On behalf of AZAPO, I grab this opportunity to express our gratitude for being invited to participate in this Dialogue On African Kingships in Democracy. Further, we thank the organisers, #BringBackBuyelekhaya, for their presence of mind to organise an event whose objective is to talk about us – Black people. Special thanks is reserved for the media, especially Daily Dispatch, for keeping our people informed about the unfortunate disappearance of AbaThembu King Buyelekhaya Dalindyebo from his people.
One appreciates the fact that this Dialogue was triggered by the imprisonment of King Buyelekhaya Dalindyebo. AZAPO in the Eastern Cape has done plausible work in relentlessly campaigning for the release of the King, and ensuring that the King’s incarceration makes its way into the headlines of print and electronic media. AZAPO has even written to President Cyril Ramaphosa pleading with him to pardon the King in terms of Section 84(2)(1) of the Constitution of the Republic of South Africa. There is merit in the point made by AZAPO that the King would not be the first beneficiary of the Presidential pardon. More than 200 criminals were pardoned by the ANC-led government. Writing in the Daily Dispatch (16 October 2018), AZAPO Eastern Cape Provincial Secretary Chris Swepu explained that “AZAPO’s call for the release of the King is not intended to question the judgement of the Supreme Court of Appeal”; and that President Ramaphosa was not being asked “to review the decision of the court”.
AZAPO makes it clear that it is not making presentations for the Parole option, which is governed by the Correctional Services Act of 1998. AZAPO knows that it is not competent to enter that process on behalf of the King. That option would require the King to serve at least half of his sentence, which may be about 6 years, before he would be eligible for parole. That option is no option at all with regards to the King. AZAPO calls for the Presidential Pardon that was enjoyed by ANC leader Rev Allan Boesak in 2005. That option has the effect of expunging the conviction as if it never occurred.
Back to the Dialogue, we however have to caution that Kingship can never be complete without Queenship in the history and evolution of Traditional Leadership in Azania and the broader Continent of Afrika. We should never forget the golden reign of Afrikan Warrior Queens like Queen Nefertiti of Ancient Kemet (1292 BC), Empress Candace of Ethiopia (332 BC), Queen Makeda of Sheba (960BC), the Queen of Zaria in Nigeria (15th Century), Queen Nzinga of Angola (17th Century), Queen Yaa Asantewaa of Ghana (19th Century), Queen Nehanda of Zimbabwe (19th Century), and Queen MaNthatisi of BaTlokwa (19th Century). These Warrior Queens were military tacticians who fought and defeated European armies. Accordingly, it is right that we should cast the net of our minds broader and conduct the Dialogue On Afrikan Traditional Leadership in Democracy. Even the Traditional Leadership and Governance Framework Act of 2003 provides for the recognition and removal of both Kings and Queens.
From the outset, we should correct the misconception that the mode of governance known as Traditional Leadership is a unique Afrikan phenomenon in the negative sense of the Afrikan mode of governance being trapped in Traditionality, while the western nations have moved to Modernity. That is a completely wrong and ahistorical assumption. All societies and nations have had their own share of Traditional Leadership in their historical evolution. Depending on the level of development of the means of creating wealth in a nation, the corresponding development of an economic system of that society would have necessitated an equally developed and sophisticated system of governance and distribution and exchange of the wealth so created. It is for that reason that the systems of governance of many societies evolved from Traditionality to Modernity. It is often argued that the shift is now towards Postmodernity.
The shift is not clear-cut. You do not get a situation where Traditionality is exhausted, after which Modernity kicks in. Because development is uneven, and is propelled forward by the conflict of many contradictory and complementary forces, it happens in many modern societies that modern and traditional modes of governance coexist and compete for space, influence and control. Many European countries have this hybridisation of seemingly contradictory governance models of modernity (democracy) and traditionality (monarchy or Traditional Leadership). As things stand, there are in the world 43 sovereign states with a monarch as a Head of State. Some of them are the 16 sovereign states that fall under the so-called Commonwealth of Nations, which recognises the British Queen as their Head of State. Those would include Australia, New Zealand, Canada, United Kingdom of Britain and Northern Island, etc. Outside the so-called Commonwealth of Nations, there are other European monarchies like the Kingdom of Spain, Kingdom of Sweden, Kingdom of the Netherlands, Kingdom of Norway, Kingdom of Belgium and many others.
To mention a long list of European monarchies is to dispel the white supremacist disparaging notion that Traditional Leadership is a backward phenomenon exclusive to Afrika as an indication of being frozen in the middle ages. Granted, the various monarchies are either Absolute, Semi-Constitutional, Constitutional, Commonwealth, or Subnational. For instance, Britain has a Constitutional Monarchy, while the Kingdom of Lesotho and the Kingdom of Swaziland are Absolute Monarchies. On the other hand, ours in Azania tend to be Subnational in the sense that their jurisdiction is limited to their nationalities some of whom have no definite geographical location.
Samuel F Khunou (2009) tells us that:
the institution of traditional leadership represents the early form of society”. Further, he tells us that in Azania, “during the pre-colonial era, the institution of traditional leadership was a political and administrative centre of governance for traditional communities. The institution of traditional leadership was the form of government with the highest authority. The leadership monopoly of traditional leaders changed when the colonial authorities and rulers introduced their authority to the landscape of traditional governance.
Prior to the advent of colonialism, Traditional Leadership had a monopoly on matters of governance. They were also the military leaders, adjudicators in the courts of Afrikan Indigenous Laws and custodians of Afrikan culture. Colonisation of Azania by the Europeans undermined the power of Afrikan Traditional Leaders over their people. In the case of Azania, white settler-colonialism, which manifested itself in the form of the apartheid regime, undermined the institution of Afrikan Traditional Leadership even further. Many of them were co-opted by the apartheid regime to collaborate in the oppression and humiliation of Black people. The Traditional Leaders that resisted co-option found themselves either ostracised or dethroned and replaced with pliable but illegitimate Traditional Leaders.
It would be a tragic omission if the nationalism and heroism of the Traditional Leadership in the Wars of Liberation in defence of the land of Black people against the colonisers were to be lost to popular memory. We are here talking about Autshumao, Manthatisi, Sekhukhune, Hintsa, Galeshewe, Stuurman, Dingane, Makhado, Bhambatha and many others. The momentum of such heroism overlapped into the apartheid era, which saw a number of monarchs like Sabata Jonguhlanga Dalindyebo, the father of King Buyelakhaya Dalindyebo, rather choosing to join the struggle in exile rather than selling his soul and be co-opted by the apartheid regime against his people. Jonguhlanga died in exile in Zambia.
The white settler-colonialists were aware of the potency of the Afrikan Indigenous Laws and how effective an instrument such were in governance of the indigenous people. So the Native Administration Act of 1927, which underwent name changes into Bantu/Black Administration Act, was a form of setting up a separate legal system for the administration and containment of the African Indigenous Laws and Black people in general. In fact, that codification ended up corrupting even the recognised Indigenous Laws into something that lost cultural substance and taste. The Act had a specific clause, which stipulated that “any person who utters any words or does any other act or thing whatever with intent to promote any feeling of hostility between Natives and Europeans, shall be guilty of an offence…”.
MARGINALISATION IN DEMOCRACY
This heroism by Traditional Leaders saw them forming a progressive organisation called the Congress of Traditional Leaders of South Africa (CONTRALESA) in 1987. Having been generally undermined by the white settler-colonial regime, Traditional Leaders would have been justified if they expected better in a democratic dispensation after 1994. After all, they contributed in the fight for this democracy. They learned the hard way that they had little room, if any at all, in a democratised South Africa. The much-vaunted Constitution of the Republic of South Africa nearly forgot if the Traditional Leadership existed. The first unkindest cut against Traditional Leadership was contained in Section 8 that deals with the applicability of the Bill of Rights. Substantively, the concept of the Bill of Rights is a Eurocentric one, which entrenches the liberal individualism as against the communitarianism embedded in the Afrikan governance epitomised by the values of Ubuntu/Botho. Section 8(3) stipulates that:
When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court –
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right, and
(b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1)
Your attention is drawn to the glaring omission of the Afrikan Indigenous Laws when it comes to development by South African court. Not unfortunately but by white supremacist design, our Afrikan Indigenous Laws do not constitute part of the South African common law as should have been the case. It is generally accepted that common law is derived from custom and judicial precedents. In their plot to destroy the culture of the indigenous people, European colonialists made it a point to contain and marginalise the application Afrikan Customary Laws. The English, Roman and Dutch legal systems merged to become the “common law” of South Africa, while the Afrikan Customary Laws found no application and development in the court system of the country. No wonder that Black people are perpetually found to be out of step with this foreign common law. It is a “common law” that is not based on their history and culture. In fact, this “common law went out to ostracise and undermine the culture of Afrikan people.
There you have it, the Constitution contemplates no redress and development for the Afrikan Indigenous Law. And that ostracisation goes hand in hand with the ostracisation of the general Afrikan Indigenous Knowledge Systems. That amounts to the ostracisation of Afrikan people as a whole.
However, the “development” of Afrikan Customary Law comes as a meaningless and an unenforceable afterthought to the Constitution. It suddenly pops up like a popcorn in the Interpretation Clause of the Bill of Rights in Section 39. It is mentioned in vain. Sadly, even Constitutional Democracy has no appetite for the institution of Traditional Leadership and all that goes with it. While Customary Leadership is assigned (by birth), Democratic Leadership is ascribed (by election). Therein lies the crux of the contradiction between the two systems of governance.
The Traditional Courts Bill was introduced only in 2008. It was reintroduced in 2012 and 2017. Perhaps King Dalindyebo could have benefited from the prevalence of statutory clarity. At an institutional level, Afrikan Indigenous Law can indeed not be expected to enjoy any development where there is zero political will by the ruling party to lay a concrete foundation to harness its growth and development.
But the writers of the liberal-democratic Constitution were aware of the fact that they could not dismiss Traditional Leadership in this country. South Africa is largely rural with a large rural population that recognises Traditional Leadership. Those in power need the votes of this silent majority. And they therefore recognise the importance of Traditional Leadership in this regard. Accordingly, Section 21 of the Constitution provides for some vague recognition to the Traditional Leadership, albeit subject to the Constitution as we have explained. Section 212 stipulates that “National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities”. Lawyers know the difference in strength and force between “may” and “shall”. As such, it is not a mistake that the writers preferred “may” instead of “shall”. Nonetheless, the Constitution advises the legislature to find some role it could give to the Traditional leaders but at the local level.
Just as we are busy clapping in excitement for the vague role still to be found, Section 151(2) makes it clear that “the executive and legislative authority of a municipality is vested in its Municipal Council”. This is the local level wherein the Constitution pleaded with the legislatures to find some undefined role for the Traditional Leaders. What the Constitution gives with the right hand, takes away with the left hand. The role is gone. Even so, the government has flipped and flopped within the policy domain to search for the role. The Chairperson of the Task Team on the White Paper on Traditional Leadership and Governance of 2003 tellingly remarked in the Foreword: “The White Paper is a culmination of a long process wherein the country engaged in a dialogue regarding the role and place of the institution of traditional leadership in contemporary South Africa as a democratic state”.
And the role provided by this 2003 White Paper is by and large an advisory function by the Traditional Leaders to the spheres of national, provincial, local and district levels. The role finds better description in Section 81 of the 1998 Municipal Structures Act of 1998 where it provides for the “attendance and participation” of Traditional Leaders, who may not be more than 20% of councillors in a Municipal Council. However, Traditional Leaders have no voting powers when it comes to decision-making. Their role is limited to ventilating their views on issues pertaining to them.
DRAFTING OF THE CONSTITUTION
After the collapse of CODESA 1 and 2, the negotiating and pacting process resumed in March 1993 at the World Trade Centre under the name “Multi-Party Negotiating Process” (MPNP). There were 26 parties around the table. For the record, AZAPO boycotted all the negotiation platform and processes because it felt the process and its structure was designed trade away or sellout the principal objectives of the Azanian Revolution. Ironically, the negotiations were held at the Trade World Centre.
A greater number of the 26 parties were structures of the enemy regime like homeland governments and white racist groupings. The supposed parties of the people were terribly outnumbered. It is the MPNP so structured that drafted the Interim Constitution and the 34 Constitutional Principles without which the final Constitution could not be assented to or endorsed by the Constitutional Court. These Constitutional Principles were designed to guarantee white minority rights and ensure that the land and wealth of the country remained in the hands of white people. The Property Clause (Section 25) and the Federalism Principles were born in this way.
Of importance to note is that the MPNC was an undemocratic and unelected body with no mandate to draft an Interim Constitution and the indestructible 34 Constitutional Principles that were anti-Black people and counterrevolutionary. Conventionally, constitutions are drafted and adopted by the elected representatives of the people in bodies like the Constituent Assembly. Such a body would be legitimated because it enjoys its mandate through the election of its members by the electorate. The homeland puppets, white racist groupings and everyone else had no such mandate.
However, such an unelected and unmandated MPNP drafted and adopted the Interim Constitution and the anti-Black people 34 Constitutional Principles in 1993. In contrast, in 1996 the elected Parliament reconstituted itself legitimised the MPNP unmandated product by claiming to draft and adopt “a new Constitution”. Nothing could have been further from the truth. While the elected and therefore legitimate representatives of the people were right to claim that the built the “new house”, the truth was that an unelected and unmandated MPNP, which was overwhelmingly dominated by the white settler-colonial regime, was the one that was architect of the “new house”.
It should now be clear who it was that actually “drafted” the Constitution that was to be later legitimised and adopted as the “supreme law” of the “new South Africa”.
On the strength of the foregoing analysis, the inescapable conclusion has to be that there is nothing in this Constitutional Democracy for the institution of Traditional Leadership and Afrikan Indigenous Law to write home about. As has been demonstrated, the Constitution is lukewarm towards Traditional Leadership and Indigenous Law. A strong need exists for the development of Indigenous Law, which should in the march of time enjoy the common law status afforded by enjoying judicial precedence. In the beginning, that necessary development of Indigenous Law will be found wanting without the development of the institution of Traditional Leadership. The interplay between democracy and the institution of Traditional Leadership within the realm of Constitutionalism is bound to shape and develop both modes of governance. The Royal Bafokeng Administration has presented itself as a best-case scenario of how best the hybridisation of Modernity and Traditionality could be made to work to the advantage of the people.
Some may wonder why would a member of a socialist organisation like AZAPO argues like this. My answer would be that AZAPO is essentially a Black Consciousness liberation organisation that also adopted the method of Scientific Socialism in the resolution of the Class Question. Therefore, socialism has not been adopted as a dogma but as a method. If Russia that is believed to be associated with socialism still has the space for the church in its social and cultural life, I see no reason why an Azanian liberation movement in Afrika could be in an arbitrary rush to destroy Afrikan institutions that could hardly harness any real development due to European colonialism and imperialism. It is on that score that Afrikan Traditional Leadership needs to be harnessed and developed to respond to our governance and cultural needs as an Afrikan people. We have no illusion that the institution of Afrikan Traditional Leadership will live forever. As and when that institution starts to be eroded and getting obsolete, that development should be organic and a consequence of political and cultural attrition caused by the development of the forces of production and corresponding relations of production.
Having said all that, let me hasten to say it would be cynical to suggest that there has been no progress at all in South Africa since the advent of democracy. There is. In the apartheid Suid Afrika you had no choice at all. There was only the white rope to hang you. In the “new South Africa” you have at least 3 ropes from which to choose – black, green and gold.