If you haven't yet seen the trailer for ‘Lincoln,' Steven Spielberg's biopic of America's 16th President which has been nominated for 12 Academy Awards, then do yourself a favour and take a look here.
Abraham Lincoln earned the title of ‘The Great Emancipator' for his courageous waging of the American Civil War and the political skill with which he pushed Congress to enact the Thirteenth Amendment, thereby outlawing slavery in the United States. For a brief period in the 1990's South Africa appeared to be gripped by a similar sense of destiny as President Mandela triumphantly signed our Constitution into law in Sharpeville.
And so for many observers it has come as quite a shock to learn that the ANC regime has used colonial and Apartheid-era statutes as templates for its own form of ‘Sharia Law' and is apparently intent on condemning tens of millions of citizens to a crude half-existence in which their most basic civil liberties are denied.
Importantly, these issues are not restricted to provinces with traditional, rural regions such as the Eastern Cape and KwaZulu Natal. As the landmark Bhe v Magistrate of Khayelitsha decision demonstrated, the most insidious effects of African Customary Law often play out in the urban areas of the Western Cape and Gauteng.
So what can DA-run provinces do about this?
Quite a lot, actually. The provincial sphere has concurrent legislative competence over a number of functions of government, including:
Cultural matters;
Indigenous law and customary law, subject to Chapter 12 of the Constitution;
Traditional leadership, subject to Chapter 12 of the Constitution; and
Urban and rural development.
Furthermore, the provinces have exclusive legislative power over ‘provincial cultural matters.'
Should competing provincial legislation be enacted in DA-run provinces (such as the Western Cape or perhaps Gauteng), conflict would inevitably arise between national and provincial laws. The Constitutional Court would then be called upon to resolve the conflict in terms of the ten overrides contained in section 146 of the Constitution. I hope to explain in a later post why, in a country as culturally diverse as South Africa, provincial legislation should stand an excellent chance of prevailing over the national law with which it is in conflict.
Land, Courts and Governance
Opposition to national legislation aside, what laws should DA legislators strive to enact in provinces where they find themselves in the majority? The good news is that in May 2012 Shadow Deputy Minister of Justice and Constitutional Development Debbie Schafer released this succinct overview of the principles which guide the party's approach to African Customary Law.
In my opinion, provincial reform should consist of three main components:
Firstly, we need to design a Gauteng/Western Cape Traditional Governance Bill which conflicts with the national Traditional Leadership and Governance Framework Act. The TLGFA concentrates inordinate power in the hands of ‘senior traditional leaders' and acts as the fulcrum underpinning the Communal Land Rights Act and Traditional Courts Bill.
Let me be clear: I am not proposing that ANC-run state regulation of culture should be replaced by DA-run state regulation of culture. Rather, DA provinces should deregulate the recognition of traditional leaders entirely and allow communities to generate cultural leadership of their own accord and according to custom.
Secondly, a Gauteng/Western Cape Traditional Land Rights Bill should aim to displace the national Communal Land Rights Act (which was struck down on procedural grounds in Tongoane). Simply allowing individuals to own the land upon which they live would amount to the most sweeping form of ‘black economic empowerment' in the country's history.
Finally, a Gauteng/Western Cape Traditional Courts Bill should conflict with the national Traditional Courts Bill. A consensus-based system of civil dispute resolution should be designed which incorporates clear ‘opt-out' provisions and other principles of administrative justice.
Just one piece of a larger puzzle
What many people don't realise is that far from being an intellectual curiosity at the periphery of public affairs, African Customary Law actually sits at the heart of South Africa's present malaise. The principles which it represents are the prime cause of rural underdevelopment and any post-ANC government should locate progressive reform of this area of law within a broader program of action.
Two reforms are perhaps the most urgent. Firstly, a streamlined and online system of property transfer needs to be urgently established (preferably using mobile phones as the means of buying and selling property). Secondly, cumbersome state housing programs should be replaced with a system of tenant-based rental housing vouchers which allows beneficiaries greater mobility and choice whilst encouraging property owners to upgrade and maintain their properties.
The end result would be the economic ‘emancipation' of millions of people living within the boundaries of DA-run provinces. Regardless of the ultimate fate of national legislation, communities would be assured that they will be able to generate their own, independent systems of governance and leadership in consonance with ancient traditions. Women would be able to use property to start farms and businesses and leverage their way out of poverty. People who are accused of crimes would once again enjoy the unequivocal right to a fair trial before a qualified and independent judge.
Ultimately, provincial reform of African Customary Law will allow the light of liberty to shine into some of the bleakest recesses of our country. If ever there were an opportunity for the DA to implement radical, original ideas that vividly dispel the perception that it stands only for the interests of the suburban and metropolitan elites, then this is surely it.
For hundreds of years, black South Africans have seen their cultures denigrated firstly in the service of British Imperialism, then Afrikaner Nationalism and now African Nationalism. People have been treated as the pawns of dictators.
South Africa's liberals can - and must - offer something so much better.
This article first appeared on http://policyxchange.wordpress.com/
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