Thursday, November 1, 2012
Zuma wants 'African' justice
Zuma wants 'African' justice
DENISE WILLIAMS | 02 November, 2012 00:052 Comments
President Jacob Zuma is accompanied by, among others, the chairman of the National House of Traditional Leaders, Kgosi Makeru Maubane, at the Old Assembly where he delivered an address in Cape Town yesterday
Image by: Kopano Tlape
President Jacob Zuma has tacitly endorsed the controversial Traditional Courts Bill, telling chiefs not to buy in to the legal practices of the white man.
Speaking at the opening of the National House of Traditional Leaders in parliament yesterday, Zuma said Africans had their own way of solving their problems through traditional institutions.
"Prisons are done by people who cannot resolve problems.
"Let us solve African problems the African way, not the white man's way," Zuma said, to cheers from traditional leaders.
"Let us not be influenced by other cultures and try to think the lawyers are going to help. We have never changed the facts. They tell you they are dealing with cold facts. They will never tell you that these cold facts have warm bodies," he said.
Zuma's view could be seen as an endorsement of the controversial Traditional Courts Bill, which has women's rights groups, the ANC Women's League and the Ministry for Women, Children and People with Disabilities up in arms.
Drafters of the bill have argued that it will offer the prospect of access to justice to 18million citizens who live in the rural areas.
But women's rights groups believe the bill will disempower millions of rural women by not allowing them access to the formal justice system when they have been wronged.
They believe this and other problematic provisions make the bill unconstitutional.
One of Zuma's ministers, Lulu Xingwana, who presides over the Ministry for Women, Children and People with Disabilities, has been a fierce critic of the bill, demanding it be redrafted altogether.
When the bill was discussed in parliament in September, she said: "Let me remind you the constitution has an equality clause that supersedes custom. I plead with the National Council of Provinces not to pass this bill [because it] is an apartheid-era piece of legislation.
"It's oppressive to women and discriminatory . We don't think traditional courts should be allowed to impose forced labour. Why are we taking our people [back] to the dark ages?"
There had been "no consultation" with rural women, Xingwana said.
The ANC Women's League - which has endorsed Zuma for a second term - has also called for the bill to be recalled.
Zuma was adamant yesterday that traditional authorities had sufficient capacity to deal with legal matters affecting people under their jurisdiction.
"Our view is that the nature and the value system of the traditional courts of promoting social cohesion and reconciliation must be recognised and strengthened in the bill," he said. But he realised there were genuine concerns that the courts fell outside of a proper legislative framework.
According to Zuma, there was no need to involve external law-enforcement agencies in issues that could be solved by a chief.
He slammed Africans who had become "most eloquent" in criticising their cultural background.
"We are Africans. We cannot change to be something else."
Zuma also lashed out at critics of the government who, he said, continued to mislead the poor into believing "poverty was worse" now than in the apartheid era.
He said there was no factual basis to claims that the gap between the rich and the poor was widening.
"It is an absolutely wrong statement and has been repeated and we have almost come to believe it is true. It is not scientifically correct. It is a spin to criticise the democratic government."
Before 1994 the population of black people had not been counted and therefore any gaps in wealth could not be measured, Zuma said.
"It's a manipulation of the words to make us who are in a democratic country responsible for the sins of apartheid.
"It [the gap between rich and poor] has not been growing since 1994, it has been narrowing.
"Poverty was worser [sic] than what it is now. Fifteen million poor people get the [social] grant, which they didn't get before. If that's not closing the gap, what is it?"
Zuma urged traditional chiefs to do their part to quell violent wildcat strikes over service delivery and working conditions.
He said another Marikana massacre could not be tolerated.
But, he said, international commentators who likened such events to the violent apartheid days were unjustified.
"No, we will never go back to apartheid. In apartheid times the Marikana situation was a daily occurrence. People were being killed left, right and centre, and there was no one to stop it. It was a culture, the nature of government was different," he said.
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Mzinyathi - Chief Mqoqi Ngcobo is already a powerful man, but if the ANC is successful in its bid to give tribal courts more power, he may soon be recognised as prosecutor, judge and jury under the law.
"Here we promote restorative justice, unlike the magistrate courts where they promote punishment," explained the Qadi chief, who presides over a tribunal in the village of Mzinyathi, north of Durban.
"Here people arrive as enemies and leave as friends."
From his office, Ngcobo hears cases ranging from petty theft, domestic violence, and sexual assault to inter-tribal conflicts. Serious crimes like murder are handled by conventional courts.
As villagers shift uncomfortably in their seats, the imposing chief sits behind a large wooden desk listening intently to complainants' and defendants' testimonies one-by-one, often interrupting to ask for clarity.
A typical case
One typical complainant, Mama Cele, 60, wanted the chief to stop her male neighbour from driving her off the land she inherited from her father.
No dockets or recordings are made - exposing the process to misunderstandings - yet under a law put forward by the African National Congress, her fate would be in Ngcobo's hands.
First submitted in 2008, the traditional courts bill empowers chiefs to act as judge, prosecutor and mediator, with no legal representation and no appeals allowed.
According to government, the bill is aimed at providing "speedier, less formal and less expensive resolution of disputes and promotes and preserve traditions, customs and cultural practices".
The powers proposed by the bill will affect some 19 million rural people who live in tribal lands ruled by chiefs.
The role of tribal courts
Traditional courts, often situated in remote areas where people do not have formal schooling, are conducted in only local dialects.
Ngcobo insists they play a fundamental role in dispute resolution and maintaining harmony.
In a sense a change in the law would only formalise South Africa's hybrid legal system, which already combines conventional legislation with customary laws.
Yet the law has proven controversial.
The 2008 draft was withdrawn to align it with the Constitution. Three years later it was brought back - with no changes.
Legal experts and rural activists argue the proposed law creates a separate second class justice system for rural communities, where women have fewer rights.
In some tribal lands women are not allowed to stand up when addressing men or sit in the same space as them during court proceedings.
Sindiso Mnisi, an African customary law researcher at the University of Cape Town, likened the bill to apartheid-era legislation, which forced people into self-governing rural homelands to live under separate laws.
"This bill entrenches separate categories of citizenship and disenfranchises rural people," she said.
"Separate laws determined by geographic location can't exist in harmony with the democratic values."
Traditional leaders' support
Its ignorance of legal representation and appeals processes renders it unconstitutional, she added.
The KwaZulu-Natal Rural Women's Movement complains women's rights activists were not consulted during the drafting of the bill.
While meant to "affirm the values of the traditional justice system" it would deprive rural women equal access to justice, said the organisation's director Sizani Ngubane.
Action group the Alliance for Rural Democracy also wants the bill scrapped.
"We wish for the ANC to reassert the principle of one law for one nation which represents a fundamental departure from colonialist and apartheid attempts to 'ghettoise' some sections of our nation merely on the basis of their race and location," the alliance said.
The bill is currently under consideration in Parliament, but critics accuse the ANC of trying to use it to retain support of the traditional leaders ahead of a year-end crucial ANC elective meeting.
At the December meeting President Jacob Zuma hopes to be re-elected as leader, virtually guaranteeing another five year-term at the head of Africa's largest economy.
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