Traditional Courts Bill a Travesty
It seems to be becoming a fashion for South African countries to create parallel ‘traditional’ legal systems. Last year the Malawi government was widely condemned over local courts bill that gave legal authority to ‘lay courts’. Part of the reason for the criticism was the bizarre crimes that were recognised, such as “writing or uttering words with intent to wound religious feelings” and “fouling the air”, but the more important problem was that it created a parallel, largely unregulated local legal system.
Now South Africa is following suit. The Traditional Courts Bill, now with the NCOP, will give the various traditional leaders in South Africa unchallenged, potentially unconstitutional legal power over approximately 17 million citizens. Traditional leaders argue that the bill is necessary to enable them to enforce the decisions of the traditional courts as they see fit. Opponents of the bill argue that this is precisely the problem.
The traditional courts bill will enable traditional leaders to be appointed presiding officers of traditional courts, where they will rule on both civil and criminal matters involving members of traditional communities. These presiding officers will be able to hand down fines, forced labour or, perhaps most controversially, remove “traditional benefits”. In the context of communal land ownership, common in most of South Africa’s traditional-authority areas, this includes access to land, which in turn translates into food, income and shelter. The ability to earn a living and feed one’s family will be dependent on the whims of traditional leaders. Legally. Chiefs will rule over their subjects, making laws, deciding on cases and handing down punishments, with near complete control over people, law-making and access to benefits and land, as Sindiso Mnisi Weeks explains in this article. If you think this is sounding a little like the dark ages, you’d be right.
And the situation gets even worse for women. In many traditional courts, women are not allowed to represent themselves or even speak during proceedings. This bill reinforces this by allowing for women to be represented by their husbands or family members (the bill prohibits legal representation in traditional courts) – entrenching existing discriminatory practices. Women’s groups and particularly rural women’s groups are justifiably outraged. 18 years into democracy, women in rural areas are about to be declared second-class citizens by their own government. In practice, many rural women already struggle with decisions by traditional authorities that regularly attempt to strip them of things like land access and inheritance rights. This will only get worse when women find themselves stuck in a system that refuses to recognise their right to speak for themselves or provide legal protections from the very people now making legal decisions. Other gaps include the fact that there is no explicit recognition of crimes such as physical and sexual abuse which are currently considered private or ‘domestic’ matters not fit to be brought before a public court.
There also appears to be no opt-out clause. Anyone whose civil or criminal matter arises in the jurisdiction of the traditional court (i.e. Chief) can be summoned to the court and failure to show up carries whatever penalties the chief sees fit, up to and including those he (and it will almost inevitably be ‘he’) could hand down in sentence. People living in areas control by chiefs won’t have the option of choosing to have their cases heard in a magistrate’s court, like other citizens, without first going through the traditional court process, and even then can only appeal on limited grounds. While everyone else in South Africa has one legal system, these people have another.
Those who support the bill vehemently argue that this is a necessary part of respecting traditional culture and that it is important because constitutional authority has undermined the power and authority of the chiefs. Those opposing it point out that the bill takes us right back to the era of a separate legal system for black people – an era that was problematic precisely because those living in the homelands, those who were deemed (through no will of their own) to fall under the authority of traditional leaders, were not equal before the law. South Africa is a complicated country and the careful balancing of the rights of different groups is inevitably necessary. For this democracy to work, however, the rights of an individual to have a say in his or her future, to be treated equally before the law and to be recognised as part of the same system as everyone else, rather than being regarded as a subject with no say in the matter, have to be secure.
Image by max_thinks_sees