THE legislative record of President Jacob Zuma’s government shows his advice to traditional leaders to seize the opportunity of a reopened land-restitution process and consolidate their control over SA’s vast rural areas was more than pre-election rhetoric.
That brief departure from the prepared text of an address to the House of Traditional Leaders in February was the most telling statement the president has made on the land question.
In his advice to chiefs to hire good lawyers and make vast claims on behalf of their people, he confirmed what many rural-based citizens have been saying for years — that the government is out to consolidate chiefly power at the expense of the rights and citizenship of rural-based citizens.
For more than a decade, the government has used the notion of rural SA as the "other", hidden from mainstream urban view, as cover to adopt certain legislation and policies. To further obfuscate, "timeless culture and custom" became a code for "do not bother about these issues, you will not understand them … and they are too sensitive for our people".
However, there is nothing particularly sensitive or difficult to understand about the impact of much of the legislation that has been passed or proposed. Behind the smokescreen of "culture" and "custom" lies a systematic programme for the accumulation of power and wealth.
The key issue here is that the building of traditional leadership as a possibly powerful force undermines the rights of others and relies on laws that cannot pass constitutional muster.
The clamour for formal power to be given to traditional leaders began with the negotiation of our 1996 constitution, which provides in Chapter 12 for recognition of traditional leaders.
Thus, in December 2003, the Traditional Leadership and Governance Framework Act was enacted. It reproduced apartheid spatial design down to the finest details of Bantustan boundaries and ascribed identities. It also entrenched those ascribed identities, based on spatial design and ethnic affiliation — chosen, accidental or imposed — that resulted from the historical dislocation of forced removals and other colonial and apartheid policies.
Section 20 of the Framework Act provides for far-reaching roles for traditional leaders, based on various laws that would be enacted.
They could be given authority over critical areas including economic development, land administration, agriculture and natural resource management, safety and security, health and welfare, the administration of justice and the registration of births, deaths and customary marriages. In effect, the Framework Act provides for a de facto fourth tier of government.
Having established the framework, the next step was the content, and real power and authority given to traditional leaders. The Communal Land Rights Act was introduced in 2004 to give effect to Section 25 (6) of the Bill of Rights, which requires security of tenure for those left vulnerable as a result of apartheid. Despite this stated aim, the act undermined the rights and decision-making of people and entrenched the tenure vulnerability of people who live in areas designated as traditional communities — the former Bantustans.
After relentless protest by rural-based citizens, the act was struck down by the Constitutional Court, which found Parliament did not follow the correct process. While the court did not consider the content of the act, procedural requirements are not merely "technical". Process is as important as content and often determines the outcome.
Public consultation is as much about the substance of democracy as it is about the form of law-making in a constitutional democracy. Four years after the act was struck down, the minister of rural development and land reform has yet to make good on his promise to replace it with a law based on proper consultation.
This means the status quo holds, to the great cost of the 16-million citizens who live in these former Bantustans.
The next stage of this project to empower the chiefs was the introduction of the Traditional Courts Bill in 2008 — ostensibly to eradicate the last remnants of the Bantu Administration Act.
Having stated transformation as its purpose in the preamble, the bill entrenched the very system it sought to change. It proposed wide-ranging powers for traditional leaders, including many they had never had under customary systems, and denied those living in these designated traditional areas the choice whether to opt in or out of this distorted version of customary law.
Following tireless struggle by rural people and those who struggle with them, the Traditional Courts Bill was withdrawn from Parliament earlier this year. It was the first time the African National Congress (ANC) had failed to win a majority of provinces to support a bill it so clearly wanted.
There is no doubt that the Traditional Courts Bill will be reintroduced to Parliament in some form. What remains to be seen is whether the Department of Justice has learnt the hard lessons from the previous attempts, and understands the potential costs of the undertaking.
The long-promised Land Restitution Amendment Act was signed into law in May this year to give those who had missed the first opportunity to lodge claims another five years to do so. This was despite the fact that the R130bn-R179bn estimated cost of this is not available.
The government refused to ringfence outstanding claims and prioritise them. Those who have waited for decades will wait with new claimants.
The act provides for counterclaims, which is likely to result in tension among claimants. While it is critical that real beneficiaries get restitution, those without power or resources are vulnerable to counterclaims, especially by traditional leaders.
It was in anticipation of this extension of the land claims window that Mr Zuma encouraged traditional leaders to seize the opportunity to extend their influence. In that February speech he urged traditional leaders to share legal resources: "I think those who are claiming should find good lawyers to help address this matter…. It is a matter that, in my view, you could put together your resources to look at this law, to look at the claims on behalf of your people, so that no one is left outside."
The notion of land sovereignty for rural citizens clearly escaped Mr Zuma. Apparently it is enough that they can access land through their traditional leaders.
There is a scramble for big land claims that many traditional leaders, including King Zwelithini, AmaRharhabe and others are advancing.
Many of these claims are based on a history going back far beyond 1913, which remains the official cutoff date for restitution. So far the government has not commented on this. It has not said "these claims are outside the scope of the constitution".
What has emboldened these claims is the creation of a system that enables traditional leaders to have unfettered power over land, minerals and other resources. Already, there is mounting evidence of many communities and areas where this is happening.
These laws shoring up powers for traditional leaders are also about consolidating a powerful triumvirate that is emerging in SA : elite traditional leaders, the state and multinational companies in the extractive industries. T his stark reality has shaped the government’s approach for more than a decade.
The recent Land Tenure Summit in Boksburg confirmed again who is the government’s key constituency in the debate about communal tenure, security of tenure for farm workers and commercial farming. It is clear that it is not the poorest of the poor.
If this package of laws was to pass through Parliament, it would formalise and entrench everything this government is supposed to reject. Perhaps it cannot free its imagination from the colonial logic, even if it tries; perhaps there are much deeper issues at play: alliances creating a powerful force upon which the government, and especially the ANC, can rely.
Whatever the reasons, this does not augur well for common citizenship in SA. It is a mind-blowing departure from the approach of one nation, one law.
There is little doubt the land claims expected from chiefs and kings will be prioritised and negotiated among the elite. That will exclude the working class and rural poor, whose constituency the ANC takes every opportunity to remind us is closest to them.
The question must be whether all these laws and actions pass constitutional muster. And the simple answer must be: No.
• Gasa, a researcher and analyst on gender, politics and cultural issues, is a research associate at the Centre for Law and Society in the University of Cape Town’s law faculty.