Amendments to the TLGFA Bill: Disadvantaging Women and Taxpayers
By Thabile Sokupa
Passed in 2004, the Traditional Leadership and Governance Framework Act (TLGFA) intended to validate the role of chieftaincy in local government. This is achieved through their leadership of traditional councils where they exist—mainly in rural areas—and by endorsing their operation alongside other local government structures. Section Three of the Act states that “traditional communities” must establish these councils, which in turn must comprise “traditional leaders and members of the traditional community selected by the principal traditional leader concerned in terms of custom.” The old tribal authorities, established in terms of the Bantu Authorities Act of 1951, were simply converted into traditional councils.
The Role of Traditional Leaders
It should be noted, though, that TLGFA significantly entrenched the authority of traditional leaders and gave perpetual life to a system of ‘indirect rule’ dating back to the colonial era and ossified under apartheid. Moreover, the TLGFA has to be viewed alongside the Communal Land Rights Act (CLRA) No. 11 of 2004, which provides for the transfer of ownership of communal land in the former homelands from the State to communities residing there (Hall, 2003). The CLRA accords a central role to ‘traditional councils’ in the allocation of land, serving to enhance the power of traditional leaders to control property rights.
In post-apartheid South Africa, traditional authorities are recognised under the Constitution of 1996 and are represented at national level by the National House of Traditional Leaders as well as the Provincial House of Traditional Leaders. In March 1998, the White Paper on Local Government issued by the then Ministry for Provincial Affairs and Constitutional Development (now the Ministry of Cooperative Governance and Traditional Affairs) accorded traditional leaders an important developmental role in local government, but under the rubric of the National Constitution. Furthermore, the White Paper stated that on issues such as development, “a cooperative relationship will have to be developed” (IDASA, 2007). Generally, it presents an image of traditional leaders as overseers of local disputes, adjudicators of traditions and customs, and facilitators on matters of development. Both the White Paper and the Municipal Structures Act (Act No. 117 of 1998) built in a consultative role for traditional authorities at the local level, especially on development issues that did not constitute a privileged role in decision-making.
Proposed Amendments
Efforts by the post-apartheid government to confine traditional leaders to an advisory role or to matters of customary law have been constantly contested by traditional leaders. Disgruntled traditional leaders in the usually pro-government Congress of Traditional Leaders of South Africa (CONTRALESA) threatened to dissuade their subjects from participating in the 1995 local government election. Similarly, shortly before the 1999 general election the stipends and allowances of chiefs were raised as a way of pacifying them, effectively doubling the salary bill for traditional leaders across the country (Bell, 2005).
Under pressure, the Ministry of Cooperative Governance and Traditional Affairs recently tabled in parliament a proposal for amendments to the TLGFA. The proposed amendments are possibly meant to appease traditional leaders ahead of the local elections in 2011, because they hold an enormous influence in rural areas. One thing is clear though, the amendment of TLGFA will strengthen the hand of the traditional leaders.
The amendments propose that a new commission be set up to replace the Nhlapo Commission. The new commission would manage and arbitrate over 1 000 claims to traditional leadership, and would have the legal right to appoint, coordinate and oversee provincial committees. The amendments also propose that traditional leaders, headmen, kings and queens be officially recognised in their jurisdiction over a community. Furthermore, the amendments propose that the thirty-member limit on traditional councils be relaxed (PMG, 2009).
Those in political authority might be correct in their calculations of winning control of rural areas. However, the price to be paid for political expediency is very high, particularly for ordinary people.
Implications for Women
Women are particularly vulnerable under the traditional system, which enforces curtailed rights, limited access to communal resources outside their relationship with their father or husband, and limited representation on traditional councils. The effect of this legislative change for South African women contradicts their position as citizens.
South Africa has a gender sensitive Constitution, a Human Rights Commission, a Commission for Gender Equality and a 50 percent quota for women on electoral lists. However, these arms-length government institutions operate alongside increasingly formalised and integral traditional institutions, dominated by non-elected men who owe their position to a hereditary principle.
For example, the Traditional Leadership Framework Act of 2004 insists that traditional council structures have to be set up. The council is principally tasked with assisting traditional communities on areas pertaining to their developmental needs, liaising with municipalities on these matters, and administering the general affairs of the traditional community. A progressive aspect of the Amendment Bill is the proposal that the council have more than 30 members, of which a third of their members must be women, while a paltry 40 percent of its membership must be elected (PMG, 2009).
However, from the composition of the traditional councils and local administrative committees it is evident that women representation will be a minority, let alone challenging the leverage membership of 30 percent can hold in effectively impacting decision-making processes of these structures. The 30 percent composition will more than likely be made of those members selected by senior traditional leaders within the council as required by the TLGF Bill, rather than those who will hail from the elected officialdom (40 percent). If this holds, then it would be difficult for women nominated into the council to wield an independent assertive voice that would differ from the “official” position, values or status quo of the traditional council members who nominated them into the council.
One must remember that rural women suffer particular discrimination and disadvantage within rural society. For the TLGFA Amendment Bill to be effective, it would have to be supported by procedures and institutions that are designed to address the reality of existing inequality, including inequality in power relations for rural women. Unfortunately, the institutionalisation of traditional councils has entrenched unequal power relations in the rural areas.
Looking at Mamdani’s (1996) characterisation of traditional authorities, if this Amendment Bill is passed, it will further consolidate the “clenched fist” that traditional authorities have had in colonial and post-colonial Africa. As unelected structures, traditional leaders’ generic base of power remains intact under the TLGFA. Implementing the proposed TLGFA Amendment Bill delays real democratic decentralisation of rural local governance, and will negatively impact rural women as it would further entrench inequality. In addition, the expanded councils constitute an extra financial burden on the tax-payers for doubtful value added.
References:
• Bell, J. 2005. Exit, Voice and Tradition: Loyalty to Chieftainship and Democracy in Metropolitan Durban, South Africa’ Crisis States Programme Working Paper No. 59. London: London School of Economics.
• Parliamentary Monitoring Group (PMG). 2009. Traditional Leadership & Governance Framework Amendment Bill & National House of Traditional Leaders Bill: proposals for amendment by Minister and Department.
• http://www.pmg.org.za/report/20090825-traditional-leadership-governance-framework-amendment-bill-national-h
• Mamdani, M. 1996. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton: Princeton University Press.
• Institute for a Democratic Alternative in South Africa (IDSA). 2007, Challenges of Co-operative Government. pp. 1-21.
• Hall, R. 2003. Rural Restitution 2: Evaluating land and agrarian reform in South Africa, Occasional Paper Series, PLAAS. UWC: Cape Town.
Passed in 2004, the Traditional Leadership and Governance Framework Act (TLGFA) intended to validate the role of chieftaincy in local government. This is achieved through their leadership of traditional councils where they exist—mainly in rural areas—and by endorsing their operation alongside other local government structures. Section Three of the Act states that “traditional communities” must establish these councils, which in turn must comprise “traditional leaders and members of the traditional community selected by the principal traditional leader concerned in terms of custom.” The old tribal authorities, established in terms of the Bantu Authorities Act of 1951, were simply converted into traditional councils.
The Role of Traditional Leaders
It should be noted, though, that TLGFA significantly entrenched the authority of traditional leaders and gave perpetual life to a system of ‘indirect rule’ dating back to the colonial era and ossified under apartheid. Moreover, the TLGFA has to be viewed alongside the Communal Land Rights Act (CLRA) No. 11 of 2004, which provides for the transfer of ownership of communal land in the former homelands from the State to communities residing there (Hall, 2003). The CLRA accords a central role to ‘traditional councils’ in the allocation of land, serving to enhance the power of traditional leaders to control property rights.
In post-apartheid South Africa, traditional authorities are recognised under the Constitution of 1996 and are represented at national level by the National House of Traditional Leaders as well as the Provincial House of Traditional Leaders. In March 1998, the White Paper on Local Government issued by the then Ministry for Provincial Affairs and Constitutional Development (now the Ministry of Cooperative Governance and Traditional Affairs) accorded traditional leaders an important developmental role in local government, but under the rubric of the National Constitution. Furthermore, the White Paper stated that on issues such as development, “a cooperative relationship will have to be developed” (IDASA, 2007). Generally, it presents an image of traditional leaders as overseers of local disputes, adjudicators of traditions and customs, and facilitators on matters of development. Both the White Paper and the Municipal Structures Act (Act No. 117 of 1998) built in a consultative role for traditional authorities at the local level, especially on development issues that did not constitute a privileged role in decision-making.
Proposed Amendments
Efforts by the post-apartheid government to confine traditional leaders to an advisory role or to matters of customary law have been constantly contested by traditional leaders. Disgruntled traditional leaders in the usually pro-government Congress of Traditional Leaders of South Africa (CONTRALESA) threatened to dissuade their subjects from participating in the 1995 local government election. Similarly, shortly before the 1999 general election the stipends and allowances of chiefs were raised as a way of pacifying them, effectively doubling the salary bill for traditional leaders across the country (Bell, 2005).
Under pressure, the Ministry of Cooperative Governance and Traditional Affairs recently tabled in parliament a proposal for amendments to the TLGFA. The proposed amendments are possibly meant to appease traditional leaders ahead of the local elections in 2011, because they hold an enormous influence in rural areas. One thing is clear though, the amendment of TLGFA will strengthen the hand of the traditional leaders.
The amendments propose that a new commission be set up to replace the Nhlapo Commission. The new commission would manage and arbitrate over 1 000 claims to traditional leadership, and would have the legal right to appoint, coordinate and oversee provincial committees. The amendments also propose that traditional leaders, headmen, kings and queens be officially recognised in their jurisdiction over a community. Furthermore, the amendments propose that the thirty-member limit on traditional councils be relaxed (PMG, 2009).
Those in political authority might be correct in their calculations of winning control of rural areas. However, the price to be paid for political expediency is very high, particularly for ordinary people.
Implications for Women
Women are particularly vulnerable under the traditional system, which enforces curtailed rights, limited access to communal resources outside their relationship with their father or husband, and limited representation on traditional councils. The effect of this legislative change for South African women contradicts their position as citizens.
South Africa has a gender sensitive Constitution, a Human Rights Commission, a Commission for Gender Equality and a 50 percent quota for women on electoral lists. However, these arms-length government institutions operate alongside increasingly formalised and integral traditional institutions, dominated by non-elected men who owe their position to a hereditary principle.
For example, the Traditional Leadership Framework Act of 2004 insists that traditional council structures have to be set up. The council is principally tasked with assisting traditional communities on areas pertaining to their developmental needs, liaising with municipalities on these matters, and administering the general affairs of the traditional community. A progressive aspect of the Amendment Bill is the proposal that the council have more than 30 members, of which a third of their members must be women, while a paltry 40 percent of its membership must be elected (PMG, 2009).
However, from the composition of the traditional councils and local administrative committees it is evident that women representation will be a minority, let alone challenging the leverage membership of 30 percent can hold in effectively impacting decision-making processes of these structures. The 30 percent composition will more than likely be made of those members selected by senior traditional leaders within the council as required by the TLGF Bill, rather than those who will hail from the elected officialdom (40 percent). If this holds, then it would be difficult for women nominated into the council to wield an independent assertive voice that would differ from the “official” position, values or status quo of the traditional council members who nominated them into the council.
One must remember that rural women suffer particular discrimination and disadvantage within rural society. For the TLGFA Amendment Bill to be effective, it would have to be supported by procedures and institutions that are designed to address the reality of existing inequality, including inequality in power relations for rural women. Unfortunately, the institutionalisation of traditional councils has entrenched unequal power relations in the rural areas.
Looking at Mamdani’s (1996) characterisation of traditional authorities, if this Amendment Bill is passed, it will further consolidate the “clenched fist” that traditional authorities have had in colonial and post-colonial Africa. As unelected structures, traditional leaders’ generic base of power remains intact under the TLGFA. Implementing the proposed TLGFA Amendment Bill delays real democratic decentralisation of rural local governance, and will negatively impact rural women as it would further entrench inequality. In addition, the expanded councils constitute an extra financial burden on the tax-payers for doubtful value added.
References:
• Bell, J. 2005. Exit, Voice and Tradition: Loyalty to Chieftainship and Democracy in Metropolitan Durban, South Africa’ Crisis States Programme Working Paper No. 59. London: London School of Economics.
• Parliamentary Monitoring Group (PMG). 2009. Traditional Leadership & Governance Framework Amendment Bill & National House of Traditional Leaders Bill: proposals for amendment by Minister and Department.
• http://www.pmg.org.za/report/20090825-traditional-leadership-governance-framework-amendment-bill-national-h
• Mamdani, M. 1996. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton: Princeton University Press.
• Institute for a Democratic Alternative in South Africa (IDSA). 2007, Challenges of Co-operative Government. pp. 1-21.
• Hall, R. 2003. Rural Restitution 2: Evaluating land and agrarian reform in South Africa, Occasional Paper Series, PLAAS. UWC: Cape Town.