AFRA Land Rights Legal Unit Criticism of the Traditional Courts Bill
The ongoing debate about how traditional forms of government can (and should) operate within a modern constitutional democracy has acquired a new sense of urgency now that the controversial Traditional Courts Bill (The Bill) has recently been tabled in the National Council of Provinces (NCOP). This has triggered a consultation process with rural communities which are scheduled to take place in April and May. This is significant because these communities (which are the most affected by the Bill) were not consulted when the Bill was drafted in 2008. Instead, the drafters relied almost exclusively on the advice and opinion of the House of Traditional Leaders.
Perhaps this is the reason why the Bill so unequivocally concentrates power on traditional leaders by providing that traditional courts will be presided over by ‘senior traditional leaders’ who coincidentally happen to be the existing chiefs. This means that legislative, executive and judicial powers will be concentrated in the hands of a single individual.
How does this impact on the separation of powers that forms one of the cornerstones of the South African Constitutional Democracy? The short answer is that it does not even pay lip service to this fundamental concept. Instead, the same person who is charged with shaping, executing and implementing the laws will also be empowered to apply them. That is an important safeguard of an independent judiciary closely scrutinising the actions of politicians and officials alike is glaringly absent from the framework and structure of the traditional courts system.
And, since traditional laws are derived from the ‘customary law and custom’ of each region it appears that the laws that each chief must apply are essentially those that happen to be in his head at the relevant moment and he is free to make them up as he goes along. This is an open invitation to abuse and corruption.
One of the most disturbing features of the Bill is that it confers criminal jurisdiction on chiefs. This is one of the foremost powers that the State can exercise over its citizens. This is the reason why the Constitution has entrenched a number of fundamental due process rights that guarantee a fair trial such as the rights to silence and non-self-incrimination. In addition, prosecutions are undertaken by professional prosecutors who operate within a strict framework of procedural laws in terms of Criminal Procedure Act and other relevant legislation.
How does this regime measure up to the procedures that one is likely to find in the chiefs courts when exercising criminal jurisdiction? The short answer is that there is no comparison whatsoever since the only procedural rule the chiefs need to follow are, once more, the ‘customary law and custom’ that prevails in the area at that time. Given past and present practice this is likely to mean that the chief will have a free hand to determine the procedures and will not be bound by any of the procedural safeguards contained in the Constitution.
The Bill is silent in regard to mechanisms to ensure that the punishment fits the crime and, instead empowers traditional courts to impose such punishment as the performance of service without remuneration (slave labour) together with the deprivation of benefits derived from customary law and custom. This latter is tantamount to banishment.
There are other serious criticisms that can be levelled against the Bill such as the fact that it is deafeningly silent on how to deal with the underlying discriminatory structures of most traditional court systems where women are relegated to an inferior status. In many of these courts they are not even allowed to represent themselves.
At a recent workshop held in Pietermaritzburg attended by rural dwellers throughout KwaZulu-Natal, many of the participants were outspoken in their criticism of traditional courts. Chiefs were regularly described as incompetent and having a tendency to act in their own self interests rather than dispensing justice. In t12he same vein, it was generally accepted that the customary law system should not be completely rejected. Instead, it needed to be adapted as an alternative system to accommodate the needs of rural dwellers within the context of a modern South African constitutional democracy.
In this way traditional courts could operate as a cheap, speedy and accessible alternative to Magistrates Courts where the latter’s technical formality, procedural complexity and lack of knowledge and understanding of local customs tends to alienate rural dwellers.
But in order for this to happen within a constitutional framework, it is essential that the jurisdiction of traditional courts should be voluntary. This means that rural dwellers should be given a choice to “opt out” of traditional courts and to approach other courts should they so desire. It is also necessary for traditional courts to develop procedures that are based on notions of fairness and equity.
A third condition would be to overhaul the current gender-based discriminatory nature of the operation of traditional courts by introducing real gender equality – including the participation of women at all levels of the process. Finally, it is a constitutional imperative that traditional courts should not exercise criminal jurisdiction and instead should be limited civil disputes between private citizens.
The Bill in its present form seems to imply that the government wants to keep the existing traditional leaders happy at the expense of 17 million rural dwellers that appear to have been sacrificed on the altar of political expediency. This can be the only reason why it is willing to entrench the dark practices of apartheid since the Bill is grounded on the notorious Black Land Act of 1913 and the Black Administration Act of 1927.
Rural communities are currently mobilising around this issue because they realise that the traditional courts system needs to adapt in order to conform to the basic principles of a modern constitutional democracy. The Bill effectively impedes any such development thereby creating two entirely separate legal systems - one for rural dwellers steeped in past colonialism and apartheid and the other for the rest of South Africa based on our constitutional democracy. This is clearly discriminatory and, as one of the participants at the workshop remarked, which urban dwellers would be willing to submit themselves to the jurisdiction of traditional courts in their present form?
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