MEETING OF AMAKHOSI OF THE KINGDOM OF KWAZULU NATAL
ULUNDI: SEPTEMBER 8, 2000
We have had many meetings of the House of Traditional Leaders in which we considered different stages of the ongoing negotiations between traditional leaders and the government on the future of our institution after the forthcoming local government elections. Each of our meetings has been permeated by our awareness of the dramatic nature of the situation confronting us. As we meet once again to consider the status of these negotiations, we are aware that we are moving closer and closer towards the apex of this crisis, which will be the actual election day, without a solution in sight. Actually, the more time goes by, the more options are exhausted and the more doors are closed.
It is with sadness and concern that I must report that the negotiations with the President have thus far yielded very little. As you will remember, after having met with Traditional Leaders on May 16, 2000, the President wrote a letter to Inkosi Mzimela addressed to all traditional leaders indicating that progress in these negotiations should be made by traditional leaders first providing their answer to the Discussion Document towards a White Paper on Traditional Leadership, and gave them a July 30 deadline to come up with a unified and detailed proposal on the way forward.
On July 29, traditional leaders submitted to the President a very detailed proposal on the way forward. Our proposal was a compromised one which described a model of rural local government which has been discussed for many years, and which is familiar to all traditional leaders in this House. It was significant that after many years, traditional leaders from all over South Africa finally saw the wisdom of embracing this compromised position which we put forward as early as the first consultative process held in conjunction with the drafting of the final Constitution on May 13, 1995.
The well-known model combined traditional authorities, which will continue to function at the local level, with municipalities, which are to operate at the regional level. However, we compromised even further on this model by accepting the transformation of traditional authorities into semi-elected structures. To any objective and level-headed analyst of our South African situation, this model and our compromised proposal necessarily appear to be very reasonable, for they maximise the developmental capacity and the accountability of local governance, while merging African traditions with a new democratic dispensation.
This is the best way of giving local government in rural areas the best possible head start, by capitalising on what already exists and the contribution that traditional leaders and authorities can make towards development. It is refreshing that our proposal has finally become the consensus proposal among all traditional leaders, even though it is deeply saddening that it had to take so long for everybody to realise that we have always put forward proposals in the interests of everyone and with no political agenda or parochial perspective.
Against this background, we eagerly awaited the Presidentís response, in the hope that we had reached the point at which a watershed event could turn the tide and redirect the process in a way that it would not crush traditional leadership. However, the Presidentís response was delayed and it was only on August 23, 2000 that his office indicated that he would meet traditional leaders in Pretoria at Union Buildings. On that fateful day, the President saw traditional leaders for about 40 minutes.
My colleagues will report on the meeting more fully because I could not attend due to a previously scheduled public engagement which could not be cancelled. However, the unanimous report of those present indicates that the President was surprised that the meeting had been scheduled on a Cabinet day, which gave him little time to discuss the matter and even to prepare for it. For this reason, traditional leaders asked him to put in writing the proposals he had to make so that they could evaluate them fully. Accordingly, the President wrote to traditional leaders on August 28, setting out the proposals of government.
The Presidentís letter was very disappointing and we will need to analyse it in detail. It was conveyed to all traditional leaders and all other stakeholders, including members of Parliament, Kings, foreign representatives, and the media. It was received and accompanied by an orchestrated media campaign suggesting that the President has made major concessions to traditional leaders. Business Day even carried an editorial criticising the President for the concessions he ostensibly made. Obviously all this clamour was to create the perception of a major breakthrough and encourage the acceptance by traditional leaders of the governmentís proposals, in spite of their lack of substance.
Therefore, traditional leaders felt that they had to come together to analyse objectively and realistically what was being proposed and determine a way forward for traditional leadership. A delegation of traditional leaders from all houses, representatives of the royal Bafokeng Nation and CONTRALESA met on Tuesday, September 5th in Pretoria. Each house delivered a reading of the Presidentís letter which exposed its lack of substance and tangible concessions. The meeting adopted a resolution which we will need to consider carefully within this House and which I will be reading at a later stage of my address.
However, I may anticipate that the meeting realised that the way forward requires holding the President to the promise he made that discussions be held between traditional leaders and himself. We made our proposals and the government replied with its own proposals, and it is now necessary to find the extensive time required to discuss these proposals and tease out the implications, seeing whether a way forward exists to reconcile the existing gap between proposals.
At the meeting held on Tuesday, on behalf of this House I delivered my reading of the Presidentís letter. Because I did so ahead of this meeting today, and given the time pressure under which we operated, I feel it is now necessary for me to restate in this House what I said to traditional leaders, in the hope of receiving your approval. However, let me first read with you the Presidentís letter.
REPUBLIC OF SOUTH AFRICA
28 August 2000
GOVERNMENTíS RESPONSE TO THE SUBMISSION BY TRADITIONAL LEADERS
ON THEIR ROLE, POWERS AND FUNCTIONS
Khosi FP Kutama
Northern Province House of Traditional Leaders
Private Bag X9503
I shall now read to you the comments which I offered to our colleagues on Tuesday in respect of this letter. I stated that 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 it can 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 who 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 which 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 carefully read 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 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 went a long way to seek 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. It would cast the existing structures into 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 for rejecting our proposal seem contradictory. The President pinpoints his rejection of our model as being due 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 overruled, 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 the fact 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 advisors 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, in 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 includes 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 relies heavily on the analysis of the Discussion Document towards a White Paper that our powers and functions of governance 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 by 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 paragraph 3.5 of the letter any differently, which also adds that our continuing existence disenfranchises a section of our population. All of us know well how 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. 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 exist. 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, as 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 further debating 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 intergovernmental relations structures. Obviously, if the standpoint is adopted that traditional leaders have no role in government, the only "appropriate" role they can have within the intergovernmental 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 the our cause, will have the final say. However, while the President in his letter requested the Demarcation Board to visit all Houses of Traditional Leaders and premiers within ten days, on September 4 the Boardís Chairman, Dr Mike Sutcliffe, wrote a letter to traditional leaders giving them a deadline which expires at the end of today to lodge with him any further complaints they may have in respect of the demarcation of rural areas. No mention is made of any intention of visiting the Houses or the Premiers.
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. I was invited to that meeting and was willing to participate, even though I wrote a letter to its convenor, Minister Mufamadi, stating my grave difficulty in attending a meeting aimed at formulating a proposal which I then would need to examine as one of the traditional leaders to whom the proposal was directed. Therefore, I indicated that I would attend the meeting without participating in it, which its cancellation made unnecessary.
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 it 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, and 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 reaction 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 the position to hold those discussions which, in his May 16 letter, the President indicated as a precondition to the actual establishment of municipalities in our areas. Many traditional leaders correctly understood this precondition to mean that elections would not be held in rural areas because one does not see how, once councillors are elected, anyone may have the legal power of preventing their constitution and the establishment of the municipalities which they represent. It is important that, in these last-ditch discussions, traditional leadership must be able to argue our 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.
We know that government commissioned a professional study of this issue, and we understand that the study has been completed but not released, obviously because it confirms what is evident to anyone, that by establishing municipalities, the powers of traditional leaders are going to be swiped away. It is important that 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 and overcome with his leadership the hostility of many officials against traditional leadership, as well as the mind-set which controls the thinking of the State.
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 confrontations which may give rise to violence. In a meeting such as this, 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. During the meeting on Tuesday, the Eastern Cape suggested seeking relief in the Constitutional Court. The advice we received is 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. It is also dangerous to go to the Constitutional Court merely to make a political statement when there is no likelihood of success, because, if we lose, people will think that traditional leaders did not have a case, when in fact our case is not a case in law but, indeed, a case in policy, history, and decency. 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 the final Constitution came into force. We are now feeling the bite of decisions taken and entrenched in the Constitution at that time.
The most important deliberation which emerged from the meeting of last Tuesday, is that of calling for a national Imbizo of all traditional leaders and their subjects in one venue, gathering people from all over the country. It must be a powerful showing of force for our institution. It must be realised that this mobilisation will determine the future of our cause and it is indeed the last ditch defence of our battle. Therefore, we must ensure that we mobilise every energy available to us to guarantee success. The country and the world must see the power we command and the importance of our struggle.
It is also important that we win the public relations operation and we stress that our struggle is not only for our benefit but indeed is about the social and economic development of traditional areas and the success of their local governance. These feelings were expressed in the statement that traditional leaders unanimously adopted during the meeting on Tuesday and have been deferred to this House for deliberation and approval. I wish to read this statement.
"STATEMENT OF TRADITIONAL LEADERS"
Delegations of traditional leaders from the Provincial Houses of Traditional Leaders, the National House of Traditional Leaders, the Royal Bafokeng and CONTRALESA met on this 5th day of September in Pretoria to analyze and deliberate on President Mbekiís written response to the proposals made to him by traditional leaders to solve the imminent clash between the powers and functions of traditional leadership and those of municipalities to be established in rural areas.
Traditional leaders were disappointed by the Presidentís response which rejects their compromise proposals and stands by the intransigent position that municipalities shall replace traditional leadership in respect of the local governance of traditional communities. His response shows that an enormous gap still exists between the understanding of traditional leaders and that of the State in respect of the development of rural areas and the aspirations of rural communities.
Traditional leaders had proposed a well-known rural local government model which combines traditional authorities with municipalities operating at the regional level, while transforming traditional authorities in semi-elected structures. This reasonable model will maximize the developmental capacity and the accountability of local governance, while merging African traditions with the new democratic dispensation.
Traditional leaders have resolved -
Following on this statement, Inkosi Mpiyezintombi B. Mzimela, the Chairman of the National House of Traditional Leaders and our Deputy Chairman wrote the following letter to the President:
Now the ball is in the President's court and we need to wait for his reply. Once again we need to wait, and we hope that this time his response will not be as tardy as it was in respect of his reply to our proposals. However, this time we do not have to wait in idleness. The task ahead is clear. We need to organise the success of the national gathering and mobilise for that purpose. As indicated in the statement we read, we must also solicit the intervention of leaders of high stature who may support our cause so as to put the maximum possible pressure on government to do the right thing that will prevent anything happening that might destabilise the country. As stated at the meeting of amakhosi in Pretoria, we do not want to be confrontational. I now realise that it is only the government which can prevent that happening to the country. It is not us. We have so far done everything to seek ways of settling this matter amicably in the interests of peace and good governance. I still hope even now that better judgement will prevail and that this issue can still be sorted out without us confronting each other.
It is also quite hurting to read some of the words in the President's letter which suggest that traditional leaders did not fight for democracy. When I think of my own forebears on both my father's and my mother's side and the prices they paid even with their lives, I feel a deep hurt. When I think of the forebears of most traditional leaders of the Kingdom of KwaZulu, I can mention many forebears of most of our amaKhosi who fought and some who died for King and country. When I look at our people in other nations of South Africa, I am amazed that such a statement can be made. When I think of such Kings as Maqoma Ngqika in the Eastern Cape and of King Sekhukhuni in the Northern Province, I fail to understand this statement. I know that my role in the liberation struggle is not often recognised but the people of South Africa know what I did at great risk, to fight for the liberation of South Africa. Not even the big campaign of vilification can hide what I did. However, what is important for now is what we do to advance our cause.
This is the most important effort for this dramatic hour and against it the full measure of our nobility, courage, and right to survive shall be meted. I believe, as you all do, that the institution of traditional leadership must survive. We must now prove it by showing that we can mobilise on its behalf. It is significant that, as never before, traditional leaders from all over the country are now united and many of the suspicions and undermining games which characterised our relations in the past, seem to have disappeared under the imminent threat of a common danger.
We need to strengthen our relationship with traditional leaders from other regions who have finally realised that what we have been saying and predicting for so many years was not only correct, but was indeed honest and expressed without any parochial perspective. The forthcoming national gathering is the time for all traditional leaders to close ranks and work together to turn the country around and firmly set it on a better and more successful course towards prosperity and stability in rural areas.
I of course realise that the communities that we lead, our clans, consist of the poorest of the poor. I therefore do not know whether amaKhosi may consider another imbizo in Durban in order to acquaint the people with the situation that we face. It is just the expense of it which I see as an obstacle.
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