SUBMISSION TO PARLIAMENT BY THE SOUTH AFRICAN NATIONAL CIVIC ORGANISATION (SANCO) ON THE QUESTION OF TRADITIONAL LEADERS

ON THE 07 OF JUNE 2000 IN CAPE TOWN, SOUTH AFRICA

1. BACKGROUND

In our cultural history, the institution of traditional leadership, has remained as a custodian of our culture, customs, origin, and history. In all times, particularly, prior to the illegitimate colonisation of Africa, the institution of traditional leaders was the only form of social organisation of African people. Furthermore, the institution enjoyed overwhelming support, it managed and united communities, managed communities in times of famine, boosted the social fabric and fundamentally, ensured a respect for the communities way of life.

It is in the same vein, particularly, in the case of South Africa, that some traditional leaders played a significant and heroic role in the struggle and fight for freedom against colonial oppression and race provocateurs. Given the legitimate overwhelming power enjoyed by traditional institutions, it was no surprise that the colonial forces, both Dutch and English, were bent on destroying that power and using as a tool to implement a systematic oppression of the people of the traditional communities. However, it must also be admitted that many traditional leaders were co-opted, corrupted, and consistently used to divide and repress their own communities by the apartheid regime and the colonial forces. Furthermore, it is even more unfortunate that in the process of corruption, many legitimate leaders were deposed and substituted by stooges, who were chosen or appointed by the apartheid regime. This had significantly reduced the number of illegitimate traditional leaders, or the so-called 'Royal Highnesses' without any royal blood.

It is however necessary to highlight that, despite the rapid democratisation and transformation of South African society, the institution of traditional leaders continue to play a role, more specifically in the rural areas of our country. The South African National Civic Organisation recognises the important role of the traditional institution in the protection of cultural values1 custodian of customary values; making recommendations on land allocation and the settling of disputes thereof, presiding over the customary law courts and the maintenance of law and order, and the lobbying and advocacy of government and other agencies for development, particularly local economic development.

2. PROBLEMS ASSOCIATED WITH THE INSTITUTION OF TRADITIONAL LEADERSHIP

Despite its existence and the significant role played by the institution of traditional leaders before the dawn of freedom, and during the transition, it is also important to register the problems associated with it. However, we must hasten to add that the perceptions and suspicions from communities are compounded by problems which would be unfair to solely and squarely lay blame on the traditional leadership. It would be correct to surmise that Western democracy, civilisation, and globalisation tend to overtake the manner in which the institution wishes to co-exist, compete and challenge factors, that would be correct to regard as being unchallengeable. The following can be regarded as problems associated with the institution.

I. Women in almost all traditional communities do not enjoy equal rights and status in matters such as marriage, divorce, inheritance, community decision-making and governance, and land ownership.

II. The communal land tenure system continues to adversely affect traditional African communities economically and developmentally.

Ill. The role and common approach and understanding of the administration of justice in community courts as opposed to the more established judiciary system, which is perceived as just and fair.

IV, The establishment and co-existence of primary rural local government as one of the most critical components of the National Democratic. Revolution (NDR).

V. The deposed, but yet authentic traditional leaders, as viewed against the backdrop of the continuation of illegitimate leaders in positions of power.

VI. The extreme poverty, inequality, backlogs in service delivery, lack of development and social infrastructure.

VII. Traditional leadership versus democratically elected public representation, and the definitions and roles of these concepts.

VIII. The participation of traditional leaders in party politics, and the division caused In terms of its highly politicised subjects.

IX. The transformation of the institution itself so as to achieve full legitimacy and acceptance.

X. The conflicts between customary law and the bill of rights.

3. RECOGNITICN OF TRADITIONAL LEADERS IN SOUTH AFRICA

It is often not true nor factually correct, as raised in certain quarters, that the institution of traditional leaders is not recognised and afforded the status and dignity it deserves. However, the nexus of the problem is the conflicting scan ado of exposing customary law to a western democratic Iegislative system. Therefore, because of the nature of this problem, the Constitution defines the role of the traditional leader in the following manner:

S212 (1) National legislation may provide for a role for traditional leadership as an institution on a local level on matters affecting local communities.

(2) To deal with matters relating to traditional leadership the role of the traditional leaders, customary law and the customs of communities observing a system of customary law.

(a) National and Provincial legislation may provide for the establishment of houses of traditional leaders, and,

(b) National legislation may establish a council of traditional leaders.

Furthermore there is other clear evidence of the recognition of traditional leaders when we observe the law relating to customary law, A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to or repeal of, that legislation, or those customs.

It is within these houses that the difficulties, questions, and problems should be raised and discussed so that new and innovative solutions should emerge that shall assist during the transition, particularly in rural local government.

The Constitution is rather silent about participation of traditional leaders in local government. The Municipal Structures Act, however, in Section 4 Part 7, addresses the participation of traditional leaders in local municipalities. This piece of Iegislation accords traditional leaders participation (though limited in numbers) without voting rights in the council. However, this has led to opposition in many quarters in the institution. The intention of the legislation is clear in that it intends to harmonise the relations between public representatives and traditional leaders, by ensuring co-existence - co-operative governance at local level.

The Demarcation Act, which established the Demarcation Board which is vested with the powers of demarcating the whole country into municipal boundaries including the rural traditional areas. The en tire process has been misconstrued as a process that interferes and strips away power of the traditional leaders. The whole process has been politicised for the simple reason, as stated previously, that traditional leaders are involved in many politics. Secondly the most fundamental problem is the question of democratising rural local authority, which in turn leads to the public representatives versus traditional authority, as well as ensuring development of rural land. Unfortunately, democracy at rural local level cannot be compromised. The possible solution is The accommodation of traditional leaders within the local government sphere, without necessarily compromising local democracy

4. TRADITIONAL AUTHORITIES VS ELECTED REPRESENTATIVES

In SANCO's considered opinion, democratisation at a local level, particularly in the rural areas, should not be compromised just to satisfy traditional forms of governance. Rather the institution must be used as a means of enhancing the democratic processes within these areas. Traditional leaders must participate within the state institution, however, their participation must be restricted to symbolic role of unity, act in the proper African custom of senatorial or advisory role, and finally their participation must be without voting rights. The aim of this type of participation is to ensure that the traditional leaders are not given political powers exposed them to the violent tubulences of political life or lead to unnecessary the violent unnecessary conflict. The Houses of Traditional Leaders should be empowered to contribute to policy development and interact with government in issues that affect the traditional leaders directly.

SANCO supports an audit of traditional leaders, given the role played by colonial forces and the apartheid regime in the deposing of legitimate traditional headers. We maintain that the audit should be conducted by the appropriate independent body, the cut-off date should not go beyond 1913, and the illegitimately imposed chiefs should be replaced by the legitimate chiefs.

Furthermore, the Royal Council in consultation with the Houses of Traditional Leaders, should play a leading and central role in the conclusion of succession disputes, the removal illegitimate traditional leaders, and, age succession. We maintain that government should be involved in succession or the appointment of chiefs to avoid repetition of the past. Furthermore, SANCO believes that the chief challenge for the institution of traditional leaders is the way it can modernise and transform itself to handle the changing face of its environment and constituency. And therefore as SANCO we support, in line with the Bill of Rights and the Prevention of Unfair Discrimination Act in particular, the advent of women being allowed to become chiefs.

6 REMUNERATION OF CHIEFS

SANCO is in support of government providing remuneration to the legitimate chiefs. However, the issue of Headman should be further investigated, so as to took at an appropriate 'job description' which can qualify for remuneration. We further maintain that the communal land tenure system be reformed in order to ensure that the legal recognition of the rights of the actual users of the land, the attraction of investment to those areas, ensuring that local government can access land for development, and ensuring that local government can play the necessary regulatory and planning role over land. Furthermore, in line with the previous section, we need to ensure that women are not restricted from owning land.

7. CHALLENGES & CONCLUSIONS

The process of democratisation, though de-contextualised and politicised, needs to be protected to enable rural communities to enjoy their right of freedom, development and, to be democratised. And therefore only the fundamental issues of traditional leaders in terms of recognition and status of traditional leaders, and co-existence of traditional leaders should be resolved so as to allay the fears and suspicions.

The following can be regarded as the delicate task facing the legislators, in terms of the number of policy issues that needs to be examined:

The structure and role of traditional leaders that includes women, politics, and the houses of traditional leaders.

The compatibility of customary law with fundamental rights, traditional courts, other courts, and land tenure (allocation).

To reconcile a role for traditional leaders in modem society and democracy.

It must also be acknowledged that land allocation is a powerful tool for recognition and power in rural areas. It is also equally correct that the authority of traditional leaders will decline if the power to allocate land is taken away. However, there are more challenging questions and objectives that cannot be compromised, viz. development economic empowerment and democracy in rural areas.

We further content that it is important to suggest and encourage traditional leaders not to have particular political party affiliations.

And finally2 vie must emphasise mat the manner we deal with all these challenges must be informed by our stated commitment to eradicate poverty, catalyse wholesale economic development ensure large-scale unemployment, and the radical improvement of service delivery and infrastructure.