South African Human Rights Commission
Draft Discussion Document Towards A White Paper on Traditional Leadership and Institutions

In 1652 when the first generation of European colonialists landed on the shores of South Africa, traditional leadership and institutions were firmly rooted in the region as the embodiment of a political, cultural and economic system of the native South African communities.

During the Frontier Wars between the Xhosa people and the then British Empire and other wars between other native groups and European settlers, traditional leaders and institutions were at the very centre of these wars and played a leading role in the resistance against the colonisation of the region.

It was this role of traditional leaders and institutions that set them up as targets for destruction and or submission by the European colonists in order to facilitate the subjugation of native South Africans.

Below is a brief account of the subjugation of traditional leaders to the British Empire using the Xhosa people as an example. However this subjugation applied to all colonised communities.

- Sir Harry Smith the Governor of the Cape Colony (1847-52) after annexing the territory between Keiskamma and Kei rivers to Britain and naming it British Kaffraria in December 1847, proclaimed himself as the Supreme Chief or Inkosi [E]nkhulu of the Xhosa people.

- Following the last Frontier Wars, Sir George Grey, the Governor of the Cape Colony (l854-60), appointed British magistrates to the principal traditional leaders who were now to receive annual salaries from the colonial government. This income was to replace the system of fines that traditional leaders collected through the traditional judicial system.

While there was some resistance to the appointment of the magistrates, the senior traditional leaders amongst the Xhosa then, such as Sandile, Maqoma and Mhala accepted the arrangement. However, the effects of war and resultant poverty' caused many traditional leaders to succumb. Describing the situation then one author wrote:

"ln 1856, three years after the conclusion of the longest, cruellest and most penalizing of all frontier wars, the frontier Xhosa were in a severe state of spiritual, political and economic crisis after half a century of progressive land loss, strenuous assault upon their traditions and customs, and military defeat. They had shown remarkable resilience in coping with the losses and consequences of each war, except the last. The loss of the places they cherished above all and their overcrowded confinement to inadequate spaces left them demoralized in a way that was more deeply affecting than anything yet experienced in their fifty years of confrontation with British governors."

With the defeat or avoidance of total defeat and consequences thereof, native South African communities succumbed to colonial rule and with colonial rule came the submission of most traditional leaders to colonial rule and later to the apartheid regime. Colonial rule saw the beginning of the distortion and suppression of indigenous law in South Africa and the later apartheid regime placed the last nail in the coffin.

Following a long struggle against successive colonial regimes, the oppressed people of South Africa, mainly consisting of the descendants of the various native communities that were colonised by the British, attained their freedom in April 1994 and with it, the power to decide how they will govern themselves in their own territory. To this end, the people of South Africa in their Constitution proclaimed that the new South Africa should be one sovereign and democratic state founded amongst other values, human dignity, the achievement of equality and the advancement of human rights. The Preamble of the Constitution recognises diversity and uses the phrase, 'South Africa belongs to all who live in it, united in our diversity'

In the Bill of Rights, which is the cornerstone of democracy in the new 59uth Africa, the right to human dignity and the enjoyment of culture are entrenched. Finally, in Chapter 12 of tile Constitution, the institution, status and role of traditional leadership according to customary law are recognised.

In view of the above and the fact that traditional leadership and traditional institutions arc central to the continuation of customary law and hence the enjoyment of the right to human dignity and culture by the many adherents of indigenous law in South Africa, the challenge facing the new South Africa is how the self-determination rights of many native South Africans could be enhanced, protected and promoted in the context of the current constitutional framework.

These provisions should also be seen in the context of the history of South Africa and the fact that if the cultural rights of those peoples whose way of life and cultures and traditions were subjugated and distorted by the past oppressive regimes in South Africa are not restored to acceptable levels and promoted and protected, the provisions of our constitution would indeed remain hollow.

It is in this regard, that the South African Human Rights Commission, a constitutional body established to promote and protect human rights, including the cultural right, welcomes the Draft Discussion Document Towards A white Paper on Traditional Leadership and lnstitutions and also makes its comments as part of its contribution to this important process.

The Commission’s comments would, however, be limited to issues pertaining to equality.

4.2 lnternational Human Rights and Traditional Leadership
Reference should also be made to other relevant international human rights instruments that are even appropriate than some of those referred to in this subsection. These would include the International Covenant of Civil and Political Rights, particularly Articles l and 27 thereof, the Indigenous and Tribal Peoples Convention No 169 and the UN Draft Declaration on the Rights of Indigenous Peoples.

In terms of the Indigenous and Tribal Peoples Convention, special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of [indigenous and tribal peoples]. Article 5 of this convention also requires that the values, practices and institutions of indigenous and tribal peoples to be recognised.

Article 4 of the UN Draft Declaration on the Rights of Indigenous People provides:
‘’Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal Systems, while retaining their rights to participate fully, if they so choose, in the politician economic, social arid cultural life of the State."

What the above instruments suggests, particularly the Indigenous and Tribal People’s Convention and the Draft Declaration of Indigenous Peoples and in the context of the promotion and protection of human rights, is that the institutions of indigenous and tribal peoples, such as traditional institutions should be allowed to exist as distinct and separate structures from other structures of a democratic state.

This view has also been supported by the Vienna Declaration of Human Rights and Programme of Action, which provides:
‘’The World Conference on Human Rights urges States to ensure the full and free participation of indigenous peoples in all aspects of society, in particular in matters of concern to them’’

8. Removal of Traditional Leaders from Office
Recommendations - response to Strategic Questions
1. Succession dispute resolution, especially in cases where contraventions of the right to equality are involved: On the issue of equality, traditional institutions should not apply unfair discriminatory practices amongst people governed by such structures. This means that there should be no unfair discrimination on the basis of gender or sex and that, therefore, females should also be eligible for consideration as traditional leaders within the succession rules of such communities. If needs be, the government might have to intervene in this regard. CEDAW imposes a duty on the State to ensure that customs, practices and laws do not discriminate against women. (Article 2)

While this suggestion might be seen in some quarters as an interference in traditional issues, the exclusion of women who deserve to be appointed as traditional leaders according to the rules of a given indigenous community is no longer acceptable just as other harmful traditional practices such as genital mutilation are no longer accepted. This view is supported by the provisions of Article 33 of the UN Draft Declaration on the Rights Indigenous Peoples, which provides:
‘’Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards"

However, the notion and operation of equality in the context of traditional institutions does not mean the involvement of all persons regardless of whether they are members of indigenous communities. In this regard, Article 32 of the UN Draft Declaration on the Rights of Indigenous Peoples states.

‘’ … Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures"

9. The Role of Women in Traditional Leadership
Recommendations - response to Strategic Questions
1 Reconciling the prevailing law of succession and customary law with the equality clause of the Bill of Rights and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination: On the issue of gender discrimination, the view is that there should be no gender discrimination in the appointment of traditional leaders. See the above sub-section. However, for other issues of equality, the operative words are ‘unfair discrimination' and not just ‘discrimination'. In this regard, Justice Albie Sachs said in a his speech in a conference of Law in Africa:

‘’… I think it is important to avoid an unfortunate but prevalent tendency to put customary law and the constitutional principle of equality on a collision course that is, to say that for the one to live, the other must die, or to use a less dramatic metaphor, if custom triumphs, equality must fall (or vice versa). I think this is a profoundly mistaken view."

It should be noted that these institutions are not static and do undergo changes like any other social and political system. In fact, in some traditional Systems, significant advances pertaining to the rights of women have been made.

2. Role that women should play in institutions of traditional leadership such as customary courts and izimbizo: The answer is very short, full and equal role as men.

Article 2 CEDAW - State undertakings - To take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.

10. The Status of the Youth/Minors in Traditional Communities
General Comments
It is an over-generalisation to say that 'commoner youths' were not allowed to attend meetings of customary traditional institutions. This might have been the case in some institutions but not all traditional institutions.

Some traditional systems just have an age-grade system whereby a person graduates from one group/grade to another serving the community in different ways at different stages in their life. At the communities recognised age of maturity they may take on a role as an elder. The issue may be the age of maturity but the existence of limitations on the basis of age should not be viewed as wholly discriminatory.

As referred to above, the issue of age and youth is not just confined to traditional institutions only. In addition, the Draft Document should clarify what does a minor or youth in this context mean. When does a youth become an adult?

Recommendations - response to Strategic Questions
1. Policy on the age of succession: Most traditional systems have some sort of policy on this issue, though this might need to be looked into in terms of criteria for succession on the basis of age. In some communities, marriage was an indicator and in others, graduating from a traditional school or committing some feats like killing a lion or climbing a mountain or dangerous peak. If on the other hand the issue were about having a uniform policy, would this be desirable in the context of the differences amongst indigenous people? Would the ages of l8 or 2l be the criteria?

2. Role to be played by the Youth: As indicated above, there is a need to define the youth in this context. It might be desirable that traditional institutions should decide on these issues themselves, though an open participation by all able and mature members of such communities should all be able to take part in the activities of their communities.

3. Mechanisms to ensure that a minor assumes rightful position as a traditional leader on attaining maturity: This should be determined by the community concerned and any disputes that might result should be resolved accordingly

4. Rights of a minor and his or her mother in terms of general care (including remuneration) when the leadership position is temporarily handed over to a regent: In terms of customary law, the regent becomes a guardian of the minor and his family is responsible for their care. There is no reason why this should not change but what needs to be ensured is that this happens and if it does not happen then dispute resolution mechanisms should come into operation

5. Reconciling customary law and the law of succession with the equality clause in the Bill of Rights: On the issue of youth/minority, the Bill of Rights itself places limitations on the voting rights of persons under the age of 18 years. In addition, with necessary changes, sub-sections 8 and 9 above (especially points 5 and 1 respectively).

6. Governments responsibility towards the family/families of a deceased traditional leader in respect of general care: In terms of customary law, the heir or successor to the deceased leader is responsible for the general care of the dependants of the deceased leader. There the state remunerates such leaders, that remuneration should also provide for such person. The other option would be for the government to establish clear criteria for the remuneration of traditional leaders and the ,general care of the families of the deceased leaders.

15 and 16 Combined. Traditional Communities - Trans-Provincial Implications and National Borders and Trans-National Implications
Article 32 of the ILO Convention 169 provides that "Governments shall take appropriate measures, including by means of international agreements, to facilitate contacts and co-operation between indigenous and tribal peoples across borders,
including activities in the economic, social, cultural, spiritual and environmental fields."

Further Article 35 of the UN draft Declaration on the Rights of Indigenous Peoples provides:'
"Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts; relations and co-operation, including activities for spiritual, cultural, political, economic and social purposes, with other peoples across borders.
States shall take effective measures to ensure the exercise and implementation of this right"

In view of the arbitrary manner in which most borders (provincial and national) were drawn up and the consequences thereof, where, overnight, families, relatives and communities, found themselves in different provinces and in some cases, in different countries, the government has to find appropriate means to give effect to the rights in the ILO Convention 169 and the UN Draft Declaration on the Rights of Indigenous Peoples referred to above.

The Postamble of the first constitution of a democratic and non-racial South Africa, Constitution of the Republic of South Africa Act 200 of 1993 provided:

'’This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and justice, and a culture founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex"

"The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge."

That there are indigenous people in South Africa is a fact. That indigenous peoples of South Africa were colonised and suffered much brutality and exploitation is also a fact. That the ways and structures of indigenous peoples such as traditional institutions and leadership were undermined, abused and subverted is also a fact. That international human rights recognises the distinct and peculiar rights of indigenous or tribal peoples is also a fact.

In view of the above, it would be gross injustice and a failure to implement our very own constitutional provisions if adequate measures are not adopted by the South African government to promote and protect the rights indigenous or tribal peoples and to address the effects of past human rights violations these peoples have suffered under colonisation and the apartheid regime. The historic bridge referred to in the Postamble of the 1993 Constitution needs to be real and meaningful for these people and not just a mere paper provision.

On the other hand, it should recognised that meeting and addressing the rights of those South African citizens who regard themselves as indigenous or tribal peoples and who want to continue with that mode of life will not be an easy task, particularly in view of the modem times we live in, the nature of the South African society which much integrated and the need to reconcile the rights of fundamental human rights values such as equality and promotion of gender equality.

Presented by S. Mabusela, Deputy Chairperson of South African Human Rights Commission
Tseliso Thipanyane (Research and Documentation)