THE INTERGOVERNMENTAL RELATIONS FRAMEWORK BILL, 2005
The Intergovernmental Relations Framework Bill finally makes clear what Traditional Leaders have suspected for some time, that our government has no intention of honouring the promises made during the constitutional negotiations, by former President Mandela, by President Mbeki, by Deputy President Zuma and in numerous interactions since 1994. Although Chapter 12 of the Constitution recognises Traditional Leadership as one of the fundamental governance institutions of South Africa, unlike all the other institutions created by, or recognised in the Constitution, the powers, duties and functions of the institution of Traditional Leadership were omitted, paving the way for the present untenable situation.
Our reaction to this Bill will surprise and amaze many people. Why, they will say, are the Traditional Leaders reacting so vigorously to a Bill that merely seeks to regulate matters between different arms of government? The reason is that one arm of government is being chopped off, the arm of Traditional Leadership. And no one can expect us to offer our arms to be cut off without reacting vigorously.
Our government has played the role of "hatchet-bearer" in the process of the gradual destruction of the institutions of Traditional Communities, Traditional Leadership and traditional African decision-making processes in South Africa. Far from correcting the original omission from the Constitution, as promised by the Presidency on numerous occasions, our government has crafted and woven a web of legislation around the Traditional Communities and their leaders that has gradually chipped away at their role in South African society and their ability to make their own community decisions about their own lives.
THE PROCESS OF DESTRUCTION
The time has come to lay bare what now appears to have been, if not planned, the opportunistic and gradual process of destruction of Traditional Communities, Traditional Leadership, and traditional African decision-making processes. The chain of events that led to the present situation commenced at the time of the constitutional
negotiations for the establishment of South Africa’s democracy.
The events that led to the existing situation were:
The process that has been followed to date is fundamentally flawed. South Africa is following the same route that has been followed with catastrophic consequences in the rest of Africa. A look at Africa’s history is instructive.
The matter of Traditional Communities and their governance must be seen in the wider context of Africa and its problems. In order to find solutions to the problems that plague Africa, we first need to determine the root causes of those problems. There is no doubt that the fundamental cause of the worst of Africa’s problems is the struggle for power and we firmly believe that the legacies of colonialism play an important role in those struggles. We can never know whether in the longer term the coming of Europeans to Africa represented a curse or a blessing because we don’t know what conditions would now be if Africa had remained isolated for these past several hundred years. Although this question makes for interesting speculation it is not useful for purposes of current discussion.
Colonialism is past history and the only part of it that is now worth focussing on is its conflict-provoking legacies, most of which relate to the fact that Africans have forgotten that they are African.
The colonial powers left behind their system of democracy, a system they developed over many centuries in their own countries, based on an idea formulated by the Greeks more than two thousand years ago.
The word democracy comes from the Greek words demos, meaning "people" and kratos, meaning, "power" so, power to the people.
However, there are two very distinct strains of democracy. The one brought to Africa by the colonial powers, and with which we are therefore most familiar, is representative democracy, which allows the people to vote for representatives every time an election is held but otherwise gives them no real say in the day to day affairs of the area, region, province, state or country in which they live because all the decisions are taken by their elected representatives. This method of governance, imported into Africa, has been conflict- provoking.
Direct democracy is the other major form of democracy. In this system the people either gather together in a public meeting (an imbizo) or they vote in a referendum to make decisions on an issue-by-issue basis. The people do not give their representatives the power to make decisions on their behalf without the right to intervene in a decision with which they do not agree. Switzerland is the only real example of direct democracy operating in an advanced country, or anywhere in the world other than in those exceptional places where Africa’s tribal system of direct democracy decision-making has been allowed to continue to function.
Direct democracy brought peace and prosperity to Switzerland, whose people were earlier involved in strife over languages, customs and religions. It is direct democracy that was also responsible for maintaining a relatively high level of peace within traditional communities in Africa before the Europeans arrived.
The colonial powers usurped and patched together territories belonging to the peoples of Africa, often territories containing people who had been rivals and even bitter enemies for centuries. They called these territories countries. The colonialists maintained control over these countries of their creation with their soldiers and guns and by playing the various peoples within the countries off against each other. The real problems came when they left. They did not, as they should have done, attempt to repair the damage they had done to the traditional African communities. They did not say, as they should have done – "let us attempt to return the systems of governance to the way they were before we arrived and destabilised the way of life of the people". They merely handed over their mechanisms of power to "the new elected representatives" of people who had previously hated the way the colonialists had used those mechanisms for purposes of dominating and controlling the indigenous population.
One of the primary objectives of the colonial powers had been to undermine the traditional African leaders and the age-old decision-making processes of the traditional African communities. They knew that a traditional leader in most parts of Africa was not allowed to be autocratic. The people did not allow it. The role of the traditional leader consisted of facilitating meetings of the people of the village, clan, or tribe, in order to ensure that everyone was given the opportunity to be heard before the taking of important decisions, and to attempt to allow the people to reach a unanimous or consensus decision.
The traditional leader was also expected to have expert knowledge of customary law for purposes of giving rulings on disputes between people under their jurisdiction after hearing the views of trusted advisers. Most African traditional leaders therefore retained their positions because of their wisdom and fairness as well as the loyalty of their subjects to them and the memory of their forefathers – not because they were backed, in the manner of European-style governments, by soldiers and policemen with guns. The contrast of the two systems was too great for the colonialists to feel comfortable about attempting to govern people with such ties of loyalty to their own leaders. They did their best to undermine the system of traditional leadership. However, despite all their efforts, the traditions have survived and so have the hereditary leaders.
The next part of the African saga has been most tragic. As mentioned earlier, the colonial powers transferred the alien European system to elected majorities, along with its mechanisms of power such as armies and police. In most cases power was centralised in the hands of a few. Where the colonialists attempted to build in checks and balances, such as entrenched constitutions, separation of the executive, the legislature, the judiciary and other mechanisms that function relatively well in Europe, where they took centuries to develop, they did not last long in the hands of governments that had little patience with constraints on their power. What elected African leaders wanted, knowingly or unknowingly, was for their positions to become the same as that of hereditary leaders – positions for life. Among a people accustomed to hereditary rule it was relatively easy to obtain acceptance for such a wish and the result has been the "President for Life" phenomenon that has, with few exceptions, plagued Africa since the departure of the colonialists. In many cases bloody battles for power have ensued, very often fuelled by the presence of mineral and oil riches.
Many elected African governments have followed the example of the colonialists in their attitudes towards traditional leadership. In order not to alienate the people, who continue to value their allegiance to traditional leaders, the elected governments give some form of recognition to such leaders but ensure that African direct democracy is not re-instated. Traditional communities are prevented from utilising their ancient, effective, and peaceful decision-making processes, in which the people decide what should and should not happen within their own communities. In many cases the resulting frustrations boil over into conflict. In some cases a frustrated or even unwise traditional leader may precipitate such a problem.
It is probably too much to expect to see direct democracy re-instated throughout Africa, with decision-making power devolved down to the community level, with every community making its own decisions on all matters and with no dominant central power imposing its will on the community. We now have cities and towns where people are congregated, many of whom recognise no traditional leader. In such places, and in respect of regional and central government affairs, it may be necessary to accept the existing representative democracy system.
However, there is much to be gained by giving back to rural traditional communities their right to make their own decisions in their traditional manner within their own communities. This would allow communities to protect and foster their customs, languages and histories.
If this should happen it will be necessary for us as traditional leaders to carefully study the ways of our ancestors, so that we do not also become hungry for a kind of power that our ancestors did not have – that we should recognise that while our people may give us their allegiance we have inherited a duty to serve and not to dominate them.
We have to carefully examine the structure of our societies if we wish to reduce conflict in Africa. We must devise a system that utilises and blends the original African direct democracy at the local traditional community level with the representative democracy we have inherited from the colonialists at the state, provincial and regional government level. If we can do this, giving back to traditional communities their ancient decision-making systems, in which everyone participates in community decisions on issues, we will reduce conflict.
We will further reduce conflict if our communities are not entitled to impose their will on their neighbouring communities. And lastly, we will reduce conflict if we, as traditional leaders, ensure that we always act in a fair and just manner in our dealings with our own people and also with our neighbours.
WHY SOUTH AFRICA SHOULD NOT MAKE THE SAME MISTAKES
One of the problems with post-colonial Africa is that African countries did not go back to their African roots when the colonial powers departed. They did not structure the governance of their countries in a manner that would allow the rediscovery, the flowering, and the preservation of their cultures, traditions and languages. We must not make the same mistake.
This does not mean that we must not modernise. Of course we must. Our children must be educated to the highest standards. Our rural people must have access to services that are second to none. But in order to achieve this we do not need to sacrifice our identity and embrace the systems, ideologies, cultures, traditions, standards of morality and systems of governance of the Europeans. Let us preserve those parts of our heritage that are of great value to us and borrow from the Europeans only those things that can enrich our own lives.
It is communities that preserve the heritage of a people. It is communities that build traditions and cultures. If we are to preserve our own cultures, traditions and languages, we must be allowed to operate as communities. And that means we must be allowed to utilise the ancient consensus decision-making processes that allowed us to live together in peace and harmony before the colonial powers entered our lives. We must take pride in our African heritage and in our system of African democracy. Our communities must again, after centuries of domination, rediscover their sense of community, their values and all the other great attributes that make them African. Let us reclaim our identity.
And then we will lay the platform for the African renaissance. The renaissance will start here in the communities of South Africa in their rich variety and then spread northwards to the rest of the African continent. It will be built on the strong foundations of a proud people whose roots are in the soil of the hills and valleys of their ancestors. Many young people from our communities will take their knowledge and skills to the cities of South Africa and beyond but they will always have a place to which they can return. They will return to the places of their ancestors to renew their contact with the elders of the villages to which they are tied by the invisible cord of community and kinship.
CARRYING OUT THE PROMISES MADE TO TRADITIONAL COMMUNITIES
The matter of our Traditional Communities and their governance must be seen in the broader context of Africa. Failure to recognise and respect the community in South Africa, as has been done in many African countries, is likely to cause unnecessary conflict and strife. It will also fail to create the happy, peaceful and contented nation that we all wish to see arising out of our unhappy past.
We have given this matter much thought and have consistently put forward our proposal for the fundamental resolution of the issue. At the heart of the matter lies the rectification of the Constitution, which has been promised to us on so many occasions. We therefore set out once again the manner in which the rectification can be carried out.
CHANGING THE CONSTITUTION
The promised changes should now be made and supporting legislation should be based on the dispensation that these constitutional changes will create. The following changes to the Constitution are recommended to entrench the status, role, powers and duties of Traditional Communities and Traditional Councils:
(Note: Proposed omissions are in brackets whilst proposed inclusions are underlined)
Status of municipalities
151 (1) The local sphere of government consists of municipalities, which must be established for the whole of the territory of the Republic, except for areas governed by traditional councils.
Traditional (Leaders) Communities
Recognition of traditional leaders
211. (1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.
(2) A traditional (authority) councils 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.
(3) The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.
Role of traditional leaders
212A. (1) National legislation (may) must provide for a role for traditional leadership as an institution at local level on matters affecting local communities.
(2) To deal with matters relating to traditional leadership, the role of traditional leaders, traditional councils, customary law and the customs of communities observing a system of customary law, national (or provincial) legislation (may) must provide for the establishment of a national house of traditional leaders and provincial houses of traditional leaders. (; and national legislation may establish a council of traditional leaders.)
Status of traditional councils
212B. (1) The local sphere of government in traditional communities consists of traditional councils.
(2) The executive and legislative authority of a traditional community is vested in its traditional council.
(3) A traditional authority has the right to govern, on its own initiative, the local government affairs of its community as provided for in the Constitution.
(4) The national or a provincial government may not compromise or impede a traditional authority's ability or right to exercise its powers or perform its functions.
Objects of traditional councils
212C. (1) The objects of traditional councils are -
(a) to provide traditional and accountable government for traditional communities;
(b) to ensure the provision of services to traditional communities in a sustainable manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment;
(e) to maintain the involvement of the communities and community organisations in the matters of traditional local government.
Development duties of traditional councils
212D. A traditional authority must -
(a) structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community; and
(b) participate in national and provincial development programmes.
Powers and functions of traditional councils
212E. A traditional authority has executive authority in respect of, and has the right to administer -
(1) (a) the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; and
(b) any other matter assigned to it by national or provincial legislation.
(2) A traditional authority may make and administer by-laws for the effective administration of the matters that it has the right to administer.
(3) Subject to section 151(4), a by-law that conflicts with national or provincial legislation is invalid. If there is a conflict between a by-law and national or provincial legislation that is inoperative because of a conflict referred to in section 149, the by-law must be regarded as valid for as long as that legislation is inoperative.
(4) The national government and provincial governments must assign to a traditional authority by agreement and subject to any conditions, the administration of a matter listed in Part A of Schedule 4 or Part A of Schedule 5 which necessarily relates to traditional local government if -
(a) that matter would most effectively be administered locally, and
(b) the traditional authority has the capacity to administer it.
In conclusion we are, under the circumstances, and for the reasons set out above, compelled to reject the proposed Intergovernmental Relations Framework Bill, 2005, and call on our government to urgently address the long-standing promises to the Traditional Leaders that have not been met.
We trust and believe that our submission will be treated in the manner and with the urgency it deserves.
We are looking forward to receiving your response herein.
INKOSI MPIYEZINTOMBI MZIMELA
DATE : 09 FEBRUARY 2005