1 00:00:14,530 --> 00:00:18,670 Morning, everyone. My name is Jason Brick Hill, I'm now based here at Oxford, 2 00:00:18,670 --> 00:00:24,460 but I was previously at the Legal Resources Centre and so delighted to welcome many of my 3 00:00:24,460 --> 00:00:30,640 former friends and colleagues back and also all of you visiting Oxford for the second day. 4 00:00:30,640 --> 00:00:36,760 I really enjoyed yesterday. I took a lot from it and I think we're going to have an equally exciting day today. 5 00:00:36,760 --> 00:00:43,570 Before I introduce the first panel on chiefly, I just want to give a little bit of information about the second session, 6 00:00:43,570 --> 00:00:47,950 which is going to be a little different and take us out of this auditorium into two 7 00:00:47,950 --> 00:00:55,780 breakaway seminar on this and you'll need to make a choice between the two sessions. 8 00:00:55,780 --> 00:01:05,290 The first one is on historical contestations over land, so historical investigations into into land rights, 9 00:01:05,290 --> 00:01:09,520 and the second is on state based systems of registration. 10 00:01:09,520 --> 00:01:15,850 The title is contemporary struggles for security of tenure and the issue of recorded rights. 11 00:01:15,850 --> 00:01:27,400 So the first one on historical investigations will be in the building just up above us here, immediately behind you in Seminar Room East. 12 00:01:27,400 --> 00:01:35,530 And the second session happening at the same time will be in the reading in the seminar room upstairs in the Politburo Institute. 13 00:01:35,530 --> 00:01:46,510 So immediately up there to our left and today we often I'm gradually. 14 00:01:46,510 --> 00:01:56,410 So perhaps over this session, you can have a think about which of those breakaways you want to move into in the second session, which begins at 11:45. 15 00:01:56,410 --> 00:02:04,780 And so, OK, so we can now move into the first panel, which is on chiefly power and. 16 00:02:04,780 --> 00:02:16,210 We break here at 11, 15 seconds. So this first panel is on chiefly power, and we're going to start with Janine Irving from University of Leiden, 17 00:02:16,210 --> 00:02:25,840 providing a more comparative perspective on the topic before honing in again on South African questions with Michael Bay, 18 00:02:25,840 --> 00:02:31,450 Cuba and Monica de Souza low and finally will offer a comparative perspective 19 00:02:31,450 --> 00:02:37,300 from Ghana and perhaps some theoretical and conceptual insights from money. 20 00:02:37,300 --> 00:02:45,460 Mensah Bonsu, who's here at Oxford if CVS and bios in the programme, but I'll hand over to Janine to stop. 21 00:02:45,460 --> 00:02:48,070 Thank you very much. Good morning, everyone. 22 00:02:48,070 --> 00:02:54,820 So this was the title given to me the scope of tfie power comparative perspective, which I already thought was quite a feat to do, 23 00:02:54,820 --> 00:03:00,070 and I was thinking where to go and even more after yesterday seeing how much knowledge there is in South Africa. 24 00:03:00,070 --> 00:03:07,960 So rethinking that yesterday evening, I decided to start from the presumption that, you know, a whole lot about South Africa, 25 00:03:07,960 --> 00:03:11,420 but also for the presumption that you might not know too much about other African countries. 26 00:03:11,420 --> 00:03:15,970 So that's my starting point, and I hope I'm somewhat correct in that. 27 00:03:15,970 --> 00:03:24,460 So from that, I wanted to take the starting point of the resurgence of tradition that we have seen literature talking about since the 1990s, 28 00:03:24,460 --> 00:03:29,950 when they were. So did you describe the number of African states were starting to recognise and 29 00:03:29,950 --> 00:03:34,930 formalise the position of chiefs in their legislation in their constitutions? 30 00:03:34,930 --> 00:03:42,600 We also see the restoration of our past kingdoms and we see the creation of councils or houses of chiefs. 31 00:03:42,600 --> 00:03:48,480 And this is actually quite a surprise for many people, because at the time of independence, 32 00:03:48,480 --> 00:03:56,190 we saw that many African governments were mostly aiming to curtail the power of traditional authorities, 33 00:03:56,190 --> 00:04:09,520 whom they saw as remnants of colonial rule as dividing the country into ethnic tribes and therefore as inhibiting nation building and modernisation. 34 00:04:09,520 --> 00:04:12,840 Mm hmm. 35 00:04:12,840 --> 00:04:22,410 So in the literature, originally this resurgence of chieftaincy was connected to weak states failing states with the idea that in those countries, 36 00:04:22,410 --> 00:04:28,650 chiefs or traditional leaders were the only remaining in functional form of social organisation. 37 00:04:28,650 --> 00:04:33,900 But then further research showed that it wasn't so much in weak states where we saw a resurgence. 38 00:04:33,900 --> 00:04:35,790 It was quite low in those states, 39 00:04:35,790 --> 00:04:46,950 but it was rather strong in strong states with a functioning state apparatus that we witnessed some of the most far reaching restorations, 40 00:04:46,950 --> 00:04:52,980 usually alongside the existence of local government institutions. 41 00:04:52,980 --> 00:04:58,530 Now, the interest of states in this formalisation were many fault, 42 00:04:58,530 --> 00:05:09,150 and we could say some of them were benign in the sense of interest to make the state more relevant to more legitimate and more effective. 43 00:05:09,150 --> 00:05:14,820 Rural inhabitants have little access to state institutions, to state courts, to state bureaucracy, 44 00:05:14,820 --> 00:05:22,290 and would therefore benefit from a recognition of their local leaders in the local dispute settlement institutions and of their normative systems. 45 00:05:22,290 --> 00:05:29,760 So the idea there was to improve the chiefs role in local service provisioning, 46 00:05:29,760 --> 00:05:37,560 also to capitalise on their intermediary position between the communities and the government, 47 00:05:37,560 --> 00:05:47,400 and to also prevent resistance from chiefs who felt they were not incorporated enough recognised by the state against state projects. 48 00:05:47,400 --> 00:05:52,410 So benign reasons to make the state more relevant and more legitimate and effective. 49 00:05:52,410 --> 00:05:59,640 We also see other motives connected more to political and economic aspects. 50 00:05:59,640 --> 00:06:06,630 Same as in South Africa, the issue of Rule three of electoral gain. 51 00:06:06,630 --> 00:06:15,060 So bringing in the rural vote in in a direct way, thinking that if you have to choose, people will follow their voting advice, but also less direct. 52 00:06:15,060 --> 00:06:21,030 I remember in Malawi it was a big issue whether chiefs would allow people political 53 00:06:21,030 --> 00:06:25,170 parties to campaign in their localities and not directly bringing in the rural vote, 54 00:06:25,170 --> 00:06:32,520 but still very important for election and obviously access to natural resources. 55 00:06:32,520 --> 00:06:39,690 Main issue of this conference for South Africa, but very much happening in other areas as well. 56 00:06:39,690 --> 00:06:40,230 Now, 57 00:06:40,230 --> 00:06:48,360 the resurgence of chieftaincy has been very much aided by processes of democratisation and decentralisation and liberalisation because these processes 58 00:06:48,360 --> 00:06:52,260 opened up new public spaces for traditional leaders and their involvement in 59 00:06:52,260 --> 00:06:57,630 all kinds of local functions like law enforcement and social provisioning. 60 00:06:57,630 --> 00:07:02,460 In addition, these processes distance the state more from the people, 61 00:07:02,460 --> 00:07:09,100 and that facilitated the resurgence of tradition as an alternative mode of identification. 62 00:07:09,100 --> 00:07:16,390 Now, obviously, foreign aid was a leading push, a leading factor in that push for democratisation and decentralisation and liberalisation. 63 00:07:16,390 --> 00:07:20,920 But another role donor organisations played in this resurgence of chieftaincy was that 64 00:07:20,920 --> 00:07:25,570 they still wanted to display a renewed interest in traditional leaders in other ways. 65 00:07:25,570 --> 00:07:32,680 They start seeing them as suitable, legitimate counterparts with the capacity to mobilise their local populations. 66 00:07:32,680 --> 00:07:38,740 So we see increasing attention to traditional authorities of donors forms at conferences, 67 00:07:38,740 --> 00:07:44,170 actually involvement of change in development, programming and money going into traditional funds. 68 00:07:44,170 --> 00:07:56,830 For instance, at the time I was doing my PhD in Ghana, there was a five million World Bank fund funding going into the Asantehene institutional fund. 69 00:07:56,830 --> 00:08:03,580 At the same time, we see that donors within the rule of law programming within development, 70 00:08:03,580 --> 00:08:11,770 programming funds focussing on the legal system start to realise that they need to also focus on customary justice institutions. 71 00:08:11,770 --> 00:08:16,180 So the old paradigm was you focus on state institutions. 72 00:08:16,180 --> 00:08:24,040 And then there's a trickle down effect on the users. And it turned out that didn't happen wasn't really having any positive effect on the poor. 73 00:08:24,040 --> 00:08:27,370 So the response was, Hey, we need more bottom up access to justice. 74 00:08:27,370 --> 00:08:33,130 Legal empowerment will probably be familiar terms to you, but also we need to focus on customary justice systems. 75 00:08:33,130 --> 00:08:36,310 And we saw a similar thing in transitional justice programming. 76 00:08:36,310 --> 00:08:44,050 Also, the idea that most of that was top down heavily influenced by international models and not really being relevant for local people. 77 00:08:44,050 --> 00:08:48,580 And again, the response was let's also the customer justice systems. 78 00:08:48,580 --> 00:08:58,300 Last point we see at the same time developments in international law focussing on recognition of indigenous rights, rights to culture, et cetera. 79 00:08:58,300 --> 00:09:03,580 So all of these together led to an increased realisation, both amongst African governments, 80 00:09:03,580 --> 00:09:06,940 but also very much in the international community that traditionally it isn't 81 00:09:06,940 --> 00:09:12,970 customary justice systems would remain relevant in contemporary African states. 82 00:09:12,970 --> 00:09:19,330 Now that does come with a number of challenges, challenges you will very much recognise from South Africa, 83 00:09:19,330 --> 00:09:24,190 but that are very common in other African countries as well. First of all, 84 00:09:24,190 --> 00:09:34,630 is that these systems that have their origins in pre-colonial period have been heavily distorted in the colonial and also in a post-colonial period, 85 00:09:34,630 --> 00:09:39,880 and that this had a very negative impact on the checks and balances in these systems. 86 00:09:39,880 --> 00:09:44,600 Then secondly, that these systems are now to function in very different contexts. 87 00:09:44,600 --> 00:09:53,050 And one of the main differences, of course, comes from capitalism. And this means that some of the most valuable resources are now based in some of 88 00:09:53,050 --> 00:09:57,990 the most vulnerable communities and are regulated by traditional authorities. 89 00:09:57,990 --> 00:10:03,760 The other challenges some of those we discussed yesterday as well the link with democracy. 90 00:10:03,760 --> 00:10:05,170 What's the role for women? 91 00:10:05,170 --> 00:10:16,210 If you continue to allow the system and flexibility of customary law and how hard it is to capture that in a system of state? 92 00:10:16,210 --> 00:10:23,860 I will focus my discussion mostly on point one or my chair will get very restless, I think. 93 00:10:23,860 --> 00:10:32,980 So if we start from the pre-colonial period, we get a story that looks a lot like the story we heard from Peter Delius yesterday morning, 94 00:10:32,980 --> 00:10:38,980 where while there is a whole variety of traditional rule systems in pre-colonial societies, 95 00:10:38,980 --> 00:10:48,040 we see a core of shared characteristics, which usually means that the power of chiefs was circumscribed by a council of elders who represented 96 00:10:48,040 --> 00:10:55,060 the major factions of the community and who who support the chief need it to make important decisions. 97 00:10:55,060 --> 00:10:59,650 Achieve strength and influence was largely determined by the number and loyalty of his followers 98 00:10:59,650 --> 00:11:04,700 and the abundance of land that people who were unhappy with achieve could move to another area. 99 00:11:04,700 --> 00:11:08,530 So very much the story from yesterday. 100 00:11:08,530 --> 00:11:15,550 While the position of chiefs was hereditary in most places, there was usually also flexibility in that and competition. 101 00:11:15,550 --> 00:11:20,440 We've talked about the One Hundred and Seven Lives and Sekhukhune, I believe yesterday. 102 00:11:20,440 --> 00:11:25,780 But another example is if you're talking more matrilineal system than when the chief passes away, 103 00:11:25,780 --> 00:11:30,610 it can be either of the brothers of the chief, but also two sisters sons. 104 00:11:30,610 --> 00:11:40,850 So usually there's a number of contestants for that new position, which brings a check on the functioning of those leaders. 105 00:11:40,850 --> 00:11:47,000 Now, I really don't want to conjure up an imaginary past of equitable, well-balanced and inclusive traditional communities. 106 00:11:47,000 --> 00:11:50,840 This has been carefully refuted in much of the literature, 107 00:11:50,840 --> 00:11:57,440 but it is quite undisputed that colonial rule watered down the existing checks and balances. 108 00:11:57,440 --> 00:12:02,870 And obviously, the main one of the main ways it happened was through the fact that she's now had 109 00:12:02,870 --> 00:12:07,100 to be recognised by the colonial government and not just by the communities, 110 00:12:07,100 --> 00:12:18,670 which resulted in a change from downwards accountability towards upwards accountability to the colonial government. 111 00:12:18,670 --> 00:12:24,310 And another big change in the colonial period was that chiefs were given all kinds of new tasks, 112 00:12:24,310 --> 00:12:28,120 and there's quite a difference here between the different colonial powers that we're talking about. 113 00:12:28,120 --> 00:12:33,670 I have this one slide to give you a bit of an idea if we compare the more indirect 114 00:12:33,670 --> 00:12:40,030 rule style that was promulgated by the British in a more direct rule in ideology, 115 00:12:40,030 --> 00:12:44,080 more direct rule of the French, then we see that, 116 00:12:44,080 --> 00:12:49,360 particularly the French added on a whole lot of very unpopular tasks for the chiefs with 117 00:12:49,360 --> 00:12:53,920 including forced labour and taxes and compulsory production and recruitment for the army. 118 00:12:53,920 --> 00:12:58,450 This is much less than in British colonies and only in in the beginning period. 119 00:12:58,450 --> 00:13:06,790 Obviously, very unpopular tasks have an effect on your legitimacy as well. 120 00:13:06,790 --> 00:13:11,020 Now I'm always a little bit hesitant with its side because this is the ideology in ideology. 121 00:13:11,020 --> 00:13:13,690 The British system is very different from the French, the British system. 122 00:13:13,690 --> 00:13:19,720 The idea was let's stay with legitimate traditional leaders because those will be the strongest leaders. 123 00:13:19,720 --> 00:13:26,980 The French idea was let's pick whoever is a good administrator and speaks French and isn't anti the colonial endeavour. 124 00:13:26,980 --> 00:13:31,280 But then they both found out. The British found out that they didn't like all of their legitimate chiefs. 125 00:13:31,280 --> 00:13:34,540 In some areas, they didn't find any, so they interfered anyhow. 126 00:13:34,540 --> 00:13:40,030 The French find out, OK, we just want the best leader, but maybe someone who is a locally legitimate leader is the best leader. 127 00:13:40,030 --> 00:13:45,730 So in the end, they both had sort of mediated rule using chiefs, but with interference. 128 00:13:45,730 --> 00:13:49,690 The main real difference was in the presence of local self-government. 129 00:13:49,690 --> 00:13:55,870 So where the indirect rule allowed a continuation of the former local self-government? 130 00:13:55,870 --> 00:14:03,760 The French did. It doesn't mean that that didn't happen in practise, but not under their official rule. 131 00:14:03,760 --> 00:14:11,350 So main ways of erosion of checks and balances in colonial period were both colonial recognition a new task. 132 00:14:11,350 --> 00:14:18,010 But there were other ways. And I'll give an example from Ghana, where also the chief would be in Ashanti Region. 133 00:14:18,010 --> 00:14:22,300 The chief would be ruling with members, but with the council, 134 00:14:22,300 --> 00:14:27,130 and these council members were basically representing the main factions of the community. 135 00:14:27,130 --> 00:14:32,980 But these elders, these councillors, were pretty restricted in their criticism because they had to pledge loyalty to the 136 00:14:32,980 --> 00:14:37,330 chief and if they were seen as plotting against achieve this could be very dangerous. 137 00:14:37,330 --> 00:14:42,640 For instance, they could be asked to drink to the gods, which meant they had to drink poison. 138 00:14:42,640 --> 00:14:47,440 And then if they would not die, then obviously they were loyal and otherwise they hadn't been loyal. 139 00:14:47,440 --> 00:14:53,170 So it wasn't quite easy for Consulate's to take a very critical position. 140 00:14:53,170 --> 00:14:59,350 But there was a position of it was turned in Konkona, who was a communist chief. 141 00:14:59,350 --> 00:15:04,780 So an extra counsellor selected by the Communists, who didn't have to swear loyalty to the chief. 142 00:15:04,780 --> 00:15:09,820 And that was usually the person who would voice discontent of the community. 143 00:15:09,820 --> 00:15:13,600 Now what happened in the colonial period was when land became more valuable, 144 00:15:13,600 --> 00:15:17,980 more of a commodity and chief started to capitalise on that and communities were happy. 145 00:15:17,980 --> 00:15:28,780 And a number of distortions, the number of depositions rose, they decided, with the support of the British to abolish the position from Konkona. 146 00:15:28,780 --> 00:15:36,640 So not do anything about the discontent, but take away the channel. That actually means that the discontent that lead to depositions. 147 00:15:36,640 --> 00:15:46,210 So in a number of ways, we see distortions and less checks and balances in the period in the colonial era post-colonial. 148 00:15:46,210 --> 00:15:53,560 We see similar distortions as to the colonial era in the sense that still many countries want to have a say. 149 00:15:53,560 --> 00:15:57,190 Many states want to have a say in who those traditional leaders rank. 150 00:15:57,190 --> 00:16:00,880 There's it's quite a variety here. For instance, if we look at Botswana, 151 00:16:00,880 --> 00:16:05,440 we see that the Chieftaincy of Act says that the chief is someone who is designated 152 00:16:05,440 --> 00:16:10,060 in points of customary law but also hasn't been recognised by the minister. 153 00:16:10,060 --> 00:16:15,070 And the minister can withdraw recognition at any time when he considers this to be in the public interest. 154 00:16:15,070 --> 00:16:21,160 And any chief of fails to comply with any direction given to him by the minister can be deposed. 155 00:16:21,160 --> 00:16:28,180 So have interference by the state gone. On the other hand, and I hope this doesn't change, but we'll hear if it does. 156 00:16:28,180 --> 00:16:35,950 The Constitution says achieve is someone to get from the royal family and selected by community on the basis of customary law. 157 00:16:35,950 --> 00:16:37,180 But the Constitution, 158 00:16:37,180 --> 00:16:46,480 that's the above part guarantees that parliament cannot enact a law which confers or takes away recognition of traditional leaders. 159 00:16:46,480 --> 00:16:51,970 And this was a response to earlier periods where the government did have the power to recognise chiefs, 160 00:16:51,970 --> 00:16:58,120 and it was heavily politicised, heavily abused in a political way. So we see quite a huge variety him. 161 00:16:58,120 --> 00:17:06,520 Nevertheless, we see here that recognition of traditional leaders is very much informed by political interests, 162 00:17:06,520 --> 00:17:12,880 and it never entails a wholesale acceptance of these systems without conditions or exceptions. 163 00:17:12,880 --> 00:17:16,910 It's usually partial condition conditional. 164 00:17:16,910 --> 00:17:27,600 Meant to make the customary order governable or subordinate and in line with certain normative values of the state now. 165 00:17:27,600 --> 00:17:33,870 There is a change here from the beginning of the colonial period in those countries to later in in the beginning of the post-colonial period, 166 00:17:33,870 --> 00:17:39,090 from independence to later, more now. And that is that at the time of independence, 167 00:17:39,090 --> 00:17:44,520 there was a huge antagonism between the traditional uneducated elite and the 168 00:17:44,520 --> 00:17:47,910 modernising elites who have been fighting for liberation in most of these countries. 169 00:17:47,910 --> 00:17:51,060 And there was a huge antagonism, and they were from very different groups. 170 00:17:51,060 --> 00:17:58,470 Now what you see in most countries and do much stronger extent in some countries, Ghana is a good example than in others Malawi's much less. 171 00:17:58,470 --> 00:18:07,110 We see a professionalisation of chieftaincy in the sense that, as I said, there is always, you know, there's always selection of candidates. 172 00:18:07,110 --> 00:18:14,910 There's always some choice. They end up choosing the candidate with the best education, the best context, the best jobs, 173 00:18:14,910 --> 00:18:18,690 because those are the ones that will be able to bring development to their areas. 174 00:18:18,690 --> 00:18:22,560 So with that comes that those people who end up particularly being the higher 175 00:18:22,560 --> 00:18:27,660 positions of chieftaincy hats are from the same elite as the people in government. 176 00:18:27,660 --> 00:18:31,150 So they've been to the same school, same universities, and they just branch out. 177 00:18:31,150 --> 00:18:35,310 So now it's much more one elite with the same kind of interests. 178 00:18:35,310 --> 00:18:41,790 So that is a big change in in in the politics in these countries and the politics of chieftaincy now. 179 00:18:41,790 --> 00:18:50,190 Recognition is not without danger to traditional institutions because if they're aligned with states with limited legitimacy, 180 00:18:50,190 --> 00:18:52,950 this may actually impact negatively on them. 181 00:18:52,950 --> 00:19:00,480 And we see this, for instance, in Togo, where at all positions were politically motivated and in a dictatorship, 182 00:19:00,480 --> 00:19:03,990 this really had a very negative impact on chieftaincy. 183 00:19:03,990 --> 00:19:09,030 Nevertheless, we see that most chiefs are still interested in it, either because there's no alternative, 184 00:19:09,030 --> 00:19:16,260 so it's going to survive or because they think it's a way to consolidate and expand their power. 185 00:19:16,260 --> 00:19:24,960 And obviously, that is most possible when in this recognition that just nation, no attention is given to local checks and balances. 186 00:19:24,960 --> 00:19:34,440 And just like in the Kelby, we see, for instance, in the there's introduced legislation was introduced in Mozambique in the year 2000, 187 00:19:34,440 --> 00:19:39,810 which recognised local leaders as community authorities with a wide range of functions. 188 00:19:39,810 --> 00:19:47,940 And that legislation said that these needed these tasks needed to be carried out with the participation from community members. 189 00:19:47,940 --> 00:19:53,760 But then it didn't say anything about the terms for the relationship between chiefs and community members. 190 00:19:53,760 --> 00:19:58,170 So very much here. The question is who is included? 191 00:19:58,170 --> 00:20:04,320 Is it just chiefs or is it chiefs and companies who get to define what their customary law is and what 192 00:20:04,320 --> 00:20:10,320 their traditional leadership is that is being recognised and the powers and functions that it has? 193 00:20:10,320 --> 00:20:17,760 So is it just chiefs or commoners? If it is chiefs? Is it all levels of chieftaincy or just to senior levels? 194 00:20:17,760 --> 00:20:25,500 And we see very much the same. Not just in state legislation, but the same questions with donor programming. 195 00:20:25,500 --> 00:20:28,470 If I think of the Land Administration programme in Ghana, 196 00:20:28,470 --> 00:20:37,590 the idea was to enhance the tenuous security of smallholders and to do that via the introduction of customary land secretariats. 197 00:20:37,590 --> 00:20:41,970 But then they placed the customary land secretary squarely in the hands of chiefs. 198 00:20:41,970 --> 00:20:46,740 So guess who was defining what customary land rights there were and who needed to be paid as such? 199 00:20:46,740 --> 00:20:54,330 All right. So again, the question who gets to be involved, who gets to participate in that definition of customary customary rights? 200 00:20:54,330 --> 00:21:01,290 I'm going to conclude by going back to this slide. 201 00:21:01,290 --> 00:21:04,770 I've mainly talked about the first challenge for content your role. 202 00:21:04,770 --> 00:21:10,200 Traditional authorities be wary of checks and balances, but obviously they're very much connected to the others. 203 00:21:10,200 --> 00:21:21,510 The fact that we have such valuable resources being managed at the at the customary level, the fact that these leaders are not elected, 204 00:21:21,510 --> 00:21:28,980 that these structures to a large extent exclude women, and that there's a flexibility here that can be abused by elites. 205 00:21:28,980 --> 00:21:33,630 All those facts mean that we need checks and balances more, not less. 206 00:21:33,630 --> 00:21:38,670 So I think it all boils down to finding a system where we can fit these checks and balances 207 00:21:38,670 --> 00:21:44,040 that can place either or preferably both from the state level and from the local level. 208 00:21:44,040 --> 00:21:52,560 And I think that really the question of the day. And lastly, just to say that I don't really think I talked about what I was asked to talk about, 209 00:21:52,560 --> 00:21:57,510 and I did write about that 10 years ago and came up with just sort of I wrote this little booklet, 210 00:21:57,510 --> 00:22:04,530 which is a research and policy note that came up with the kind of questions you need to ask if for a country you're trying to make 211 00:22:04,530 --> 00:22:11,100 the century of the power and the position of traditional this or anyone interested in that come and see me and I'll send it to you. 212 00:22:11,100 --> 00:22:30,920 Thank you. I haven't really done a slide show, but I intend to have a relatively close look at a couple of legislative provisions, 213 00:22:30,920 --> 00:22:36,770 and I thought it would be useful if we could have a look at them together. But I'll get to that in a moment. 214 00:22:36,770 --> 00:22:45,560 I am. I'm going to discuss the so-called new legislation and the new legislation concerning 215 00:22:45,560 --> 00:22:51,440 traditional leadership and its fit with the South African constitutional framework. 216 00:22:51,440 --> 00:23:03,440 In doing so, I want to do three things. I want to begin by briefly describing the nature of South Africa's democracy as set out in the Constitution. 217 00:23:03,440 --> 00:23:13,940 I want to consider sections 211 and 212 of the Constitution, which recognise and regulate the role of traditional leadership. 218 00:23:13,940 --> 00:23:24,260 And then I want to, against that backdrop, assess the post democratic legislative approach to regulating the role of traditional leadership. 219 00:23:24,260 --> 00:23:30,680 That is a very ambitious task for 17 minutes, I've been told. 220 00:23:30,680 --> 00:23:39,140 And and in the final section, I really, I think Will will focus on the two bills that that are forthcoming, 221 00:23:39,140 --> 00:23:46,670 one of which is imminent because I think that gives a sense of the kind of trajectory that we may be on. 222 00:23:46,670 --> 00:24:01,300 But let me begin with with a few preliminaries. The first is yesterday morning, when in the first session, which which Tim Baker was chairing he. 223 00:24:01,300 --> 00:24:09,910 Introduced the session by recalling that when he was told customary law, he was taught that it was subject to the common law, 224 00:24:09,910 --> 00:24:20,700 and he asked somewhat provocatively whether making it now subject to the Constitution is similarly problematic. 225 00:24:20,700 --> 00:24:26,250 That is an interesting question, but not the one I'm asking, 226 00:24:26,250 --> 00:24:34,110 because I'm taking the Constitution has given it is the normative framework against which I'm 227 00:24:34,110 --> 00:24:40,590 assessing the legislative framework and it is the constitution we have for better or for worse. 228 00:24:40,590 --> 00:24:47,560 The second preliminary is that I'm considering predominantly structural questions related to the Constitution, 229 00:24:47,560 --> 00:24:58,110 the structure of our government, for the most part, I'm not looking at rights violations that might arise from this legislation. 230 00:24:58,110 --> 00:25:03,870 I immediately recognised that that's a distinction that can't be sustained. 231 00:25:03,870 --> 00:25:10,570 But I think it's important to try and understand. 232 00:25:10,570 --> 00:25:17,560 The the permissibility of a governmental or quasi governmental role for traditional leaders, 233 00:25:17,560 --> 00:25:23,580 whether or not that gives rise to particular instances of rights violations. 234 00:25:23,580 --> 00:25:31,540 And so let me begin by asking what is the structure of South African democracy as provided for in the Constitution? 235 00:25:31,540 --> 00:25:37,540 And I'm going to be brief here because these are relatively straightforward and trite principles. 236 00:25:37,540 --> 00:25:41,540 Section one sets out the founding values. 237 00:25:41,540 --> 00:25:50,300 It says that South Africa is one sovereign Democratic state founded on the supremacy of the Constitution and the rule of law, 238 00:25:50,300 --> 00:25:59,990 universal adult suffrage, a national common voters rule regular elections and a multi-party system of democratic government to ensure accountability, 239 00:25:59,990 --> 00:26:05,800 responsiveness and openness. Section 40 sets out the spheres of government. 240 00:26:05,800 --> 00:26:12,310 It provides that government is constituted as national, provincial and local. 241 00:26:12,310 --> 00:26:17,890 Then different provisions allocate different authority to the different arms of the state. 242 00:26:17,890 --> 00:26:25,090 Section 43 gives legislative authority exclusively to the national parliament, provincial legislatures and the municipalities. 243 00:26:25,090 --> 00:26:31,960 Section 85 vests executive authority in the president, which is to be exercised together with cabinet. 244 00:26:31,960 --> 00:26:38,170 Section 125 with the executive authority of the province and the Premier. 245 00:26:38,170 --> 00:26:46,360 And Chapter seven in detail concerns local government, and this is particularly important because, as I'll show, 246 00:26:46,360 --> 00:26:55,530 it's in sections 211 and 212 that said, local government that a role is provided for for traditional leaders. 247 00:26:55,530 --> 00:27:05,660 The the local sphere in terms of section 151 consists of municipalities on a wall-to-wall basis throughout the country. 248 00:27:05,660 --> 00:27:12,720 The the executive and legislative authority of municipalities is vested in municipal councils. 249 00:27:12,720 --> 00:27:17,370 And each municipality has the right to govern on its own initiative. 250 00:27:17,370 --> 00:27:24,090 The local government affairs of its community subject to national and provincial legislation. 251 00:27:24,090 --> 00:27:28,620 Finally, finally, for present purposes, there's much more to say, 252 00:27:28,620 --> 00:27:40,920 but Section 165 provides the judicial authority is vested in the courts exclusively that no person may interfere with the functioning of the courts. 253 00:27:40,920 --> 00:27:50,790 And then one sixty six, it's on the basis for the creation of additional courts in terms of an act of parliament. 254 00:27:50,790 --> 00:27:58,260 So in some South Africans, constitutional democracy, like very many others, 255 00:27:58,260 --> 00:28:03,360 is one that is based on principles of a multi-party system of democratic government, 256 00:28:03,360 --> 00:28:13,650 the rule of law, a horizontal separation of powers between the legislative executive and the judiciary. 257 00:28:13,650 --> 00:28:21,850 A government that is constituted vertically into spheres at national, provincial and local level. 258 00:28:21,850 --> 00:28:28,210 And all of this intended to achieve accountability, responsiveness and openness. 259 00:28:28,210 --> 00:28:36,000 So. What of traditional leadership? 260 00:28:36,000 --> 00:28:47,350 Before I get to the what the final constitution does for traditional leadership, I want to begin with the interim constitution. 261 00:28:47,350 --> 00:28:53,320 Section 191 provided that any traditional authority recognised in law before the Constitution continued to 262 00:28:53,320 --> 00:28:59,380 exercise and perform the powers and functions vested in it in accordance with the applicable laws and customs. 263 00:28:59,380 --> 00:29:04,390 Subject to any amendment of such laws and customs by a competent authority. 264 00:29:04,390 --> 00:29:12,860 And then Section 182 gave traditional leaders ex-officio membership of elected municipal councils. 265 00:29:12,860 --> 00:29:22,700 So there was there was a certain discomfort in the in the interim constitution in that together. 266 00:29:22,700 --> 00:29:27,050 With the Local Government Transition Act, a system of local municipalities, 267 00:29:27,050 --> 00:29:36,510 was elected municipal councils, but traditional leaders were given some role in local government. 268 00:29:36,510 --> 00:29:42,190 The final constitution diminishes that role. 269 00:29:42,190 --> 00:29:52,570 In two 11, it recognises the institution's status and role of traditional leadership, according to customary law and subject to the Constitution. 270 00:29:52,570 --> 00:30:01,290 And in two, 11, two, it permits the traditional authority to function subject to legislation and customs. 271 00:30:01,290 --> 00:30:07,110 Two of the 12. One is really what what I'm most interested for present purposes, 272 00:30:07,110 --> 00:30:10,680 and that is the national legislation may provide for a role for traditional 273 00:30:10,680 --> 00:30:20,840 leadership as an institution at local level on matters affecting local communities. 274 00:30:20,840 --> 00:30:33,280 Now. The the in the certification judgement that certified the text of the final constitution, the Constitutional Court. 275 00:30:33,280 --> 00:30:40,790 Essentially held that if the provision had ended at two, 11, one. 276 00:30:40,790 --> 00:30:45,800 Traditional leaders would have had no role at local level, at all. 277 00:30:45,800 --> 00:30:57,250 The court said. That 12 adds to rather than diminishes the scope of two 11 in that it permits a specific role for traditional leaders at local level, 278 00:30:57,250 --> 00:31:09,760 which they otherwise would not have enjoyed. So 12 provides a basis for national legislation to confer a new statutory role upon traditional leaders, 279 00:31:09,760 --> 00:31:18,230 and granting that role recognises what the court described as, and I quote a degree of cultural pluralism. 280 00:31:18,230 --> 00:31:25,600 With legal and cultural, but not necessarily governmental consequences. 281 00:31:25,600 --> 00:31:35,070 The court also held that the use of the word role is important. The draughters didn't use the word powers and functions. 282 00:31:35,070 --> 00:31:42,240 Which they could have easily. Had the framers intended to guarantee and require expressions, 283 00:31:42,240 --> 00:31:47,250 just institutionalisation of governmental powers and functions for traditional leadership, 284 00:31:47,250 --> 00:31:55,460 they could easily have included the words powers and functions. 285 00:31:55,460 --> 00:32:01,760 So let me turn to the new legislation. And in doing so, 286 00:32:01,760 --> 00:32:10,440 I want to look at the traditional unquestioned leadership role and the traditional courts bill have already been given my five minutes. 287 00:32:10,440 --> 00:32:21,320 So is that five minutes to go? Five minutes got to go. So, so let me let me focus on the traditional and Khoisan leadership bill. 288 00:32:21,320 --> 00:32:27,980 I will say the following about the traditional courts bill. It went through the portfolio committee. 289 00:32:27,980 --> 00:32:37,810 It is a truly startling exercise to go and have a look at what happened to the legislation after going through the portfolio committee. 290 00:32:37,810 --> 00:32:46,600 If you have a look at what is omitted, what is deliberately taken out of each provision by the portfolio committee, 291 00:32:46,600 --> 00:32:54,910 it is every time the word voluntary on censure from the objects clause, the opt out is taken away. 292 00:32:54,910 --> 00:33:08,740 The result is a bill that has civil and criminal jurisdiction that has albeit limited punitive powers and from which people cannot talk about. 293 00:33:08,740 --> 00:33:19,210 I'll leave it at that. The traditional unquestioned leadership bill will repeal and replace the the Traditional Values Governance Framework Act now. 294 00:33:19,210 --> 00:33:27,760 An argument was running into iguana in the High Court that the traditional Leadership and Governance Framework Act was unconstitutional, 295 00:33:27,760 --> 00:33:34,330 that Sections five and 20 conferred excessive governmental power on traditional leaders created 296 00:33:34,330 --> 00:33:43,630 and what what Alan Dodson refers to as a fourth sphere of government and was on that basis, 297 00:33:43,630 --> 00:33:51,660 unconstitutional. The the the High Court rejected that argument, and it wasn't assisted with an appeal. 298 00:33:51,660 --> 00:33:57,010 But the traditional and Khoisan leadership bill goes much further. 299 00:33:57,010 --> 00:34:04,650 And sorry, I'm. That was the Communal Land Rights Act of the traditional you just want governance framework. 300 00:34:04,650 --> 00:34:08,130 That was but in the in the in the course of that argument, 301 00:34:08,130 --> 00:34:13,530 the argument was made that the traditional Leadership and Governance Framework Act was also unconstitutional. 302 00:34:13,530 --> 00:34:24,270 The the specific provisions of the of the tab on 19, 20, 24, 25 and 19 and 20, 303 00:34:24,270 --> 00:34:31,230 I think are pretty much the kinds of powers we would imagine being given to traditional leaders. 304 00:34:31,230 --> 00:34:42,990 They are they are quibbles with those provisions, but really it's it's twenty five and twenty four that I think are the provisions that vest 305 00:34:42,990 --> 00:34:49,080 potentially problematic governmental or quasi governmental power in traditional leaders. 306 00:34:49,080 --> 00:34:55,860 And I think it's very important that when we look at this act, we do so not simply on its own terms. 307 00:34:55,860 --> 00:35:04,470 And that the the same traditional leaders who are given extensive powers under Section 25 and 308 00:35:04,470 --> 00:35:16,530 24 of this act are given extensive powers of a judicial nature under the traditional code and. 309 00:35:16,530 --> 00:35:23,940 So this provides for the allocation of roles to traditional councils and allows any department within the national provincial sphere to 310 00:35:23,940 --> 00:35:33,210 legislative or other measures and in respect of any functional area of such departments to provide a role for traditional councils. 311 00:35:33,210 --> 00:35:43,100 This does not appear to me to be what Section 212 one has in mind. 312 00:35:43,100 --> 00:35:52,370 Firstly, it's the role that is provided to traditional leaders here is not simply at local level as expressly envisaged in Section 212. 313 00:35:52,370 --> 00:35:59,090 It expressly provides for a role in any spheres within national provincial government. 314 00:35:59,090 --> 00:36:04,290 It does not require necessarily that the role is determined in national legislation. 315 00:36:04,290 --> 00:36:13,290 It can be determined in terms of other measures and the power to allocate the role as delegated to a department. 316 00:36:13,290 --> 00:36:18,750 And there is little guidance on how the relevant department ought to exercise that delegate to 317 00:36:18,750 --> 00:36:29,050 determine the role or how traditional the traditional councils need to exercise power once delegated. 318 00:36:29,050 --> 00:36:43,810 The next provision in section 20. For which which deals with so-called partnerships, an agreement and agreements. 319 00:36:43,810 --> 00:36:49,510 And now this this provision has been widely criticised, particularly, I think, by Americans, 320 00:36:49,510 --> 00:36:59,140 on the basis that it will allow traditional leaders to deal with and dispose of land as they wish. 321 00:36:59,140 --> 00:37:06,970 The provision may well be wider than this. It's it's it doesn't seem to specify what these partnerships or agreements 322 00:37:06,970 --> 00:37:14,410 might be in respect of it is it is and potentially an extremely wide policy. 323 00:37:14,410 --> 00:37:24,760 And so through the mechanism of a of an agreement, of a of a partnership contractual arrangement, 324 00:37:24,760 --> 00:37:31,180 a significant power is given to it's given to traditional leaders. 325 00:37:31,180 --> 00:37:35,860 I'm going to conclude with with full remarks. 326 00:37:35,860 --> 00:37:41,770 The first is, I don't say necessarily at all that these provisions are in constitutional. 327 00:37:41,770 --> 00:37:43,990 I think it may be arguable. 328 00:37:43,990 --> 00:37:55,960 I think this act in particular has been quite carefully draughted in a way that might make constitutional challenges difficult. 329 00:37:55,960 --> 00:38:03,790 But I think that they are potential constitutional challenges, both in this and in the traditional courts belief that is possible. 330 00:38:03,790 --> 00:38:11,470 Even if they are not unconstitutional, what these bills do and will do if passed into law is, I think, 331 00:38:11,470 --> 00:38:21,700 make administrative law a particularly important site of a legal battle in the customary law area 332 00:38:21,700 --> 00:38:28,510 because the the the powers that are conferred on traditional leaders under these provisions, 333 00:38:28,510 --> 00:38:34,750 even it's not governmental in the sense that they breach section two, 11 and 12 of the Constitution, 334 00:38:34,750 --> 00:38:45,160 or certainly of a of a significant and public nature which have a direct effect on people's rights. 335 00:38:45,160 --> 00:38:52,060 The final point, and it's one that I've made, is that is that the true effect of these pieces of legislation and only be 336 00:38:52,060 --> 00:38:57,160 understood when the legislation is considered not on its own to inspect together. 337 00:38:57,160 --> 00:39:02,470 It was very disconcerting to read. I think it was the LRC submission on the traditional courts bill, 338 00:39:02,470 --> 00:39:10,030 which which noted the fact that historically government pretty much refuses to accept win win win 339 00:39:10,030 --> 00:39:17,050 submissions are made on one bill the implications of other legislation within this framework on that bill. 340 00:39:17,050 --> 00:39:21,790 But but one simply can't have regard to concerns such as the separation of powers. 341 00:39:21,790 --> 00:39:26,380 If one looks narrowly at a single piece of legislation? 342 00:39:26,380 --> 00:39:33,820 Thank you. Thank you, Michael. 343 00:39:33,820 --> 00:39:44,530 Next, we'll have Monica D'Souza, who is the deputy director of Luck, so I'm going to pick up more or less where Michael left off conveniently. 344 00:39:44,530 --> 00:39:53,380 I'm here, and my concern today is about what I first termed hidden roles, 345 00:39:53,380 --> 00:39:58,060 but which I'm starting to think of as the roles that we need to pay more attention 346 00:39:58,060 --> 00:40:03,460 to and that are being given to traditional leaders on an ongoing basis, 347 00:40:03,460 --> 00:40:10,450 kind of under the radar. And I was going to start with a bit of background, but Michael's covered it quite well. 348 00:40:10,450 --> 00:40:12,190 What I wanted to note, though, 349 00:40:12,190 --> 00:40:22,450 is that with that constitutional framework and with the certification of judgement and what appears to be clarity about what the role should be, 350 00:40:22,450 --> 00:40:29,710 there has been ongoing contestation about ongoing debates about what the meaning of that word role is. 351 00:40:29,710 --> 00:40:36,970 And is this constant push from government and from traditional leaders to keep expanding the meaning? 352 00:40:36,970 --> 00:40:50,860 And I wanted to just pull up one quotes from 2017 NC policy conference documents where this was identified as an urgent area for policy reform. 353 00:40:50,860 --> 00:40:55,360 And it says that there are a number of issues that are outstanding about traditional leadership, 354 00:40:55,360 --> 00:41:03,040 one of which is a constitutional amendment to Chapter seven and 12 with regard to the powers and functions of 355 00:41:03,040 --> 00:41:10,480 traditional leaders so that we can harmonise working relations between government and traditional leadership. 356 00:41:10,480 --> 00:41:16,120 And so I just wanted to highlight that that I think that these processes are very much in flux 357 00:41:16,120 --> 00:41:25,500 and that any argument about constitutionality is coming up against a very hot political process. 358 00:41:25,500 --> 00:41:32,310 I also just wanted to highlight as a bit of background that I think in part the the problems with the roles, 359 00:41:32,310 --> 00:41:36,960 and this is something that traditional leaders themselves have raised many times in parliament is 360 00:41:36,960 --> 00:41:44,850 that they are overlapping jurisdictions between municipalities and traditional leader jurisdictions. 361 00:41:44,850 --> 00:41:50,010 And this is all made worse by the fact that actually local government is failing in many aspects. 362 00:41:50,010 --> 00:41:55,470 There's lack of service delivery and financial mismanagement is rife. 363 00:41:55,470 --> 00:42:00,210 And traditional leaders are trying to say that we want to participate in municipal councils. 364 00:42:00,210 --> 00:42:05,430 They already observe a role in municipal councils that DeKalb will give them a stronger 365 00:42:05,430 --> 00:42:11,070 voice in municipal councils and actually the same government ministries serves them both. 366 00:42:11,070 --> 00:42:18,150 So you have one government ministry both in charge of the affairs of traditional leaders and in charge of local government. 367 00:42:18,150 --> 00:42:28,500 And so it really is a very murky area, and for the longest time, traditional leaders and governments have been saying we need clarity. 368 00:42:28,500 --> 00:42:37,380 So very briefly, and when I look at the traditional Leadership and Governance Framework Act, I see it in terms of what I call the Three R's. 369 00:42:37,380 --> 00:42:43,930 What it does is it provides processes and criteria for official state recognition of traditional leaders. 370 00:42:43,930 --> 00:42:47,250 It then says once you have official state recognition, 371 00:42:47,250 --> 00:42:55,170 what is government expected to do and then what kind of benefits can you be can be derived from your official recognition? 372 00:42:55,170 --> 00:43:04,140 And really, what I started to become very interested in was this question of roles and at a very local level on a day to day basis, 373 00:43:04,140 --> 00:43:10,550 what is government actually expecting traditional leaders to do because they are paying them? 374 00:43:10,550 --> 00:43:14,540 And I'm not going to go through that. 375 00:43:14,540 --> 00:43:22,310 Michael has also said that the the roles are being defined in new laws like the two kelby in the traditional courts bill. 376 00:43:22,310 --> 00:43:30,350 But there's a whole host of laws to do with traditional knowledge to do with new government municipal structures. 377 00:43:30,350 --> 00:43:32,960 There's communal land and in all of these, 378 00:43:32,960 --> 00:43:41,540 these new laws that are coming up we have to fight where government is is giving new tradition, giving traditional leaders new roles. 379 00:43:41,540 --> 00:43:51,320 And so I really just it's a sort of quagmire of of trying to figure out what what is going on and what do we actually expect them to do. 380 00:43:51,320 --> 00:43:59,150 So I started to to look below the surface and I found that as I was doing work on these balls, 381 00:43:59,150 --> 00:44:06,890 mostly I would come across every now and then except notice that I had never heard of that we weren't paying attention to. 382 00:44:06,890 --> 00:44:11,390 But that was speaking about a role for traditional leaders, in essence. 383 00:44:11,390 --> 00:44:15,620 And I put them in a folder and was collecting them over time. 384 00:44:15,620 --> 00:44:23,030 And after a while, it was it was quite a comprehensive amount of of data. 385 00:44:23,030 --> 00:44:29,120 And I've started to try to to think through them, to take stock and to categorise them. 386 00:44:29,120 --> 00:44:35,510 But really, I think that this is the tip of the iceberg, and I think that they're that. 387 00:44:35,510 --> 00:44:43,220 Part of the problem is that many of these are hidden, not in the sense that they're deliberately hidden away or that they're unlawful, 388 00:44:43,220 --> 00:44:48,410 but that most of our focus is on the national sphere and what's happening with the bulls. 389 00:44:48,410 --> 00:44:54,560 And these sorts of regulations and bylaws happen under the radar. 390 00:44:54,560 --> 00:45:00,800 People aren't really participating in those processes. Information is very difficult to find about them. 391 00:45:00,800 --> 00:45:11,730 And and my sense was that if I was coming across so many random randomly that there might be a lot there that we're just not paying attention to. 392 00:45:11,730 --> 00:45:17,970 So briefly, look at sort of four categories I've identified and examples from each. 393 00:45:17,970 --> 00:45:26,450 So I've looked at regulations. There's a bylaw, there's policy documents, and then there's what I've called practise or rhetoric. 394 00:45:26,450 --> 00:45:31,850 And I'm not sure that that's the right term for it, but it's sort of press statements by government. 395 00:45:31,850 --> 00:45:36,610 It's it's actions that they condone that they, you know, they give their blessings. 396 00:45:36,610 --> 00:45:43,910 And and I'm not quite sure how to define it, but it's the sense that there's a role without some kind of formal backing for it. 397 00:45:43,910 --> 00:45:50,450 And I ask the question because the Framework Act says that a role can be given via legislation or other measures. 398 00:45:50,450 --> 00:45:58,610 Is this what's made that the measures? So looking at regulations, the. 399 00:45:58,610 --> 00:46:08,400 The one that I identified as in terms of our national spatial planning and Land Use Management Act, we call it Blumer. 400 00:46:08,400 --> 00:46:16,940 And it's basically quite a complicated act about local government decision making to do with land zoning. 401 00:46:16,940 --> 00:46:27,650 So land use and new development and the power to make decisions about new developments and about a changing of land use is put in. 402 00:46:27,650 --> 00:46:33,290 The IS is given to municipal councils or to local governments. 403 00:46:33,290 --> 00:46:40,160 And there has been a massive outcry since this act was introduced by traditional leaders who say that the 404 00:46:40,160 --> 00:46:46,100 action moves their powers and they say that they have the power to manage land in terms of customary law. 405 00:46:46,100 --> 00:46:50,600 And what's Bloomingdale's as it comes in and it takes this power away from them. 406 00:46:50,600 --> 00:47:00,260 Ironically, I actually think that the regulations in terms of supprimer place traditional councils in quite a powerful position, 407 00:47:00,260 --> 00:47:06,500 and I'm not sure if traditional leaders have understood this or if I'm just naive. 408 00:47:06,500 --> 00:47:14,300 And I mean, the government has seemed to listen to two traditional leaders complaints about that. 409 00:47:14,300 --> 00:47:22,220 And in June 2017, there was an indaba between traditional leaders and government, 410 00:47:22,220 --> 00:47:27,980 and a decision was basically taken to move all kinds of spatial planning. 411 00:47:27,980 --> 00:47:33,740 And the administration of Splinter from the Department of Rural Development and 412 00:47:33,740 --> 00:47:37,820 Land Reform into the Department of Cooperative Governance and Traditional Affairs, 413 00:47:37,820 --> 00:47:45,110 and specifically so that it would be easier to deal with issues raised by traditional leaders. 414 00:47:45,110 --> 00:47:53,270 And I mean, at the time when I think I read a news article from 2015, the minister, 415 00:47:53,270 --> 00:47:59,660 the then minister of land reform and minister in Green Tea was saying things like 416 00:47:59,660 --> 00:48:04,370 We all know that traditional leaders are the de facto owners of communal land. 417 00:48:04,370 --> 00:48:11,180 And if the law does not reflect this at the moment, then we will make the law reflect it. 418 00:48:11,180 --> 00:48:23,680 And so there is this. Government is listening to traditional leaders complaints about Blumer, and when you look at the regulation, 419 00:48:23,680 --> 00:48:28,240 there's a Regulation 19 that applies specifically to what are called traditional 420 00:48:28,240 --> 00:48:35,800 areas and what Regulation 19 says is that in so-called traditional areas, 421 00:48:35,800 --> 00:48:41,770 either traditional council could conclude what is called a service delivery agreement with their local 422 00:48:41,770 --> 00:48:48,520 municipality or if there is no service level agreements between a municipality and traditional council. 423 00:48:48,520 --> 00:48:55,720 Then whenever an applicant living within that traditional area or who wants to develop land or 424 00:48:55,720 --> 00:49:02,110 change the zoning of land within that traditional area makes an application to the municipality. 425 00:49:02,110 --> 00:49:07,660 They need to go to the traditional council to get proof that that land has been allocated to them. 426 00:49:07,660 --> 00:49:11,710 In terms of the applicable customary law of the area. And so to me, 427 00:49:11,710 --> 00:49:15,610 that's quite a powerful position to put the traditional councils in because you 428 00:49:15,610 --> 00:49:22,150 can't make an application to develop your land or to change your your land use. 429 00:49:22,150 --> 00:49:27,400 If you want to build a shop on your on your platform, you went to little shop and you want to change the land use. 430 00:49:27,400 --> 00:49:33,370 You have to go to the traditional council to give to basically prove that you have permission to be on the 431 00:49:33,370 --> 00:49:42,850 land and that you have permission to go and apply for it to be developed or to change the the the land use. 432 00:49:42,850 --> 00:49:53,920 And I mean this, I was interested that that it specifies that proof of land allocation has to show that it was in terms of customary law. 433 00:49:53,920 --> 00:49:57,220 But of course, we all know there are competing versions of customary law, 434 00:49:57,220 --> 00:50:02,800 and traditional leaders will say that's the customary law is that they are the ones who who manage the land. 435 00:50:02,800 --> 00:50:09,190 So which which version will win out? And basically, 436 00:50:09,190 --> 00:50:16,810 the underlying assumption seems to be that traditional councils are the owners of the land or at the very least have some kind of role in managing it, 437 00:50:16,810 --> 00:50:19,150 in administering it. 438 00:50:19,150 --> 00:50:28,960 And what's interesting is that SPLM is one act, but it has a number of branches, and so they are provincial frameworks, regional frameworks. 439 00:50:28,960 --> 00:50:31,870 There's a national framework. They are by laws. 440 00:50:31,870 --> 00:50:38,800 They are provincial acts that all flow from this one piece of legislation and its accompanying regulations. 441 00:50:38,800 --> 00:50:44,350 And so if we're assuming in the main one that traditional councils have a role in 442 00:50:44,350 --> 00:50:49,240 land administration in that that they're the de facto owners of communal land, 443 00:50:49,240 --> 00:50:54,010 we're doing so in all of the the branches, too. And I found one. 444 00:50:54,010 --> 00:51:03,100 I mean, there's many, but I found one example from Mahikeng Local Municipality and there's been the bylaw basically says 445 00:51:03,100 --> 00:51:10,360 that applications for development or to change the land use require a signed power of attorney, 446 00:51:10,360 --> 00:51:20,700 and they call that by the traditional council, which basically means the traditional council is letting you act on its behalf in respect of its land. 447 00:51:20,700 --> 00:51:31,920 Perfect. OK. So then the bylaws and I picked up one this that's a cemetery bylaw from Makhado Municipality in Limpopo, 448 00:51:31,920 --> 00:51:42,360 and this one is interesting because it allows you to start your traditional council to apply to municipal council to establish its own cemetery. 449 00:51:42,360 --> 00:51:48,510 And they call it a tribal or village cemetery. The traditional leader signs the application, 450 00:51:48,510 --> 00:51:57,480 and there's there's no talk about how the application comes about if it has to be consultation, if it's an initiative by the community. 451 00:51:57,480 --> 00:52:08,730 But once the application is approved, the municipal council can impose certain conditions on the so-called tribal cemetery or village cemetery, 452 00:52:08,730 --> 00:52:17,520 such as maintenance, such as fencing off. And I see this as a sort of a minor role for the traditional council, perhaps. 453 00:52:17,520 --> 00:52:25,890 But most importantly, once this application has been approved, the municipal council effectively cedes its authority over the cemetery. 454 00:52:25,890 --> 00:52:34,620 And it says that regulation in other law lawmaking that administration executive decision making will vest with the tribal 455 00:52:34,620 --> 00:52:43,380 authority no longer with the municipal council and above that the tribal authority can can charge tariffs for people. 456 00:52:43,380 --> 00:52:49,200 They say tariffs may be set and levied. So to me, this is a very broad governmental role. 457 00:52:49,200 --> 00:52:55,170 You're making law, you're implementing the law and you're actually gathering revenues from people. 458 00:52:55,170 --> 00:53:03,082 And then they also exempt the tribal authorities from a lot of the limitations that would apply to municipal cemeteries.