by Michelle Leung
“Who are we as Africans?”
Mazibuko Jara, a human rights activist, posed this question to the attendees of a dialogue held on May 16, 2013 discussing a controversial bill seeking to legitimize a traditional court system in South Africa.
This question of identity and cultural heritage is paramount to rural South Africans who must soon decide the lengths they will go to protect and uphold their traditional values and customs. The Traditional Courts Bill, which has sparked outcry from groups ranging from the Land Access Movement to South Africa’s Human Rights Commission, would extend greater legislative provisions to traditional authorities. The contended bill remains a vicious debate in public and parliamentary hearings throughout South Africa, and is set to be tabled in Parliament later this year following further public hearings and consultations with the National Council of Provinces.
The democratic constitution of South Africa is widely regarded as one of the most liberal and progressive in the world. Despite this, a large number of citizens living in ethnic and rural communities pledge dual allegiance to the rule and authority of undemocratically elected traditional leaders akin to kings, princes, headmen, and chiefs.
In South Africa traditional courts are seen as one of the final remaining legacies from the days before colonial rule and apartheid when ethnic, linguistic, and tribal distinctions governed the country. I came into contact with many traditional leaders during my six-month stay in the country where I worked on a project seeking to incorporate traditional knowledge and opinion into the greater public sphere. As an outsider I found the unique power relations of the country both thrilling and disconcerting. Though I admire the rich historical customs that comprise South African culture, it troubles me to see some of these customs hindering promises made by the revolution, especially those set out to protect and empower women.
While the currently proposed bill is unlikely to pass without addressing serious inconsistencies between traditional courts and the current constitution, it does spark a necessary debate on how South Africa should accommodate a long history of culture and tradition within its modern democracy without foregoing the constitution’s staunch protection of human rights.
My first encounter with traditional governance in South Africa occurred a few months ago at a large event held in the Dwesa community of the Eastern Cape. Government officials, professors, media houses, community members, and King Zwelonke Sigcawu gathered to celebrate a successful development project in the area. The lively festivities came to a screeching halt when an error was found in the event program mentioning the king’s title. Recognizing the error as an extreme sign of disrespect, the king demanded two cows paid to his estate by the week’s end. I was struck not only by the severity of the king’s claim, but also by the resounding deference shown to him by everyone in attendance.
Like King Zwelonke Sigcawu, many traditional leaders across South Africa hold substantial sway in rural communities. With this current bill traditional leaders are looking to reify many of the legislative powers taken from them in recent history. Although such a measure holds definite relevance for a country with such a history of struggle, oppression, and ancestral pride, the bill has met with significant opposition. The foremost controversy in this debate stems from the fact the traditional leadership takes root in a patriarchal system of rule, and increasing powers of such leaders creates serious concern for women and human rights groups across the country.
Professor Elmarie Knoetze, from Nelson Mandela Metropolitan University, aptly frames the greater debate concerning the bill as a struggle between the “restoration of the dignity of the people versus protecting the most vulnerable - women.”
Regarded as the rape capital of the world by many watchdog organizations, South Africa maintains astronomically high levels of gender-based violence. A woman here is killed every six hours by an intimate partner and the frequency of rape is measured in seconds.
If this bill passes it will effectively create a separate jurisprudence for 17 million South Africans, 12 million of them women living in rural provinces ruled by traditional leaders. Customary law varies depending on region or clan, but some general characteristics can be used to illustrate where traditional courts diverge from constitutional law.
According to customary law, “The final judgment […] rests exclusively with the head of the community – be it that of a clan, a tribe, or a whole nation – who also holds executive and legislative power.” Without a system of checks or balances traditional leaders hold all judiciary powers, and are expected to uphold the law according to community-specific custom. This vague terminology has produced a wide variety of interpretations with some reports even chronicling women banned from court hearings altogether.
The bill would additionally give traditional leaders full jurisdiction over the community’s land and natural resources. Under customary law women cannot own land nor represent themselves before a court. If a dispute arises and is taken to a traditional court, a male family member or neighbor must represent the woman in question.
Sizani Ngubane, founder and Executive Director of the Rural Women’s Movement, tells me “the voice of rural women was invisible in the drafting of this bill.” Ngubane believes that, “if enacted The Traditional Courts Bill will exacerbate the rural women’s current tenure insecurity and entrench the problems that we are experiencing in trying to secure land rights for ourselves and our daughters.”
In spite of these serious setbacks for women, supporters of traditional courts argue that such courts are more desirable for small communities, not only for their physical accessibility, but also for their general aim for reconciliation as opposed to the retribution and punishment endemic to ‘regular’ courts. Traditional courts also provide a more participatory method of justice by allowing for every adult community member to partake in the cross-examination. By involving the people on a greater scale together with the historical endowment of tradition, these courts often enjoy a greater degree of legitimacy among rural citizens.
“Though the proposed bill poses obvious problems for women,” Ngubani does “still see value in such a measure.” She recommends “that whatever is not in line with the Constitution of the country should be abolished.”
In the face of this struggle - headed by traditional leaders - to maintain a significant piece of cultural heritage, I also interviewed many women living under areas of traditional rule who speak boldly and candidly about their views on the bill. After nearly twenty years of enjoying the “New” South African Democratic structure, most women are simply unwilling to forego any of their hard-won rights, despite any positive intentions the courts might have.
Thobeka Finca, a resident of Keiskammahoek in the Eastern Cape, shares with me how women are treated under traditional rule in her village. Finca explains her opposition to the traditional courts citing a case of sexual assault. In a recent incident “a young girl was sexually abused by a man from the village […] the girl went home and told her aunt, and they went to the house of the man accused, [but] he denied it.” Later, Finca reports, the accused man and his family went to the house of the headman, where “he admitted to the assault, and he asked for forgiveness.” He also brought with him a small amount of gold and brandy for the royal family. The headman swiftly excused the assault, without punishment or retribution.
Ntobolundi Zitha, another resident of the Eastern Cape depicts the workings of traditional court hearings in her community, “The women who go to the meetings, they have no say, they listen to the men, but they have no say.” For women, she argues, “Traditional leadership has no place in South Africa.”
The gender inequalities Zitha describes are documented in countless other cases and seem unavoidable if the bill is passed without specific legislation to protect women.
Jennifer Williams, director of Women’s Legal Centre in Cape Town, believes this dispute does not need to be fought as a binary issue of traditional customs versus women’s rights. “Traditional leaders have a valuable role to play in dispute resolution, community building, and contributing to the society envisaged in the constitution.” Williams argues that the issue is negotiating a way for these “institutions and courts to [be] in line with a non-racial, non-sexist, and diverse society.”
Concluding his address at the dialogue, Jara says, “Culture isn’t static.” This acknowledgement will be critical in the future as the country decides what strands of cultural history should be recognized in their vision of a modern society. I can only hope that women will have an equal say in what part of their historical identities they wish to carry into the future, and that South Africa will honor its commitment to women in this struggle.
About the Author: After graduating from the University of Puget Sound with a BA in International Political Economy, Michelle Leung spent a year in Brazil working with a community development organization, and launching a participatory photography project with EPHAS (Every Person Has a Story.) She later traveled to South Africa where she worked with traditional leaders and community media organizations to improve media literacy in rural communities. Michelle Leung is based in Washington D.C. where she is a researcher for Media Matters for America, a progressive research and information center dedicated to comprehensively monitoring, analyzing, and correcting conservative misinformation in the U.S. media.