How the Communal Land Rights Bill undermines democracy

Aninka Claassens

The Communal Land Rights Bill is fundamentally flawed. It will undermine rather than strengthen the land rights of the 15 million people who live in the former Bantustans.

The most controversial aspect of the bill is that it imposes Traditional Councils as the administrators of land rights in communal areas. Traditional councils made their first appearance in the bill in October 2003. Previous versions of the bill had provided for elected land administration committees, and limited the ex-officio participation of traditional leaders in land administration to 25 percent.

The public hearings on the bill were held only 3 weeks after this controversial new provision made its first appearance. Despite the inadequate notice and lack of prior consultation, there was an outcry against the bill. Numerous rural community groups and rural NGOs, the Human Rights Commission, the Commission for Gender Equality, the Legal Resources Centre, the South African Council of Churches, COSATU, the National Land Committee, and the Programme for Land and Agrarian Studies all called for the bill to be withdrawn The only support it received was from traditional leaders and their organisations.

There are some areas where traditional leaders enjoy popular support. There are also many areas where their authority is hotly contested. In some areas, other structures have effectively ousted them. The Bill imposes traditional councils across the board – irrespective of whether they enjoy support. Control over land will give traditional leaders a source of entrenched power, which will guarantee them a perpetual place in the political landscape irrespective of what people on the ground want.

At the public hearings, rural communities strenuously opposed the bill because it will entrench the widespread problem of traditional leaders selling communal land for profit. They also raised concerns about human rights abuses by traditional leaders. They said they did not want their land rights to be subject to their status as tribal subjects: they want the same independent and equal land rights as other South Africans.

Rural women’s groups said that the bill would entrench patriarchal power relations and bolster the status of customary law, which currently discriminates against women. They gave examples of traditional leaders refusing to allocate land to women, of widows being thrown out of their homes on the death of their husbands, and of divorced women being chased away with nothing. They argued passionately that the bill would reverse hard won victories by rural women against old structures and old ways.

In response to the strong women’s lobby against the bill, amendments were made to assert equal land rights for women. However there is a problem enforcing such provisions. Very few rural women are able to take cases to court. Existing equality provisions have had very limited real impact on the lives of rural women.

The thing that does impact directly on rural women’s daily lives is power relations - not just in the sense of power over land (and therefore over the lives of the people who live on the land), but also power in terms of a message about whose side the government is on. That message sets the parameters for local power relations. The most passionate inputs by women at the hearings were that the bill heralds the government’s intention to betray them and support their oppressors instead.

Are all traditional leaders oppressors of women and human rights? No. Is oppression of women an intrinsic feature of customary law? No. Examples exist of both traditional institutions and customary law adapting to accommodate and respect the rights of women. Is it better to “develop” customary law, or simply replace it with (Western) common law? We are an African country, and it surely must be better to develop and adapt our indigenous laws and values, than simply to replace them with Western imports.

Many of the people who oppose the bill also believe this. They are in favour of indigenous land rights. They want to build, not destroy, indigenous culture and cultural institutions.

However, far from enhancing the legitimacy of these institutions, the bill would be their death knell. Like apartheid law, it cuts the nexus that keeps traditional leaders responsive to their “subjects”. Instead it bolsters them with state power. Power over land provides power over the lives of the people who live on the land. Control over land administration provides traditional leaders with a guaranteed power and resource base, regardless of whether their “subjects” support them or not. Some traditional leaders will no doubt resist the temptation to abuse this power, but those who do succumb are there for life.

There is a proverb in most South African languages which says: Inkosi yinkosi ngabantu. An inkosi’s power derives from the support of his or her people. This is at the heart of the legitimacy of indigenous institutions. The bill subverts it. Traditional leaders will derive their power not from the freely given support of their people, but from their control over people’s land.

Why is it necessary for the law to impose these structures, if they already enjoy support? If the government is confident that rural people would choose Traditional Councils to administer their land rights, why not put this to the test and provide freedom of choice?

The Communal Land Rights Bill is not just about land rights. It is about whether 15 million people are primarily South African citizens, or tribal subjects. It is also about whether political parties care about rural people and rural poverty, except as fodder for pre-election deals amongst themselves.

Aninka Claassens works as a consultant in the land sector