After 14 years of highly controversial amendments, the South African Parliament has finally approved the Traditional Courts Bill. The bill now awaits the President’s signature to become law.
The bill is aimed at uniform regulation of the structure and functioning of traditional courts. It also envisages the transformation of the traditional justice system in line with constitutional values.
Early controversy surrounding the bill concerned its compatibility with the constitutional Bill of Rights, particularly the right to human dignity, equality and freedom from discrimination.
Controversy later centered on the lack of an opt-out clause – that is, allowing anyone challenging the legitimacy of a traditional court (or its presiding judge) to refuse to submit to the court’s jurisdiction.
To be clear, the argument is valid. Traditional courts should be informal, based on African customary law, and as independent as possible of state authority.
According to the bill, all levels of the traditional court system must be explored before a litigant can go to a magistrates’ court, which is an official state court. This requirement practically commits people living in rural areas to the authority of the traditional courts in their neighbourhood.
The problem is that the bill recognized the much-maligned Bantustan boundaries contained in the Traditional Leadership and Governance Act 2003, home to millions of poor, disadvantaged South Africans.
Moreover, traditional courts are presided over by traditional leaders who are mostly men, many of whom have questionable legitimacy. Some are direct descendants of apartheid-imposed rulers. Others are accused of appointing without observing indigenous laws.
An editorial in the South African weekly Mail and Guardian claimed the bill was based on bigotry and patriarchy and may only exist to appease traditional leaders and secure votes for the ruling party in the 2024 general election.
In general, supporters of the approved bill argue that the opt-out clause would undermine the authority of traditional courts. For their part, opponents argue that people’s rights to a fair trial outweigh the need to protect the authority of traditional courts.
But no one is asking a simple but very important question: Given their heavy government regulation, will traditional courts reflect indigenous dispute resolution practices?
How traditional is the bill?
Based on my research into indigenous law, the answer is simply no. In my opinion, criticism of the content of the approved bill obscures an important problem: South African legislators are steadily shaping indigenous laws in the image of Western laws.
This is inappropriate. South Africans have the right to express their culture without stifling regulation by the state. South Africa must respect deep legal pluralism – that is, the autonomous coexistence of legal orders.
Section 211(1) of the Constitution recognizes the institution, status and role of traditional leadership under customary law.
For its part, section 211(3) requires courts to apply the common law, where such law is applicable, having regard to the Constitution and any legislation specifically dealing with the common law.
Section 211 therefore provides that the common law must operate independently.
While section 2 of the bill seeks to “affirm the values ​​of customary law and custom in the resolution of disputes based on restorative justice and reconciliation”, it does so in order to “bring them into line with the Constitution”.
In any case, indigenous laws predate the Constitution. The bill passed is too controlling of indigenous behavior – as are most laws governing customary law. These include the Recognition of Customary Marriages Act 1998, the Reform of Customary Inheritance Law and Regulation of Related Matters Act 2009, the Communal Land Rights Act 2004 and the Traditional Leadership and Management Act.
All these laws impose Eurocentric values ​​of individualism, non-discrimination and binary notions of gender equality on indigenous African laws. They reflect little attention to the compatibility of these values ​​with the communal nature of Indigenous law. These laws emerged in agrarian settings with additional gender relations, welfare-oriented rights and responsibilities, and insufficient attention to individual rights.
Another major problem I have with the bill is that its prescriptive nature is different from informal indigenous dispute resolution procedures.
Furthermore, the structure of traditional courts ensures that they are simply an extension of the state. It is true that they should be led by headmen or headmen, older traditional leaders, and kings or queens. However, appointments, salaries, training and principles of the court are controlled by the state.
Lest we forget, the state is a colonial clone because it has retained colonial socio-economic systems. He imposes European culture on Africans.
This is seen once again in the new bill. Its judicial procedure leaves little room for the development of indigenous laws. Every essential aspect of the Bill is governed by “constitutional values”.
Clearly, these normative values ​​are successors to colonial-era demands that customary laws should not conflict with natural justice, equity and good conscience.
What is the legal entity of South Africa?
The bill demonstrates the successful cultural offensive that European colonizers unleashed on Africans. It will be followed by the Statute of Uniform Marriage and other laws. It is clear that a wave of regulatory changes is coming. But Africans have the right to determine its direction.
Anthony Diallo, Director of the Center for Legal Integration in Africa, University of the Western Cape
This article is republished from The Conversation under a Creative Commons license. Read the original article.
