Intergovernmental Relations; Traditional Leadership Conference; Traditional Leadership in Uganda & Botswana

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Cooperative Governance and Traditional Affairs

10 October 2000
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Meeting Summary

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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
11 October 2000
INTERGOVERNMENTAL RELATIONS; TRADITIONAL LEADERSHIP CONFERENCE; TRADITIONAL LEADERSHIP IN UGANDA AND BOTSWANA

Documents handed out:
Report of the National Conference on Traditional Leadership held on 17 and 18 August 2000
Intergovernmental Relations - Executive Summary

Chairperson: Mr Y Carrim

SUMMARY
There was a report-back on the Traditional Leadership national conference. One of the aims of the conference was to deal with the grievances of traditional leaders. In discussion, it was noted that traditional leaders were initially opposed to the conference and when they eventually agreed to participate, their participation was minimal.

There was a report-back on the study tour of traditional leadership in Uganda and Botswana. There were many differences between the two countries. However one aspect that they had in common was that if a traditional leader wishes to become involved in politics he must abdicate from his role as traditional leader. This is to prevent the leader from being biased by his political views. In South Africa on the other hand one can be actively involved in party politics as well as being a traditional leader.

The Intergovernmental Relations audit looking at how to improve current inter-governmental relations in South Africa was submitted to the committee by its authors, academics from the University of the Western Cape The committee will engage in in-depth discussion with the authors of the report at a later date once committee members have read the report. Many committee members asked the authors of the audit how they perceive the role of the NCOP and the provinces to be. The authors stated that this issue was beyond their mandate: they had dealt with the issue of inter-governmental relations only

MINUTES
Traditional Leadership National Conference
The report was submitted by Mr Olifant (ANC), Chief Nonkonyana (ANC) and Mr Taka Seboka (Department). Mr Olifant stated that discussions had been led by Minister Mufamadi and it was evident from what he had said that the government wants to restore the role of traditional leaders. The aim is to make African Renaissance a reality.

Mr Seboka stated that the conference was comprised of three commissions, each dealing with a specific theme:
- Role, Powers and Functions of traditional leadership in the current constitutional order
This commission realises that the crux of the matter is that traditional leaders feel that their powers have been marginalised. They want to have more powers so as to have an active role in co-operative governance. They feel that the Constitution is vague on the issue of their powers.
- Appointment of Traditional Leaders, Party Political Affiliation, Accountability and the Role of Women in Traditional Leadership
The commission had to review the way these issues were dealt in the past and suggest ways of changing them to be better suited to the needs of a new South Africa keeping in mind the sensitive issue of tradition.
- Deposement or removal from office of traditional leaders
The need for this commission arose because many traditional leaders were illegitimate. Many of them had been placed in these positions by the Apartheid government. It was suggested that an Independent National Commission of Enquiry be established to deal with this matter.

For detail on the commissions recommendations, refer to the report.

Discussion:
Ms Borman (DP) asked where the process is going from here now that the local elections are upon the country.

Mr Solo (ANC) stated that the committee would monitor it continuously.

Mr Ngubeni (ANC) remarked that the DP had previously shown no interest in the topic. Why now the sudden interest? Ms Borman replied that they are not showing an interest purely because it is election time. She asked to what extent were traditional leaders involved in the conference.

Mr Seboka stated that initially traditional leaders had not wanted the conference to go ahead. Many refused to participate in the conference, however some did participate in roles other than those of traditional leaders, ie political party representatives.

Ms Southgate (ACDP) asked what the commission had decided concerning the role of women in traditional leadership.

Mr Seboka stated that much public debate had taken place over this issue. The general view was that women should be given equal status with men and that they should be accorded full recognition.

Mr Pheko (ANC) stated that some of the recommendations that were made at the conference could be problematic, as it might be contrary to custom.

Ms Lobe (ANC) stated that she welcomes the recommendations made at the conference as new challenges are being faced in the post-apartheid era. She felt that this was especially important in transforming traditional family units where gender reforms need to be done. Ms Lobe was concerned that no mention was made at the conference of the development of youth in traditional leadership.

Mr Seboka replied that the role of youth in traditional leadership is being discussed but problems arise as succession takes place on a hereditary basis.

Mr Ngubane disagreed with the perception that the Constitution is silent on the issue of traditional leadership. He feels that the Constitution provides a broad overview of their powers and roles. Mr Ngubane suggested that the Constitution should be left as is, and that specific legislation should be set up to deal with these issues. He stated that it should be realised that traditional leadership is a sensitive issue and that problems relating to it could not be solved overnight.

The Chair stated that the President did not close the door on amending the Constitution. If the law impedes traditional leaders, then the Constitution would be amended.

Mr Magashule (ANC) felt that traditional leaders themselves should be making recommendations on what they think their roles should be. He stated that it seems that they are merely reacting to the recommendations of others.

Chief Nonkonyana (ANC) posed the following questions to Mr Seboka.
- Are the powers we are dealing with institutional or individual powers?
-When assuming a party political role, must you abdicate from your traditional leadership role?
- Many traditional leaders feel that the process of drafting the Green Paper and the White Paper seems to be going on forever.
- Have traditional leaders made concrete recommendations or are they merely reacting to the recommendations of others.

Mr Seboka replied as follows:
- The leader exercises his power as part of a tribe or group, not as an individual.
- The view at the conference was that if the traditional leader aligns himself with a particular political party, he should relinquish his role as traditional leader as he would show bias in favour of his political party.
- There are distinct phases which legislation needs to go through. The discussion document on traditional leadership had been drafted and they are now proceeding to the Green Paper stage and thereafter they would proceed to the White Paper stage. He emphasised that the processes should not be rushed, as all role-players must be consulted. A rushed job would just cause problems later on.
- Traditional leaders had only made recommendations in response to questions that were posed to them. They did not make recommendations on their own.

The Chair commented that in this process, they are not only dealing with the issue of governance but also with issues such as land and control of natural resources. These issues affect other departments as well, so they must draft their own White Papers, as this committee cannot do it for them. Mr Carrim felt that once the department had drafted the Green Paper, they need to get input from the other departments. He felt that consultation must be more vigorous. Mr Carrim opposed the weak argument that Parliament and the Government was not giving this issue enough attention - this is a sensitive issue and that they are making a concerted effort. He asked the Department to shed light on the process.

Mr Seboka stated that the Department is working closely with other departments as many of the issues affect different spheres of government. He added that they have National Task Teams to assist them in their efforts.

At this point Mr Olifant (ANC) noted that many opposition members were leaving the meeting without waiting for responses to many of the questions. He commented that perhaps they do not regard the topic of traditional leadership as important. Ms Borman pointed out that many of the ANC members had also left the meeting.

Study tour to Uganda and Botswana on Traditional Leadership
Members of the study tour were as follows:
Mr Ngubane (ANC)
Chief Nonkonyana (ANC)
Mr Solo (ANC)
Mr Magashule (ANC)
Ms Debbie Hene (ANC researcher)

Mr Ngubane reported back to the committee on their study tour:
The purpose of the tour was to learn about the experiences of the two countries on traditional leadership. He emphasised how traditional leadership should co-exist with local government in co-operative government. He explained that, like South Africa, both countries are ex-British colonies and both have maintained their traditional leadership practices.

- In Botswana there is a National House of Chiefs whose mandate it is to advise the government on legislation that affects traditional leadership. They however do not have an administrative function.
- In Uganda before 1967 traditional leaders had administrative and political powers. However between 1967 - 1993 they had no political or executive powers. Since then their powers have been restored.

- In Botswana chiefs are recognised in the Constitution and the Minister can remove a chief if the tribe requests him to.
- In Uganda chiefs are appointed in terms of their cultures and the Constitution recognises them as cultural entities.

- In Botswana chiefs are paid by government and if they are members of the House of Chiefs they receive extra remuneration.
- In Uganda the situation is different, there is no legal obligation on the government to pay chiefs. Chiefs are not allowed to collect taxes but the government does make donations to them on an ad hoc basis.

- In Botswana chiefs are ex officio members of district councils. Rural communities do participate in elections but they are loyal to their chiefs.
- In Uganda there is no legal relationship between local government and chiefs, however co-operative governance is encouraged.

- In both countries traditional leaders do not take part in politics. If a chief wishes to enter politics he must abdicate as chief. In Botswana you can only become a chief if you were not involved in politics for at least a period of five years.
- In Uganda if you were involved in politics you are not allowed to become a chief at all.

- Communal land owned by tribal members are held in trust by chiefs in Botswana. Independent Land Boards administer this process.
- In Uganda all traditional land became state owned land in 1967. In 1993 efforts were made to restore this land to traditional leaders.

- In Botswana customary law is used more often than the adopted law. People prefer to go to customary courts.
- In Uganda customary law is recognised as part of Ugandan law. No provision is made for customary courts. Customary issues are held in law courts as long as it does not conflict with natural law.

- In Botswana women participate in various structures of traditional leadership. Women can be voted in as chiefs and sub-chiefs.
- In Uganda women participate in various national organisations but not so much in traditional leadership.

- In Uganda youth are actively involved in traditional leadership, they even have a Minister of Youth Affairs.
- In Botswana on the other hand there is no active participation by the youth.

Mr Solo stated that it was worth noting that the role of the state is clear. Traditional leaders are aware that they are the custodians of culture. He added that in these countries traditional leaders are more responsible and productive.

Chief Nonkonyana added that at local government level in Botswana, chiefs are in charge of the police service. He also stated that in Uganda chiefs are self-sustainable, as they do not rely on government for support. [Mr Sithole asked the committee to include Chief Nonkonyana in all discussions pertaining to traditional leadership, as he is very knowledgeable on many of the issues.]

Ms Debbie Hene informed the committee further on the role of women in the two countries. She stated that in both countries women are recognised but women themselves are not vying for chieftain's positions. Even though women are taking a more active role, they still refrain from actively participating out of respect for their traditional leaders.

Discussion
The Chair asked whether there are elected councillors from traditional leadership.

Mr Ngubane replied that in both countries traditional leaders are elected into government positions. Mr Solo added that in both countries there is a clear distinction between traditional leadership and the democratic way of government. In either country if a traditional leader wishes to enter politics, he or she must vacate their role as traditional leader. He stated that in South Africa the problem seems to be that chiefs are allowed to be affiliated to political parties.

Mr Sithole differed with Mr Solo's view. He felt that circumstances in South Africa are different to these countries. Mr Sithole felt that if government is confident that a traditional leader can perform his duties as a Member of Parliament without being biased then he should be allowed to do so. He emphasised that the committee should not be strict in applying the practices of these countries to South Africa as the situation was different.

The Chair commented that he was impressed by the findings of the study tour and looked forward to reading the actual report when it becomes available.

Intergovernmental Relations Audit
The report was submitted to the committee by Mr Norman Levy, Intergovernmental Relations Project Director from the School of Government (UWC) and Prof Nico Steytler, Director of the Community Law Centre (UWC). See the executive summary of the report.

Mr Levy stated that the audit provides them with a basis to participate in policy making on intergovernmental relations. He emphasised that the aim of the audit is to develop a sound culture of intergovernmental relations in South Africa. Both he and Prof Steytler did not want to go into detail as committee members had not read through the report yet. Detailed discussion should follow once committee members had read the audit report.

Mr Levy stated that the audit looked at the perceptions of role-players as they affect committment, performance and efficiency. The audit assessed the current strengths and weaknesses of intergovernmental relations in South Africa and tried to develop a system that is in tune with constitutional principles. Mr Levy stated that provision is made in Chapter 3 of the Constitution for co-operative government between the various spheres of government. He added that it might look good on paper but in reality the relationship is more sensitive. Mr Levy stressed that a mechanism is needed to deal with these tensions between the various spheres. He added that even though the need exists for them to work together, they would still maintain their autonomy. As a result two approaches were encapsulated in the audit:
- To see Intergovernmental Relations in a social, economic and political sphere
- To guide developments rather than controlling them

Mr Levy noted that the Constitution provides little on how national and provincial spheres of government must work together. Prof Steytler pointed out that Intergovernmental Relations is a fast changing scene. He stated that in the report they were unable to deal with all the new developments. It is a dynamic process that is ongoing. He stated that if disputes arise between various spheres of government it must be settled in the spirit of Intergovernmental Relations. Prof Steytler emphasised that legislation is needed to deal with problems like these. He added that the report had not made recommendations in this regard.

Discussion
Ms Lobe asked what they think the role of provinces should be in light of the changing system of local government. Are they still necessary? She also stated that provinces have different inter-governmental systems. She asked whether these structures are productive in promoting Intergovernmental Relations. She felt that these various structures are performing the same tasks and that they are duplicating the activities of each other.

Mr Levy stated that the aim of the report is to improve Intergovernmental Relations not to decide on whether the National Council of Provinces (NCOP) is necessary. He felt that at present systems that are in place to deal with Intergovernmental Relations are not very productive. Mr Levy added that they have made recommendations in the report to improve the structure and composition of these systems. He felt that duplication of work by various structures is an issue that needs addressing.

Mr Ngubeni asked what their view of the NCOP was especially relating to S75 and S76 legislation. He remarked that in the report it states that the process is too complex. Mr Ngubane also asked whether the NCOP still has relevance.

Mr Levy stated that they had dealt with S75 and S76 legislation in the report. He once again stated that they did not discuss the relevance of the NCOP. Prof Steytler added that the well-being of the NCOP is linked to the well-being of the provinces and the provincial legislatures.

Mr Lyle (ANC) asked whether the audit looked at the financial implications of government structures.

Prof Steytler replied that the audit did not focus on the issue of government structures. It is beyond their mandate.

Ms Borman asked whether the audit has identified the diminishing role of the NCOP.
Prof Steytler replied that the NCOP could play an important role if it only dealt with provincial matters as opposed to being involved in national matters as well. He added that they must focus on S76 matters.

Mr Magashule asked about how they foresee the role of the provinces in megacities.
Mr Levy said it was not dealt with in the report but it is an issue that needs looking at.

Mr Carrim stated that the ANC have begun debating the issue of the provincial and NCOP systems amongst themselves. He added they have looked at the nature and structure of the provincial system and how it has been functioning in the last five years.
Mr Carrim asked the following: What is co-operative government about? Does it provide for quicker service delivery, and does it create employment?

Mr Levy replied that Intergovernmental Relations does accelerate service delivery, but it is covered in the report.

Mr Carrim stated that the committee is worried about Inter-governmental fiscal relations. Why is the provincial affiliate of SALGA not involved in the provincial legislature as SALGA is in the national legislature?

Mr Levy replied that they do make provision in the report for SALGA to be observers in provincial matters but he admitted that it is a problem that they are not represented.

The Chair adjourned the meeting and stated that the committee would meet on the 31 October 2000 to deal with the Cross Boundary Bill.

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