MEETING OF TRADITIONAL LEADERS
NATIONAL HOUSE OF TRADITIONAL LEADERS, PRETORIA - SEPTEMBER 5, 2000
Today I speak to my colleagues, traditional leaders, moved by a variety of feelings, all of which are grave and momentous. Like all of you, I have received and attentively scrutinized the letter sent to us by the President of the Republic in response to the various submissions traditional leaders made to him and our unified and detailed proposal dated June 29, 2000. That letter produced in me deep feelings of disappointment, concern and, indeed, surprise. These three different feelings address perhaps three different aspects of the same problem confronting us.
I was surprised because the letter of the President shows insufficient understanding and appreciation of the reality of traditional leadership. I would not have been surprised to receive a letter of such nature from the government of the day before 1994. I know that the President feels differently and I have been reflecting on how can it be possible that such an erroneous perspective imbued his letter. I have come to suspect that in a perverted way, something has gone wrong in our process of liberation. We have achieved liberation by taking over the State apparatus developed by colonialism first and then by apartheid, and have done so without changing the way such State thinks and operates. Obviously, the thinking of the State has become the thinking of the Government. In fact, the letter of the President reflects the attitude that traditional leaders have no original powers and that any function we ever exercised was given to us by the Government of the day. This was the attitude of colonial regimes which considered their State as the only source of any and all powers and they looked upon black people, our communities and us, the traditional leaders, as non-entities who could only be brought to the fore through the recognition and the authority granted by their State.
It seems that an enormous gap still exists between the language spoken by traditional leaders and that spoken by the Government. This would not be concerning if the dialogue of today took place at the beginning of 1993 when negotiations on the interim Constitution moved into the stage of details. At that time it would have been possible to bridge the gap between the two mind-sets which still keep the Government and traditional leaders apart. However, we are now facing this dramatic juncture just a few months away from local government elections establishing municipalities which will exercise most of the powers and functions of traditional leaders. I am very concerned because the time-frame is so restricted that it will be difficult to negotiate long enough for this Government to appreciate the magnitude of the problem and change its mind-set.
Having read carefully the Presidentís letter I was disappointed to find little or no tangible progress in it. The only tangible concession made is the raising of the limit set forth for the participation of traditional leaders in municipal councils from 10% to 20%. This concession does not detract from the fact that all our powers and functions are going to be taken away from us and vested in such municipal councils. Furthermore, the few amongst the traditional leaders who will sit in such municipal councils, will have no power to vote and, I am told, will not even be paid for their participation. Their status will be lower than that of every elected local councillor. Their only power will be that of being heard and attending meetings, which is merely one step above the power of any member of the public.
The letter of the President rejects outright our proposals for a rural local government model which combines elected municipalities at the regional level with the continuation of traditional authorities at the local level. In our proposal we had gone a long way in seeking a compromise, conceding that up to 50% of the traditional councils could be elected. I feel that objectively read, our proposal gave local government in rural areas the best chance to take up and develop, for it would utilize existing structures injecting them with new resources. I would cast the existing structures within a new dispensation effectively organized and directed by municipalities operating at the regional level. However, this reasonable proposal was effectively not even considered as a starting point for further negotiations.
The reasons set out in the Presidentís letter in rejecting our proposal seem contradictory. The President pinpoints his rejection of our model to its alleged incompatibility with the Constitution which, he tells us, was approved after an all-inclusive consultation process. However, he admits that this model has been under consideration in one way or another for a number of years, which is indeed the case, because traditional leaders submitted it to the Constitutional Assembly during the constitution-making process. This fact, in itself, undermines the quality of the consultative process relied on by the President.
The President also fails to consider that traditional leaders appeared before the Constitutional Court to oppose the constitutional text adopted by the Constitutional Assembly in May 1996, rightly claiming that it violated the relevant Constitutional Principle. After they were over-ruled, traditional leaders openly voiced their disagreement with the Court, thereby giving notice that in its relevant portions the Constitution was not acceptable. The Constitution was also not approved by large segments of our population, and indeed neither I nor my Party were present in the Constitutional Assembly when it was finalized. I say these things to underscore that the Constitution is not a holy cow. This was implicitly recognized by the President when he indicated in writing his willingness to amend it to accommodate traditional leaders.
Furthermore, our legal advisers had indicated to us that the rural local government model we proposed could have been accommodated within the parameters of the Constitution and that, at best, minor amendments would be necessary. Nonetheless, at paragraph 3.2 of his letter, the President informs us that henceforth our functions in local government will be performed by local government structures in terms of the Constitution. This statement sheds light on paragraph 2.1 of the letter which contains the illusory statement that traditional leaders may continue to discharge the authority vested in us. In fact, the clever proviso is made that such authority must be in line with the Constitution and the relevant laws, which obviously include the new local government dispensation. Amongst the many disappointing aspects of the Presidentís letter is its feel of being directed to a group of gullible people.
The Presidentís letter falls back heavily on the analysis of the Discussion Document towards a White Paper that our powers and functions of government of our communities are not original but were given to us during the colonial and apartheid eras. This statement is both infuriating and dramatically concerning because it shows that the perspective of the old State has clouded the judgment of our Government to the point of losing track of historical reality. I also wonder how such a statement can be made after we submitted such a detailed and authoritative legal opinion of Prof. W. Olivier which deprives a statement of this nature of any credibility.
It is very saddening that the final argument employed in the Presidentís letter to reject our proposals is the clearly made suggestion that traditional leaders did not fight for democracy and that in the final analysis we stand against it. One cannot read any differently paragraph 3.5 of the letter which also adds that our continuing existence disenfranchises a section of our population. All of us know well how much we fought for democracy and how much we suffered while struggling for liberation in our rural areas with our people, in often abject social conditions and on our own soil, and I know that I do not need to labour this point further.
It is also disappointing that the Presidentís letter effectively negates throughout that a clash between powers of municipalities and those of traditional leadership exists. The Government often promised traditional leaders an analysis of the powers of traditional leadership compared to those of municipalities so as to highlight conflicts and overlaps. We were informed that such a study was commissioned and begun but we never saw its outcome. We produced the authoritative opinion of Professor Olivier which details how this clash not only exists but indeed extends to almost all aspects of traditional leadership to the point that the establishment of municipalities will turn us into ceremonial figures. There was no reply given to such legal opinion and the letter of the President entrenches Government on the notion that it is not necessary to debate such clash of powers, because we should not have whatever powers we now have, because they were allegedly either given to us by colonial or apartheid rule, or they disenfranchise people and are against democracy.
The letter of the President is also disappointing because it effectively destroys any purpose in debating further the Discussion Document towards a White Paper and the White Paper itself. In fact, this letter has pre-empted the very outcome of the White Paper process, showing clearly that such process was intended to be window-dressing for a decision already taken. The fact that traditional leaders do not support such a decision seems irrelevant.
These are the hard core and tangible matters of the Presidentís letter. Against this reality, the Presidentís letter also contains some vague and intangible promises of things to come which, however, cannot even be clearly identified at this time. Paragraph 2.3 speaks of an appropriate role for traditional leaders within the inter-governmental relations structures. Obviously, if the standpoint is adopted that traditional leaders have no role in government, the only "appropriate" role they can have within inter-governmental relations structures, will be that of observers, as is proposed in respect of municipal councils.
Paragraph 2.4 promises that additional resources may be given to the provincial Houses of Traditional Leaders, ignoring that this is a budgetary matter for provinces to decide. Paragraph 2.5 indicates that the Municipal Demarcation Board will re-assess cases where traditional authorities have been split by demarcation lines, but immediately clarifies that the same Board which has thus far professed no sympathy for our cause, will have the final say.
Paragraphs 2.6 and 2.7 call for a further process in which additional competencies could be given to traditional leaders by other departments after the local government elections, so that after having been deprived of all our powers, we may end up receiving some new and fresh ones from legislation. This exercise began a few weeks ago and it was then aborted when a scheduled meeting of Ministers was cancelled without being rescheduled. However, documentation was produced by Government for the meeting, and it shows once again the gap of perspective and understanding to which I referred earlier. For instance, the starting point of the Stateís perspective is that we have no power to administer our land and that the land is not owned by our communities. Against this perspective consideration was given to the possibility of involving traditional leaders in the administration of the land. The same goes in respect of mineral rights where the starting point is that we do not have any.
The gap of initial perspective is likely to be bedeviled further by discussion on every one of the additional responsibilities which the government may consider conferring upon us in the future. I believe that it is somehow necessary to go through this process and engage government in it, showing line function by line function the contribution traditional leaders can make. However, the attitude of government must first change. It would have been a necessary and profitable exercise if this process had begun when we demanded it to begin, which was basically immediately after the 1994 elections. However, the attitude then was that of turning a blind eye to traditional leadership in the hope that we would go away. Policy formulation was developed and fully finalized in respect of any other conceivable aspect of law, society and economy, but not traditional leadership, and in respect of no line function was the potential contribution of traditional leaders considered, in spite of my requests to this end.
The exercise that the President now proposes in paragraphs 2.6 and 2.7 of his letter was not undertaken in the past six years, albeit being the logically necessary starting point of the dialogue between government and traditional leadership. It was not commenced because the attitude of government and its general policy framework, were such that they have regarded traditional leaders as part of the problem and not as part of the solution. We have been regarded as a liability for democracy and governance, not as an asset. Therefore, paragraphs 2.6 and 2.7 of the Presidentís letter can only be appreciated if one believes that such attitude has somehow changed and that in the future things will be different. However, the rest of the Presidentís letter clearly indicates that past bad attitudes have not changed and that, if anything, have been reinforced. Therefore, one is forced to believe that the proposals contained in paragraphs 2.6 and 2.7 of the Presidentís letter are the result of a crisis created because of the local government issue. If and when the crisis goes away, so will the need to deal with these matters which, in all likelihood, will be left in abeyance.
I say these things because obviously our reactions to the Presidentís letter will be dictated by our assessment of what it really contains and of the value of its promises. We need to revert to the other letter that the President wrote to us on May 16, 2000 which set the parameters for the present process of negotiations. In that letter the President committed his government to seeking an agreement with traditional leaders. He further stated that the actual establishment of new municipalities in our areas will not proceed until discussions on our inputs have been held. We sent him our input and we received the answer of the President. We are now in a position to hold those discussions which the President in his May 16 letter indicated as a precondition to the actual establishment of municipalities in our areas. In this respect, the process is clear. It is also clear that in these last-ditch discussions traditional leadership must be able to argue its case point by point and tease out of Government exactly how much it knows and does not know about the clash of powers and functions. These discussions must involve the President at all times, for in the end he is the only one who may re-direct the relevant departments.
However, there is much less clarity in my mind on what position we can take in such discussions. I do not know what traditional leaders should be doing, saying and proposing, not only vis-a-vis the Government but in respect of the entire electoral process. For instance, I do not know whether we should approach such discussion from the standpoint of not participating in elections. I surely know that we need to do anything in our power to avoid confrontation which may give rise to violence. In a meeting such as this one, we need to identify all possible options and assess the pros and cons. We are at a very late stage in this game and our options are now much fewer than they were one year ago, two years ago or seven years ago when it all began in respect of the local government dispensation. The difficulties we are experiencing are caused by a political process as well as by a legal structure. The legal aspects are less important than the policy ones. We need to identify options which may redirect the political process and create a new political will and perspective in respect of traditional leadership.
We have exhausted many options. For instance, in the past days, the suggestion emerged to seek relief in the Constitutional Court. I must speak frankly and state that such option has long been foregone, for the Constitutional Court is the custodian of that Constitution out of which all our problems stem. We have no possibility of redress under this Constitution or in the Constitutional Court. The truth of the matter is that from a legal viewpoint the battle to preserve the role of traditional leadership in the governance of our communities, was lost on the day on which the final Constitution came into force. We are now feeling the bite of decisions taken and entrenched in the Constitution at that time.
I say this because in our deliberations we must accept that whatever stand we take, must address the dramatic features of an eleventh-hour situation. This is indeed the last stand. In the past years you have heard me predicting that we would find ourselves exactly where we now are. Awaiting ahead of us is a future in which traditional leadership will be relegated to ceremonial functions only, and it may have a few scattered powers relating to the application of a few laws. Over time, even these powers will also fade away. This is the future awaiting us and it is up to us to decide whether we can live with it or whether we wish to live with it.
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