional Services to guide drafting the new Bill.
Despite this good faith participation, the Department refused to engage with the basic submissions made by the ARD in reference group meetings. These submissions echo the voices of ordinary people who have opposed the TCB since it was first introduced to Parliament. The final draft of the new Bill was not circulated to reference group members before it was submitted to Cabinet for approval. How can the Department claim this new TCB is the outcome of the reference group if the group has not seen the Bill? How can the Department say it has made corrections when it would not engage with the people’s submissions?
These concerns were repeatedly raised in the reference group meetings and in correspondence with the Department, but remain unresolved.
The ARD asserts that:
Any law regulating traditional courts must be about customary law, and build on the experiences and knowledge of ordinary people who use traditional courts. Customary law, as recognised by the Constitution, should be promoted throughout the South African legal system. The TCB should not be about giving powers to traditional leaders.
All existing issues with traditional leadership should be resolved before government sets up these traditional courts. There are still disputes about who the legitimate leaders are in many communities and most traditional councils are not yet democratised through the holding of proper elections. Laws like the Traditional Leadership and Governance Framework Act of 2003 and its proposed replacement, the Traditional and Khoi-San Leadership Bill of 2015, aggravate these problems.
A new TCB cannot be based on jurisdictions of the same tribes and tribal authorities that made up the Bantustans under apartheid. South Africa is now in a democratic era governed by the will of the people. Let the people choose how they want to identify with their traditions and leaders, and which courts to use!
Legislation on traditional systems of justice must include full protections for women, youth, LGBTIQ people, and other vulnerable groups. All persons should be able to speak in and use traditional courts without fear of repercussions.
We await the publication of the new TCB to see whether the demands of the people have been listened to.
Alliance for Rural Democracy
23 January 2017
Constance Mogale 082 559 0632
Sizani Ngubane 073 840 5151