South Africa's government has proposed setting up a separate legal system for rural black citizens. Supporters say the bill recognizes the importance of traditional customs and leadership, but critics say the proposal is too reminiscent of apartheid-era laws.
The Traditional Courts Bill would set up a separate legal system for 17 million South Africans living in rural areas. All of those affected by the system would be black, and most are poor.
The bill is making its way through provincial governments after months of hearings in which locals voiced vigorous opposition.
The bill's supporters say it will prevent conflict and maintain harmony in communities. Traditional courts could also lift pressure from the overburdened court system and should provide quicker resolutions while respecting local customs.
The bill is a reprise of the Black Administration Act 38 of 1927. As the name suggests, that old law considered blacks second-class citizens and enforced that belief with legal muscle by putting them under the rule of traditional leaders.
The new law, like the old one, would set up a court system ruled by traditional leaders and governed by traditional practices.
Defendants in the traditional courts are not allowed to have lawyers. Court leaders can sentence defendants to forced labor. No one can opt out.
“It is unconstitutional because it does not adequately protect the rights of women, and it does not allow people to choose whether or not they want to have their disputes to be resolved under traditional practices and rules, which under the constitution is something that people are entitled to," said Sindiso Mnisi Weeks of the University of Cape Town’s Law, Race and Gender Research Unit, explaining why she feels the bill is flawed. "It does not permit people to be represented by lawyers if they so choose, and it generally contradicts even customary law, in terms of the fact that customary law is a participative process, it is a relatively inclusive process of dispute resolution.”
She said the vast majority of traditional leaders are male. During hearings on the bill, many women complained they were told they could not win their cases in traditional courts because it would encourage women to “be disrespectful.”
“These courts, because they are typically made up of old men, tend not to be very sympathetic to the concerns of women and children," Weeks said. "And in fact, in family disputes, they tend often find more in favor of men than of women. And of course this is of real concern when it concerns matters such as domestic violence or women’s access to land and inheritance, etc., and marriage disputes.”
Nghamula Nkuna of the Ministry of Cooperative Governance and Traditional Affairs says traditional leaders support the bill because it recognizes the valuable role they play in their communities.
Traditional leaders hold great sway and respect.
"In South Africa basically you have the institution of traditional leadership that has been here for centuries. And if you talk about traditional communities in South Africa... traditional leadership is part of their evolvement, even often part of their diversity," explained Nkuna. " Various communities have got their ways and traditions which have survived and are recognized by constitutional dispensation. Remember that traditional communities also have their way of dealing with disputes within their communities.”
Mnisi Weeks said the population does not necessarily share this reverence.
“The National Council of Provinces should acknowledge that after two rounds of consultations, which have yielded pretty definitive results as to how people feel about this bill and the problems that is has in it, the problems it will produce in rural communities, they should throw the bill out in its entirety and start afresh drafting a new piece of legislation based on the voices of ordinary rural people that will meet the needs that rural people have expressed,” she said.
The bill has been languishing for months. But recent events in South Africa may breathe new life into it. President Jacob Zuma has taken a political hit after months of violent strikes.
The ruling African National Congress is facing a critical party convention in December in which they will chose their leader for national elections.
The ANC has swept every major election since 1994; their candidate will be heir apparent to the presidency. But the party still needs voter turnout, especially in rural areas. That elevates local chiefs to the role of kingmakers and that appears to be a major reason the party is pushing the traditinal courts legislation.