Oral submission on the House Of Traditional Leaders Bill

Centre for Constitutional Rights > Constitutional developments > Constitutional developments: Legislation

HON MR TSENOLI AND HONOURABLE MEMBERS

I thank you for the opportunity to make these submissions, and I wish to record my appreciation of the professional manner in which your committee secretary has facilitated this.

I am Adv De Havilland from the Centre for Constitutional Rights, an NGO whose soul brief is to uphold the constitution. It is against this background that we make our submissions. We would not dare to claim to be experts on customary law, although I personally have studied it. I believe that most of the members of this committee, if not all, are better versed in that area.

However with the advent of our new constitutional democracy, the point of departure for discussion on any draft legislation must be the constitution. This is our supreme law and the foundation of our democratic order. It is accordingly against this background that we make our submissions.

We also wish to record that we are acutely aware of the vital role that traditional leaders will have to play in keeping alive and developing our rich customary heritage as a living law. The Centre accordingly welcomes any measures aimed at streamlining its modus operandi.

Not only is it a vital role, but it is a role that will require the vision to transcend beyond historical thinking; it is a role that will demand courage and a willingness to advance traditional customs in such a manner that the core of the custom is retained whilst simultaneously developing it in a way that is constitutionally compliant. It will at times require painful decisions regarding well established practices. Thandabantu Nhlapho identifies a list of practices that require urgent revision. These include:

The levirate, which is the continuation of the deceased husband’s marriage through a brother or male relative
The sororate which is the practice where a younger sister bears children for an older one in the case of barren marriages
Polygyny which is a practice that allows a man to marry more than one wife
Child bethrothal and forced marriages linked to family obligations
Women’s status as minors that deprives them of the rights to land and economic decision
Lobola or bohadi that exchanges women and cattle between families and lastly
Inheritance laws that follow patrilineal pattern through which family wealth passes from father to son. Fortunately, as the honourable members know, this issue has been adjudicated upon by our constitutional court in 2005 in the matter of the & others v the magistrate, Khayelitsha and others

In her book Laying ghosts to rest - dilemmas of the transformation in South Africa, Dr Mamphele Ramphele summarises most succinctly what is required, and I quote:

“forging an identity as a non-racial, non-sexist egalitarian society, the kind of society to which we committed ourselves in our constitution, requires us to lay to rest the ghosts of racism, sexism, ethnic chauvinism and authoritarianism.”

She goes on to explain why the weighty matters identified as requiring urgent reform need to be aligned with the constitution. And again I quote: “failure to do so puts the most vulnerable women and children at risk of having their human rights violated without access to any recourse. It is especially rights relating to land and property ownership and gender equality that are being compromised in the name of traditionalism. Equality before the law is yet to have meaning for the most vulnerable among us.”

I will now deal with specific concerns. I will commence:

National house of traditional leaders bill [b56 - 2008] as the traditional leadership and governance framework bill [b57 - 2008] is obviously complimentary to this.

Given the complex role required of traditional leaders as outline earlier, the centre is particularly concerned that this onerous and challenging responsibility is not elaborated upon in the draft legislation. In particular, the centre is concerned that the supremacy of the constitution is not emphasized in the bill. The oath that members are obliged to take simply refers to upholding laws. In accordance with the provisions of the constitution the Centre believes that when taking the oath members should also be required to acknowledge the supremacy of the constitution and commit themselves to upholding it without fear, favour or prejudice as they are enjoined to do in terms of section 7(2) of the constitution. It is for the same reason that the Centre believes that a specific role and function of the house should be to develop customary law in a manner that the spirit, purport and objects of the Bill of Rights, as is required by section 39(2) of the constitution. The Centre accordingly proposes that the following sub-clause be added to clause 11:

Clause 11(1)(a)(xiii) the transformation and adaption of customary law and customs so as to comply with the provisions of the bill of rights in the constitution, in particular by:

(A) Preventing unfair discrimination;

(B) Promoting equality; and

The Centre is also concerned with the fact that the bill requires that only a third of the members should consist of women, and more particularly that that threshold may be reduced by the minister. The over arching constitutional principles of equality and non- discrimination require that the bill should promote equal rights of participation. At minimum clause 3 should be amended to provide for the progressive realization of equal representation.

Lastly the Centre is concerned with the quorum provisions contained in clauses 8(6) and (7) as it believes that these fly in the face of the principle of consensus which underpins all customary law. The quorum for meetings should thus be increased to at least two-thirds and the quorum for voting should at minimum be fifty one percent of the total of members.

I now turn to the Traditional Leadership and Governance Framework Bill [b57 - 2008]

The Centre for Constitutional Rights has similar misgivings about this bill before elaborating on these, the Centre again wishes to record its acknowledgment of the vital role that traditional leaders play in keeping alive and developing our rich customary heritage as a living law. In particular, the CFCR appreciates the delicate task faced by the leaders in developing customary law in a manner that supports the principles contained in the constitution. The Centre also records the importance of why customs need to be aligned with the constitution. Borrowing once more from people better placed than i am to comment, I again quote from Dr Mamphele Ramphele, who claims that:

“indigenous laws and practices can only enrich our democracy if they are properly reviewed and aligned to the values we aspire to in our national constitution. Otherwise tradition will continue to be a source of disadvantage and division.”

The Centre is particularly pleased with the inclusion of clause2(4) of the bill which will ensure that customary law will be developed in a manner that will guarantee all citizens the rights protected in the bill of rights. Section 211(1) of the constitution requires that traditional governance is bound by the constitution, whilst section 39(3) requires that all customary law be consistent with the constitution. Sadly customary law has not always been consistent with the constitution and far too many people, and particularly black rural women, have to date been denied many of their rights.

However, the Centre is concerned with the provisions of clause 3(2)(c) which requires that only 40% of the traditional council be democratically elected. The constitution has created for South Africa an open democratic society, based on human dignity, equality and freedom. Accordingly, principles of democracy should permeate all institutions. The centre thus believes that this clause should be amended to allow at minimum for the progressive realization of a fully elected council.

As with the National House of Traditional Leaders Bill, the Centre is also concerned with the fact that the bill requires that only a third of the members of a kingship council should consist of women, and more particularly that that threshold may be reduced by the minister. The Centre is mindful of the fact that traditionally, and because of the principle of patrilineal succession, women do not hold positions of leadership. However, the over arching constitutional principles of equality and non- discrimination require that the bill should promote equal rights of participation. At minimum clause 3a (2)(c) should be amended to provide for the progressive realization of equal representation.

The Centre is equally concerned with the small percentage of democratically elected members of the kingship council, and would argue that clause 3a(2)(d) should be amended in a similar manner to clause 3(2)(c).

Lastly the Centre is concerned with the quorum provision contained in clause 3(a)(6) as it believes that decisions by fifty one percent of the total number of the kingship council flies in the face of the principle of consensus which underpins all customary law. The quorum for decisions should thus be increased to at least two-thirds.

For the sake of certainty, the centre proposes that clause 3a (10)(c) be amended to require that the resignation be in writing.

I thank you for this opportunity.

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