Why the Traditional Courts Bill is a Human Rights Issue

By Emma Powell

Phathekile Holomisa’s recent City Press opinion editorial,ANC must lead on chiefs’ bill” struck me as a troubling tirade. Calling for the ANC to take a clear position on the role of African Traditional Courts, he notes “our opponents must not make it necessary for traditional leaders to prove their strength”.

As President of Congress of Traditional Leaders of SA – an organisation also widely known to oppose the rights of homosexuals – the stance he takes here is expected. However, when one considers his dual position as ANC Member of Parliament, it becomes evident that the mother body is deeply perplexed when it comes to achieving a delicate balance between advancing a progressive and definitive policy on the issue of gender and appeasing African traditionalists.

Numerous civil society organisations and academic institutes such as the Alliance for Rural Development and UCT’s Law, Race and Gender Research Unit have strongly opposed the bill in its current form for a variety of reasons.

For starters, only traditional leaders were consulted during the drafting process and therefore the bill is founded upon bias. If the bill is made an act, 17 million rural people will be restricted to former homeland jurisdictional boundaries and subject to the whims of traditional leaders, without access to legal recourse in formal courts. This poses a major problem for rural women who are both historically and culturally marginalised within these traditional communities. In many courts, women are traditionally represented by a male family member and therefore restricted from appearing before the courts directly. Here, women engaging in marital and family disputes are disadvantaged, especially when it comes to land allocations where traditional leaders have both the executive authority to allocate land and decide on disputes involving land. Women in mourning also face specific limitations in relation to entering court spaces, often resulting in the eviction of widows following the death of their husbands where an inheritance dispute arises. While the bill seeks to make provision for the representation of rural women before these courts “in accordance with customary law and custom”, the provision is redundant in practice.  In the absence of a system of checks and balances, Chiefs are able to impose highly coercive sanctions at will, while the freedom of community members and in particular women to appeal those decisions is restricted. The bill reinforces the subjugate status of women rather than enabling their greater participation in traditional courts and if made an act, will have devastating consequences.

Yet, the ANC has been relatively quiet on the matter, save for MPs having agreed to hold further public consultations after four provinces in the NCOP rejected the bill. Depending on who you talk to, the general opinion on this manoeuvre is that it was made to prevent outright legislative defeat and buy politicians more time to drum up support. Strange when one considers that in 2009, a Ministry for Women, Children and People with Disabilities was established to provide the driving force for projects, campaigns and interventions intended to address gender equality and in fact promote women’s empowerment. Further, in March 2012, the party released the ANC Gender Paper which rigorously outlined a set of core principals and programmes intent on achievingsubstantive gender equality in SA by “eradicating patriarchal practices and stereotypical attitudes”. Point 18 of the document states unequivocally:

“It is thus important that in order to effectively implement policy decisions that impact on women’s empowerment and gender equality, it is imperative that we acknowledge that men are victims of their socialization hence their historic sense of superiority over women. Therefore, to achieve the ANC’s vision of gender equality, women also need the equal enjoyment of rights and the access to opportunities and outcomes, including resources. There must be fair distribution of resources between men and women, the redistribution of power and care responsibilities, and freedom from gender-based violence.”

It is also unlikely that the bill will pass constitutional muster in its current form. Section 30 of the 1996 Constitution specifically says that ‘everyone has the right … to participate in the cultural life of their choice’ and it is therefore clear that the rights of groups cannot override the rights of individuals. Further, as signatories to the United Nations Convention on the Elimination on all Forms of Discrimination against Women; the Beijing Convention; the African Union Heads of Solemn Declaration of Gender Equality in Africa and the SADC Protocol on Gender and Development,  South Africa is bound by international, continental and regional law and expected to domesticate national legislation accordingly.

Holomisa clearly misses the point when he concedes in an earlier paper advocating the TCB, that while only adult male members of the community have the right to attend and participate in the deliberations of the imbizo or community parliament, “in matters involving family disputes and laws of succession and inheritance, [women] are consulted as expert witnesses who are endowed with special skills and insights”. (Thank you indeed for awarding over 52% of the population with such an extraordinary privilege, Honourable MP).

According leadership status to over half of the population solely “in their capacity as regents for heirs who may still be incapacitated by age” is just not good enough in a society that is premised upon the value of equality. This bill must be dealt with as a human rights issue. If not, like Women who marched to the Union Buildings on 9 August 1956 said: Wathint’ abafazi, wathint’ imbokodo uzokufa! (Now you have touched the women, you have dislodged a boulder! You will be crushed!).


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