Traditional bill strips people of their rights
Accidents of birth or history, including the history of forced removals, can mean that people living on one side of a line on an old apartheid map are members of traditional communities with imposed tribal identities and limited constitutional rights.
Those living metres away on the other side of that line enjoy the full benefits of post-apartheid South African citizenship.
It is expected that in democratic South Africa, legislation would be used to change rather than perpetuate the missteps of apartheid.
In view of this, communities from around North West province raised the alarm about the Traditional and Khoisan Leadership Bill at a recent workshop in Rustenburg. The bill makes chiefs accountable to the government for their actions and decisions rather than to their people.
This goes against the values of free and fair public participation that are enshrined in both the constitution of the country and in the living customary law honoured by millions of South Africans.
As it stands, the bill excludes ordinary people from consultation on any decisions that will affect them, including about which groups or sub-groups of people should be recognised.
It does not provide for ordinary people living in traditional communities even to be notified, let alone consulted, about critical decisions that will affect them.
Elites such as traditional leaders, royal families and traditional councils are given prominence over communities. The bill denies a voice to people living in traditional communities simply because they live within the inherited boundaries of traditional areas, which apartheid called "homelands". It closes the space for community participation and undermines democratic principles.
"This bill is an apartheid policy imposed in a democratic South Africa and it goes against the Freedom Charter, which says the people shall govern," one of the workshop participants argued.
The fact that the bill gives powers to traditional or Khoisan leaders and their councils to enter into agreements with municipalities, government and "any other" person, body or institution presents a window for these leaders to deliberately exclude members of mine-hosting communities from participating in mining deals that their leaders could enter into.
This lack of community consultation and consent on such deals undermines citizen participation at the local level on critical issues that affect their livelihoods, including their land rights.
People of Skiming village in Mapela, a community 20km outside Mokopane, recently resisted the relocation of Seritarita High School, giving Anglo-Platinum use of that piece of land.
This is just one example of how a traditional council and chief excluded a community from consideration. The school is made more significant as it was built by the community in the 1970s when apartheid denied them a school.
As if that was not enough, Kgosi Nyalala Pilane of Bakgatla ba Kgafela in North West has litigated successfully against his community to prevent them from calling meetings to discuss their community affairs.
It was a rare but welcome victory when the Constitutional Court ruled recently to return the power to the Bakgatla ba Kgafela to choose a democratic communal property association over an autocratic kgosi as their preferred form of land tenure.
Pilane's status is precarious following statements from the North West government over the holiday season. But even if he is made to vacate the leadership of the Bakgatla, his actions will be hard to reverse.
Additionally, the recent Eastern Cape High Court judgment that Cala people have a right to elect their own leaders critically underlines the importance of rural democracy. These two judgments set important precedents for other communities that suffer the same fate at the hands of their traditional rulers.
This new year looks set to present a host of opportunities to examine the government's plans for rural communities. If rural people don't seize those opportunities, however, they could face a future of reduced rights and constrained identities.
While the constitution allows parliament to make laws that regulate customary law, parliament has the responsibility to ensure that such laws do not undermine customary rights or go against the nature of customary law as a living source of law on its own terms.
Parliament has to ensure that the Traditional and Khoisan Leadership Bill does not entrench official versions of unaccountable traditional governance.
- Nyapisi is a researcher in the Centre for Law and Society at the University of Cape Town