28 EASTERN CAPE RURAL PEOPLE’S ORGANISATIONS CHALLENGE THE TRADITIONAL AND KHOISAN LEADERSHIP BILL AND THE CURRENT PUBLIC HEARINGS ON THE BILL
As 28 organisations representing the mass of the rural people of the Eastern Cape, we call on Parliament to use this week’s Eastern Cape public hearings on the Traditional and KhoiSan Leadership Bill (TKLB) to listen to our cries and demands for rights-based, accountable, and democratic governance of our villages. Hundreds of delegates representing more than 200 rural communities and more than 30 organisations across the Eastern Cape will bring these cries and demands to Public Hearings being held in East London (7th December), Graaf-Reinet (8th December) and Port Elizabeth (9th December). We all firmly reject the imposition of often unaccountable tribal chiefs imposed from above that the TKLB effects. We also reject the Bill’s retribalisation of the countryside, its reintroduction of tribal boundaries in the former homelands, its extension of governmental powers to chiefs, and its allowance of unaccountable partnerships between traditional councils and private companies. This Bill is a massive attack on the democratic and progressive evolution of living customary law from the people themselves.
We are extremely unhappy that the first round of Public Hearings held in Mthatha on Monday 5th December 2016 was a manifest failure in public consultation. The Mthatha hearings lasted for no more than 3 hours. The hearings ended with many rural people not having had a chance to speak and comment on the Bill. Parallel to the hearings three Members of Parliament held a separate meeting with traditional leaders at a separate venue. When these MPs re-joined the hearings they did not report on their private meeting with the chiefs. Back at the hearings, the Parliamentary Committee did not present the TKLB in the detail required. A brief and unsubstantial overview of the Bill was given omitting some of its key provisions which we critique here. After only a few people made their comments, a state lawyer who was with the Committee was supposed to give a summary of people’s inputs on the Bill. The lawyer tried to shift people’s focus on the Bill itself and instead he claimed that people are not commenting directly on the Bill but are referring to communal land which is supposed to be dealt with in a different piece of legislation. What this state lawyer did is a gross misrepresentation of the people’s comments. Even those who were there would not have heard of the hearings if they had not mobilised themselves through their organisations.
What happened in Mthatha adds to the fact that the TKLB was developed without much consultation of rural people. The national Cooperative Governance and Traditional Affairs (COGTA) Department primarily consulted with tribal chiefs, government departments and other stakeholders disconnected who do not represent the mass of rural people. Only two organisations of civil society (the Women’s Legal Centre and the Legal Resource Centre) were consulted by government. This is profoundly undemocratic given that the TKLB will affect over 18 million people in rural areas. This is compounded by the fact that the TKLB is not available in isiXhosa, seSotho and other languages spoken by rural people. All of this mocks the constitutional requirement for meaningful and substantive consultation in the development and passing of laws. Even the announcement and notice for the public hearings was limited. This lack of consultation of the mass of rural people already tilts the scale in favour of the elite interests of tribal chiefs, and at the expense of evolving, democratic customary law and values. We call on parliament to ensure that this major flaw in the TKLB legislative process is addressed failing which we will be forced to consider legal action to challenge the constitutional validity of the TKLB.
The TKLB repeats the scheme of rural governance inherited from the apartheid-era Bantu Authorities Act of 1951, the Transkei Administrative Authorities Act of 1965, the Ciskei Administrative Authorities Act of 1984, and the Native Administration Act of 1927. These laws were developed to misappropriate customary law and co-opt traditional leaders to be unaccountable servants of the apartheid regime on a tribal basis. Similar to the Bantu Authorities Act, the TKLB turns chiefs into servants of the state instead of democratically accountable representatives of the people. This will mean that the people of Cala, Lusikisiki, Matatiele, Mbizana, and other former homeland villages (all black) will be treated by the law as subjects whereas the people of Mdantsane, Grahamstown, Port Elizabeth, Dimbaza, and other urban areas (black and white) have full rights as citizens. Further, this Bill retribalises the countryside in ways that stop the progressive and democratic development of customary law as it happens on the ground and as has been confirmed by the Constitutional Court in a number of its judgments. Tribal division and difference were at the heart of the apartheid system. How can our democratic government retribalise our villages?
The TKLB ignores the August 2015 Bhisho High Court judgment that defended the rights of the rural people of Cala Reserve to elect their own headman in line with their well-established and long-recognised custom. Sections 9(7) and 12(11) of the TKLB turn headmen into unelected royal family appointees. This provision goes against the practice of the people of not just Cala Reserve, but a common and long-established customary practice in hundreds of villages across the province. This provision runs the risk of being unconstitutional as it contradicts the High Court judgement in Bisho in August 2015. The Sections also are against the spirit of the constitution which promotes democracy and people-centred decision-making. The sections take these provisions away.
What makes the TKLB even more problematic are its provisions in Section 25 where government departments may delegate their powers to traditional councils without even clear criteria when there is abuse or misuse of such power. Section 24 perpetuates this problem further by giving traditional councils powers to enter into partnerships with the private sector in ways that may undermine the customary rights of rural citizens. This is exactly the struggle in places like Xholobeni and the rest of the Wild Coast. People already complain that instead of promoting social cohesion our government seems to be instead determined to have two separate systems of governs within one South Africa. The other is a democratic system of elected leaders whilst the other in the country side is system that resembles exactly that of Apartheid with unaccountable, undemocratic enforced leaders which goes far astray from the constitution of this country. It should be remembered that traditional councils are undemocratic as the majority of their members (60 per cent) are unelected, but chiefs’ appointees. It is only 40 per cent of the members that are elected.
We make all these criticisms of the TKLB on the back of 13 district workshops and tens of community meetings held during October and November in Centane, Centane, Dwesa, Gcuwa, Hewu, Keiskammahoek, Matatiele, Mount Frere, Ngcobo, Ngqamakhwe, Peddie, Port St. Johns, Port Elizabeth and Queenstown. These meetings were attended by more than 500 activists representing more than 200 rural communities throughout the former Ciskei and Transkei homelands, and from Khoi and San activists from the commercial farming districts of the province. Through these meetings, rural people created their own platforms to understand and discuss the TKLB, as well as generate the call for a people-based law on rural governance. The TKLB is not this.
We therefore call upon people, rural organisations to come in their numbers to the remaining public hearings and put forward their views on this Bill and their proposals. As such, the struggle for rural democracy will not end with the hearings. We will continue to monitor other hearings in other provinces, the discussions of the Bill in parliament and in the provincial legislatures. If Parliament fails to withdraw the Bill and proceeds to pass it in its current form, we will challenge it on the ground, in Parliament, in the media and in the courts.
We say NO TO TRIBALISM! We say FORWARD TO DEMOCRATICALLY ELECTED PUBLIC REPRESENTATIVES! The struggle continues!
· Nomvuzo Nophothe – 078 017 8749 or 079 907 8791 (Member of the National Council of the Inyanda National Land Movement and leader of the community of Cala Reserve);
· Bonani Loliwe – 072 103 1181 (Programme Manager, Border Rural Committee);
· Dr. Fani Ncapayi – 082 440 6067 (Director, CALUSA/ TCOE);
· Fundiswa Ndlela – 073 447 6444 (Coordinator, Vul’ amasango Singene Campaign); and
· Mazibuko K. Jara – 083 987 9633 (Executive Director, Ntinga Ntaba kaNdoda).
STATEMENT RELEASED AND ENDORSED BY THE FOLLOWING ORGANISATIONS
1. Adelaide Advice Centre (Adelaide)
2. Amadiba Crisis Committee (Xholobeni, Mbizana)
3. Amahlathi Crisis Committee (Zeleni, King William’s Town)
4. Border Rural Committee (BRC – Provincial, based in East London)
5. Cala University Students’ Association (CALUSA – Cala and Chris Hani District)
6. Chatha Communal Property Association (Keiskammahoek)
7. Coastal Links (Provincial)
8. Ilizwi Lamafama Small Farmers’ Union (Buffalo City)
9. Inter-Church Local Development Agency (Nelson Mandela Metro and Chris Hani District)
10. Inyanda National Land Movement (national)
11. Jekezi Cooperative (Ngqamakhwe)
12. Keiskammahoek Local Action Group (Keiskammahoek)
13. Keiskammahoek Restitution Project Steering Committee (Keiskammahoek)
14. Lingelitsha Community Development Project (Buffalo City)
15. Makukhanye Social Movement (Cacadu District)
16. Masifunde Education Project (Makana, Ndlambe and Ngqushwa)
17. Ncerana Rural Movement (Mnquma)
18. No-Sizwe Educational and Training Cooperative (provincial)
19. Ntinga Ntaba kaNdoda (Keiskammahoek)
20. Nxopho Eco-Village Education (Buffalo City)
21. Rural People’s Movement (Makana, Ndlambe and Peddie municipalities)
22. Rural Women’s Assembly (Southern African)
23. Transkei Land Service Organisation (Mthatha)
24. Trust for Community Outreach and Education (TCOE)
25. Unemployed People’s Movement (Makana)
26. Voice of the Women of Africa (Grahamstown)
27. Vul’ amasango Singene Campaign (Provincial)
28. Zingisa Education Project (Buffalo City Municipality)