| 2009 08 31 'Fighting for True Justice Under a Tree: The Need for Proper Consultation on the Traditional Courts Bill' |
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Traditional courts are a standard feature of the ordinary, rural South African's life. Compared with state courts, they are informal, inexpensive and readily accessible - for many they are regular portals of justice. They are evidently here to stay and have the potential to positively assist the government to deliver justice to more than 17 million citizens. These courts presently operate under the Black Administration Act 38 of 1927, outdated legislation that undeniably requires reform. And, because these courts may not always conform to the Constitution, there is the obvious need to coordinate their rules and practices with it. The Traditional Courts Bill B15-2008 is meant to provide for all of this. But, major public controversy erupted when the Bill was introduced into Parliament last year. It has since been revived and is back on the Portfolio Committee on Justice and Constitutional Development's agenda. Questioning the Bill My starting point is not the common premise that customary law is inherently unjust and in need of redemption or abolishment. I presume that customary laws that agree with the will(s) of both the people who subscribe to them, and their legitimate leaders (traditional and otherwise), should be observed. However, the ‘official' version of customary law was derived mainly from the in/direct impositions of the colonial and apartheid governments,combined with distortions of ‘living' customary law by some senior male members of traditional communities who advanced versions that favoured their own interests. Ironically, the present bill (re)enables many old patterns of imposition, exploitation and suppression of women's voices. A look at its content illustrates that the primary issue remains a struggle over whose voices are included in the definition of custom. Absence of DueConsultation A keyconcern with the Bill is that the drafting process only involved consultation with traditional leaders - not the women who will be most (adversely) affected by it. The previous Portfolio Committee on the Status of Women objected to it and requested joint hearings with the Justice Committee but did not get the opportunity. Broader consultation with women remains crucial and the Portfolio Committee on Women, Youth, Children and People with Disabilities needs to take up the matter. Gender Inequality The Bill presentsa real threat to the rights of women. It centralises power in traditional leaders (who are, in almost all cases, male) and makes no specific provision for the participation of women, except as parties in a case. Even then, it neither guarantees nor facilitates their access to justice. Clause 9(3)(b) reads - "A party to proceedings before a traditional court may be represented by his or her wife or husband, family member, neighbour or member of the community, in accordance with customary law and custom." This is an example of substantive inequality veiled by a formally equal provision that would not survive constitutional scrutiny. As the Legal Resources Centre (a public interest litigation non-profit) submitted, "thereal impact of the circular wording of this section will be to enable the continuing representation of womenby male family members." Other Problems The Bill bans legal representation in criminal disputes, making it inconsistent with the Bill of Rights. Similarly unconstitutional is its provision for forced labour as punishment. It reinforces often-contested colonial and apartheid boundaries which forced people of different cultures to live under traditional authorities that they did not recognise. Furthermore, it does not permit people to opt out of traditional court jurisdiction and criminalises refusal to appear before a court once summoned to do so. If you were passing through a traditional authority's jurisdiction, for instance, and committed an offence, you would have to appear before its court to have the matter heard according to its laws as determined by the ‘presiding officer' chief. In effect, this Bill makes into law the dictates of an individual (traditional leader), and imposes it on potentially large numbers of people, without establishing substantial checks on that power. By not providing for the diverse forms of community participation and accountability mechanisms that might ordinarily check the traditional leader's power underliving customary law, it erodes the need for them to be accountable to their people. It will probably, therefore, alter the delicate balance of authority, power and accountability in traditional communities significantly. These are the more glaring problems with the Bill. Slips like the use of Latin legal terms further underscore the failure of this Bill's attempt to complete the fraught task of justly integrating indigenous forms of law with civil ones. Customary law ought not to be dictated from above - by the state or a solitary leader within the community concerned. Like their people, traditional leaders have a strong interest in maintaining healthy accountability relationships with the communities they serve, and thus need to sever ties with the apartheid history of autocratic rule by the iron fist of state-bestowed power. Therefore, it isessential that a more lengthy and inclusive consultation process around such obviously pivotal fora as traditional courts been sured, and that the legislation reflect appreciation of the views expressed. This will enable legislation that accords with the protections afforded to all by the Constitution and allows for true (that is, ‘living') customary law to find expression in accordance with the multifaceted and dynamic identities, practices, needs and values of its adherents - rather than the mere say-so of their leaders. Sindiso Mnisi is a senior researcher in the Rural Women's Action-Research project at the Law Race and Gender Unit, University of Cape Town. Details of Hearings: TUESDAY, 01 SEPTEMBER 2009 WEDNESDAY, 02 SEPTEMBER 2009 |