What are the implications of the Traditional Courts Bill for Women?

  • Posted on August 30, 2013

The 09th August marks the historical moment in 1956 when thousands of women across South Africa marched the streets of Pretoria claiming what they believed were their rights to move freely between public spaces and most significantly, claiming rights to citizenship in their own country. However, some of these rights, scholars have argued, are once more under threat following the introduction of the Traditional Courts Bill. The Bill was submitted to parliament in 2008 and later withdrawn subsequent to uproar from scholars, civil organisations and the rural populace. Towards the end of 2011, the Bill was reintroduced with no major amendments and it received the same public outcry compelling its instigators to submit it to the National Council of Provinces for review.

Those in support of the Bill, following Patekile Holomisa’s chain of thought, see the Bill as an extension of the justice system in South Africa. They have argued that traditional courts are more accessible, free therefore inexpensive, welcoming and conducted in a space that fosters reconciliation. This, according Holomisa, is contrary to western courts which are costly, bureaucratic and intimidating to the persons seeking justice.  The antagonists of this Bill have argued that it reinforces old colonial and apartheid divide: urbanised citizens and rural subjects with the latter politically restricted from enjoying the same economic, political and legal benefits as the former.  It has also been argued that the Bill undermines South African democratic principles, as it prohibits persons to opt out of a traditional justice system and also prohibits legal representation in traditional courts. Adding to the outcry against the Bill, was its failure to consult with those who will be affected. This has led to it being deemed unconstitutional by some critics.
Of particular interest to this article and perhaps the most significant, is the criticism that the Bill will undermine the rights of women, as traditional values do not allow for women to represent themselves in traditional courts. It is without doubt that traditional courts are very patriarchal spaces. Even so, this piece seeks to avoid the assumption that male dominant spaces are oppressive. In fact, it intends to complicate the conventional picture a bit more than it appears.

Barbra Oomen’s study of chieftaincy in Sekhukhune (Limpopo) has shown that between 1998-1999, 80 per cent of people were in support of traditional leaders and that 83 per cent of women compared to 80 per cent of men, supported chieftainship.  She also suggested that these women also rated their traditional leader higher than men villagers. Barbra Oomen accounts for the strong support for chieftaincy from women, as a result of the system of migrant labour which has since compelled the majority of women who are left in single-headed households to rely on their chiefs for support and justice.

Very recently, Stanley Malindi conducted a study which aimed to understand the workings of traditional courts in Gopane (North West Province).  Archival documents at the LeHurutse magistrates’ court that he used for his study, show that women in the areas of Gopane and Dinokana were ‘‘allowed to appear before, or address the traditional courts without any male representative’’, which is very contrary to popular scholarly views. The two different cases are singled out with cognisance of the limitations of case studies. Moreover, this piece has no intentions of justifying the Traditional Courts Bill, but points to that scholars need to move away from simplistic criticism which at times comes across as attached to Eurocentric notions and stereotypic ideas of African traditional systems. Both Barbra Oomen and Stanley Malindi’s studies illustrate that generalisation about traditional courts and the manner they operate is unsustainable unless studies are undertaken in the provinces in which people are still under the authority of chiefs.

Scholars may want to consider regional differences when evaluating the Bill. Chieftaincy in the areas of the Eastern Cape and KwaZulu Natal has never been quite the same as in Limpopo and North-West, where chiefs played a significant role in the liberation struggle and a relative number of them refused to collaborate with the colonial and the apartheid administrations. Post 1994, the Congress of Traditional Leaders of South Africa was not received by chiefs in the same way as in areas of KwaZulu-Natal and the Eastern Cape. This has created inequalities among traditional leaders in which the paramount King in KwaZulu-Natal receives extensive monetary support from the state contrary to chiefs in the province of Limpopo. Though the points raised here might seem disconnected, the point is that regional differences have to be taken into consideration when adopting such a Bill or when academics criticise it for that matter. Avoiding generalisations will help give a clearer picture on the institution of traditional leadership, traditional courts and how they affect women differently in different areas.

It has to be taken into consideration that the likes of Patekile Holomisa do not speak for all the chiefs in the country. His support for the Bill cannot be taken as ‘‘chiefs’ support for the Bill’, because there are chiefs who are completely against the Bill on the grounds that it fails to understand the African traditional justice system, and a belief that matters of traditional leadership and its institutions have to be kept away from those of the modern democratic state. An undertaking of much more geographically broad studies by scholars will help give an in-depth critique of the Bill and if these studies are embarked on by the state, they will help it amend the Bill in manner that reflects an understanding of those who will be affected, particularly women living under the authority of chiefs.

Dineo Skosana is an Archival Platform correspondent based in Johannesburg


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