AbaThembu king Buyelekhaya Dalindyebo. Picture: REUTERS/SUMAYA HISHAM
AbaThembu king Buyelekhaya Dalindyebo. Picture: REUTERS/SUMAYA HISHAM

THE incarceration of AbaThembu king Buyelekhaya Dalindyebo following his conviction on charges of assault, kidnapping and arson has opened up a discussion about a mooted conflict between the Constitution and customary law. It has been eye-opening.

Dalindyebo appealed all the way to the Constitutional Court, and lost. All three courts that heard the matter were scathing in their criticism of his behaviour and attitude towards his victims. Outside court, he repeatedly questioned the authority of the courts to hold him accountable.

Apart from the Congress of Traditional Leaders of SA, there are many who believe the Constitution is a white, Western instrument and should not apply to royalty. But this complaint is usually not accompanied by any precise proposal on how to hold criminally violent monarchs to account. If anything, it is suggested that they may be above accountability altogether, at least the type that would satisfy commoners who have been hurt or killed.

In a country shaped by the victimhood of colonialism and apartheid, this is a very attractive narrative. It is particularly so because it is more about what people reject than what would actually work in practice, or what it means to the rights South Africans have come to take for granted. For instance, I am not certain how many realise that it amounts to a wholesale rejection of the Constitution, because it challenges the very first tenet of the Bill of Rights, the right to equality before the law. Our Constitution is derived from the Bill of Rights.

When it is suggested that the criminal and civil justice system to which everyone is subject may not apply to a certain class of individuals, we can no longer claim to have a system in which all are equal before the law. While they might argue that an alternative system could also ensure accountability, this equality cannot be guaranteed if the one is not a mirror image of the other. One may, for example, include the death penalty (one of Dalindyebo’s victims died), while our Constitution does not allow such punishment.

The Bill of Rights also prohibits cruel and unusual punishment, precisely the kind of violent torture to which Dalindyebo’s victims were subjected. It asserts property rights, also derived from the Bill of Rights. When we allow a system in which the homes of people may be torched in a dispute over stock grazing, as happened in the Dalindyebo matter, this right becomes meaningless too.

At the heart of the discussion should be whether there is now a proposal that we should do away with the Bill of Rights and, therefore, the very foundation of our Constitution. We have a country in which people of the same gender are able to freely fall in love and marry.

This is a right many traditionalists and religious fundamentalists reject unequivocally. It is also out of this rejection that untold violence has been visited upon those who do not fit society’s varied and a preferred version of what constitutes "normality".

There are other problems attached to the traditionalist narrative. What happens when two people who do not subscribe to the same traditions are involved in a dispute, for instance? Which one is supposed to prevail, in particular where they live in an urban area that does not fall under any traditional structure’s jurisdiction? Suggesting that SA be fragmented into countless enclaves of traditional rule that share no consistent system of law is dangerous and shortsighted. It amounts to a free licence for the rights of individuals to be violated. It would not work.

At the heart of this proposition is panic because things are falling apart. People in positions of authority and trust who should never be associated with certain behaviours are all too often accused of the crimes they are supposed to prevent. Instead of making effective the system of law we have chosen, some South Africans have taken to challenging the validity of the system, to avoid the inconvenience of enforcing accountability.

The tendency to blame the Constitution for problems we lack the will or competence to resolve is not new. There is a school of thought that the same Constitution is the reason society has become "degenerate". Blame is laid at the door of "deviants who have been allowed to run amok, such as gay people".

These assertions are symptomatic of fragile societies in which a fear of the edifice collapsing results in some propagating the subversion of instruments of accountability.

The protestations of Dalindyebo’s supporters should be seen in their proper context, and that is the continuation of a political culture in which it seems easier to dismantle rules and institutions than to hold the powerful to account. We should instead be celebrating the tenacity of the police and prosecutors who delivered justice against all odds. They showed that our system of law can pass a critical fundamental test, which is to provide justice to the weakest when the strongest are the perpetrators.

It is sophistry of the worst kind to propose that the restoration of African traditions must be accompanied by a culture of violent impunity by those who claim royal blood. It is precisely because the king elected to behave like a violent criminal that he must rightly be condemned as one.