Theme: Royal Leadership Taking its Rightful Place to Advance and Reinstate Pride and Dignity of the Institution of Traditional Leadership in South Africa
Programme Director: HRH Zola Mkiva;
Contralesa President, Kgoshi Mathupa Mokoena;
Ladies and Gentlemen;
We are delighted that you could invite us to be part of your 8th National Elective Congress. Elective Congresses are as much of renewal as they are of continuation. From the onset, let me state that AZAPO wishes you all the best in your deliberations as you reposition and assert the institution of Afrikan Indigenous Leadership in the politics of South Africa.
A Fighting Theme
We could not help but notice in the Theme the assertive use of the words like “Taking Rightful Place”, and “Reinstate Pride and Dignity”. That Theme speaks of an organisation and a people that have had enough. You are not going to wait to be given your “rightful place”, you are now ready to “take your rightful place”. In that resolve there is a strong realisation that the Afrikan Indigenous Leadership has been short-changed for too long in this democratic dispensation. There is no doubt in our mind that CONTRALESA knows exactly what is this “rightful place” it is talking about.
The Theme of this Congress means business. It leaves nothing to chance. It is not in the business of begging with a tail between the legs. That time is gone by. The displayed commitment suggests that there will be no punches pulled at this Congress. That is perhaps the reason why the act of “taking the rightful place” is further defined as the move to “reinstate pride and dignity” of the Indigenous Leadership.
The Struggle is for Land Repossession
By extension, that should mean the reinstatement of the pride and dignity of black people in general. Why do we stress this extension? We all know the expression that “inkosi yinkosi ngabantu” (a royal leader is a royal leader because of the people). What this expression seeks to foreground is the fact that there can be no King or Queen without subjects or people over whom to exercise royal power. If we go beneath the surface of the expression, we will understand that the naked meaning is that there can be no King or Queen without land. A royal leader without land cannot be in a position to claim his or her rightful place, nor can he or she reinstate the pride and dignity of his or her royal power without land.
It seems to me that this Theme makes it difficult for this CONTRALESA Congress to avoid positioning the organisation in relation to the struggle for land repossession. That is because there can be no King or Queen without land. And the irony is that the ruling party has only this week begged the white farmers to give the black people displaced by the floods in KwaZulu-Natal some unused land for temporary relief. That cap-in-hand begging for our stolen land takes place about 30 years after the advent of democracy. Worse still, the begging is for the unused land. Yet the mandate by the Azanian Masses is for the repossession of the land.
In AZAPO we stubbornly believe that Hintsa kaKhawuta, Sekhukhune wa Sekwati, Bhambatha kaMancinza, Bantu Biko, Onkgopotse Tiro, Lekoame Mothopeng, Thembisile Hani and other Azanian Martyrs would not have laid down their lives only to be able to vote. They fought for the land, and died for the land. Before the modern anti-colonial struggles, the Azanian people fought for the repossession of their land under the direction of our Indigenous Leaders. These Land Wars are recorded in official history as the so-called Frontier Wars. We know about the series of nine Land Wars fought in the area now known as the Eastern Cape under the leadership of Kings and Queens from 1779 to 1879.
The Humiliation of our Indigenous Leadership
We know that the institution of Indigenous Leadership is not in its rightful place in democratic South Africa if abaThembu King Buyelekhaya Dalindyebo could be sentenced to a 12 years jail sentence for executing his royal duties in an Afrikan Indigenous Court. AZAPO jumped and campaigned for the release of King Dalindyebo because we felt that the jailing of the King was the jailing of our Afrikan cultural being and heritage. We could not imagine the jailing for 12 years of the British Queen for executing her royal duties even if there happened to be a conflict of traditional and modern laws. AZAPO wrote 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 was 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 up to that time pardoned by the ANC-led government. And the King was no “criminal”. Unlike a release on parole, A Presidential Pardon would have had the effect of expunging any “criminal record” on the part of abaThembu King Dalindyebo. It is now history that President Ramaphosa did not budge but released the King on a parole after serving a jail time of 4 years.
While AZAPO is a liberation organisation that subscribes to republicanism and democracy, we appreciate the historical fact that Azania is an Afrikan country in which Indigenous Leadership continues to play a pivotal and permeating role in the lives of black people. In our general haste to copy the western way of life, 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 (19thaa Century). These Warrior Queens were military tacticians who fought and defeated European armies.
The Universality of Indigenous Leadership
Addressing a Dialogue on African Kingship in Democracy in 2018, I cautioned that we should correct the misconception that the mode of governance known as Indigenous Leadership is a unique Afrikan phenomenon in a negative sense of the Afrikan mode of governance being trapped in Traditionality, while the western nations are regarded to have moved to Modernity. That is a completely wrong and ahistorical assumption. All societies and nations have had their own share of Indigenous or 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 or something of that nature.
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 Indegenous 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 notion that Indigenous Leadership is a backward phenomenon exclusive to Afrika, and 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 which 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, Afrikan Indigenous 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 Indigenous 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 Indigenous Leadership even further. Many of them were co-opted by the apartheid regime to collaborate in the oppression and humiliation of black people. The Indigenous Leaders that resisted co-option found themselves either ostracised or dethroned and replaced with pliable but illegitimate leaders.
It would be a tragic omission if the nationalism and heroism of the Afrikan Indigenous 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 Autshumato, 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 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 Afrikan 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 the Indigenous 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, Indigenous 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 Afrikan Indigenous Leadership existed. The first unkindest cut against Indigenous 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 the Afrikan Indigenous 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 Indigenous Leadership in this country. South Africa is largely rural with a large rural population that recognises Indigenous Leadership. Those in power need the votes of this silent majority. And they therefore recognise tongue-in-cheek the importance of Indigenous 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 Indigenous 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 councilors in a Municipal Council. However, Indigenous Leaders have no voting powers when it comes to decision-making. Their role is limited to ventilating their views on issues pertaining to them.
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 Indigenous Leadership and Afrikan Indigenous Law to write home about. As has been demonstrated, the Constitution is lukewarm towards Afrikan 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.
Transitional Coexistence between Republicanism and Monarchy
Some may wonder why would a member of a socialist organisation like AZAPO argue 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 Indigenous 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 Indigenous 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.
Some of you may be surprised that I have tended to avoid any reference to the term “Traditional Leadership”, but instead used Indigenous Leadership. The reason for that is that the terms “tradition” and “traditional” tend to be used by the anti-black world to despise and humiliate Afrikan societies as being backward and behind the western world. That is why Afrikan marriages are referred to as “traditional”, and the western ones as “civil”. Afrikan clothing is generally referred to as “traditional” in the sense that it is backward and outdated, which was why a proudly black man wearing isiNdebele wear was rudely turned away in one of the Malls in South Africa. It is against that background that I avoided any reference to the term “tradition” when talking about Afrikan heritage.
No Choice but to Fight
We noted from your Congress Theme that this 36-years old CONTRALESA has resolved to fight. The Kings and Queens of the Afrikan Continent were either jailed or died fighting for the land. iNkosi Bhambatha kaMancinza defied the European colonialists and refused to collect poll tax from his people. He led several battles against the colonial powers, one of which led to his death and decapitation. But Bhambatha kaManciza died fighting for the people and the land. King Hintsa kaKhawuta died fighting for the people and the land even in captivity. When he tried to escape, colonial master Harry Smith ordered that the King be shot and killed. Even when alone and in captivity, the King fought and retreated into the Nqanarha River where he still summoned the last remaining energy to throw his royal spear at the anti-black creatures. When he fell in the river, the anti-black creatures cut his ears and removed his teeth as trophies. This CONTRALESA Congress has the historic task to find the decapitated heads and cut ears and extracted teeth of black people.
With these few words, I bring you best regards from the Children of Biko. As the custodians of Afrikan culture in its dynamic quality, we wish you the best and fruitful deliberations that will ensure that the institution of Afrikan Indigenous Leadership take its rightful place with its dignity and pride reinstated.