Currently under consideration is a new piece of legislation called the Traditional Courts Bill. This Bill proposes the introduction of traditional courts, presided over by local chiefs or their delegated representatives. They will have the power to interpret the law as they see fit, hear evidence, call witnesses, and hand down judgment. They will effectively be law-maker, policeman, prosecutor, jury and judge at the same time.

The bill gives traditional leaders the power to sentence people to forced labour, cancel their land rights, expel them from the community, demand tribal levies, settle disputes and decide on any number of civil claims. And since traditional law is not adequately codified anywhere, an appeal process will be near impossible. In any case, which poverty-stricken rural person, particularly women and LGBTI persons, convicted under traditional law will have the courage or the means to lodge an appeal, if their future lies at the mercy of the Chief who handed down their sentence?

Academics, opposition parties and interest groups have criticised the bill saying it contains discriminatory provisions. However, the ruling ANC and traditional leaders have pledged their support.

In the Eastern Cape, gays and lesbians expressed horror and fury over the possibility that the bill grants powers of discrimination against them.

The 450-member ECLGBTI said 99.9% of their members were black and 350 lived in rural areas. Deputy chairwoman Gail Kirchmann said it would be outrageous for homophobic traditional leaders to conduct legal proceedings against people of different sexual orientations.

“If this bill is passed, gay and lesbian people living in the former homelands will be denied access to real justice,” she said. “In terms of this bill, no one living in a traditional council area has the right to approach a magistrate’s court.”

ECLGBTI has branches in Lusikisiki, Mthatha, Mbhashe, Mdantsane, East London and Dimbaza.

“…if passed in its current form, it will condemn millions of people, particularly women and LGBTI people, to permanent subjugation in the equivalent of feudal fiefdoms.”

“There are thousands of gay and lesbian people living in rural villages in the Eastern Cape. The bill makes a mockery of their hard-won constitutional rights.”

Congress of Traditional Leaders of South Africa (Contralesa) provincial leader, Xolile Ndevu, said that gays and lesbians need not fear traditional courts since traditional leaders wanted nothing to do with homosexuality.

Ndevu said chiefs would never try a matter relating to homosexuality because to them homosexuality did not exist. This is an interesting statement as the House of Traditional Leaders has made a proposal to scrap the sexual orientation protection clause from the bill of rights contained in Chapter 2, section 9 (3) of the Constitution.

Why would they need to scrap something that they say “doesn’t exist”? He then repeated his organisation’s rejection of homosexuality saying: “This sexual orientation is uncustomary. It is un-African, ungodly and non-existent. We apologise if this view makes people misjudge us as not operating in accordance with the Constitution. But it should be understood we are custodians of customs and culture.”

ECLGBTI provincial chairperson Zamanguni Mzimela said: “We need to put a stop to this and do whatever it takes to educate our leaders on human rights. They need to learn a lot about constitutional issues.

“It is sad that leaders who want to be respected say such things, especially at this time when they are so desperate to be trusted and seen as good leaders of society,” Mzimela added. She said Ndevu’s statements smacked of intolerance and were disrespectful of progressive views previously expressed by Contralesa leaders. “I am disappointed, and yet happy that this has proved our point in saying no to the Traditional Leaders’ Bill. This is taking us back to an old South Africa with apartheid.”

Provisions of the bill would, in effect, bring back the Bantustan system of tribal rule. The apartheid government used South Africa’s traditional tribal institutions to entrench a philosophy of separateness. Hendrik Verwoerd famously asserted that they should take the system so far that no one in the future would ever be able to reverse it.

I cannot think that the bill is constitutional, but if it is passed in its current form, it will condemn millions of people, particularly women and LGBTI people, to permanent subjugation in the equivalent of feudal fiefdoms. It will not only decimate their rights, but destroy prospects of development and progress.

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