WRITTEN SUBMISSION TO THE PUBLIC HEARING ON THE DRAFT
DISCUSSION DOCUMENT TOWARDS A WHITE PAPER ON TRADITIONAL LEADERSHIP AND INSTITUTIONS
HOUSE OF ASSEMBLY, 6 AND 7 JUNE 2000

Dr. Gregoxy F. Houston
Group: Democracy and Governance
Human Sciences Research Council

As a leading member of the HSRC team that collated and summarised the Status Quo Report on Traditional Leadership and the team that proof-read the Draft Discussion Document before publication, it is a great honour and privilege to address this committee. My participation in the above project teams was premised on my deep interest in the issue of traditional leadership and institutions, and my past research in this area I will, however, limit myself to only a few of the issue areas dealt with in the Draft Discussion Document.

The main issues are the recognition accorded to the institution of traditional
leadership and, in particular, the role of traditional leaders in democratic governance. The latter has been an issue of contention since the advent of democracy in South Africa, and the main concern of the Discussion Document is, as stipulated on page 4, to search for ways to "reconcile traditional leadership and democratic governance". Here the search is for "inputs from stakeholders on the role that traditional leadership should play in supporting constitutional democracy" (loc.cit.).

There are a number of central issues here:

The nature of the institution of traditional leadership and its compatibility with democracy.
The relationship between traditional leaders and democratically-elected institutions.

One core feature arising from the Status Quo Report was the incompatibility of the institution of traditional leadership and democracy, particularly' in terms of the role of women and the youth in the institution, and the notion of inherited political office. Firstly, an institution which has a bias towards older men, and which therefore guarantees a special status only for this group, is incompatible with democracy, Insofar as traditional leaders are to retain a special status in political structures at the local level (vis-a-vis their ex officio status in local government structures), it is inconceivable that the youth and women should be disadvantaged by the current gender and age biases of the institution. I have argued elsewhere that these biases have played an important role in dividing rural communities, to the extent that, in a number of instances, the women and youth of rural communities formed "alliances" in opposition to the male-dominated institutions of traditional leadership, giving rise
to conflict. This has serious implications for rural relationships, where for most women and young people living in these areas the introduction of a democratic system of local government provided the first opportunity to play a meaningful role in local affairs.

Customs are not cast in stone, and societies all over the world adapt their customs to changing circumstances. Indeed, the institution of traditional leadership itself has gone through a number of adaptations during the periods of colonialism and apartheid. We need therefore to address the following questions: Is the age and gender bias of traditional institutions the norm in South Africa? How did traditional communities deal with the gender and age biases of traditional institutions during the pre-colonial period? What can we learn from those communities whose customary practices enable the women and youth to play a significant role in traditional institutions? How can we adapt our traditional institutions to enable the women and youth to play a meaningful role?

The Chapter on the role of women in traditional leadership (Chapter 8) notes that there has been official recognition of women as traditional leaders by a predominantly patriarchal traditional community (the Zulus) in one of the provinces. It is not clear, however, whether or not this has undermined the law' of succession and customary law in that community. More detail on this is required in order to answer the two strategic questions in that Chapter. However, the notion of democracy, and taking into account the provisions of the Bill of Rights and the Promotion of Equality and Prevention of Unfair Discrimination Bill, leads to the conclusion that women should be eligible for traditional leadership, and should participate in any of the operations of traditional institutions that are open to males. For women to be excluded from the operations of customary' courts, for instance, is anti-democratic, discriminatory and contrary to the equality' principle found in various pieces of legislation.

Secondly, above all else is the incompatibility between democracy and inherited political office. One of the cornerstones of democracy is the opportunity provided for the electorate to replace or retain political leaders through periodic elections. Clearly, this is not possible when political office is based on inheritance. The hereditary nature of traditional leadership also raises another set of complex issues, such as accountability to the members of the tribe, abuse of power and corruption arising from the status and role of traditional leaders (as custodians of tribal land, for example), the dangers of incompetent leadership, etc. It is unacceptable, then, that institutions of traditional leadership and/or traditional leaders function as the basis of local government in rural communities. It is also unacceptable, for the same reasons, that traditional leaders play a guaranteed predominant role in local government. However, it should be possible for traditional institutions to play a role as the sites of local government, or for traditional leaders to lead local government structures, if it is the will of the people. Thus, traditional leaders should be eligible for election to political office at the local level, while traditional institutions should be able to function as local government structures if the people so wish.

The latter gives rise to questions about the attitude of traditional leaders to "the will of the people" insofar as they are prepared to submit to the popular vote. Resistance to the introduction of elected local structures on the part of traditional leaders has led to a rejection by the latter of any role in elected structures, including the ex officio powers they have. Consequently, it is unlikely that traditional leaders will put themselves forward as candidates for local government elections, unless a concerted effort is made to encourage them to do so. The coincidence of institutions of traditional leadership and democratically-elected local government structures (i.e. where the members of a traditional institution are elected en masse through the popular vote into the local government structure) would perhaps be the ideal way of reconciling the institution of traditional leadership with democratic governance.

One of the core features of the Status Quo Report is the glaring opposition of traditional leaders to the elected local government structures. Indeed, it was found that only a handful of traditional leaders exercise their ex-officio right to participate in local government structures. Relations between traditional leaders and elected local structures were strained in virtually all the areas where there are traditional leaders. This is one clear indication that current attempts to fashion a relationship between traditional leadership and democratic institutions are failing. This is also demonstrated by the opposition of traditional leaders to the demarcation of municipal boundaries, a process which is seen to be aimed at drawing more and more leaders under the jurisdiction of elected local structures.

Notwithstanding the above reservations about the incompatibilitv between the institution of traditional leadership and democracy, the government cannot ignore the important role that traditional leaders play in rural communities. What is often ignored is the diversity of relationships between traditional leaders and their communities in the rural areas. Some traditional institutions play a very important role as agents of social cohesion in their capacity as custodians and enforcers of traditional laws and customs. The recognition of this role of traditional institutions must acknowledge the potential for, or existence of anomie or normlessness in the rural areas if the institution of traditional leaders is abolished, emasculated, or alienated. In addition, some of the traditional practices associated with the institution of traditional leadership, such as imbizo/lekgotla, are the very bases of direct democracy in some rural communities.

I have argued elsewhere for the establishment of two institutions operating side by side with distinct functions and powers.2 The retention of the institution of traditional leadership as the custodians and enforcers of traditional laws and customs and the establishment of an elected local government structure in which traditional leaders have ex officio status. This appears to be the current situation in most parts of the country with traditional leaders. However, in most cases this has meant that institutions of traditional leadership have been ascribed "the role of surrogate or adversary of government" (p.10). The change in local government structures has resulted in a loss of power (and indeed the status which arises from this power) for
traditional leaders. This has led to the widespread rejection of elected local government structures by traditional leaders. This loss of power and status has also been a major factor behind rural conflicts.

There is a need, then, to provide institutions of traditional leadership with a role that accords some power and status to traditional leaders, while avoiding their "emasculation" by transferring too much of their historical (colonial and apartheid era) powers to elected structures. At the same time, however, such a process must not undermine democracy by placing too much power in the hands of hereditary leadership.

In large part, there needs to be clarity about the distinct roles and powers of traditional institutions on the one hand, and elected local government structures on the other. This must take into account both the overlapping and exclusive roles and powers of the two sets of institutions. It is suggested here that the two institutions have the following overlapping roles:

Convening meetings to consult with communities on needs and priorities and providing information therefor.
Being the spokespersons of their communities
Lobbying government and other agencies for the development of their areas.
Jointly carrying out legislative, executive and administrative fttnctions in the following areas:
The following functional areas in Part B of Schedule 4 of the Constitution insofar as the apply within the area of jurisdiction of a traditional authority: child care facilities; electricity and gas reticulation; water and sanitation services; trading regulations; local tourism; municipal planning; municipal public works.
Those functional areas in Part A of Schedule 5 of the Constitution which apply within the jurisdiction of a traditional authority and subject to the conditions underlying the application of these powers by, a municipal authority set out in Section 165(4) (a) and (b) of the Constitution.

Developing a partnership between traditional institutions and elected local government structures is crucial, and it is principally in the area of overlapping powers that this can be structured. Such a structured partnership may take the form of joint decision-making in certain areas, and the provision of both institutions with joint legislative, executive and administrative powers m such areas. Such a structured partnership would enable traditional institutions to play a role "without emasculating the institution and without hampering service delivery and development by municipalities" (p.23), which often arises from conflict between the two structures. Such a structured partnership would therefore have certain rules and procedures for operation, such as:

The number of members of each institution that must be present before a vote can be taken on any matter.
The number of members of each institution required for a decision to be taken.
Where the chairmanship of such joint meetings resides.
The mechanisms and dynamics for joint executive and administrative tasks.

The institution of traditional leadership should have the following exclusive functions:

Function as the customary law court and maintain law and order.

Being symbols of unity in the community.

Consult with traditional communities through imbizo/Iekgotla:
Assist members of the community in their dealings with the state.
Advise government on traditional affairs through the houses of traditional leaders.
Protect cultural values and instilling a sense of community in their areas.
Being custodians and protectors of the community's customs and general welfare.
Make recommendations on land allocation and the settling of land disputes.
Ensure that the traditional community participates in decisions on development and contributes to development costs.
Consider and make recommendations to authorities on trading licenses in their areas in accordance with the law.

Elected local government structures in areas which include a traditional institution should have the following exclusive functions:

All functional categories they are empowered to apply in Part B of Schedule 4 and Part A of Schedule 5 of the Constitution in regard to areas outside the jurisdiction of a traditional authority, subject to the conditions underlying the application of these powers by a municipal authority set out in Section 165(4) (a) and (b) of the Constitution.

The next question is: what role and powers should traditional leaders have in elected local government structures? There are two issues here: the ex officio Status of traditional leaders and voting rights in elected structures. Most traditional leaders have opted to stay out of elected structures: the Status Quo Report points to only a few instances where traditional leaders participate in these structures. Others have delegated their ex officio position to representatives. The Discussion Document also indicates some of the advantages and disadvantages that may arise by giving traditional leaders voting rights. Two conclusions can be drawn here. First, it is recognised in the Constitution and in various policy documents and legislation that traditional leaders have a vital role to play in rural communities and should therefore retain their ex officio status in local government structures. Second, the choice to utilise voting rights should be vested in the individual traditional leader based on his/her assessment of the advantages or disadvantages of possessing voting rights. More importantly, the vote of one or two individuals with ex officio status in a structure is no danger to democracy, given the preponderance of elected persons in these structures. Thus, traditional leaders should be given voting rights equal to those of other elected members, but should be informed that the decision to exercise these rights is vested in them, and in them alone.

The lack of uniformity in the highest layer of traditional leadership, and the lack of uniformity in the appointment, remuneration, status and role of other categories of
traditional leaders are difficult problems to resolve. First, they have budgetary implications. For example, must the same amount of funds be allocated to the King of the Zulus and paramount chiefs in other areas? And what are the financial implications of officially appointing/recognising and paying all 10 000 headmen in KawZulu-Natal? Second, they may have an impact on customary practices. For example, what would the impact of a common appointment procedure have on the customary practices of the different tribal groups? What would be the impact of attributing equal status and role to the different categories of traditional leaders (all Kings and paramount chiefs, the chiefs of all groups, and the headmen (official and unofficial) of all groups) on customary practices, tribal structures, and tribal community relations?

Nevertheless, customary practices should be the determinant factor in resolving these problems, and the responsibility, for determining a uniform system of appointing traditional leaders, establishing a uniform system of remuneration, and establishing a uniform status and role for headmen should rest with the tribal groups. Such matters should be placed in the hands of the Houses (national and provincial) of Traditional Leaders. Thus, the houses of traditional leaders should set in motion various processes among the tribal groups to find ways of establishing a uniform system of appointing traditional leaders, a uniform system of remuneration, and a uniform status and role for headmen. These matters should be treated as urgent, since the lack of uniformity leads to a great degree of discontent on the part of traditional leaders.

On the question of the party political activities of traditional leaders, it would be impossible, given South Africa's history (and here it is important to remember tlie distinct party. political cleavages arising from the ANC/inkatha conflict in KwaZuluNatal and the role that Inkatha has played as "the party' representing the interests of the amakhosi")3, as well as unconstitutional, to impose restrictions on such activities. The ideal would, however, be a situation where traditional leaders stay above party politics - a situation where the predominant role of the traditional leader is to be a symbol of unity in their communities. To legislate such a situation is impossible. It can only be brought about through a change in attitudes of traditional leaders and their communities.