Submission on the traditional leadership and governance framework amendment Bill, 2017

Who we are LARC is formerly the Rural Women’s Action Research Programme at the Centre for Law and Society at UCT Form part of collaborative network (Alliance for Rural Democracy) We are concerned with power relations and laws that threaten rural democracy. Our aim is to propose alternatives consistent with living law.

LARC’S SUBMISSIONS: overview Constitutional Framework Background debate in relation to TLGFA Extension of timeframes for traditional councils to change from tribal authorities – maintains fundamental apartheid structures (Bantu/Black Authorities Act 68 of 1951) Structures were meant to transform to align with constitutional values BUT have failed to do so for thirteen years Amendments attempt to provide legality to traditional structures that have not been transformed BUT does not clarify status of traditional councils or consequences

Constitutional mandate Constitution recognises customary law as a system of law equal to the common law. Arising from sections 30 and 31: right to participate in the cultural life of one’s choosing 39(3): protecting the rights and freedoms conferred by customary law; 211(3): enjoining courts to apply customary law where applicable. Related aspects: S 25(6) requiring tenure security for customary rights; 211 recognition of traditional leaders “according to customary law”.

Legislature’s focus from 1999 until the present: institution of traditional leadership, noT customary law Status quo report (1999); Discussion document (2000); Draft White Paper (2003); White Paper (2003); TLGFA (2003); provincial legislation(2005). Focusing on statutory regulation of traditional leaders, elevated the notion of traditional leaders as sourcing mandate from and being accountable to government, rather than communities; led to abrogation of the recognition of traditional leaders ‘according to customary law’.

The changing narrative 2000 Discussion Document “Essentially, these [apartheid] laws established a system of local government that placed the traditional leaders at the centre of the bureaucratic system of traditional authorities. Chieftainship came to be reduced to a very different institution. As one commentator noted: ‘It was a public office created by statute. That is the reversal of the position of the chief in traditional society in which the role of the chief was to represent his people according to the dictates of customary practice. This reversal, effected by the (Bantu Authorities) Act, has plainly made the appointment, suspension and deposition of chiefs subject to political manipulation’.”

The changing narrative 2003 Draft White Paper A split in opinion as to whether traditional leaders should be accountable to their communities or to government. 2003 Final White Paper Traditional leaders will be accountable to government. 2003 TLGFA No mechanisms to enforce indigenous accountability mechanisms provided to ordinary community members.

Figure 1: map of former bantustans

FIGURE 2: MAP OF TRADITIONAL COUNCILS

Extension of timeframes TLGFA preserved traditional authority jurisdictions created in terms of Bantu Authorities Act of 1951. Locks people into a specific authority by virtue of geographic residence – denies consensual character of customary law. Denies ss 30 and 31 right to participate in the cultural life of choice Traditional councils derive their status and jurisdiction from statute and discredited apartheid boundaries, not from customary principle of voluntary affiliation.

Failure of Transformative mechanisms TLGFA’s transformative mechanisms were crucial to mitigate risks of entrenching past distortion Commission into Disputes and Claims Section 3(2) of the TLGFA – composition requirements for traditional councils Initially given one year to reconstitute – timeframe not met 2009 Amendment Act extended timeframes – deadline still not met

Commission Failure Initially Commission to decide disputes 2009 amendment downgrades status of Commission’s decisions to recommendations Massive backlog of claims Provincial Commissions Premiers refuse to release reports until forced to by court action. NW key recommendations rejected

Failure of Transformative mechanisms Major failures i.r.o provincial attempts at reconstitution (election processes flawed in Eastern Cape, KZN, North West) No elections in Limpopo to date Failures acknowledged explicitly in Bill’s Memorandum, including that transformation was a condition for becoming a traditional council Bill removes this condition – states that Minister will intervene. Yet in 2003 Bill’s recourse to discredited apartheid boundaries was justified on basis that those TAs that did not transform would be denied legal status.

Legal uncertainty on status of tribal authorities and traditional councils Failing to reconstitute in accordance with Section 3(2) has created legal uncertainty – tribal authorities operating outside the law Continue to charge “tribal levies”, even in Limpopo Still transacting on behalf of traditional communities – deals with mining companies being negotiated w/o consultation and have devastating effects (Bapo Ba Mogale “D” account looted; Mapela settlement agreement)

LEGAL UNCERTAINTY CONTINUED Failure to meet other accountability mechanisms (financial statements not being audited in North West) Consequence of invalidity = decisions and contracts entered into at the time also invalid Bill does not address how those transactions will be affected – what about future transactions if structures still fail to transform?

Many TC’s operating beyond terms of the law Sign deals with mining houses. Yet this prerogative of Minister of RDLR as nominal owner of communal land Interdict community meetings. Yet Con Court judgment saying this overreaches power and abrogates basic rights Claim sole authority to rep ‘community’, again in defiance of Con Court judgment Deny land rights and histories of other groups within their superimposed apartheid boundaries Assert powers of local govt Assert power of land owner

consequences Bill is not merely “technical” or a “stopgap” – it has far-reaching consequences for deal making and accountability in traditional communities Bill proposes no solutions to actual practical and legal problems caused by delays in transformation, as identified by the Bill’s Memorandum Proposed one year period unlikely to be different to past thirteen years – instead Bill removes consequences for not reconstituting – opposite of Portfolio committee undertaking in 2003.

Denying and undermining consensual character of customary law and rights derived from customary law Exclusive focus on (state) recognition of traditional authorities has served to undermine rights arising from customary law – notably property rights to resources and accountability. Has also served to undermine indigenous accountability mechanisms and elicit opaque transactions between some traditional leaders and mining companies to the detriment of the customary rights of ordinary people, both in relation to procedural rights (consultation and consent) and in relation to substantive rights (property rights at family level).

Critical flaws The TLGFA fails to foreground living customary law and customary processes of governance and also to understand the complexities of pre-colonial societies. The TLGFA builds on apartheid spatial geography and locks people into official institutions and identities, thereby breaking down social cohesion and perpetuating inequality and poverty within the former Bantustans. The TLGFA fails to include mechanisms for holding traditional authorities to account or means for people to participate and be consulted democratically.

Unintended consequences Suppression of voice through different means: traditional, magistrates and high court interdicts; denial of legal standing; parallel policing structures; withholding of services. Suppressed complaints: Levies Discrimination Illegitimate boundaries and leaders Unchecked control over resources

Two amendments Bills before Parliament simultaneously We note that both TLGFA Amendment Bill and TKLB Bill seek to amend the TLGFA Both Bills before Parliament – wasteful and fruitless expenditure iro public hearings? TLGFA Bill recognition that TKLB cannot pass Constitutional muster? Neither provide for consultation and accountability – both in conflict with both customary law and Constitution One year extension does not address fundamental problems that have led to current invalidity of Traditional Councils Instead attempt to create misleading veneer of legality to structures that are currently operating outside the law and in breach of Constitution.

Role of law To protect vulnerable To mitigate abuse in worst case scenarios. Many traditional institutions are accountable and legitimate This law elicits abuse of power by failing to balance power of traditional institutions with indigenous accountability mechanisms A primary problem is that it locks people within apartheid tribal identities and boundaries, rather than allowing people to affiliate with leaders of their choice Why would leaders who are legitimate and accountable need powers like these?