Landless People's Movement

Submission on Traditional Leadership and Governance bill

Focus on Women

Introduction

We represent networks of rural women who have been meeting in different rural provinces around the draft Communal Land Rights Bill. The focus of our discussions has been land rights and inheritance for women. We have had a series of workshops in KwaZulu Natal and the Eastern Cape, and also inputs from women in North West, Limpopo and Northern Cape.

Living in the rural areas we have never heard about the Traditional Leaders bill, nor have we been consulted about it. In fact we only heard about last week in meetings about the Communal Land Rights Bill. However since it has provisions that impact on rural women, we rushed to make a presentation here.

Concerns about the bill

We have two major concerns about the bill.

  1. The representation of women on Traditional councils.
  2. The fact that the bill entrenches custom and customary law throughout, whereas customary law discriminates against women in ways that deeply affect our lives.
  1. Representation of women on traditional councils
  2. We welcome the fact that the bill requires the representation of women on traditional councils. However we ask how these women will be selected, and by whom? We are concerned that if this issue is left vague, the women will be selected by the chiefs, and they will all be from the royal household.

    The bill should specify that the women in the community should choose their representatives on the royal council, and that ordinary women are eligible, not just women from the royal family. Furthermore we think that 30% representation is too little.

  3. Custom and customary law

It is noted that as a result of the legacy of colonialism, apartheid, racial laws that still exist, the abuse of "customary law" and chaotic state of land administration, rural women still suffer severe discrimination with regard to land and property right, and with regard to the inheritance of land and property.

All of these problems are justified by "custom" or "customary law". They cause great suffereing and poverty for women, and deprive them of their dignity and equality. Women who have no security of tenure are vulnerable to violence and abuse.

The bill re-inforces custom and customary law throughout. For example in the preamble, the section governing the functions of traditional councils (section 4), the section governing the functions of traditional leaders (section 17) and the sections governing disputes (sections 19 and 23). Nowhere does the bill guarantee equality for women, it merely says in section 2 (3) that the traditional institutions must "transform and adapt applicable customs and customary law". What about the rights of women, while this open ended process of "transformation and adaptation" is taking place? How long will transformation take? In the meantime the bill says disputes must be resolved in accordance with custom as it exists, not as it may be transformed some time in the future.

  1. Inheritance

We know the constitution guarantees the rights of women, but this does not work in practice in rural areas. The constitution has done nothing to protect women from discriminatory effects of customary law with regard to inheritance. The courts still say that "black law and custom" applies to all customary law marriages before 2000. According to the courts this has been interpreted to mean that men inherit everything. Even the Appeal Court case of Ms Mthembu in 1998 re-enforced male inheritance, which is also supported by the magistrate's courts, and the customary courts. Time and again widows and daughters loose their homes on the death of their husbands and fathers, even when they are the people who maintained the homes.

This is part of the customary law that the Traditional Leaders bill re-enforces.

 

  1. Land Rights

The system of land administration in communal areas has broken down completely. The only people who allocate land these days are chiefs. In many areas they are selling land, and the only "title deeds" that people get are "receipts" from chiefs. Some chiefs do allocate land to women, others do not. This depends on the choice, and the way in which they interpret "custom". We believe that, in many instances what chiefs have been doing about land rights is not legal. Now this bill gives them the legal power to say that land administration is their function, and that they can do it according to "custom"

This will entrench the suffering of women. My sisters will add some examples and case studies to help you understand the serious problems that women suffer under customary law.

If this bill is going to re-enforce customary law as it does, it must also have a provision that guarantees equality for women - not some time in the future, but now.