1 PRESENTATION TO PROVINCIAL PORTFOLIO COMMITTEES TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK AMENDMENT BILL 57, 2008 AND NATIONAL HOUSE OF TRADITIONAL LEADERS BILL 56, 2008 SEPTEMBER 2009

2 Structure of the Presentation 1.Background 2.National House of Traditional Leaders Bill 3.Bill amending the Traditional Leadership and Governance Framework Act 4.New issues for amendment of the Bill amending the Framework Act

3 Background Two pieces of legislation impacting of traditional leadership identified for amendment. National House of Traditional Leaders Act  Passed in 1994 in line with the 1993 interim Constitution  Repealed in 1997 and replaced with a new Act which was amended in 1998 and 2000  Not fully in line with the White Paper on Traditional Leadership and Governance adopted in 2003 as the Act was passed before the adoption of the White Paper  Bill repeals the current Act and replaces it with a clean and comprehensive Act Traditional Leadership and Governance Framework Act  Passed in 2003 after the adoption of the White Paper on Traditional Leadership and Governance adopted in 2003  Provincial Legislation passed in line with the Framework Act  Implementation in a period of over 3 years has revealed a number of gaps and challenges that need to be addressed through an amendment  Province -specific challenges also necessitate the amendment

4 Background Cont ….. 1)Bills approved by Cabinet for tabling in parliament on 20 May 2008; 2)Bills published for public comment on 3 June with closing date of 02 July 2008; 3)Bills introduced into Parliament (NA and NCOP) in early June; 4)The dplg conducted consultations with key stakeholders, i.e. kings and queen, senior traditional leaders, headmen / women, national and provincial houses, CRL Commission, Commission on Traditional Leadership Disputes and Claims, SALGA and provincial governments; 5)The portfolio Committee on Provincial and Local Government opened for public comments and held public hearing – comments considered and amendments effected; 6)National Assembly passed the two Bills on 20 August )Select committee process – September 2008 ………

5 National House of Traditional Leaders Bill The Bill provides for the following key areas: Preamble capturing the history on the NHTL; the establishment of the National House of Traditional Leaders; oThree members elected from each provincial house oSpecial provision where there is no provincial house oTerm of office of the House is five years oMembership restricted to senior traditional leaders and conditional representation by headmen Election of members to the House by provinces oMinister and Premiers now to play a role (calling for elections and receiving names) oSecret ballot, observed by officials of the House and of the Dept oDesignation of a leader of the provincial delegation

6 National House of Traditional Leaders Bill Cont... Powers and Duties of the House (Clause 11); Alignment with the White Paper (and the Framework Act) Working with provincial houses to promote e.g. role of traditional leadership, nation building, peace, cohesiveness socio well-being and welfare of communities, socio-economic development and service delivery Enhance co-operation between the house and provincial houses Consider parliamentary Bills referred to it (in terms of section 18 of Framework Act) Advise and make recommendations to government relating to e.g. policy and legislation, customary law, partnerships with government in development and service delivery, programmes geared towards development of rural communities (international and national) Be consulted on national government development programmes effecting traditional communities Participate in national initiatives to monitor, review and evaluate programmes in rural communities Perform tasks determined by member national Cabinet or as provided for in national legislation

7 National House of Traditional Leaders Bill Cont… Relationship between House and Kings and Queens (Clause 14); House must on a bi-annual basis hold meetings with kings and queens in the country to discuss Activities and programmes of the house Matters relating to service delivery and development of traditional communities Any other business agreed to by either party Relationship between the House and Government in terms of its accountability On an annual basis submit a report to Parliament accounting on its activities and programmes Parliament may request to meet with the house to discuss matters of interest to parliament Annual official opening of the House by the President or a person designated by him.

8 National House of Traditional Leaders Bill Cont… Relationship between the House and the Provincial Houses (Clause 15); The house to have a clearly defined relationship with the provincial houses for accountability and alignment eg:  Investigate matter referred to it by provincial houses and make recommendations  Advise provincial houses regarding the administration of their affairs  On a bi-annual basis hold meetings with provincial houses discussing matter relating to traditional communities  In consultation with Provincial House interact with a Local House  Chairperson of National House may establish a body of chairpersons of provincial houses – interaction on a regular basis on issues of mutual interest  Secretary National House may establish a body of secretaries of provincial houses – interaction on a regular basis on issues of mutual interest.

9 National House of Traditional Leaders Bill Cont... Administration of the house (Clause 12) Minister with approval of the house appoint a secretary to the house Minister with the approval of the house second staff to assist the secretary discharging the work of the house Responsibilities of the House (Clause 13) Keep records Financial statements audited Enforce code of conduct (schedule C) Establish relationships and facilitate co-operation between itself and, provincial houses as well as between provincial houses Promote an equitable, fair, non-discriminatory and supportive environment for the house and for all provincial houses Assign clear responsibilities to the secretary of the house Hold secretary responsible for overall performance and administration of the house Involve secretary in decisions impacting in the overall management of the house

10 National House of Traditional Leaders Bill Cont... Support to the House by government (Clause 16); National government to adopt legislation or other measures to support the house to fulfill its functions Such support may include provision of infrastructure, finances, human resources, skills development programmes and administrative processes Status of Members Clause 10; Chairperson and deputy chairperson are full time President to determine after consultation with the house that certain members are full time.

11 National House of Traditional Leaders Bill Cont……. The Bill further provides for the following general issues (not fully discussed in this presentation): Qualification and disqualification of members;  Excluded certain people from membership (clause 5) Vacation and filling of seats in the House;  Seats to be filled within a short period of time Seat and Meetings of the House;  House to meet in parliament or at admin seat Chairperson and Deputy Chairperson of the House;  Elected by members and may be removed by two thirds of members Privileges and Immunities of members;  Freedom of speech in the meetings of House Remuneration and benefits of members;  Determined by the President in terms of Act 20 of 1998 Rules, orders and committees of the House;  To be determined and adopted by the House itself, and provision for executive committee representative of provincial houses

12 National House of Traditional Leaders Bill Cont……. The Bill further provides for the following general issues (not fully discussed in this presentation): Dissolution of the House; oHouse remains in office until new House is sworn in Oath of Office; oMembers to take an oath when assuming office (oath attached as schedule) Code of Conduct; oCode of conduct for members in addition to their code as ordinary traditional leaders) Regulatory powers of the Minister; oMinister, after consultation with House and parliament, to issue regulations on certain matters as is necessary; and Repeal of laws and transitional matters; oall the current Acts on the House will be repealed in terms of the new law

13 Bill amending the Traditional Leadership and Governance Framework Act The Bill provides for the following key areas (see details in the following 4 slides): the recognition of kingships/queenships and the establishment of kingship/queenship councils; membership of kingship/queenship councils and traditional councils to be determined by a formula and not restricted to 30; functions of the kingship/queenship councils; provision for establishment of traditional sub-councils and a chairperson of the sub-traditional council where the area of jurisdiction of a traditional council constitutes more than one geographic area; appointment of a person to act as a paramount chief as an interim measure where a paramount chief dies before the Commission determines the position of current paramountcies

14 Bill amending the Traditional Leadership and Governance Framework Act The Bill provides for the following key areas (see details in the following 4 slides): provision for the withdrawal of recognition as a paramountcy and appointment as a paramount chief; the extension of the period within which the traditional authorities as well as community authorities must be transformed in line with the Act (community authorities to be administered as if the old order legislation had not been repealed pending decisions of the Commission); and alignment of terms of office of all the structures of traditional leadership with that of the NHTL provincial legislation to provide for relationship between kings/queens and provincial houses

15 GAP / CHALLENGEPROPOSED AMENDMENT No provision for the recognition of kingships (current legislation only recognizes the incumbents – kings and queens) Provision for the recognition and withdrawal of recognition of kingships/queenship (President) in terms of set criteria and the process (clause 2A of the Bill amends section 2 of the principal Act); No provision for the establishment and recognition of kingship councils Provision for the establishment and recognition of kingship/queenship councils (Premier) in line with criteria similar to the one for TCs; (clause 3A of the Bill amends section 3 of the principal Act) – formalizing of a customary structure envisaged in section 9(1) of the Act) No provision for functions of kingship councilsProvision for functions of the kingship /queenship councils (clause 4A of the Bill amends section 4 of the Act) Bill amending the Traditional Leadership and Governance Framework Act The Bill provides for the following key issues for amendment:

16 Issues Covered in the Bill for Amendment GAP / CHALLENGEPROPOSED AMENDMENT No provision for the regulation of current areas of jurisdiction of one traditional council that exists in two or more geographical areas Provision for sub-traditional councils and appointment of chairpersons of sub-traditional councils where a defined area of jurisdiction of a traditional council consist of more than one geographic area (clause 4B of the bill) Section 17 of the Act unclear on the manner in which the electoral college elects members to the Local House (confusion that the EC may only elect from among themselves) Amendment clarifies that all leadership positions qualify to be members of the local house and members to be representative of areas falling within the district or metropolitan municipality No provision for the appointment of a person to act as a paramount chief as an interim measure where a paramount chief dies before the Commission determines the position of current paramountcies A provision is made for the appointment of a person by a Premier to act as a paramount chief as an interim measure where a paramount chief dies before the Commission determines the position of current paramountcies No provision for the disestablishment of a paramountcy and withdrawal of recognition of paramount chief by the President if the Commission decides that an established paramountcy and a recognised paramount chief do not qualify to a kingship and a king or queen A provision is made for the disestablish of a paramountcy and withdrawal of recognition of paramount chief

17 Issues Covered in the Bill for Amendment GAP / CHALLENGEPROPOSED AMENDMENT Framework Act provides that traditional authorities be reconstituted within 1 year and community authorities within 2 years from its commencement Provision that the period of one year and two years originally provided for to reconstitute traditional authorities and disestablish community authorities be extended to five years with a retrospective effect [community authorities to be administered as if old order legislation has not been repealed ]. No provision for the administration of community authorities before the Commission finalizes its work on community authorities Amendment of section 28 to provide that community authorities still under investigation by the Commission be administered as if the relevant establishing legislation had not been repealed No provision that a senior traditional leader is an ex officio member and chairperson of a traditional council Provision that a senior traditional leader is an ex officio member and chairperson of a traditional council. Five year term aligned with NHTL

18 Issues Covered in the Bill for Amendment GAP / CHALLENGEPROPOSED AMENDMENT No provision that the five year term for elected members of a traditional council runs with that of the NHTL Provision that the five year term for elected and selected members of a traditional council runs with that of the NHTL No provision for the remuneration of members of traditional councils and kingship/queenship councils Provision is made for members of TCs who are not traditional leaders to receive remuneration as public office bearers Provision is made for members of Kingship/Queenship Councils who are not traditional leaders to receive remuneration as public office bearers

19 Further proposed amendments to the Traditional Leadership and Governance Framework Act Since the approval of the Bill by the National Assembly and the referral of the Bill to the Select Committee the following urgent matters have arisen that need to be dealt with:  Recognition of kings and queens by the President on the recommendation of the Minister;  To provide that provincial legislation must regulate the relationship between provincial houses and the local houses;  To provide that traditional authorities be transformed into traditional councils within 7 years of the coming into operation of the Act (Bill currently provides for 5 years which period is about to expire);  The provision for the recognition of a fourth category of traditional leaders (principal traditional leader) the details which of which are contained in the next slide;  Due to the fact that the term of the members of the Commission on Traditional Leadership Disputes and Claims expires in October 2009 as well due to the fact that numerous problems have been experienced in the operation and composition of the Commission in the past five years it is necessary to replace chapter six of the Act with a new chapter

20 Bill amending the Traditional Leadership and Governance Framework Act The following additional consequential and necessary amendments to the Bill are proposed:  To provide that those paramountcies and paramount chiefs that qualify to be recognised as a kingship/queenship and king/queen as a consequence of the Commission, such paramountcy and paramount chief is deemed to be a king/queen and kingship/queenship respectively;  To provide that where the Commission has decided that a paramountcy and paramount chief does not qualify to be recognised as a kingship/queenship and king/queen respectively such paramountcy and paramount chief continues to be recognised as a paramountcy and paramount chief subject to- a)The position of the paramount chief concerned being occupied by a fully recognised incumbent on the date of coming into operation of the 2009 Bill; b)the recognition of a paramountcy and paramount chief lapses on the death of the incumbent paramount chief.  It is proposed that the position as set out in the previous bullet be amended as indicated in the following slide.

21 Further proposed amendments to the Traditional Leadership and Governance Framework Act Since the approval of the Bill by the National Assembly and the referral of the Bill to the Select Committee the following urgent matters have arisen that need to be dealt with:  The current paramount chiefs and the paramountcies will continue to exist as kings/queens and kingships/queenships until the current incumbents pass on or vacate their positions, whereafter, the successors will be recognized as principal traditional leaders and the kingships/queenships will be deemed to be principal traditional leadership communities.  A principal traditional leadership council will be established based on the same principles applicable to a kingship/Queenship and traditional council.  Where in a provinces in terms of custom and customary law, a principal traditional leader and a principal traditional leadership community exist, provincial legislation must provide for the recognition by the premier of a principal traditional leader and the establishment of a principal traditional leadership community and council.  The details regarding the transition from a king/queen to principal traditional leader and kingship/queenship to a principal traditional leadership community must be provided for in the provincial legislation.

22 Bill amending the Traditional Leadership and Governance Framework Act The proposals in respect of the composition and operation of the reconfigured Commission of Disputes and Claims are as follows:  Five national commissioners to be appointed by the Minister after consultation with the National House;  Provincial committees who will be chaired by the national commissioners; to be appointed by the Premiers after consultation with the Minister to deal only with matters delegated by the Commission;  Provincial committees to be supported by provinces;  Commission and committees make recommendations and no longer final decisions;  Recommendations in respect of kings and queens referred to President for a final decision and implementation and all other recommendations referred to relevant Premiers for final decision and implementation ;  Commission can investigate only disputes and claims already submitted at the coming into operation of the amendment however a 6 month grace period is provided for the lodging of new disputes and claims with effect from the date of the amendment;  The mandate of the Commission remains the same

23 THANK YOU!