Traditional Leadership and Governance Framework Bill: deliberations

Meeting report

PROVINCIAL AND LOCAL GOVERNANCE PORTFOLIO COMMITTEE
22 October 2003
TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK BILL: DELIBERATIONS

Chairperson: Y Carrim (ANC)

Documents Handed out:
Traditional Leadership and Governance Framework Bill [B58-2003]
Traditional Leadership and Governance Framework Bill: Proposed Amendments
Report to the National Assembly on the Traditional Leadership and Governance Framework Bill (See Appendix)

SUMMARY
The Committee concluded debate on the Bill but deferred formal voting to 28 October 2003 to allow members time to consider the possible implications of the Communal Land Rights Bill. In its report to the House the Committee noted that while the provisions for the transformation of the institution of traditional leadership to conform with the Constitution, in particular its democratic and gender equality aspects were currently adequate , they might not be in future. The Report recommended that the Bill should be reviewed over time to take account of this need. In particular, the Committee noted that the issue of gender equality as it applied to succession of traditional leaders needed to be addressed further.

MINUTES
The Chair noted that apart from a few outstanding minor issues the Bill was ready for voting. He however proposed that formal voting should be deferred to 28 October 2003 to accord ample time for members to reflect on the implications of the Communal Land Rights Bill on the current Bill. He asked Dr. Bouwer to take members through the updated amendments for confirmation.

Dr. Bouwer pointed out that the preamble to the Bill had been expanded to make provision that urged traditional leadership to advance the cause of gender quality.

The Chair suggested that the term "progressive" should be applied in order to clarify the intention that it was a phased process and not something that could take immediate effect.

Dr. Bouwer tabled the proposed amendments attached, which highlighted the minor amendments that had been effected, most of which he said were consequential.

The Committee approved the amendments whereupon the Chair put the motion of desirability to vote. The vote was taken with IFP and DP abstaining on each clause.

Mr. Hlengwa (IFP) expressed frustration at his inability to consult his study group in view of the fact that Parliament was on recess.

The Chair made the point that voting could not be delayed on account of the IFP being unable to consult its caucus noting that the move to abstain was the right one. The Chair then read the motion of desirability, which was passed with the IFP and DP abstaining.

The Chair took members through the report to the House where the Committee said that in its deliberations on the Bill it received a very wide range of submissions during public hearings. The report noted that on the one hand there were traditional leaders who urged that the Constitution should be amended first to accord them the same powers and functions as local government before legislation was introduced. On the other hand, the report noted, statutory bodies, NGOs and community organisations expressed the view that the Bill was a retreat from democracy and served to undermine the rights of women.

The Chair made the point that in response to traditional leaders the Committee was of the view that while Constitutional amendments were not made lightly, they could not be ruled out altogether in addressing the issues they had raised. The report continued that in response to other interests groups the Committee made the point that the role of Traditional Leadership in our society was definitely reconcilable with the basic principles and values of our democracy and gender equality.

The Chair said that the Committee urged all stakeholders to appreciate that the processing of this Bill represented a phase in the ongoing process of defining the role of traditional leaders in our system of democratic governance. All demands by stakeholders could be met in the finalisation of the Bill. Ideally, the majority in the Committee held the view that traditional leaders should not be involved in political parties due mainly to the non-partisan role the office of a traditional leader. He said that their vital role in creating unity, peace and harmony within and between communities would be undermined by being active in political parties. The report stated that over time, traditional leaders should consider increasingly withdrawing from party politics if they wanted to effectively play their role as traditional leaders.

The Chair continued that it was the Committee's view that while the provisions for the transformation of the institution of traditional leadership to conform with the Constitution, in particular its democratic and gender equality aspects were adequate for now, they might not be in future. It therefore recommended that the Bill should be reviewed over time to take account of this need. In particular, the Committee noted that the issue of gender equality as it applied to succession of traditional leaders needed to be addressed further.

The Chair put the report to vote and it was passed with the IFP and DP abstaining. He reminded members that formal voting would take place on 28 October 2003 at 9.30am.

The meeting was adjourned.

Appendix

1. The Portfolio Committee received a very wide range of submissions on the Traditional Leadership and Governance Framework Bill during public hearings. On the one hand, there were traditional leaders who argued that the Bill should not be proceeded with. They held that the Constitution should first be amended to give traditional authorities the same powers and functions as local government1 and thereafter legislation should be passed to give practical effect to this. On the other hand, there were statutory bodies, NGOs and community organizations that had reservations about the Bill and argued that it is a retreat from democracy and serves to undermine the rights of women. In between these organizations there were others that welcomed the basic thrust of the Bill, even if they had reservations about some of its clauses.

2. The Portfolio Committee was challenged to find consensus among this wide range of stakeholders and to seek to locate this consensus within the policies of our respective political parties on traditional leadership.

3. In response to the traditional leaders, the Portfolio Committee pointed out that while constitutional amendments are not made lightly, they cannot be ruled out altogether either in addressing the issues they raised. But the major issues in the White Paper on Traditional Leadership and Governance and the Bill should be proceeded with. As it is a section 76 Bill, there will also be considerable input from the provinces. If at the end of the process of taking the Bill through both Houses of Parliament, there is significant consensus between the traditional leaders, South African Local Government Association and other key stakeholders that there is a need for constitutional amendments, the parliamentary committees will consider proposing to the executive that it considers this.

4. In response to statutory bodies, NGOs and community organizations, the Portfolio Committee pointed out that the role of the traditional leadership in our society is certainly reconcilable with the basic principles and values of our Constitution, including democracy and gender equality. After all, the institution of traditional leadership is provided for in the Constitution. The Bill in fact provides for the transformation of the institution of traditional leadership so that it is consistent with the needs of our new democracy. But it has to be appreciated that while customs and traditions are not static, they have a momentum of their own. It is far more difficult to effect transformation through legislation in the areas of custom and tradition than it is in other aspects of society, for example, education, the economy or health care. Transformation in the areas of custom and tradition have to be phased in appropriately.

5. It was pointed out to all stakeholders that traditional leadership is a concurrent function of national and provincial government. The Bill therefore could not be unduly prescriptive. It seeks, in fact, to provide a national framework and norms and standards in terms of which provincial legislation will be enacted that will take into account provincial specifics.

6. It was further communicated that this Bill deals with the role and functions of traditional leadership in governance generally. The specific role and functions of traditional leadership in different areas, for example, customary justice, land administration and welfare will be dealt with by the respective Ministries, Departments and Portfolio Committees.

7. The Portfolio Committee urged all stakeholders to appreciate that the processing of this Bill represents a phase in the ongoing process of defining the role of traditional leaders in our new system of democratic governance. The Bill is a significant advance on the Bill brought to Parliament in November 2000 that was not proceeded with for a variety of reasons. Not all the demands of all the stakeholders could be met in the finalization of the current Bill. All stakeholders should be prepared to compromise in this phase. This does not mean that they cannot pursue their outstanding demands in future.

8. The amendments to the Bill made by the Portfolio Committee constitute, we think, an intricate set of balances of the demands of the key stakeholders. Essentially, they revolve around simultaneously enhancing the role of traditional leadership institutions and requiring them to be more transformative. This is reflected, for example, in providing for Bills pertaining to customary law or customs to be first referred to the National House of Traditional Leaders for 30 days for its comments before Parliament can process them. But we have also provided for 40%, instead of the original 25%, of the members of traditional councils to be democratically elected, and for the transitional period for existing tribal and community authorities to transform to be substantially reduced.

9. Traditional leaders and others see the word "chief" as derogatory and find it unacceptable. The Ministry and Department proposed, with all their reservations, replacing "chief" with "principal traditional leader". After much discussion the Portfolio Committee finally opted for "senior traditional leader" with the understanding that the provincial legislation to be enacted will use the applicable traditional term, such as inkosi, kgoshi, morena, etc.

10. Traditional leaders stressed that the Bill refers only to their "functions'; not "powers". They wanted their "powers" to be maintained. The Portfolio Committee pointed out that the Constitution refers only to the "role" of traditional leadership. The Ministry and Department of Provincial and Local Government explained that the Bill does not take away any of the "customary powers" of traditional leaders and actually provides additional "statutory functions". Moreover, the Bill provides for a role for traditional leadership, not just in the local government sphere, but in all three spheres of government.

11. Role of Local Houses of Traditional Leaders...

12. Ideally, the majority in the Portfolio Committee believe, traditional leaders should not be involved in political parties. They should be non-partisan if they are to effectively play their roles as traditional leaders. Their vital roles in creating unity, peace and harmony within and between communities is undermined by being active in political parties. However, the Portfolio Committee recognizes the particular history of this country and acknowledges that for some time to come traditional leaders will be active in political parties. Over time, however, traditional leaders should consider increasingly withdrawing from party politics if they want to effectively play their roles as traditional leaders. Consideration might have to be given to mechanisms to facilitate this over time.

13.The Portfolio Committee is uneasy about the provision for "deputy" traditional leaders in the Bill as there is already provision for "acting" traditional leaders. However, in view of the intricate negotiations between the Ministry and Department and with traditional leaders on the issue of "deputy" traditional leaders, the Portfolio Committee decided to retain the provision for "deputy" traditional leaders.

14. While the provisions for the transformation of the institution of traditional leadership so that it is consistent with the Constitution, in particular its democratic and gender equality aspects, are adequate for now, they may not be in future. The Bill should therefore be reviewed over time to take account of this. In particular, the issue of gender equality as it applies to succession of traditional leaders needs to be addressed further. This issue could not be dealt with adequately in the current Bill for a variety of reasons, and requires further consultation with traditional leaders and other key stakeholders before further regulation is provided for.

15. In view of the role of traditional councils in development and service delivery, it would be useful if some of the people elected to the councils are chosen because of the developmental skills they have.

16. Since the pre-1994 legislation refers to "tribes", the drafters of the Bill were forced in a few sections to use the word "tribes". As the majority in the Portfolio Committee believe that it is not an appropriate term, it has been used only where completely unavoidable and in a transitional context. The term is used in quotation marks to convey this.

17. Several submissions made at the public hearings and thereafter, dealt with disputes around who constitutes a traditional community, the geographical boundaries of a traditional community, the succession of traditional leaders and other related issues. These submissions will be referred to the Commission on Traditional Leaders Disputes and Claims as soon as it established. There have been several provincial commissions of inquiry established since 1994 to investigate traditional leadership disputes and claims. Some of the matters they have been investigating have not yet been finalized. The Commission to be established in terms of this Bill should consider addressing these outstanding matters as soon as possible. The Committee is clear that while the Commission will focus mainly on disputes and claims arising since the enactment of the Black Administration Act of 1927, there are disputes and claims that predate this that will also require the Commission's attention.

18. A legislative program is necessary to attend to outstanding issues from the White Paper and as a consequence of the passing of this Bill. This would include the following:

Provincial legislation on traditional leadership and governance.

· The amendment or repeal of the legislation on the National House of Traditional Leaders and the various Provincial Houses of Traditional Leaders.

Regulations required to be passed in terms of this Bill. Amendments to section 81 of the Municipal Structures Act.

· Amendments to legislation dealing with the pension, medical aid and other benefits of traditional leaders.

· Legislation assigning additional functions to traditional leadership as envisaged in the White Paper.

19.There will also have to be a repeal of or amendments to the pre-1994 legislation dealing with traditional leaders.

20. In allocating functions to traditional leadership institutions, the capacity of the institutions have to be taken into account.

21.The State Liability Act does not cover traditional institutions. The relevant provincial legislation does not address the liability of traditional leadership comprehensively either. This needs to be addressed by the Ministry and Department. Consideration should be given to doing so in the provincial legislation to be enacted in terms of this Bill.

22.The Portfolio Committee has observed that some royal families are divided, and this may impact on the implementation of the Bill. The Portfolio Committee does not believe at this stage it is necessary to legislate on this matter, but in future, if necessary, after consultation with traditional leaders and other key stakeholders, consideration might have to be given to this.

23.The Ministry and Department need to consider what practical steps can be taken to co-ordinate the activities of the National, Provincial and Local Houses of Traditional leaders. There also needs to be a level of coordination between traditional councils and the Houses.

24. Obviously, the Khoisan communities have enormously legitimate claims to rights in terms of customs and tradition. But they have specific needs and interests that are still being dealt with by the Ministry and Department, and it was not possible to address them in this Bill. Our Committee has constantly raised with the Department the concerns of the Khoisan communities. While there is progress in this regard, we would like to see more progress. For now, the Khoisan communities have to be treated separately. Over time, there should be more dialogue between the National House of Traditional Leaders and the Khoisan Council, and consideration should be given in the longer term to including all sections of traditional leaders in one national structure. The Committee will continue to monitor progress relating to the concerns of the Khoisan communities as they apply to rights in terms of customs and traditions.

25. In the memorandum to the Bill, the cost per annum of establishing Local Houses of Traditional Leaders is put at R 33 303 074 and the Commission on Traditional Leaders Disputes and Claims at R 8 528 895. A further R 60 476 548 has been allocated for the remuneration of headmen and headwomen who are currently not being paid. The Portfolio Committee feels that there are other costs, including those for traditional councils and the Houses of Traditional Leaders, that have not been catered for. There is also concern that more people will claim to be traditional leaders, particularly as headmen and headwomen, and demand the remuneration that goes with it, than has been provided for in the estimates of expenditure done by the Department. The Committee feels that the Department should consider phasing in aspects of the new traditional leadership dispensation taking into account budgetary constraints.

26. The Committee is also concerned that there may be situations where councilors in a municipality earn less than headmen and headwomen and senior traditional leaders, and that this may lead to conflict. The Committee reiterates its concerns about councilors salaries expressed in its "Report on Study Tour of Municipalities" which appeared in the AIC of 13 May 2003, and feels that this is yet another reason why some of those concerns should be addressed expeditiously. The Ministry and Department are requested to take this into account.

27. In view of the state's commitment to providing greater resources to and enhancing the capacity-building programs of traditional leaders, there is a need for the Executive and Parliament to monitor the activities of traditional leadership institutions appropriately. Over time, consideration needs to be given to the sense in which traditional leadership institutions are accountable in terms of the Public Finance Management Act.