A critical analysis of the Traditional and Khoi-San Leadership Bill, 2015

III – Authoritarian, anti-democratic and unconstitutional

In the first of this three-part series, Matthew Kruger analysed aspects of the democratic foundations of the Constitution and argued that the source and formation of customary law is essentially democratic in nature. In the second brief, Chris Pieters provided a summary of some of the existing legal framework regulating traditional rule, as well as the attitude of the ANC to this form of rule. The third and final brief offers insight into the constitutionality of aspects of the Bill’s structure and content.

Introduction

In this final brief, it is argued that the Traditional and Khoi-San Leadership Bill, 2015 (‘the Bill’) is in a number of respects essentially authoritarian and hierarchical in the way that it divides, allocates and structures power. In this way, the Bill contradicts the foundational value, principle and idea of the Constitution—that is, democracy—and is contrary to the essentially democratic nature of customary law. For this reason, we conclude that the Bill in its current form is probably unconstitutional.

The Bill is nearly 100 pages long. We do not consider all of its sections, but instead focus on Chapter 2, which is headed ‘Leadership and Governance’. In particular, we consider the first two parts of the chapter, which deal primarily with the recognition and withdrawal of the status of ‘Traditional and Khoi-San communities’ and the status of individuals as ‘Traditional and Khoi-San leaders’.

Traditional and Khoi-San communities

The first part of Chapter 2 regulates the recognition and withdrawal of the status of kingship or queenship, traditional community, headmanship or headwomanship. It also regulates the recognition and withdrawal of the status of Khoi-San community and branch.

Traditional communities: Starting with the regulation of traditional communities, this part of the chapter begins well enough, for it says that traditional communities ‘that are grouped together may be recognised as a kingship or queenship if . . . they recognise as their king or queen, a specific recognised senior traditional leader who, in terms of custom and customary law, is of a higher status than the other senior traditional leaders’. [1] Thus, no community may be a kingship or queenship unless the people recognise a particular leader as having a higher status than other traditional leaders. This is consistent with the idea that government is based on the will of the people.

Trouble starts soon thereafter, for it is then said that the ‘President may, after consultation with the Minister . . . recognise’ [2] such a community as a kingship or queenship. Whilst the word ‘may’ is sometimes interpreted as peremptory, this is rare, and it usually means that the repository of power has a discretion. Since elsewhere in the Bill the word ‘must’ is used in a similar context (s 8(2)(d)), the President probably has a discretion to recognise a community as a kingship or queenship.

It is not clear why the President should be afforded this discretionary power. Not only is this power hierarchical and authoritarian in nature, it is also anti-democratic. It subordinates the will of the people—violating their right to self-determination—to the open-ended discretion of a leader of a different political community. Moreover, as the Supreme Court of Appeal decision in Dalinyebo makes abundantly clear, the potential for wide-ranging and devastating abuse that accompanies the structuring of power in this way is significant.

Similar problems arise when considering the recognition of a community as a ‘traditional community’. The Premier of the province in which a community is situated ‘may’, after an application by that community, recognise it as a traditional community. [3] Again, the discretion that is afforded to the Premier is open-ended, potentially contrary to the will of the people, authoritarian, anti-democratic and open to abuse. The same problems accompany the recognition of headwomen and headman. [4]

A further problem exists in relation to the regulation of headwomen and headman is that—unlike kingships, queenships and traditional communities—they will not be recognised if they will not ‘contribute to the more effective and efficient administration of the relevant traditional council’. [5] It is not clear whether this criterion is constitutional for at least two reasons.

First, there is no obvious reason why this form of leadership is subjected to an additional criterion. Second, it is not clear that reasons of efficiency can, morally speaking, outweigh the will of the people. At the very least, the test for recognising this particular political unit and its leader should not be that recognition ‘will contribute to the more effective and efficient administration of the relevant traditional council’. Rather, it should be something closer to the European Union model, where the efficiency gains must be so significant that they outweigh the strong prima facie moral preference for the devolution of power in accordance with the will of the people. [6] The breadth of the discretion when determining whether to recognise these leaders and, further, the involvement of the larger and more powerful traditional council in the Premier’s exercise of this discretion, [7] expose people to domination.

This authoritarian structure is continued in the section that deals with the withdrawal of recognition of leadership status. Withdrawal of the status of kingship or queenship or principal traditional community is subject to the majority desiring withdrawal, [8] but the President or Premier has the power to refuse withdrawal if she thinks that there is not ‘sufficient cause for the withdrawal of the recognition’. [9] Where a majority no longer recognises a particular leader or leadership, though, this should be sufficient for the purposes of formal withdrawal of recognition. The people should not have to justify themselves to a leader that has power in respect of a different polity. Further, the scope for abuse of power by the President or the Premier in cases of ‘request’ for withdrawal is obvious.

Similar concerns exist with the section that relates to the withdrawal of recognition of a community as a traditional community, merger of traditional communities, and withdrawal of recognition of headman and headwomen. [10] Particular concerns exist in relation to the withdrawal of the recognition of headwoman and headman, for not only is the Premier afforded a discretion, the people subject to the leadership of headwoman and headman do not have the power to ‘request’ her to exercise this discretion. This power of request is vested in the traditional council alone. [11]

Where withdrawal affects the interests of a minority, it may be necessary to delay its formal implementation so that there can be a ‘transfer [of] assets, liabilities and administrative and other records of the disestablished traditional community’. [12] [13] Any difficulties in this regard, however, should not prevent exercises of political self-determination.

Khoi-San communities: Turning to Khoi-San communities, there is an important preliminary point to be made. The formal requirements that must be satisfied for a community to be recognised as ‘Khoi-San’ are different to the formal requirements that must be satisfied for a community to be recognised as ‘traditional’. Whilst the differences are quite subtle, they are potentially very important. [14]

One important difference is that communities that wish to be recognised as Khoi-San must demonstrate a ‘proven history of coherent existence of the community from a particular point in time up to the present’. [15] This may be contrasted with the requirement that traditional communities need only establish a ‘history of existence’. Proving ‘coherence’ may well be difficult, given the history of dispossession by colonisers—both European and African. The requirement of coherence, therefore, might function as an obstacle for the formal recognition of aspirant Khoi-San communities.

As is the case with aspirant traditional communities, the Bill affords the Premier a discretion to recognise a community as Khoi-San that otherwise satisfies the formal requirements listed in the Bill. [16] This discretion exposes the people to the possibility of abuse and domination.

The Bill also provides for the recognition of different branches of Khoi-San communities. Apart from the problem of affording the Premier a discretion to recognise branches, [17] at least two of the formal requirements that must be satisfied for a branch to be recognised are democratically deficient. First, the larger Khoi-San community must recognise the smaller community as a branch of that community. Second, the recognition of the branch will have to contribute to a more effective and efficient administration of the Khoi-San council. [18]

The problems relating to a requirement of efficiency have already been discussed. As for the first requirement, if a group of people who form part of a larger community desire to establish a smaller political unit—in the form of a branch of that community—their existence as such should not have to depend on the larger body’s say-so. For similar reasons to those discussed above, there is a potential for abuse that accompanies the centralisation of power in this way.

The authoritarian implications of the Bill are also reflected in the section that seeks to regulate the withdrawal of recognition of Khoi-San communities and branches.

First, withdrawal of the recognition of a branch depends on the ‘request’ of the Khoi-San council, meaning that a branch may not initiate its dissolution. [19] It is unclear why branches are denied this aspect of the right to self-determination.

Second, the Khoi-San council of the relevant community must provide reasons to the Premier for its request to withdrawal. [20] Third, and related to the second, following receipt of a request to withdraw recognition, the Premier has a discretion whether to accede to the request. [21] As already noted, subject to the interests of a minority group of that same community—which, it seems, can be catered for through the appropriate ‘transfer of assets, liabilities and administrative and other records of the disestablished Khoi-San community, branches and councils’ [22]—the people should not have to justify their decision to dissolve their status as a Khoi-San community, or branch of that community, to any third party. 

Traditional and Khoi-San leaders

The second part of Chapter 2 regulates the recognition and withdrawal of leadership positions within communities that are recognised in the first part of the chapter. It also regulates the allocation of functions and resources to the leaders recognised in this part of the chapter.

This part of the chapter begins by listing different leadership positions that may be held within traditional and Khoi-San communities, as well as the criteria that must be satisfied for these leaders to be recognised. [23] As is the case with recognition of traditional and Khoi-San communities, it appears that the President or the relevant Premier, as the case may be, is afforded discretion to recognise ‘the leadership position’ that satisfies these various formal criteria. [24] This discretionary power is emphasised again in relation to the recognition of kings, queens, principal traditional leaders, [25] senior Khoi-San leaders and branch leaders. [26]

In the case of Khoi-San leaders and Regents, discretion is retained even when it is established that the election or identification of the leader did not conform to customary law and custom. [27] In the case of acting and deputy traditional and Khoi-San leaders, improper recognition of acting or deputy leaders must be investigated and referred to the royal family for comments. The Premier, however, is not afforded any explicit powers in the event that the investigation and comments establish misconduct or irregularity. [28]

In some places the Bill says that the relevant Premier ‘must’ recognise senior traditional leaders, headwomen and headman that meet certain criteria, [29] whereas elsewhere it is said that she ‘may’ recognise leaders. [30] It is not clear how this ambiguity can be resolved.

The President or the relevant Premier is also afforded wide-ranging and discretionary powers to deal with allegations of misconduct by traditional and Khoi-San leaders. Perhaps most strikingly, the President or Premier ‘must’ withdraw recognition of a leadership position if she is informed by a royal family, traditional council or Khoi-San council of allegations of certain types of misconduct. [31] Even if it is established that the allegation was false or was made in bad faith, the President or Premier appears to have a discretion not to reverse the withdrawal of recognition. [32]

Lastly, the Bill provides that the Minister responsible for traditional and Khoi-San leadership and governance matters may, after ‘taking into account a recommendation made by the Independent Commission for the Remuneration of Public Office-bearers . . . and after consultation with all Premiers . . . determine the resources to be made available to traditional and Khoi-San leaders as may be necessary to enable them to perform their functions effectively’. [33] Whilst apparently innocuous, the Constitutional Court has stated in various judgments that where a member of the executive controls another person or group’s access to resources, this increases the potential for corruption and abuse. [34] This section allows for even further manipulation and control of the political activities of Khoi-San and traditional communities. The power to determine resource allocation, therefore, should ultimately lie with Parliament.

It is clear from this brief analysis that part 2 of this chapter of the Bill allows for authoritarian forms of abuse. It also allows for the will of the people to be subverted. The problems in the first part of this chapter, therefore, are exacerbated by these sections.

Conclusion

In this brief, the authoritarian and hierarchical manner in which the Bill divides, allocates and structures power have been discussed. It conflicts with the foundational value, principle and idea of the Constitution—that is, democracy—and it is contrary to the essentially democratic nature of customary law. Rather than empowering members of Khoi-San and traditional communities, many aspects of the Bill aim to (or, have the effect of) subordinating their right to self-determination to the President, Premiers and more centralised forms of control.

For this reason, we believe that the various sections of the Bill that pertain to the recognition and withdrawal of the status of traditional and Khoi-San communities, and the title of persons as leaders of these communities, are unconstitutional.

Matthew Kruger is Legal Researcher at the Helen Suzman Foundation.

This article first appeared as an HSF Brief.

Footnotes:

[1] Section 3(1)(d).

[2] Section 3(3)(a).

[3] Section 3(4) and (6).

[4] Section 3(7) and (9).

[5] Section 3(7)(c).

[6] See Article 5 of the Treaty of European Community.

[7] Section 3(8)(b).

[8] Section 4(1).

[9] Section 4(2). According to section 4(1), the majority desiring withdrawal of recognition must be accompanied by the grounds on which the request [for withdrawal] is based’.

[10] Section 4(5) and 4(8)-(10).

[11] Section 4(8)(a).

[12] Section 4(7)(b)(i). Whilst the quoted words come from a subsection that deals with the disestablishment of a traditional community following the merger of two communities, there is no reason that the same process could not follow those cases when a traditional community is disestablished without then being reincorporated into a merged community.

[13] Section 4(4)(b), 4(5)(c), 4(6)(b) 4(7)(b).

[14] Cf. section 3(4) and 5(1).

[15] Section 5(1)(v).

[16] Section 5(3).

[17] Section 5(7).

[18] Section 5(4)(b).

[19] Section 6(1)(a).

[20] Section 6(1).

[21] Section 6(2)(a).

[22] Section 6(4)(c)(i)

[23] Section 7(1) and (2).

[24] Section 7(5). I say ‘appears’ because the subsection is ambiguous. It is not clear whether the subsection concerns only cases where there are allegations/evidence that the applicant does not satisfy the formal requirements, or to all applications. I think it is the former because section 7 does not elsewhere refer to the President’s and Premier’s power to deal with these applications.

[25] Section 8(1)(b) and 8(1)(c).

[26] Section 10(8)(a).

[27] For Khoi-San leaders, see section 10(7) read with section 10(8); for Regents, see section 12(6)(a) read with section 12(7).

[28] See section 13(5)(a) and 14(8), for acting and deputy leaders, respectively. Both of these sections appear to be missing an equivalent of section 10(8).

[29] Section 8(2)(d).

[30] Section 8(5).

[31] Section 9(4)(a) and section 11(3)(a).

[32] Section 9(6)(c) and section 11(5)(c). I say ‘appears’ because, like many other sections in the Bill, this subsection is ambiguous.

[33] Section 15.

[34] See Glenister v President of the Republic of South Africa and Others [2011] ZACC 6 (see here).