The publishing of the Traditional Leadership and Governance Framework Bill marks a milestone in the development of the South African reality and its commitment to democratic values, ethos and practises. The institution of traditional leadership remains one of the most contested historically evolved realities. There is truth in saying the role of these institutions remains very uneven and at times controversial. The institution of traditional leadership continued to face questions of legitimacy. The role the successive colonial and later apartheid regimes created for these institutions has lead to clear distortions of the roles and responsibilities historically reserved for the traditional leader. The NLC consequently, has an inherent interest in the questions of how decisions affecting communities are made and mores so how these intersects with the questions of land ownership, control and administration.

These are noble and encouraging as set out in the preamble: to provide for a national framework, within a "new system of democratic governance". Throughout the preamble the ethos of the South African constitution are emphasised and whilst recognising the customary law and practise, the Bill’s intentions are to bring these into harmony with the Constitution and the Bill of Rights so "that democratic society may promoted".

These objectives must be welcomed by all democrats and those who are committed to building a democratic, anti-sexist and anti- racist South Africa. It has to be asked though whether the provisions of the Bill are consistent with the intension. We shall indicate that there tensions between these noble objectives and some provisions of the Bill, and we shall consequently make recommendations to try improve the situations. We shall only concentrate on provisions we believe to be in need of attention.

It is true that public debate on the subject of traditional leaders has raged for sometime now. It is also true that the debate has been dominated by government, the traditional leaders and to a limited extend NGOs. The absent voices have been those of communities who must live under the system. It is our observation that this very Bill has not been subject to any meaningful discussion and debate by communities already living in what the Bill describes as "Traditional Communities". The views of these communities if at all are mediated through traditional leaders only. This is a not consistent with open democratic ethos as espoused by the objectives of the Bill. This is even much so since the traditional leader and their powers are the main subject of discussion, and these will directly affect those living under chieftaincies. To therefore relay only on the word of the chief on such a matter is to condone a clear situation of conflict of interest. The chief surely cannot be both a player and a referee on this matters. This is not to suggest that the chiefs should not have a say on the matter. But, to confuse the interests of the traditional leader with those of the "subject" is to commit a mistake at least in as far as questions of democratic practise is concerned.

We therefore recommend that the House consider a more intense process of community consultation facilitated by Government departments assisted by organs of civil Society. This should not be that difficult, Imbizos could be called in each town and views of the communities canvassed on a number of issues the Bill raises.

Repealing Aspects of the Black Authorities Act 1952

It was envisaged that the current bill will repeal aspects of the Black Authorities Act, and also deal with the Black Administration Act of 1927. These two pieces of legislation in the main sought to reduce the traditional leader into a paid servant of colonialism and apartheid. These Acts by and large represent the codification in law of the assault the institutions of traditional leadership were subjected to, and how the objective of "indirect rule" penetrated the rural African society creating a situation of "Citizens and Subjects" (Mamdani). This "indirect rule" functioned by denying the "rural/traditional" access to what is seen as modern but in reality this is to deny such defined communities rights associated with being a citizen and thereby denied democratic rights. The dilemma of legitimacy of the traditional leader rests on this historical reality. It is known that many communities at the time of these Acts being made law mounted some of the most spectacular resistance lead by progressive chiefs. It would therefore be an affront to the memory of those who fought for the integrity of the institutions of the traditional leadership should we fail to correct the colonial distortions.

Section 25 (3) of the Bill in reality seeks to perpetuate and exempt the existing tribal authorities established in terms of the old apartheid and colonial legislation from some of the most progressive elements of the Bill. For instance the sited section reads. "any tribal authority that has been established or recognised in terms of applicable legislation immediately before the commencement of the Act, is deemed to be a traditional council as provided for in section 4 and shall carry out the functions provided for in section 5: provided that such tribal authority must comply with section 4(2) within four years of the commencement of this Act".

The implications of the above provisions is that the clear democratic desires of 30% women participation in the Traditional Council and the proposed 25% democratic representation would be affected until after four years of the enactment of the legislation. For four years the roles and responsibilities determined with a transformed Traditional Councils in mind would be undertaken by virtually colonial and apartheid constructed Tribal Authorities. This development surely threatens to undermine the legitimacy of the new regime proposed by the Bill.

We therefore recommend that this provision be left our out of the Bill and that once the Bill becomes law all Tribal Councils be subjected to the democratic provisions obtained in the new law with immediate affect.

Section 2 raises the issue of the principle of recognising a traditional community. The premier is given vague powers to consult with affected parties (Chiefs and Communities). It not clear what "consultation" means. Would it be sufficient for instance if the premier merely called a meeting to communicate his/her intentions to change the status of a community? The same problem relates to withdrawal of recognition as outlines in section 7. The vagueness of these provisions leaves room for a possible creeping in of arbitrary and possibly undemocratic practices and leaves provinces without any frame work.

We recommend that instead of "consultation", the section should rather indicate that only a majority vote in an affected community can decide the question of "recognition" or "withdrawal" of recognition of a community as a "traditional community". This recommendation brings into line this section with the overall democratic sentiment of the Bill.

Section 3 deals with the establishment of the Traditional Council.

We welcome the 30% women representation required. This makes a clear break with the problems of women participation and representation which continues to be a problem where traditional authorities are concerned. However, some clarity is sough as to the process of the election of this 30%, and from which social category will they be elected. There is a real danger that without clarity, the women may be appointed from the Royal Family only and therefore defeat the import of the Bill.

We therefore recommend that the 30% be democratically elected from within the "traditional community".

The section also provides for 25% of the Traditional Council to be democratically elected. This is a welcomed principle and indeed consistent with the need to transform the Tribal Councils. However, the determination of 25% is too limited to have any impact in reality. The provisions as currently framed reduces democratic participation to a mere symbolic process, which will have no consequences in reality.

We further recommend that 50% of the Traditional Council be democratically elected. In this process participation of the Youth be provided for.

The Bill again provides that the roles and functions of the Traditional Councils be a matter determined by provincial legislation. Amongst the possible spheres of influence of such a provincial legislation is the question of "Land Administration and Agriculture". This provision would create confusion between the authority of the Communal Land Rights Bill and this Bill. The object of the Communal Land Rights Bill is to precisely govern and transform questions of land administration.

We recommend that the "Land And Agriculture Administration" be left out of this Bill as these issues are discussed and provided for in the Communal Land Rights Bill.

General Points

The definition of "traditional community" needs further discuss, any ideas?

Conclusion

These views form part of the National Land Committee’s community consultation Workshops on the roles of Traditional Leaders in Local Government held in 2001 in the following areas: Northwest Province, KwaZulu-Natal and Limpopo. For full proceedings see report available on request from the NLC.

Andile Mngxitama

Coordinator, Land Rights Programme

National Land Committee