The Alliance for Rural Democracy: Sonke and partners rally against the Traditional Courts Bill

Sonke Gender Justice

Sonke is an active member of a new and important civil society initiative: the Alliance for Rural Democracy. The Alliance’s chief goal is to advocate against the Traditional Courts Bill, a Bill set to severely limit the rights of rural people to seek legal justice in the formal courts of South Africa, a right enshrined in our nation’s Constitution.

Arguably the most prominent backer of the Bill is Phathekile Holomisa, chair of the Congress of Traditional Leaders in South Africa. Holomisa recently called to remove a clause from the Bill of Rights that protects LGBTI people from unfair discrimination. Although this is unlikely, if the Traditional Courts Bill passes, LGBTI people, women and other vulnerable groups may lose vital protection from discrimination, all in the name of tradition.

In 2008, a Bill was put before the South African parliament that caused a national outcry. Its provisions appeared significantly unconstitutional, giving great power with little accountability to traditional leaders. The Bill was shot down before it had a chance to gain wider support. This was the Traditional Courts Bill, its purpose: to update the operations of traditional courts in South Africa, whose legislative scope still rests on Apartheid-era documentation.

In 2012, the Bill was quietly revived and tabled at the National Council of Provinces (NCOP). Unamended in any way, the Bill retains a number of serious problems.

The Bill, although changing a number of processes and laws pertaining to the workings of traditional courts, is much more of a downgrade than an update. Rural South Africa in particular struggles under the weight of oppressive patriarchy, with many women disempowered to speak for themselves, emancipate themselves from the confines of the home, or make important decisions about their lives. Although the traditional courts system is indispensible in South Africa, as many rural residents cannot access formal courts, traditional courts can no longer perpetuate patriarchal oppression in the name of culture.

Bill concentrates power into few hands

The Traditional Courts Bill (TCB), as it stands, consolidates power into the hands of one presiding officer per court. This is almost a direct mimicry of western courts’ functioning. However, in South Africa’s present and past, traditional courts are open, participatory spaces for the community to engage with the issue at hand – a claim, a dispute, etc. This aspect of community involvement means that decisions are made on a case-by-case basis. There is no official, written record of precedents, and complainants’ life situations are often known by members of the community, who can give personalised, intimate feedback that arises through debate. It is probable that this debate mitigates the bias possible when a single presiding officer is able to make judgements and sentences without consulting anyone else.

While this participatory democracy sounds idyllic, many traditions informing traditional courts around the country still prescribe excluding women from participation, both from representing themselves (in many traditional courts, women must be represented by a male relative or community member) and from participating in the decision-making process. This puts women at a huge disadvantage, as many customs and attitudes preserve patriarchal norms and control. If women cannot speak for themselves, how can they provide any opposition to practices that marginalise them in their communities?

However, there is a move to ensure that women make up 30% of traditional courts’ councils.

It is chiefly women who bear the burdens of domestic and sexual violence, and HIV and AIDS in this country: more women than men in South Africa are HIV positive, and women shoulder most of the work caring for those who are sick with HIV-related illnesses. If the Bill is to be updated, which it surely must be in the near future, it needs to acknowledge the marginalisation that many rural women experience, and provide explicit legislation to empower women in community decision-making processes and protect them from the various oppressions of patriarchy.

An Alliance is formed

It is against this background of urgency to scrap the Bill that the Alliance for Rural Democracy was formed. Allies include the Law, Race and Gender Unit at University of Cape Town, the Community Law Centre at the University of the Western Cape, the Rural Women’s Movement, and the Rural People’s Movement. Over the last three months the Alliance has been joined by a large number of other civil society organisations.

Members of the Alliance have pooled resources to ensure that the public are aware of the Bill, understand the problems with the Bill and are able to voice their objections to the Bill.

Community mobilisation efforts saw representatives from the Alliance attend the public hearings on the Bill, educate the public and organisations on the Bill, and train them to educate others and make submissions on the Bill. Information was disseminated via pamphlet, radio, workshop, SMS, email and of course, word of mouth.

Sonke staff travelled from province to province educating men and women in rural communities about the provisions of the Bill and supported many people to speak out against the Bill at provincial hearings. Sonke also engaged the Department of Women, Children and People with Disabilities and encouraged the Department to make its opposition to the Bill public.

Minister Lulu Xingwana displayed great courage in publicly calling on other cabinet members to reject the Bill.

In addition, the Alliance undertook to publicise the problematic contents of the Bill and information about the public consultations processes, and educate people en masse through print and broadcast media. Through the exhaustive efforts of alliance members, the issue of the Bill was featured broadly in the mass media before and during the provincial hearings on the issue.

At the end of March, when approached by members of the Alliance, the South African Press Club stated that the Traditional Courts Bill was not of interest to them. However, by the end of June, over 120 articles had been published in the national print media, many of them authored by, or quoting members of the Alliance.

Radio shows were conducted with community and national radio stations across the country, including a show on SAFM on featuring Sonke’s Deputy Director, Desmond Lesejane, and the Minister of Women, Children and People with Disabilities, Lulu Xingwana, and numerous other national shows featuring representatives of the Alliance, including Sindiso Mnisi Weeks from UCT and Wilmien Wicomb from UWC.

The opposition to this is strong, and the Alliance is firmly of the opinion that the National Council of Provinces is not in a position to request further provincial hearings or amend the deadlines for resolution on this issue.

While the debate rages on, the Alliance continues to push for the Bill to be scrapped in its entirety and a new piece of legislation to be draft that brings traditional courts into the formal court structure in a manner that is truly in line with the Constitution and promotes and protects the rights of rural women.