Twists and turns in Traditional Courts Bill proceedings

The Traditional Courts Bill is a hotly contested piece of draft legislation that Sonke and its partners in the Alliance for Rural Democracy view as a threat to many of the values and principles enshrined in the South African Constitution – especially the constitutional commitment to gender equality. The CGE Monitor keeps track of the CGE’s performance and will hold it accountable when it fails to deliver on its mandate. Current legislation governing the conduct of traditional justice fora are outdated, drafted before and under Apartheid.  Sadly, many traditional justice structures exacerbate inequality for rural and already-marginalised people, instead of protecting them.

South Africa's Parliament buildings, where some of the public hearings on the Bill took place
South Africa’s Parliament buildings, where some of the public hearings on the Bill took place

So, while the updating of these laws is a necessary and timely intervention, the Traditional Courts Bill, unconstitutionally drafted, with only the input of traditional leaders, is regressive, entrenching that inequality more by giving great power to traditional leaders with almost accountability mechanisms in place.  In addition, the Bill does not recognise the whole range of community structures for dispute resolution, even though they are integral to traditional justice systems in South Africa. Thus, under the Traditional Courts Bill, the chief or traditional leader would wield power of an unprecedented level in rural communities and the participatory community structures would not be recognised by the law.

2008

Traditional Courts Bill is tabled in the National Assembly and rejected after outcry from civil society.

2012

The bill brought back unchanged from its 2008 form.

March 2012

Alliance for rural democracy formed.

The Alliance for Rural Democracy (ARD) is a cross-section of civil society organisations sharing a common concern about the detrimental effects that the Traditional Courts Bill will have on the rural constituencies they serve and support. The ARD includes the following organisations: Association for Rural Advancement (AFRA); Centre for Human Rights, University of Pretoria; Community Law Centre, University of the Western Cape (CLC); Corruption Watch; Co-operative Policy Alternative Centre (COPAC); Council for the Advancement of the South African Constitution (CASAC); Democratic Governance and Rights Unit, University of Cape Town (DGRU); Embrace Dignity Campaign; Empilisweni AIDS Education and Training Centre; Greater Rape Intervention Programme (GRIP); Institute for Justice and Reconciliation (IJR); Justice and Women (JAW); Land Access Movement of South Africa (LAMOSA); Law Race and Gender Research Unit, University of Cape Town (LRG); Rural Health Advocacy Project Lesbian and Gay Equality Project; Masimanyane Women’s Support Centre; Open Democracy Advice Centre (ODAC); Rural People’s Movement; Rural Women’s Movement; Section 27; Sonke Gender Justice; South African Constitutional Literacy and Service Initiative (CLASI); Students for Law and Social Justice (SLSJ); Thohoyandou Victim Empowerment Project (TVEP); Treatment Action Campaign (TAC); Triangle Project; Tshwaranang Legal Advocacy Centre (TLAC); Unemployed People’s Movement; Women’s Health Research Unit in the School of Public Health and Family Medicine, University of Cape Town; Women’s Legal Centre Trust. The Legal Resources Centre (LRC) acts as legal advisor to the Alliance.

April and May 2012

Public hearings are held across the country. The Alliance for Rural Democracy sent delegates to many of these to ensure that the voices of ordinary people and not just traditional leaders or those wielding power were heard in the hearings.

June 2012

Four provinces reject the Bill outright, namely the Eastern Cape, North West, Gauteng and Western Cape. However, instead of discussing the mandates as the Committee was scheduled to do, the Chair proposed that the process be postponed to allow for further public hearings. He mentioned that the Minister of Women, Children and People with Disabilities wanted to make a submission to the NCOP, as well as the ANC Women’s League. The Committee is mandated to call for and allow submissions to itself in Cape Town. However it is not mandated to do what happened next, which was that members called for the provincial public hearing process to be re-opened.

September 2012

More public hearings are held, and in September, a series of hearings is held in parliament, in which over 22 submissions are made. These submissions overwhelmingly rejected the bill, with only a handful of submissions backing the Bill’s passage.

October 2012

The NCOP meets to analyse input received in public hearings. However, the Department of Justice and Constitutional Development (DOJ), on the invitation of the Committee Chairperson, presented its summary of the public hearings. The DOJ document only referred to two of the many submissions that were made at the public hearings in September. They were the submissions of the Department of Women, Children and People with Disabilities, and the South African Human Rights Commission. The Chair made this instruction to the DOJ because the other submissions were, in his words, “irrelevant”. This faced a huge outcry from provinces and civil society, who had spent time and work on the submissions and public hearings.  It also totally undermined the submissions of the rural people at the hearings, who travelled from afar to give oral submissions, often on how traditional justice systems and their leaders had abused them and their communities, rallying emphatically against the provisions of the Bill.

Now

The NCOP has yet to discuss the submissions made in the public hearings. It will then decide whether or not the Bill should be altered from its original state as introduced by the National Assembly. If yes, it returns to the National Assembly for approval. If no, it either is signed straight into legislation by the President or submitted to the constitutional court by the President to review and assess its constitutionality. It is dangerously close to becoming legislation, and with the recent turns of events, it seems as though there are powerful people who want the Bill passed, and who will override Parliamentary processes in attempts to push it through.

Article by
Staff Writer
1 Nov 12

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