Ferial Haffajee, senior Editor, Johannesburg Financial Times
In January 1999, Thabo Mbeki is blessed by village elders before successfully running for the South African presidency after the retirement of Nelson Mandela.
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Wherever Law ends, Tyranny begins. John
Locke, |
In South
Africa’s Herculean task of law reform, women’s groups are in the vanguard of the
movement to adapt traditional law to post-apartheid society
When former
President Nelson Mandela married Graça Machel last year, their Western ceremony
was simple and secret. But their customary marriage in the verdant hills of Xunu
in the Transkei was treated like an occasion of state. Machel was welcomed in traditional
dress by the elders of the Tembu clan in a ceremony beamed around the world. And
Mandela’s elders negotiated her bride price or lobola with Machel’s Mozambican kin.
The event was significant for many reasons, yet above all, it moved traditional customs
and laws from the fringes to the centre of South African society. It signaled a shift
in power for customary law which the apartheid state treated as common law’s “poor
cousin”.
A groundswell of innovation is underway to instill new authority, resources and dignity
to customary law. Not only is the aim to correct historical injustice, but to rebuild
trust in the criminal justice system and respect for the rule of law. The challenge
lies in building a legal system which integrates common and customary law in line
with the new constitution, enshrining such fundamental principles as gender equality.
“The old, unequal relationship between common law as the big brother and customary
law as the poor cousin is gone,” says Professor Thandabantu Nhlapo of the South African
Law Commission. “Both have to be judged in terms of the constitution.” This harmonization
process marks a major step in South Africa’s Herculean task of legal reform. The
first step lay in repealing apartheid laws. Next came the need to reconstitute the
Law Commission, which was dominated by racist judges of the old regime. Now it must
shape new laws to govern a new social order.
Customary law in South Africa has suffered similar travails to those of other African
countries with a colonial past. Afrikaner governments inherited a dual legal system
of common and customary law from British colonizers. They codified this mixed system
into the Native Administration Act which in 1986 became the Black Administration
Act–sculpted as a tool to divide, by fine-tuning the separate system of administration
for blacks. Under the Act, customary law was tolerated so long as it wasn’t deemed
“repugnant” to common law, in which case it was nullified.
Swift,
cheap justice
Yet customary law is
probably the only form of justice known to many South Africans. About half the population
lives in the countryside where traditional courts administer customary law in over
80 per cent of villages. The courts, which are also found in some urban townships,
deal with everyday disputes like petty theft, property disagreements and domestic
affairs–from marriage to divorce and succession. (The courts cannot impose fines
of more than $6 and serious crimes are tried by formal courts.)
Justice is swift and cheap as the courts are run with minimal formalities and charge
less than a dollar for a hearing. The judges use everyday language, and the rules
of evidence allow the community to interject and question testimonies. These courts
are close to the people who don’t have the money or time to travel to towns for formal
courts.
Yet the system is not without its critics–namely women, who are barred from serving
as judges and often discriminated against as litigants. Paradoxically, women’s groups,
under the umbrella of the Rural Women’s Movement, have been in the vanguard of efforts
to recognize customary law and adapt it to post-apartheid society. Discussions about
ways of elevating customary law are intertwined with debates on making it gender-neutral.
Three issues top the agenda: traditional marriages, inheritance rights and the status
of traditional courts.
Under apartheid, traditional or customary law marriages were not legally recognized
and only regarded as “unions”. If a couple couldn’t afford a common law marriage,
the woman was considered a “minor” who wasn’t even allowed to open a credit account
with a local grocer. Most rural women raise their children alone as their husbands
are migrant workers in mines and industrial centres. “The women couldn’t buy anything.
They had to wait for their husbands to return from the city in order to sell property,”
says Likhapa Mbatha of the Centre for Applied Legal Studies (CALS), a legal think-tank.
Thus, the Recognition of Customary Marriages Act was passed last year after close
collaboration between the SA Law Commission and the women’s movement. For Mbatha,
“It’s a recognition that South Africa is in Africa.”
Reforming
and recognizing traditional courts
This first victory
was about righting an apartheid wrong: disrespect for customary law. The next step
lies in making it gender-neutral. According to customary law, only males can inherit
property and wealth. Nhlapo’s sub-committee has proposed bringing this law into line
with the non-discriminatory common law. Indeed, the proposal may not be as radical
as it appears. In a research project, CALS found that many villages have informal
ways of ensuring inheritance to widows and daughters. A parliamentary decision on
the proposed changes is anxiously awaited.
The third priority lies in reforming and recognizing traditional courts. South Africa’s
common law criminal justice system is buckling under the weight of shrinking budgets
and poor management, according to the National Director of Prosecutions. Nhlapo sees
a partial remedy in expanding the operations of the traditional courts which have
the respect of the people–an essential ingredient in reinforcing the rule of law.
“You must empower traditional courts to dispense justice in a way and in a language
that people understand,” says Nhlapo, “by bringing traditional courts in line with
the constitution and financially investing in them.” To begin breaking down the gender
barricades to justice, the South African Law Commission recommends having elected
councillors preside with traditional chiefs in their courts. However, the women’s
lobby does not fully trust the chiefs and headmen. So instead of formally recognizing
these courts or expanding their powers, the lobby would simply like to see them treated
as local arbitration tribunals. Not surprisingly, the proposition has ignited an
open battle with the traditional leaders, who want to strengthen their courts.
The jury is still out on the traditional courts system. Whatever the outcome, it
will be a milestone in South Africa’s history and quest for justice.
