**Please notice this was originally featured by the Mail & Guardian's Thought Leader platform.
At this very moment, government efforts to enact the Traditional and Khoisan Leadership Bill are advancing; it is up to civil society to stop this. The legislation would entrench power and further legitimacy to undemocratic structures in traditional leadership operating within an often violent and corrupt rural political atmosphere. Even if the bill were conducive towards creating a more just society, it would be useless as institutionalised criminality is able to reign freely in many parts of rural KwaZulu-Natal; basic laws are flaunted. In effect, this legislation would serve to further dispossess the already dispossessed of many abilities and channels to democratically challenge power.
While institutionalised leadership in the rural context at times may be effective, mechanisms for accountability and legal implementation are absent. Even in cases where traditional leaders have been found criminally liable, many among their ilk have rushed to their support; instead of bad apples being dealt with, attempts are made to protect them. Traditional leadership does not seek to root out abusers within its ranks; this is again evinced in the relative silence associated towards accusations of King Goodwill Zwelithini’s alleged Afrophobic hate speech. Moreover, in rural KwaZulu-Natal (KZN), traditional leadership and Ingonyama Trust, as previously discussed, is a vestige of the apartheid era – previously a tool for stability during the transition towards democracy. What is the political function, beyond symbolism, of such expensive, publically funded structures in the contemporary democratic period? Is traditional leadership in its current state the best way to institutionalise indigenous value systems and forms of governance? How do we indigenise institutions in such a way as to collapse the dichotomy between customary and constitutional law?
The aforementioned questions are all the more prescient as rural communities and activists often face violent political intimidation when challenging power, as the devastating case of Sikhosiphi “Bazooka” Rhadebe highlights. Unfortunately, Rhadebe’s murder is not an isolated incident. In rural KZN there are community-based activists on the run; in March, one woman told me and a group of activists that she and others from her community (some matric-aged) have had their homes burnt down as a result of their challenging the expansion of nearby mining. They suspect the complicity of police and traditional leadership, whether this is founded or not demonstrates an atmosphere wherein institutionalised power has fostered tremendous mistrust.
Intimidation is not necessarily lethal or transparently violent, but still includes criminality and intransigence. In one community just a rural stone’s throw from Ladysmith, the courts ruled against a traditional leader in 1999, recognising the property as communal land, purchased by the community’s ancestors in 1823. To this day, he continues to exploit the community by selling their privately owned land without a collective decision. Last month, the self-imposed leader did not show up to a community meeting of roughly one hundred wherein they decided he must step down; unsurprisingly he has not respected their decision. This is not traditional leadership but raw criminality.
Near Swaziland, in Umkhanyakude District, KwaZulu-Natal, local traditional leadership reportedly held a meeting for the community at a municipal office. It is here where they informed the community that they must give up their apartheid-era Permission to Occupy in exchange for forty-year leases, increasing 10% annually; in effect traditional leadership has tried to transform land rights into land leases – possibly in collusion with local authorities. Again, evident is the re-dispossession of the dispossessed, this time at the hands of traditional and by virtue of the hall used, perhaps local leadership.
In much of rural KwaZulu-Natal there is also a problem of fraudulent land sales wherein rightful landowners or leaseholders discover that their land has been sold without their knowledge – by those who do not own the land. Landowners may visit their land only to discover strangers building or living in homes that did not exist before. This has happened to the organisation I am involved with, the Rural Women’s Movement, which was granted a lease by the Ingonyama Trust Board. Upon visiting the land, we discovered strangers building on it. After meeting with the occupiers, we learned that a traditional leader “sold” them plots of this land, which was to be administered by the trust and not by individual traditional leaders. Additionally this land was intended for agricultural, not residential use. In such situations, both the rightful leaseholders and those fraudulently sold the land are put in a bind; the former must come to an agreement with parties they are unfamiliar with (often disrupting an organisation or individual’s plans for the land) or attempt to evict individuals who invested much of their savings in the scam.
A similar situation also happened to Simphiwe Ndlovu (name changed for security reasons) and his family, who had their land returned (originally dispossessed in 1913) through restitution initiatives following the transition to democracy. Ndlovu relayed to me that they soon discovered nine families living on their land, having paid someone unrelated to the family for the opportunity to build homes. Ndlovu continues to battle for a resolution, though this is proving difficult; the municipality recognises the family’s ownership but supplied those living on his land with water and electricity. Furthermore, Ndlovu has been unable to track down the original fraudster. Once more, a resolution is challenging and the perpetrator (remaining unknown) has not been taken to justice.
Lastly, high-level consultations related to the Traditional and Khoisan Leadership Bill involving all relevant stakeholders have been unequal and perhaps not conducted in good faith. Last November I attended a policy dialogue involving traditional leadership, representatives from the department of justice, academics and members of civil society. The process was flawed; firstly, civil society was underrepresented, as some of the transport arranged for rural people simply did not arrive (others have told me this is not the first time this has happened). Secondly, reception of the myriad voices was not equal; traditional leadership was able to speak for long periods of time – even keeping a government representative from departing to his next engagement – while rural women were frequently harangued after speaking for five minutes. The entire process appeared to be a charade rather than an attempt at open and productive dialogue. Perhaps this legislation is less about improving the lived realities of rural people (specifically in historically IFP strongholds) as the EFF and DA continue to gain support; why else would the current government empower corrupted, and at times criminal institutions as well as its actors unless they have something to offer the governing party?
In order to see a healthy path forward, institutions and policy must be guided by principles of justice, equality, empathy and accountability. The appropriate mechanisms for implementation must also be in place. This cannot happen without the voices of South Africa’s most affected being heard. The Traditional and Khoisan Leadership Bill seeks to further engrain the power of a relatively functionless or at least deeply corrupted structure in an atmosphere already conducive to injustice and abuses of power. Before instituting new laws, let’s implement the existing ones codified in the values aspired to by the South African Constitution.
 For the safety of the community, the district name has been withheld.