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From 'African Renaissance' to Re-Empowering ChiefsAuthor(s): Lionel CliffeSource: Review of African Political Economy, Vol. 31, No. 100, Two Cheers? South AfricanDemocracy's First Decade (Jun., 2004), pp. 354-356Published by: Taylor & Francis, Ltd.Stable URL: http://www.jstor.org/stable/4006898 .

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354 Review of African Political Economy

one but themselves to be blame if they were to undermine the image and integ- rity of the entire institution of traditional leadership.

Conclusion

In spite of having collaborated with past repressive regimes, the institution of traditional leadership is still relevant to most South Africans, especially those who live in rural areas. What is needed is for the institution to come to terms with democracy. It is therefore imperative that traditional leaders:

* should not participate actively in politics;

* should focus principally on pre- serving the customs of their respec- tive communities;

* must make efforts to transcend tribal/ethnic barriers and contrib- ute to nation building;

* should make strides to promote the status of women;

* should continue to play an advi- sory role via the national and pro- vincial houses of traditional leaders;

* should be restricted to an advisory and developmental role at local government level.

Bibliographic Note

Bennett, R W (1998), The Constitutional Base of Traditional Rulers in South Africa, in F M d'Engelbranner-Kolff, M 0 Hinz & J L Sindano (eds.), Traditional Authority and Democracy in Southern Africa, Windhoek: New Namibian Books.

DPLG (Department of Provincial and Local Government) (2000), Draft Discussion Document Towards a White Paper on Traditional Leadership and Institutions, South Africa; (2002), Draft White Paper on Traditional Leadership and Governance; (2003), Traditional Leadership and Governance Framework Bill.

Hendricks, F & L Ntsebeza (1999), 'Chiefs and Rural Local Government in Post-Apartheid South Africa', African Journal of Political Science 4(1).

Keulder, C (1998), Traditional Leaders and Rural Development, in F M D'Engelbronner-Kolff, M O Hinz, J L Sindano (eds.), Traditional Authority and Democracy in Southern Africa, Windhoek: New Namibian Books.

Naudascher, K & N Kgatlhanye (1997), Report of the Regional Conference on Traditional Leadership, South Africa. Friedrich Ebert Stiftung.

Ndebele, N (1972), Black Development, in B S Biko (ed.), Black Viewpoint. Durban: Spro-cas Black Community Programmes.

Nwomonoh, J N (1994), The Role of Traditional Leadership in Political Development: The Nigerian Case, in V U James (ed.), Environmental and Economic Dilemmas of Developing Countries: Africa in the Twenty-First Century. London: Westport Connecticut.

Skweyiya, Z S (1993), Chieftancy, the Ethnic Question and the Democratisation Process in South Africa, Occasional Paper Series, Bellville: Community Law Centre, University of the Westem Cape.

From 'African Renaissance' to Re-empowering Chiefs

Lionel Cliffe

Two new Acts of Parliament just before the elections are likely to have decisive effects in bolstering the position and status of chiefs and relate directly to two articles in this Issue. Mashele's Brief- ing on Traditional Leadership and the Ruth Hall's discussion on land tenure / land reform were both written before these new laws took effect. It is also worth asking why South Africa is the latest to follow the seemingly continent- wide trend of reinforcing the waning power of chiefs.

The Traditional Leadership and Govern- ance Framework Act (TLGFA) does clarify the confused situation of the role, status and powers of chiefs to which Mashele

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From 'African Renaissance' to Re-enipowering Chiefs 355

refers. But in the opposite direction from his democratic proposals, which urged they retain a ceremonial role but be limited to an advisory position on legis- lative, political and development issues. Instead, the TLGFA contains a 'transi- tional arrangement' which deems exist- ing 'tribal authorities' (created by the repressive Bantu Authorities Act of 1951) to be 'traditional councils'. Tribal au- thorities are given four years in which to include 30% women, and 25% elected members; the bill provides no sanctions whatsoever if they fail to do so.

Tribal authorities were apartheid crea- tions designed to bolster that system. They sparked rural rebellions and mass arrests throughout South Africa. The TLGFB gives them perpetual life. The Communal Land Rights Act (CLRA) goes on to give them unprecedented powers over communal land that sur- pass any that they previously enjoyed.

Hall's article states how the government have had years of debating and drafting of proposed bills and how the latest version under discussion in 2003 did not go the whole way to individual, alien- ated property rights but combined a process of privatisation under state and community control. It also allowed for a category of 'common' land, which would belong to 'communities'. The version of the bill gazetted on 3 October 2003 did not contain the shock provision about the powers of traditional leaders. This was added at the eleventh hour later that month in a new clause (Sec 22.2) that gives land allocation, land administra- tion and ownership powers and func- tions to the 'traditional councils' created by the TLGFB, as the bodies empowered to act on behalf of the 'communities'. So the Bill went through parliament with little meaningful public debate on funda- mental questions: the status of the land rights of rural people and the role of chiefs in their administration. A state- ment issued at that time by the National Land Committee and the Programme for

Land and Agrarian Studies identified the following problems with chiefs in communal areas, especially in their past powers in relation to land:

Women's insecure land rights: in terms of customary law, only men are allocated land. Women's access to land is via their relationships to men, and often they lose their homes on divorce, or when their husbands die. The act does not require equal land allocation processes for women.

The illegal practice of traditional leaders charging money for land allo- cations: This burgeoning practice needs urgent investigation and correc- tive action, but the land allocation powers granted to 'traditional coun- cils' will probably see it reinforced.

Land is the key source of power for traditional leaders: Once chiefs con- trol the land, people can no longer choose whether to support them or not, because their land rights may be jeopardised.

Conflicts between chiefs and local government often delay development. The act entrenches the problem by giving traditional councils formal land ownership functions, whilst the pri- mary responsibility for development rests with a different institution. In some areas chiefs enjoy support and co-operate with local government. But the act gives people on the ground no chance of protection in areas where this is not the case.

The statement goes on to argue that the CLRA is 'draconian throughout':

The Bill gives people absolutely no choice about the nature and content of their land rights, or the body responsible for land administration. Instead it gives extraordinary powers and unlimited dis- cretion to the Minister of Land Affairs to decide about land rights in communal

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356 Review of African Political Economy

areas. Most communal land is currently owned by the state. The Bill provides that the Minister of Land Affairs will transfer title of the land to 'communities', while at the same time vesting 'new order rights' in the individuals who live on the land. The transferred land will be administered by land administration committees, which must be traditional councils where these exist.

When transferring title the Minister will decide the boundaries and extent of the land to be transferred. She/he will de- cide whether to transfer it in one piece, or to divide it up and transfer it in smaller pieces. She/he may decide to transfer some to the 'community' and individual- ise some, or to 'reserve' some to the state, or to give portions to the municipality. She/he also decides what 'new order rights' will be created and in whom they will vest. The people whose land rights are at issue are neither consulted, nor is their consent required, in relation to these decisions. Since the Bill does not limit the Minister's discretion in any way, it will be very difficult for people to legally challenge her/his decisions.

The version of the CLRB that was gazetted in August 2002, although flawed in many respects, did provide for some consultation with rights holders before the nature of their land rights was determined. It also required community consent prior to land transfers, and set and required human rights standards for land administration.

The land lobbyists' statement then poses the question: why the late change of mind? Why rely on the chiefs? Why so draconian?

The reason, we believe, is that govern- ment has come to understand that it cannot afford community participation within the land transfer paradigm. Land adminis- tration by chiefs is the cheapest option by far. Many rural people see themselves first and foremost as South African citi-

zens, entitled to independent land rights, not as tribal 'subjects'. Many people would oppose land administration by tribal authorities. Furthermore, transfer- ring title would spark intractable bound- ary disputes if those affected had any say in the matter -between communities, but also within 'communities'. Rural com- munities consulted about the Bill have warned that transfer of title would re- ignite ethnic differences and cement his- torical divisions.

The new law ring-fences and further isolates communal areas as islands of poverty. It is a draconian measure, with- out provision for community consulta- tion and meaningful participation in decision-making.

A range of rural communities, human rights organisations and rural non-gov- ernmental organisations have begun pre- paring a constitutional challenge both to the procedure followed and the content of the bill. They say:

It is a sad day that it has come to this. Issues of rural land rights should be decided and resolved through open and thorough political debate, not through the courts.

Ultimately one final hope lies in the fact that the legislation, like many land ten- ure laws in Africa, will prove un- implementable; people in communities will follow their own practices. But therein lies further insecurity, especially for those with the most tenuous access to land - the problem the law was sup- posed to resolve.

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