2 February 2017

South Africa: In a Constitutional Democracy We Are All Equal Before the Law - Chair

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People listening attentively during the public hearings on the

Traditional and Khoi-San Leadership Bill at Phumlani

Hall, Hluhluwe, KwaZulu-Natal.

Explaining the objectives of the public hearings on the Traditional and Khoi-San Leadership Bill in Hluhluwe, KwaZulu-Natal, the Chairperson of the Portfolio Committee on Cooperative Governance and Traditional Affairs, Mr Richard Mdakane, emphasised the African ancestry of the Khoi-San to demystify any doubts about their origins.

"There is lot to prove that we share a strong kinship with the Khoi-San. Like Africans, they also suffered persecution at the hands of colonialists as we have too. And they are descendants of Africa. This Bill seeks to ensure that the Khoi-San have a pride of place in this country, like other cultural groupings. The fact that people are not familiar with our traditions and customs does not mean that we don't exist. This Bill seeks to make them part of the traditional leadership structure to ensure that they are fully recognised as well," he said.

"The government failed to get rid of the divisive boundaries that have destroyed our kingship from the face of the Earth," said the King of the Tonga, Mr Fehleni Tembe. "The unilateral demarcation of boundaries has divided our kingships, in the process our history and heritage has been muddled and we the Tongas are the victims of this process. We are appealing to you to ensure that the legitimacy and jurisdiction of our kingship is restored," he said.

"There is no demarcation of boundaries in tribal authorities that can be done without consulting the kings because they are the custodians of their jurisdictions," said Mr Tembeni Mhlongo "It is the kings who know the demarcation of their jurisdictions: where their kingships start and end. As such, it would not be correct for a demarcation board to engage in this process without the inclusion of traditional authorities," he said.

"Sometimes we feel that public hearings are just formalities," said Mr Adam Dube from Ntsinde Tribal Authority. "Now we have a traditional Bill before us, but the kings were never part of its conceptualisation. We are now asked to make an input to something that has already been conceived and there is little we can do to influence its course.

People are often asked to make inputs into the Bills before Parliament in radio programmes, but one often wonders how all the views expressed in these programmes find expression in the law-making processes of Parliament. Sometimes one feels that these processes are just formalities, they have no material influence," he said.

The Chairperson explained that government and Parliament have a constitutional mandate to propose and amend laws. "There is nothing wrong with conceiving a Bill. It is the constitutional prerogative of both Parliament and government to do so. This Bill arises from this consideration. The process of turning it into law will take into account all public concerns and considerations," he said.

"For any traditional Bill to get a proper buy-in from traditional authorities, we need to consider the inception of cultural teams from various jurisdictions," said a representative of the Traditional Council of Ntside, Mr Sipho Mafuleka. "These teams will consist of cultural experts who will consult with the kingships and advise them on the relevant inputs they can submit to various law-making processes, including the inception of traditional leadership Bills," he said.

"The Khoi-San must not be given their own sovereign authority, they must serve under the existing traditional authorities," said Mr Mandlenkosi Sibiya. "We cannot have parallel traditional structures in one jurisdiction. This is a cause for concern and can create unnecessary conflict," he said.

The fact that there is resistance regarding the recognition of Khoi-San in traditional authorities is because nothing much is known about the history of this country, said Mr Mafuleka. "This is the case because the indigenous history of this country is not protected, promoted or even taught at schools or in our higher education institutions. As a result, we don't know the history of our lineage which is intrinsically linked to that of the Khoi-San," he said.

People are still persecuted in their traditional authorities through apartheid and colonial laws. The Ingonyama Trust worsened our predicament, said Mr Themba Gumede. "We have the best Constitution in the world, but we are still victims of old apartheid laws that govern traditional authorities and boundaries under Bantu traditional authorities that are divisive," he said.

Women's right are still undermined under the tribal authorities, said a representative of the Rural Women's Movement, Ms Sizani Ngubane. "In traditional courts I cannot represent myself, as a women I have to be represented by a man. This has deprived us our right to the judicial recourse guaranteed in our Constitution. Also, women still have no right to own land in jurisdictions that are under traditional leadership. There is a case of a woman who could not inherit her family's farm because she is a woman. Today she lives in fear and has since fled her ancestral place. She is now in exile, distressed and destitute," she said.

When this Bill is passed, we would at least say traditional leaders have been given an opportunity to contribute to the inception of this law, said the Speaker of Big 5 Hlabisa Municipality, Mr Comfort Khumalo. "We are grateful for this opportunity. And we know that not everything said here will form part of this law. As we know, some have not addressed the letter of the Bill. But we thank the fact that we had our say in its inception. And we hope we will make further inputs before this Bill becomes a law," he said.

"What you have said will form part of a parliamentary debate on the Bill," said one of the members of the Committee, Mr Amos Masondo. He added: "Beyond these hearings, one can make a written submission if he or she has any views regarding this Bill. They will be considered," he said.

"I am happy that no one is in principle against the recognition of the Khoi-San traditional leadership," said Mr Mdakane. "As I said the Khoi-San are the descendants of this country. No one can dispute that. The concerns regarding their integration into traditional authorities is something that will be thoroughly looked at and addressed accordingly without causing any conflict.

"But it is imperative that we determine the role of traditional leaders in a constitutional democracy. We are presidents and kings under a constitutional democracy. The traditional leaders must discuss that because we are all citizens who are equal before the law. Hence it is imperative that we determine the role of traditional leaders in a democracy. It would even be better if traditional leaders can define their role in this regard. If that can be resolved, many grievances regarding their authority in a democracy can be resolved," he said.

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