June 17, 2012

SOUTH AFRICA DEBATES LAW TO SUPPORT TRIBAL COURTS

[The fierce debate over the bill, which is unlikely to pass Parliament but unlikely to be completely snuffed out either, has exposed a fault line running deep in South African society between traditionalists — including leaders like President Jacob Zuma, who calls himself a proud Zulu and practices polygamy — and a racially diverse but largely Westernized cultural establishment that fears a return to traditional values will trample hard-won constitutional rights.]

By 

Jonathan Torgovnik for The New York Times
A traditional tribal court this month in the village of Manhlaneni, South Africa.
CANDU, South Africa — The court’s verdict was swift and sure: Nomvulo Ludonga was guilty as charged. To atone for her offense, Ms. Ludonga, a widowed schoolteacher, had to give the court a live sheep, 50 liters of maize beer, two cases of regular beer, two bottles of brandy and two bottles of juice.
Her crime? She had broken customary law by calling the police to investigate a burglary at her house without informing the village headman, a traditional leader of the Mbashe royal family of the Xhosa nation, and had insulted his dignity by refusing to appear before his court.
These are not offenses under South African law, but Ms. Ludonga, like millions of other South Africans who live in rural areas, effectively lives in two countries at once. She is a citizen of a modern African democracy that threw off white rule in 1994, then enacted one of the world’s most admired constitutions. She is also a subject of an ethnic monarchy with broad, but largely unwritten, authority under traditional courts.
The tension between those two sometimes-contradictory worlds has reached a breaking point in the past year as South Africa’s government pushes a measure to give traditional courts the force of law, compelling people in many rural areas to appear before them to answer charges that they have violated community traditions.
The fierce debate over the bill, which is unlikely to pass Parliament but unlikely to be completely snuffed out either, has exposed a fault line running deep in South African society between traditionalists — including leaders like President Jacob Zuma, who calls himself a proud Zulu and practices polygamy — and a racially diverse but largely Westernized cultural establishment that fears a return to traditional values will trample hard-won constitutional rights.
“Many of us are very worried that there is an attempt under way to roll back rights and turn rural people into subjects rather than citizens,” said Nomboniso Gasa, a women’s rights activist who has fought giving traditional courts more power.
In the best of circumstances, these community courts are forums for resolving local disputes by consensus using age-old customs. Nelson Mandela, who was born to a royal family not far from Candu and spent his youth watching traditional leaders rule, wrote in his autobiography that he had been “profoundly influenced by observing the regent and his court.”
Though the traditional leaders were not elected, the courts were deeply democratic, Mr. Mandela argued. “Democracy meant all men were to be heard, and a decision was taken together as a people,” he wrote.
But traditional courts do not always live up to Mr. Mandela’s bucolic memories. Law often turns out to be simply what traditional leaders say it is. It can be deeply conservative and run counter to the freedoms and rights outlined in the Constitution. Traditional leaders, for instance, have been at the forefront of efforts to strip legal protections for gay men and lesbians.
Rural blacks long lived under separate laws from those governing whites, a system solidified by apartheid, which created Bantustans, the nominally independent states created as “homelands” for South Africa’s blacks.
These scraps of often-infertile land became de facto reservations for blacks, who had few rights outside them and were not permitted to live elsewhere without permission. Their leaders were monarchs serving at the pleasure of the apartheid government, and ultimately came to be seen as its stooges.
Though these monarchs and chiefs never really went away, the end of apartheid left them outside the corridors of power. The traditional courts bill is seen as an effort by the African National Congress, the governing party, to win their support at the polls.
The potential revival of the courts worries some women’s rights activists.
“Rural women especially will find it very difficult to assert their rights against these courts,” said Sizani Ngubane of the Rural Women’s Movement. “They are very much marginalized at the rural level.”
Take Ms. Ludonga’s case. She is a 47-year-old grade-school teacher and community activist who started an organization to fight domestic violence and raise awareness about H.I.V. But she clashed with the royal family of her village.
The headman, Mzwandile Nqwena, is her brother-in-law, and she became entangled in a family feud when her husband died in 1999. In 2010, she called the police to report a burglary at her home. The headman took offense that she had not informed him first.
She resisted when she was called before a traditional court. But the headman increased the pressure.
“When I went before them, they said, ‘You lack discipline, you are so rude,’ ” Ms. Ludonga said.
She said she apologized, hoping to keep the peace. But they demanded she pay a fine.
“I was so hurt,” she said. “I stood up again and said: ‘I am alone; I am a widow. I cannot afford to buy these things.’ ”
But the court insisted.
For months she resisted paying, but she became an outcast, she said. When her house was damaged in a rainstorm, no one helped her. Alone and afraid, she borrowed money to buy the $300 worth of food and drink.
South Africa’s traditional leaders say that customary law helps people live in harmony, and takes into account traditions not in the Constitution.
“We are in Africa, and this our African traditional justice system, which has been there from time immemorial,” said Kgoshigadi Mothapo, a queen from Limpopo Province and deputy chairwoman of the National House of Traditional Leaders. “The Constitution is not really based on Afrocentric values.”
Some rural people support traditional justice out of deep disillusionment with democracy and its institutions in South Africa. “I trust the chief because he knows me, he knows where I was born, he knows where I live,” said Mthembu Nelisiwe, a woman from a small village in KwaZulu-Natal Province. “I can speak to him face to face. The people in Parliament don’t know me.”
Frustrated with allegations of corruption and incompetence involving the current government, some people say they yearn for a simpler, more orderly time when chiefs and kings ruled.
“We are having a lot of problems with kids who don’t want to go to school, who are drinking and getting pregnant,” said Dingeni Jobe, a traditional leader in rural KwaZulu-Natal. “I feel that power needs to be given back to the chiefs so we can rule in a right way.”
Traditional courts clearly play an important role in resolving local disputes. In Manhlaneni, a village in Eastern Cape Province, Chief Luthando Dinwayo presided over a hearing recently in a tiny courtroom with a corrugated tin roof. The closest magistrate court was 15 miles and an expensive bus ride away, while this courtroom was within walking distance for the people involved.
One case involved a marital dispute — a woman had run away from her husband to work in Cape Town. The husband, who had paid a bride price in cows to his father-in-law, suspected that his wife’s father had helped her leave, and he wanted the cows back. In a second case, a villager stood accused of grazing his seven cows on communal land set aside for conservation.
“I am guilty,” the accused villager, Zizamele Maqi, whispered.
The tribal council, made up of four women and five men, dismissed the defendants and began their deliberations. In the marriage dispute, they decided the wife must be brought to court and asked her wishes. If she no longer wanted to be married, her father must return her bride price. In the second case, some council members argued for a fine of about $50. But Chief Dinwayo objected. The village had already agreed that the fine for this offense was about $2 per cow.
“We cannot change this,” he said. “It is our duty as traditional leaders to be fair.”
Mukelwa Hlatshwayo contributed research.