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Released by the Alliance for Rural Democracy
Today many South Africans expected the National Council of Province’s Select Committee on Security and Constitutional Development to finally deliberate on the Traditional Courts Bill following the public hearings. This is what the Committee Chairperson, Mr. Tjetha Mofokeng, indicated would be done when the consultations were concluded in September. However, Mr. Mofokeng’s actions today have done serious damage, not only to the potential validity of whatever Bill is eventually rammed through Parliament, but also to the integrity of Parliament itself.
The stated purpose of today’s Committee meeting was to table its report of the public hearings. This did not happen. Instead, the Department of Justice and Constitutional Development (DOJ), on the invitation of the Committee Chairperson, presented its summary of the public hearings. The DOJ document only referred to two of the many submissions that were made at the public hearings in September. They were the submissions of the Department of Women, Children and People with Disabilities, and the South African Human Rights Commission.
The DOJ appears hell-bent on pushing this Bill through, even if it means being party to manipulation of the legislative process and undermining the rules of Parliament. If this was not the case, the DOJ would certainly have declined Mr. Mofokeng’s invitation, as this is no part of its function, and places the DOJ in a compromised position. Yet, instead, the DOJ seized the opportunity to reassert its own amendments to the Bill under the pretext of presenting a summary report of the submissions made by the public.
In a shocking move that flagrantly negates the participation of the public in the legislative process, Mr. Mofokeng stated that twenty of the twenty-two submissions the Committee had heard in Parliament were “irrelevant”. So irrelevant, in fact, that he instructed the DOJ to “disregard” them in preparing its summary of the recent public hearings. In Mr. Mofokeng’s view it is unnecessary for the Committee to note, let alone debate, the views of the many rural people who traveled to Parliament to make submissions opposing the Bill.
In response, some Committee members asked Mofokeng for clarity on the process, and for the summary of the hearings that is normally prepared by parliamentary researchers. They also queried why only two of the many submissions the Committee had heard were under discussion.
In response, Mr. Mofokeng dropped his bombshell: that he had personally instructed the DOJ to write the report, and that it was he, not the Committee, who had decided it was unnecessary to include any of the other submissions.
In reaction, one member pointed out that any account of the public hearings that fails to reflect the overwhelming opposition to the Bill presented to Parliament, would be inaccurate and could not qualify as a summary report of the process. Others members said that the accounts of abuse of power by traditional leaders described in submission after submission were deeply relevant, given that the Bill would exacerbate such realities and further restrict people’s ability to hold chiefs to account.
The Chairperson’s actions and attitudes toward the public hearings on the Bill are deeply insulting to the many rural people who traveled from afar to come to Parliament and put forward their views on the Bill. They proclaim that the public needn’t have bothered to make submissions as their views don’t even qualify to be part of the official record, let alone to be debated and considered by the Committee and provincial legislatures.
In May this year, under Mr. Mofokeng’s leadership, the Committee decided not to debate the provincial mandates on the Bill, many of which had rejected it. Instead it opted for yet another round of public hearings. Now that these further hearings have taken place – and overwhelming opposition to the Bill was voiced – Mr. Mofokeng has resorted to attempting to expunge these submissions from the public record and the legislative process itself.
The Constitutional Court has previously struck down laws on the basis that the legislative process did not adequately facilitate public participation. Section 72 of the Constitution specifically enjoins the NCOP to facilitate public involvement in law making. Human dignity, accountability, responsiveness and openness are founding principles of our Constitution, principles which Mr. Mofokeng’s leadership directly undermines.
Mr. Mofokeng was brazen in his approach today. What does that signal? It implies that he has the backing not just of the DOJ, but also of the Chairperson of the NCOP and the Speaker of the National Assembly. The time has come for these authorities to either distance themselves from Mofokeng’s approach, or to endorse it.
We, as the Alliance for Rural Democracy, call on the Chairperson of the NCOP and the Speaker of the National Assembly to indicate whether they consider Mr. Mofokeng’s actions to be consistent with his Oath of Office as a Member of Parliament – an oath to uphold the Constitution. Do they consider him a suitable person to oversee the legislative process of this Bill going forward?
If, as the Alliance believes, Mr. Mofokeng has failed in his duty, then Parliament should review his status as both Chairperson of the Select Committee and as a Member of Parliament itself.
Released on 24 October 2012
For more information contact:
Sizani Ngubane: 073 8405151
Nomboniso Gasa: 083 451 9321 or 083 7791435
Wilmien Wicomb: 078 9208366
The Alliance for Rural Democracy (ARD) is a cross-section of civil society organisations sharing a common concern about the detrimental effects that the Traditional Courts Bill will have on the rural constituencies they serve and support. The ARD includes the following organisations: Association for Rural Advancement (AFRA); Centre for Human Rights, University of Pretoria; Community Law Centre, University of the Western Cape (CLC);Corruption Watch; Co-operative Policy Alternative Centre (COPAC); Council for the Advancement of the South African Constitution (CASAC);Democratic Governance and Rights Unit, University of Cape Town (DGRU); Embrace Dignity Campaign; Empilisweni AIDS Education and Training Centre; Greater Rape Intervention Programme (GRIP);Institute for Justice and Reconciliation (IJR);Justice and Women (JAW); Land Access Movement of South Africa (LAMOSA);Law Race and Gender Research Unit, University of Cape Town (LRG); Lesbian and Gay Equality Project; Masimanyane Women’s Support Centre; Open Democracy Advice Centre (ODAC);Rural People’s Movement; Rural Women’s Movement; Section 27; Sonke Gender Justice; South African Constitutional Literacy and Service Initiative (CLASI); Students for Law and Social Justice (SLSJ); Thohoyandou Victim Empowerment Project (TVEP);Treatment Action Campaign (TAC);Triangle Project; Tshwaranang Legal Advocacy Centre (TLAC); Unemployed People’s Movement; Women's Health Research Unit in the School of Public Health and Family Medicine, University of Cape Town; Women’s Legal Centre Trust. The Legal Resources Centre (LRC) acts as legal advisor to the Alliance.
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Traditional Courts Bill: Committee Chairperson compromises Parliament’s integrity. Civil society calls for his status to be reviewed
Released by the Alliance for Rural Democracy
The day many rural South Africans have waited for is finally upon us. On 24 October the National Council of Province’s Select Committee on Security and Constitutional Development will discuss the public’s response to the Traditional Courts Bill.
Will the Committee listen to the voices of the people who made submissions during the provincial hearings that took place in April and May? Will they finally consider the negotiating mandates of the provincial legislatures, four of which rejected the Bill outright and three proposed conflicting amendments?
Will the Committee take seriously the harrowing experiences that rural communities shared with them at the national hearings in September?
“The ball is now in the Committee’s court. We will be watching closely to see if the legislature listens to what we have said about this Bill, and how it is a setback for democracy and justice in the rural areas,” says Connie Mogale from the Land Access Movement of South Africa.
Minister Radebe and Minister Xingwana hold opposing views on the Bill. On 24 October the public will finally hear where the Committee itself stands on the matter.
The legislative process to date has followed a peculiar trajectory. Instead of debating the provincial mandates immediately, the Committee opted to hold yet more public hearings. These turned out just as damning of the Bill as the previous two rounds of public hearings (both in 2008 and earlier this year in the provinces).
The Department of Justice has finally admitted that the Bill is fatally flawed and that it cannot pass constitutional muster as it is. However, instead of withdrawing the Bill and tabling a new version, the Department made a lengthy submission to the Committee proposing substantial changes, including changing the name of the Bill. This appears to be an attempt at directing the committee by remote control, putting the onus on Parliament to redraft and fix the mess created by the Department’s intransigence since 2008. This has compromised the validity of the legislative process and places the Committee in an awkward position. After all, it is Parliament and not the Department that will take the fall when the legislative process is challenged, as it surely will be.
“The Committee’s job is not to follow the lead of government ministers, but to debate both the content of the submissions received from the public, and the mandates put forward by the provinces,” says Aninka Claassens of the University of Cape Town’s Law, Race and Gender Unit.
As the Alliance and many others have repeatedly stated, the Bill is not about customary law as some argue. It is about bolstering the power of some traditional leaders to act autocratically. Only leaders who do not enjoy legitimacy and support need laws like this to prop up their disputed authority. The public hearings exposed that there are many such chiefs, and that abuse of power and lack of accountability is widespread. Those who summoned the courage to speak out publicly at the hearings did so in the belief that the legislative process will protect them and be influenced by their submissions.
Sizani Ngubane, founder of the Rural Women’s movement, says that “women living in the rural areas went to Parliament, like we did back in 2008, to say that this Bill must be stopped. We told the lawmakers that our rights as women must be taken into account and supported by the law. This Bill does the opposite - it threatens the rights we have gained.”
People invested time and courage to travel to the provincial hearings and to Cape Town for the national hearings to put their submissions to the Committee. They did so in the confidence that their views would be taken seriously. The did so in the hope that once Parliament was informed of the challenges they face, it would take steps to ensure that that a new Bill is developed - one based on proper consultation and taking customary law, not chiefly power, as its starting point.
“We expect the Committee not to sacrifice rural people and constitutional democracy at the altar of political expediency,” say Nomboniso Gasa from the Council for the Advancement of the South African Constitution.
The Alliance’s reiterates its positions on the Bill:
• It creates a second-class justice system for 18 million South Africans that live in the former Bantustans, and is in contradiction with the Constitutional principle of one law for one nation.
• It re-imposes apartheid’s tribal identities and authority structures on rural people without their choice, and therefore denies people the right to determine their own cultural identity and customary affiliation.
• Forcing tribal identities and chiefs onto people contradicts the underlying nature of customary law, which is based on consensual affiliation and free choice.
• It fails to promote women’s equality and address the ongoing abuse and prejudice women face in customary contexts. It also excludes women from equally contributing to the development of customary law in ways that reflect their concerns.
• It was drafted in a top-down manner and without adequate consultation with rural people, particularly women.
• It is unconstitutional and should be immediately withdrawn. New legislation needs to be drafted that takes as its starting point Constitutional principles, as well as the rights of ordinary rural people to participate in the formulation of laws that affect them.
For more information contact:
• Nomboniso Gasa: 083 451 9321 or 083 7791435
• Sizani Ngubane: 073 8405151
• Mbuyiselo Botha: 082 5181177
The Alliance for Rural Democracy (ARD) is a cross-section of civil society organisations sharing a common concern about the detrimental effects that the Traditional Courts Bill will have on the rural constituencies they serve and support. The ARD includes the following organisations: Association for Rural Advancement (AFRA); Centre for Human Rights, University of Pretoria; Community Law Centre, University of the Western Cape (CLC);Corruption Watch; Co-operative Policy Alternative Centre (COPAC); Council for the Advancement of the South African Constitution (CASAC);Democratic Governance and Rights Unit, University of Cape Town (DGRU); Embrace Dignity Campaign; Empilisweni AIDS Education and Training Centre; Greater Rape Intervention Programme (GRIP);Institute for Justice and Reconciliation (IJR);Justice and Women (JAW); Land Access Movement of South Africa (LAMOSA);Law Race and Gender Research Unit, University of Cape Town (LRG); Lesbian and Gay Equality Project; Masimanyane Women’s Support Centre; Open Democracy Advice Centre (ODAC);Rural People’s Movement; Rural Women’s Movement; Section 27; Sonke Gender Justice; South African Constitutional Literacy and Service Initiative (CLASI); Students for Law and Social Justice (SLSJ); Thohoyandou Victim Empowerment Project (TVEP);Treatment Action Campaign (TAC);Triangle Project; Tshwaranang Legal Advocacy Centre (TLAC); Unemployed People’s Movement; Women's Health Research Unit in the School of Public Health and Family Medicine, University of Cape Town; Women’s Legal Centre Trust. The Legal Resources Centre (LRC) acts as legal advisor to the Alliance.