Zulu King Goodwill Zwelithini at the annual harvest celebration.
He has been accused of making anti-gay statements.
(Copyright © – Office of the Premier, KZN)

Activist Melanie Judge writes about the alarming implications of the pending Traditional Courts Bill for LGBT South Africans:

The Traditional Courts Bill that is presently being debated in provincial public hearings spells danger for our democracy, and particularly for the exercise of gender and sexual rights in rural areas. The Bill, which establishes a separate legal system for people living in the former Bantustans, will undermine the advances made by women and gays and lesbians in post-apartheid South Africa.

In their claim on the monopoly to determine what constitutes ‘culture’ and ‘tradition’, traditional leaders have historically resisted equality rights on the basis of sexuality and gender.

In 2006 when the Civil Union Act (which enables same-sex couples to marry) was before parliament, the Congress of Traditional Leaders of South Africa (Contralesa) submitted that “the institution of traditional leadership is the sole and authentic voice of the overwhelming majority of the people of South Africa living in traditional communities… [and that] same-sex marriage is against nature, culture (all types of culture), religion and common sense, let alone decency”.

In 2012 in its submission to the Constitutional Review Committee of parliament, the National House of Traditional Leaders proposed a constitutional amendment to remove sexual orientation as a ground for non-discrimination from the Bill of Rights. This is in direct contradiction to the new-found leadership South Africa is displaying internationally on the advancement of sexual orientation and gender identity rights.

Traditional leaders perpetuate the myth that homosexuality is “unAfrican”. This entrenches forms of exclusion that keep certain people out of ‘culture’ and that stigmatise and vilify non-conforming sexualities. Gay and lesbian South Africans however have won the rights to marry and to formal equality in the Constitution and in law. Are these rights likely to be upheld and advanced by traditional courts? All indicators suggest not.

The Eastern Cape LGBTI organisation, which has a substantial number of lesbian members who live in the former Transkei, made a submission earlier this year to the National Council of Provinces emphasing the particular threat the Bill poses for lesbian women. The organisation stressed that in many localities women may not approach the court, and have to be represented by a man. The submission states that: “For a lesbian, this presents a particular problem. Not only is she denied direct access to justice, but is also subject to the provisions of customary law which are not favourable to same-sex relationships”. Similarly, the Lesbian and Gay Equality Project in their submission note that at rural lesbians are punished unfairly, for being lesbian, at chief’s homesteads and tribal offices which are normally the seats of customary courts.

“The Traditional Courts Bill will reinforce traditional leaders’ attempts to erase sexual difference and to freeze-frame African culture…”

The Bill centralises executive, administrative and judicial powers in one person, namely the chief or his nominee. Traditional authorities’ outright rejection of same-sex sexualities, the absence of accountability mechanisms for the exercise of their power, and the lack of obligation on the part of customary law to uphold sexual and gender rights means that prejudiced treatment of gays and lesbians will continue under this Bill. Also, the Bill does not allow for a person to opt out of the customary law system. Should the Bill become law, those gays and lesbians that can are likely to leave rural areas for fear of reprisals through the traditional court system as their sexualities could effectively become re-criminalised. The ones who can’t, will be exposed to human rights abuses.

Marc Epprecht, in his book Heterosexual Africa?, contends that colonialism produced a “falsely constrained notion of African sexuality” and that the notion of a homogenous, unchanging African sexuality is entirely out of sync with lived experiences. It is a fact that same-sex sexual practices have a long and varied history in African cultures and that whilst such expressions of sexual and gender diversity may not be labelled “homosexual” they have always existed and are well documented.

In some rural areas more democratic structures and practices are starting to emerge within customary systems. These are a result of local democratic contestations, particularly by women who are increasingly making a claim on equality rights. These shifts towards more equitable systems of community and culture put traditionalists and their versions of culture under pressure. Instead of building on these shifts in a way that strengthen customary law’s potential to deepen democracy and justice, the Bill, instead, calcifies the culture of the Chiefs.

Against this backdrop, individuals who transgress prescribed gender and sexual codes are likely to be singled out for punishment or policing, through bogus charges put to the traditional courts – an institution that will have unfettered power to banish and sanction ‘cultural transgressors’. In this way, culture can be applied in order to exclude those who defy certain interests. By way of example, Nomvulo Ludonga of Candu village was accused and punished for “violating a village rule”. She reported a burglary to the police before informing the headman and thereby ‘offended’ him. Her second offence was to encourage women to disrespect their husbands and elders, which, according to a local women’s support group, was really because she educates other women on their rights and counsels victims of violence.

Culture is neither fixed nor immutable. Rather, it is generative and can and should be determined by the diversity of individuals who live it, and who shape its meaning and substance over time. Retrogressive conceptions of culture that undermine constitutional rights are under challenge. A case in point is the recent public opposition to Mandla Mandela’s position on ‘ukuthwala’ by by the Rural Women’s Movement and Tshwaranang on the grounds that this ‘cultural practice’ is in direct violation of women’s rights to sexual autonomy and bodily integrity.

The Traditional Courts Bill will reinforce traditional leaders’ attempts to erase sexual difference and to freeze-frame African culture – as it was practised in South Africa’s authoritarian, patriarchal colonial past. If passed into law, it will create an instrument through which the control and dominance of traditional leaders and institutions over matters of sexuality and gender can be deployed.

Living customary law needs to be aligned with the Constitution and with the new realities of a plural, democratic society. We need a public consultation process on this Bill with safe spaces created for marginalised groups to be able to speak out about the prejudices they experience at the hands of the so-called custodians of culture. We also need a national discussion on how customary practices can enhance, rather than hinder, equality and human rights, in order to draft a new bill that serves the people and not the chiefs.

For its imminent assault on sexual and gender rights, and for many other reasons, the Traditional Courts Bill must be stopped.

• For more on the Traditional Courts Bill click here.

• For a brief documentary on the Bill see: Traditional Courts Bill: A Silent Coup? A documentary by the Law, Race and Gender Research Unit, UCT, 2012 (condensed version).

This article was first published in The Herald on 18 April 2012 and also appeared on Melanie Judge’s blog at

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