Morning, everyone. My name is Jason Brick Hill, I'm now based here at Oxford,
but I was previously at the Legal Resources Centre and so delighted to welcome many of my
former friends and colleagues back and also all of you visiting Oxford for the second day.
I really enjoyed yesterday. I took a lot from it and I think we're going to have an equally exciting day today.
Before I introduce the first panel on chiefly, I just want to give a little bit of information about the second session,
which is going to be a little different and take us out of this auditorium into two
breakaway seminar on this and you'll need to make a choice between the two sessions.
The first one is on historical contestations over land, so historical investigations into into land rights,
and the second is on state based systems of registration.
The title is contemporary struggles for security of tenure and the issue of recorded rights.
So the first one on historical investigations will be in the building just up above us here, immediately behind you in Seminar Room East.
And the second session happening at the same time will be in the reading in the seminar room upstairs in the Politburo Institute.
So immediately up there to our left and today we often I'm gradually.
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.
And so, OK, so we can now move into the first panel, which is on chiefly power and.
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,
providing a more comparative perspective on the topic before honing in again on South African questions with Michael Bay,
Cuba and Monica de Souza low and finally will offer a comparative perspective
from Ghana and perhaps some theoretical and conceptual insights from money.
Mensah Bonsu, who's here at Oxford if CVS and bios in the programme, but I'll hand over to Janine to stop.
Thank you very much. Good morning, everyone.
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,
and I was thinking where to go and even more after yesterday seeing how much knowledge there is in South Africa.
So rethinking that yesterday evening, I decided to start from the presumption that, you know, a whole lot about South Africa,
but also for the presumption that you might not know too much about other African countries.
So that's my starting point, and I hope I'm somewhat correct in that.
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,
when they were. So did you describe the number of African states were starting to recognise and
formalise the position of chiefs in their legislation in their constitutions?
We also see the restoration of our past kingdoms and we see the creation of councils or houses of chiefs.
And this is actually quite a surprise for many people, because at the time of independence,
we saw that many African governments were mostly aiming to curtail the power of traditional authorities,
whom they saw as remnants of colonial rule as dividing the country into ethnic tribes and therefore as inhibiting nation building and modernisation.
Mm hmm.
So in the literature, originally this resurgence of chieftaincy was connected to weak states failing states with the idea that in those countries,
chiefs or traditional leaders were the only remaining in functional form of social organisation.
But then further research showed that it wasn't so much in weak states where we saw a resurgence.
It was quite low in those states,
but it was rather strong in strong states with a functioning state apparatus that we witnessed some of the most far reaching restorations,
usually alongside the existence of local government institutions.
Now, the interest of states in this formalisation were many fault,
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.
Rural inhabitants have little access to state institutions, to state courts, to state bureaucracy,
and would therefore benefit from a recognition of their local leaders in the local dispute settlement institutions and of their normative systems.
So the idea there was to improve the chiefs role in local service provisioning,
also to capitalise on their intermediary position between the communities and the government,
and to also prevent resistance from chiefs who felt they were not incorporated enough recognised by the state against state projects.
So benign reasons to make the state more relevant and more legitimate and effective.
We also see other motives connected more to political and economic aspects.
Same as in South Africa, the issue of Rule three of electoral gain.
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.
I remember in Malawi it was a big issue whether chiefs would allow people political
parties to campaign in their localities and not directly bringing in the rural vote,
but still very important for election and obviously access to natural resources.
Main issue of this conference for South Africa, but very much happening in other areas as well.
Now,
the resurgence of chieftaincy has been very much aided by processes of democratisation and decentralisation and liberalisation because these processes
opened up new public spaces for traditional leaders and their involvement in
all kinds of local functions like law enforcement and social provisioning.
In addition, these processes distance the state more from the people,
and that facilitated the resurgence of tradition as an alternative mode of identification.
Now, obviously, foreign aid was a leading push, a leading factor in that push for democratisation and decentralisation and liberalisation.
But another role donor organisations played in this resurgence of chieftaincy was that
they still wanted to display a renewed interest in traditional leaders in other ways.
They start seeing them as suitable, legitimate counterparts with the capacity to mobilise their local populations.
So we see increasing attention to traditional authorities of donors forms at conferences,
actually involvement of change in development, programming and money going into traditional funds.
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.
At the same time, we see that donors within the rule of law programming within development,
programming funds focussing on the legal system start to realise that they need to also focus on customary justice institutions.
So the old paradigm was you focus on state institutions.
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.
So the response was, Hey, we need more bottom up access to justice.
Legal empowerment will probably be familiar terms to you, but also we need to focus on customary justice systems.
And we saw a similar thing in transitional justice programming.
Also, the idea that most of that was top down heavily influenced by international models and not really being relevant for local people.
And again, the response was let's also the customer justice systems.
Last point we see at the same time developments in international law focussing on recognition of indigenous rights, rights to culture, et cetera.
So all of these together led to an increased realisation, both amongst African governments,
but also very much in the international community that traditionally it isn't
customary justice systems would remain relevant in contemporary African states.
Now that does come with a number of challenges, challenges you will very much recognise from South Africa,
but that are very common in other African countries as well. First of all,
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,
and that this had a very negative impact on the checks and balances in these systems.
Then secondly, that these systems are now to function in very different contexts.
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
the most vulnerable communities and are regulated by traditional authorities.
The other challenges some of those we discussed yesterday as well the link with democracy.
What's the role for women?
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?
I will focus my discussion mostly on point one or my chair will get very restless, I think.
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,
where while there is a whole variety of traditional rule systems in pre-colonial societies,
we see a core of shared characteristics, which usually means that the power of chiefs was circumscribed by a council of elders who represented
the major factions of the community and who who support the chief need it to make important decisions.
Achieve strength and influence was largely determined by the number and loyalty of his followers
and the abundance of land that people who were unhappy with achieve could move to another area.
So very much the story from yesterday.
While the position of chiefs was hereditary in most places, there was usually also flexibility in that and competition.
We've talked about the One Hundred and Seven Lives and Sekhukhune, I believe yesterday.
But another example is if you're talking more matrilineal system than when the chief passes away,
it can be either of the brothers of the chief, but also two sisters sons.
So usually there's a number of contestants for that new position, which brings a check on the functioning of those leaders.
Now, I really don't want to conjure up an imaginary past of equitable, well-balanced and inclusive traditional communities.
This has been carefully refuted in much of the literature,
but it is quite undisputed that colonial rule watered down the existing checks and balances.
And obviously, the main one of the main ways it happened was through the fact that she's now had
to be recognised by the colonial government and not just by the communities,
which resulted in a change from downwards accountability towards upwards accountability to the colonial government.
And another big change in the colonial period was that chiefs were given all kinds of new tasks,
and there's quite a difference here between the different colonial powers that we're talking about.
I have this one slide to give you a bit of an idea if we compare the more indirect
rule style that was promulgated by the British in a more direct rule in ideology,
more direct rule of the French, then we see that,
particularly the French added on a whole lot of very unpopular tasks for the chiefs with
including forced labour and taxes and compulsory production and recruitment for the army.
This is much less than in British colonies and only in in the beginning period.
Obviously, very unpopular tasks have an effect on your legitimacy as well.
Now I'm always a little bit hesitant with its side because this is the ideology in ideology.
The British system is very different from the French, the British system.
The idea was let's stay with legitimate traditional leaders because those will be the strongest leaders.
The French idea was let's pick whoever is a good administrator and speaks French and isn't anti the colonial endeavour.
But then they both found out. The British found out that they didn't like all of their legitimate chiefs.
In some areas, they didn't find any, so they interfered anyhow.
The French find out, OK, we just want the best leader, but maybe someone who is a locally legitimate leader is the best leader.
So in the end, they both had sort of mediated rule using chiefs, but with interference.
The main real difference was in the presence of local self-government.
So where the indirect rule allowed a continuation of the former local self-government?
The French did. It doesn't mean that that didn't happen in practise, but not under their official rule.
So main ways of erosion of checks and balances in colonial period were both colonial recognition a new task.
But there were other ways. And I'll give an example from Ghana, where also the chief would be in Ashanti Region.
The chief would be ruling with members, but with the council,
and these council members were basically representing the main factions of the community.
But these elders, these councillors, were pretty restricted in their criticism because they had to pledge loyalty to the
chief and if they were seen as plotting against achieve this could be very dangerous.
For instance, they could be asked to drink to the gods, which meant they had to drink poison.
And then if they would not die, then obviously they were loyal and otherwise they hadn't been loyal.
So it wasn't quite easy for Consulate's to take a very critical position.
But there was a position of it was turned in Konkona, who was a communist chief.
So an extra counsellor selected by the Communists, who didn't have to swear loyalty to the chief.
And that was usually the person who would voice discontent of the community.
Now what happened in the colonial period was when land became more valuable,
more of a commodity and chief started to capitalise on that and communities were happy.
And a number of distortions, the number of depositions rose, they decided, with the support of the British to abolish the position from Konkona.
So not do anything about the discontent, but take away the channel. That actually means that the discontent that lead to depositions.
So in a number of ways, we see distortions and less checks and balances in the period in the colonial era post-colonial.
We see similar distortions as to the colonial era in the sense that still many countries want to have a say.
Many states want to have a say in who those traditional leaders rank.
There's it's quite a variety here. For instance, if we look at Botswana,
we see that the Chieftaincy of Act says that the chief is someone who is designated
in points of customary law but also hasn't been recognised by the minister.
And the minister can withdraw recognition at any time when he considers this to be in the public interest.
And any chief of fails to comply with any direction given to him by the minister can be deposed.
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.
The Constitution says achieve is someone to get from the royal family and selected by community on the basis of customary law.
But the Constitution,
that's the above part guarantees that parliament cannot enact a law which confers or takes away recognition of traditional leaders.
And this was a response to earlier periods where the government did have the power to recognise chiefs,
and it was heavily politicised, heavily abused in a political way. So we see quite a huge variety him.
Nevertheless, we see here that recognition of traditional leaders is very much informed by political interests,
and it never entails a wholesale acceptance of these systems without conditions or exceptions.
It's usually partial condition conditional.
Meant to make the customary order governable or subordinate and in line with certain normative values of the state now.
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,
from independence to later, more now. And that is that at the time of independence,
there was a huge antagonism between the traditional uneducated elite and the
modernising elites who have been fighting for liberation in most of these countries.
And there was a huge antagonism, and they were from very different groups.
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.
We see a professionalisation of chieftaincy in the sense that, as I said, there is always, you know, there's always selection of candidates.
There's always some choice. They end up choosing the candidate with the best education, the best context, the best jobs,
because those are the ones that will be able to bring development to their areas.
So with that comes that those people who end up particularly being the higher
positions of chieftaincy hats are from the same elite as the people in government.
So they've been to the same school, same universities, and they just branch out.
So now it's much more one elite with the same kind of interests.
So that is a big change in in in the politics in these countries and the politics of chieftaincy now.
Recognition is not without danger to traditional institutions because if they're aligned with states with limited legitimacy,
this may actually impact negatively on them.
And we see this, for instance, in Togo, where at all positions were politically motivated and in a dictatorship,
this really had a very negative impact on chieftaincy.
Nevertheless, we see that most chiefs are still interested in it, either because there's no alternative,
so it's going to survive or because they think it's a way to consolidate and expand their power.
And obviously, that is most possible when in this recognition that just nation, no attention is given to local checks and balances.
And just like in the Kelby, we see, for instance, in the there's introduced legislation was introduced in Mozambique in the year 2000,
which recognised local leaders as community authorities with a wide range of functions.
And that legislation said that these needed these tasks needed to be carried out with the participation from community members.
But then it didn't say anything about the terms for the relationship between chiefs and community members.
So very much here. The question is who is included?
Is it just chiefs or is it chiefs and companies who get to define what their customary law is and what
their traditional leadership is that is being recognised and the powers and functions that it has?
So is it just chiefs or commoners? If it is chiefs? Is it all levels of chieftaincy or just to senior levels?
And we see very much the same. Not just in state legislation, but the same questions with donor programming.
If I think of the Land Administration programme in Ghana,
the idea was to enhance the tenuous security of smallholders and to do that via the introduction of customary land secretariats.
But then they placed the customary land secretary squarely in the hands of chiefs.
So guess who was defining what customary land rights there were and who needed to be paid as such?
All right. So again, the question who gets to be involved, who gets to participate in that definition of customary customary rights?
I'm going to conclude by going back to this slide.
I've mainly talked about the first challenge for content your role.
Traditional authorities be wary of checks and balances, but obviously they're very much connected to the others.
The fact that we have such valuable resources being managed at the at the customary level, the fact that these leaders are not elected,
that these structures to a large extent exclude women, and that there's a flexibility here that can be abused by elites.
All those facts mean that we need checks and balances more, not less.
So I think it all boils down to finding a system where we can fit these checks and balances
that can place either or preferably both from the state level and from the local level.
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,
and I did write about that 10 years ago and came up with just sort of I wrote this little booklet,
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
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.
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,
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.
I am. I'm going to discuss the so-called new legislation and the new legislation concerning
traditional leadership and its fit with the South African constitutional framework.
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.
I want to consider sections 211 and 212 of the Constitution, which recognise and regulate the role of traditional leadership.
And then I want to, against that backdrop, assess the post democratic legislative approach to regulating the role of traditional leadership.
That is a very ambitious task for 17 minutes, I've been told.
And and in the final section, I really, I think Will will focus on the two bills that that are forthcoming,
one of which is imminent because I think that gives a sense of the kind of trajectory that we may be on.
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.
Introduced the session by recalling that when he was told customary law, he was taught that it was subject to the common law,
and he asked somewhat provocatively whether making it now subject to the Constitution is similarly problematic.
That is an interesting question, but not the one I'm asking,
because I'm taking the Constitution has given it is the normative framework against which I'm
assessing the legislative framework and it is the constitution we have for better or for worse.
The second preliminary is that I'm considering predominantly structural questions related to the Constitution,
the structure of our government, for the most part, I'm not looking at rights violations that might arise from this legislation.
I immediately recognised that that's a distinction that can't be sustained.
But I think it's important to try and understand.
The the permissibility of a governmental or quasi governmental role for traditional leaders,
whether or not that gives rise to particular instances of rights violations.
And so let me begin by asking what is the structure of South African democracy as provided for in the Constitution?
And I'm going to be brief here because these are relatively straightforward and trite principles.
Section one sets out the founding values.
It says that South Africa is one sovereign Democratic state founded on the supremacy of the Constitution and the rule of law,
universal adult suffrage, a national common voters rule regular elections and a multi-party system of democratic government to ensure accountability,
responsiveness and openness. Section 40 sets out the spheres of government.
It provides that government is constituted as national, provincial and local.
Then different provisions allocate different authority to the different arms of the state.
Section 43 gives legislative authority exclusively to the national parliament, provincial legislatures and the municipalities.
Section 85 vests executive authority in the president, which is to be exercised together with cabinet.
Section 125 with the executive authority of the province and the Premier.
And Chapter seven in detail concerns local government, and this is particularly important because, as I'll show,
it's in sections 211 and 212 that said, local government that a role is provided for for traditional leaders.
The the local sphere in terms of section 151 consists of municipalities on a wall-to-wall basis throughout the country.
The the executive and legislative authority of municipalities is vested in municipal councils.
And each municipality has the right to govern on its own initiative.
The local government affairs of its community subject to national and provincial legislation.
Finally, finally, for present purposes, there's much more to say,
but Section 165 provides the judicial authority is vested in the courts exclusively that no person may interfere with the functioning of the courts.
And then one sixty six, it's on the basis for the creation of additional courts in terms of an act of parliament.
So in some South Africans, constitutional democracy, like very many others,
is one that is based on principles of a multi-party system of democratic government,
the rule of law, a horizontal separation of powers between the legislative executive and the judiciary.
A government that is constituted vertically into spheres at national, provincial and local level.
And all of this intended to achieve accountability, responsiveness and openness.
So. What of traditional leadership?
Before I get to the what the final constitution does for traditional leadership, I want to begin with the interim constitution.
Section 191 provided that any traditional authority recognised in law before the Constitution continued to
exercise and perform the powers and functions vested in it in accordance with the applicable laws and customs.
Subject to any amendment of such laws and customs by a competent authority.
And then Section 182 gave traditional leaders ex-officio membership of elected municipal councils.
So there was there was a certain discomfort in the in the interim constitution in that together.
With the Local Government Transition Act, a system of local municipalities,
was elected municipal councils, but traditional leaders were given some role in local government.
The final constitution diminishes that role.
In two 11, it recognises the institution's status and role of traditional leadership, according to customary law and subject to the Constitution.
And in two, 11, two, it permits the traditional authority to function subject to legislation and customs.
Two of the 12. One is really what what I'm most interested for present purposes,
and that is the national legislation may provide for a role for traditional
leadership as an institution at local level on matters affecting local communities.
Now. The the in the certification judgement that certified the text of the final constitution, the Constitutional Court.
Essentially held that if the provision had ended at two, 11, one.
Traditional leaders would have had no role at local level, at all.
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,
which they otherwise would not have enjoyed. So 12 provides a basis for national legislation to confer a new statutory role upon traditional leaders,
and granting that role recognises what the court described as, and I quote a degree of cultural pluralism.
With legal and cultural, but not necessarily governmental consequences.
The court also held that the use of the word role is important. The draughters didn't use the word powers and functions.
Which they could have easily. Had the framers intended to guarantee and require expressions,
just institutionalisation of governmental powers and functions for traditional leadership,
they could easily have included the words powers and functions.
So let me turn to the new legislation. And in doing so,
I want to look at the traditional unquestioned leadership role and the traditional courts bill have already been given my five minutes.
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.
I will say the following about the traditional courts bill. It went through the portfolio committee.
It is a truly startling exercise to go and have a look at what happened to the legislation after going through the portfolio committee.
If you have a look at what is omitted, what is deliberately taken out of each provision by the portfolio committee,
it is every time the word voluntary on censure from the objects clause, the opt out is taken away.
The result is a bill that has civil and criminal jurisdiction that has albeit limited punitive powers and from which people cannot talk about.
I'll leave it at that. The traditional unquestioned leadership bill will repeal and replace the the Traditional Values Governance Framework Act now.
An argument was running into iguana in the High Court that the traditional Leadership and Governance Framework Act was unconstitutional,
that Sections five and 20 conferred excessive governmental power on traditional leaders created
and what what Alan Dodson refers to as a fourth sphere of government and was on that basis,
unconstitutional. The the the High Court rejected that argument, and it wasn't assisted with an appeal.
But the traditional and Khoisan leadership bill goes much further.
And sorry, I'm. That was the Communal Land Rights Act of the traditional you just want governance framework.
That was but in the in the in the course of that argument,
the argument was made that the traditional Leadership and Governance Framework Act was also unconstitutional.
The the specific provisions of the of the tab on 19, 20, 24, 25 and 19 and 20,
I think are pretty much the kinds of powers we would imagine being given to traditional leaders.
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
potentially problematic governmental or quasi governmental power in traditional leaders.
And I think it's very important that when we look at this act, we do so not simply on its own terms.
And that the the same traditional leaders who are given extensive powers under Section 25 and
24 of this act are given extensive powers of a judicial nature under the traditional code and.
So this provides for the allocation of roles to traditional councils and allows any department within the national provincial sphere to
legislative or other measures and in respect of any functional area of such departments to provide a role for traditional councils.
This does not appear to me to be what Section 212 one has in mind.
Firstly, it's the role that is provided to traditional leaders here is not simply at local level as expressly envisaged in Section 212.
It expressly provides for a role in any spheres within national provincial government.
It does not require necessarily that the role is determined in national legislation.
It can be determined in terms of other measures and the power to allocate the role as delegated to a department.
And there is little guidance on how the relevant department ought to exercise that delegate to
determine the role or how traditional the traditional councils need to exercise power once delegated.
The next provision in section 20. For which which deals with so-called partnerships, an agreement and agreements.
And now this this provision has been widely criticised, particularly, I think, by Americans,
on the basis that it will allow traditional leaders to deal with and dispose of land as they wish.
The provision may well be wider than this. It's it's it doesn't seem to specify what these partnerships or agreements
might be in respect of it is it is and potentially an extremely wide policy.
And so through the mechanism of a of an agreement, of a of a partnership contractual arrangement,
a significant power is given to it's given to traditional leaders.
I'm going to conclude with with full remarks.
The first is, I don't say necessarily at all that these provisions are in constitutional.
I think it may be arguable.
I think this act in particular has been quite carefully draughted in a way that might make constitutional challenges difficult.
But I think that they are potential constitutional challenges, both in this and in the traditional courts belief that is possible.
Even if they are not unconstitutional, what these bills do and will do if passed into law is, I think,
make administrative law a particularly important site of a legal battle in the customary law area
because the the the powers that are conferred on traditional leaders under these provisions,
even it's not governmental in the sense that they breach section two, 11 and 12 of the Constitution,
or certainly of a of a significant and public nature which have a direct effect on people's rights.
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
understood when the legislation is considered not on its own to inspect together.
It was very disconcerting to read. I think it was the LRC submission on the traditional courts bill,
which which noted the fact that historically government pretty much refuses to accept win win win
submissions are made on one bill the implications of other legislation within this framework on that bill.
But but one simply can't have regard to concerns such as the separation of powers.
If one looks narrowly at a single piece of legislation?
Thank you. Thank you, Michael.
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.
I'm here, and my concern today is about what I first termed hidden roles,
but which I'm starting to think of as the roles that we need to pay more attention
to and that are being given to traditional leaders on an ongoing basis,
kind of under the radar. And I was going to start with a bit of background, but Michael's covered it quite well.
What I wanted to note, though,
is that with that constitutional framework and with the certification of judgement and what appears to be clarity about what the role should be,
there has been ongoing contestation about ongoing debates about what the meaning of that word role is.
And is this constant push from government and from traditional leaders to keep expanding the meaning?
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.
And it says that there are a number of issues that are outstanding about traditional leadership,
one of which is a constitutional amendment to Chapter seven and 12 with regard to the powers and functions of
traditional leaders so that we can harmonise working relations between government and traditional leadership.
And so I just wanted to highlight that that I think that these processes are very much in flux
and that any argument about constitutionality is coming up against a very hot political process.
I also just wanted to highlight as a bit of background that I think in part the the problems with the roles,
and this is something that traditional leaders themselves have raised many times in parliament is
that they are overlapping jurisdictions between municipalities and traditional leader jurisdictions.
And this is all made worse by the fact that actually local government is failing in many aspects.
There's lack of service delivery and financial mismanagement is rife.
And traditional leaders are trying to say that we want to participate in municipal councils.
They already observe a role in municipal councils that DeKalb will give them a stronger
voice in municipal councils and actually the same government ministries serves them both.
So you have one government ministry both in charge of the affairs of traditional leaders and in charge of local government.
And so it really is a very murky area, and for the longest time, traditional leaders and governments have been saying we need clarity.
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.
What it does is it provides processes and criteria for official state recognition of traditional leaders.
It then says once you have official state recognition,
what is government expected to do and then what kind of benefits can you be can be derived from your official recognition?
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,
what is government actually expecting traditional leaders to do because they are paying them?
And I'm not going to go through that.
Michael has also said that the the roles are being defined in new laws like the two kelby in the traditional courts bill.
But there's a whole host of laws to do with traditional knowledge to do with new government municipal structures.
There's communal land and in all of these,
these new laws that are coming up we have to fight where government is is giving new tradition, giving traditional leaders new roles.
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.
So I started to to look below the surface and I found that as I was doing work on these balls,
mostly I would come across every now and then except notice that I had never heard of that we weren't paying attention to.
But that was speaking about a role for traditional leaders, in essence.
And I put them in a folder and was collecting them over time.
And after a while, it was it was quite a comprehensive amount of of data.
And I've started to try to to think through them, to take stock and to categorise them.
But really, I think that this is the tip of the iceberg, and I think that they're that.
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,
but that most of our focus is on the national sphere and what's happening with the bulls.
And these sorts of regulations and bylaws happen under the radar.
People aren't really participating in those processes. Information is very difficult to find about them.
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.
So briefly, look at sort of four categories I've identified and examples from each.
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.
And I'm not sure that that's the right term for it, but it's sort of press statements by government.
It's it's actions that they condone that they, you know, they give their blessings.
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.
And I ask the question because the Framework Act says that a role can be given via legislation or other measures.
Is this what's made that the measures? So looking at regulations, the.
The one that I identified as in terms of our national spatial planning and Land Use Management Act, we call it Blumer.
And it's basically quite a complicated act about local government decision making to do with land zoning.
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.
The IS is given to municipal councils or to local governments.
And there has been a massive outcry since this act was introduced by traditional leaders who say that the
action moves their powers and they say that they have the power to manage land in terms of customary law.
And what's Bloomingdale's as it comes in and it takes this power away from them.
Ironically, I actually think that the regulations in terms of supprimer place traditional councils in quite a powerful position,
and I'm not sure if traditional leaders have understood this or if I'm just naive.
And I mean, the government has seemed to listen to two traditional leaders complaints about that.
And in June 2017, there was an indaba between traditional leaders and government,
and a decision was basically taken to move all kinds of spatial planning.
And the administration of Splinter from the Department of Rural Development and
Land Reform into the Department of Cooperative Governance and Traditional Affairs,
and specifically so that it would be easier to deal with issues raised by traditional leaders.
And I mean, at the time when I think I read a news article from 2015, the minister,
the then minister of land reform and minister in Green Tea was saying things like
We all know that traditional leaders are the de facto owners of communal land.
And if the law does not reflect this at the moment, then we will make the law reflect it.
And so there is this. Government is listening to traditional leaders complaints about Blumer, and when you look at the regulation,
there's a Regulation 19 that applies specifically to what are called traditional
areas and what Regulation 19 says is that in so-called traditional areas,
either traditional council could conclude what is called a service delivery agreement with their local
municipality or if there is no service level agreements between a municipality and traditional council.
Then whenever an applicant living within that traditional area or who wants to develop land or
change the zoning of land within that traditional area makes an application to the municipality.
They need to go to the traditional council to get proof that that land has been allocated to them.
In terms of the applicable customary law of the area. And so to me,
that's quite a powerful position to put the traditional councils in because you
can't make an application to develop your land or to change your your land use.
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.
You have to go to the traditional council to give to basically prove that you have permission to be on the
land and that you have permission to go and apply for it to be developed or to change the the the land use.
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.
But of course, we all know there are competing versions of customary law,
and traditional leaders will say that's the customary law is that they are the ones who who manage the land.
So which which version will win out? And basically,
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,
in administering it.
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.
There's a national framework. They are by laws.
They are provincial acts that all flow from this one piece of legislation and its accompanying regulations.
And so if we're assuming in the main one that traditional councils have a role in
land administration in that that they're the de facto owners of communal land,
we're doing so in all of the the branches, too. And I found one.
I mean, there's many, but I found one example from Mahikeng Local Municipality and there's been the bylaw basically says
that applications for development or to change the land use require a signed power of attorney,
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.
Perfect. OK. So then the bylaws and I picked up one this that's a cemetery bylaw from Makhado Municipality in Limpopo,
and this one is interesting because it allows you to start your traditional council to apply to municipal council to establish its own cemetery.
And they call it a tribal or village cemetery. The traditional leader signs the application,
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.
But once the application is approved, the municipal council can impose certain conditions on the so-called tribal cemetery or village cemetery,
such as maintenance, such as fencing off. And I see this as a sort of a minor role for the traditional council, perhaps.
But most importantly, once this application has been approved, the municipal council effectively cedes its authority over the cemetery.
And it says that regulation in other law lawmaking that administration executive decision making will vest with the tribal
authority no longer with the municipal council and above that the tribal authority can can charge tariffs for people.
They say tariffs may be set and levied. So to me, this is a very broad governmental role.
You're making law, you're implementing the law and you're actually gathering revenues from people.
And then they also exempt the tribal authorities from a lot of the limitations that would apply to municipal cemeteries.