Draft traditional laws reimpose colonial logic

The liberal democracy set up after apartheid is reverting to “tribalising” the rural poor in the form of two bills waiting to be made law.

Draft laws currently before the president closely resemble previous versions of colonial and apartheid laws that locked African people into “tribal” reserves, under the authority of despotic forms of rule legitimated in the name of “tradition”. This was a colonial perversion of precolonial forms of politics that sought to encase African people in fixed and authoritarian ideas of “tradition”.

Scholars such as Paul Landau have explored the history of popular politics in precolonial times and shown that dynamism, rebellion and flight were always present. Strangers were accommodated, people frequently moved from one polity to another and identity was malleable. Landau shows, decisively, that the idea of the “tribe” was a colonial imposition.

In significant respects, the trajectory of the South African postcolonial era has reinscribed colonial ideas of “traditional authority”, with the result that for millions of people we remain a neocolony. Warnings from scholars such as the Ugandan intellectual, Mahmood Mamdani, and opposition from grassroots activists, have been ignored.

Popular mobilisation from below defeated apartheid. In trade unions and in community struggles, aspirations for radical or participatory democracy became a powerful ideal. But now even the liberal democracy set up after apartheid is being subsumed by the cold grasp of old forms of colonial oppression in the service of new forms of accumulation.

Roughly 18 million people will be directly affected if the Traditional and Khoi-San Bill and Traditional Courts Bill are signed into law. Already around a third of South Africa’s people live in communal lands that are governed on a different basis to the rest of the country. The legacy of apartheid prime minister Hendrik Verwoerd’s Bantustans – territories set aside for African people under a racially specific form of governance – continues to shape the everyday lives, often all too precarious, of these people.


The idea of “homelands” dates back to colonial rule that dispossessed the African majority from the bulk of its ancestral land and then locked it into “tribal” reserves. After the wars of colonial conquest, there was a shift in policy from direct to indirect rule.

In his short but incisive book Define and Rule, which began its life as the Du Bois memorial lectures, Mamdani maps the history of what he refers to as “a new form of colonial governmentality born in the aftermath of the mid-nineteenth century crisis of colonialism”.

As Africans were defeated and dispossessed, common lands were turned into private property and customary tenure was codified in a way that fundamentally changed precolonial practices.

In 1883, the Native Laws Commission – which only took evidence from missionaries, officials and traditional leaders, whom the colonists called “chiefs” – declared:

“The land occupied by tribe is regarded theoretically as the property of the paramount chief: in relation to the tribe he is trustee holding it for the people, who occupy and use it in subordination to him on communistic principles.”

Mamdani concludes that the function of this idea was to solidify colonial rule.

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The 1913 Native Land Act set aside 7% of the land for the African majority. The Native Trust and Land Act of 1936 increased the allocation to 13%. Subsequently, these reserves were formulated into “tribal” boundaries called homelands by the Bantu Authorities Act of 1951. These laws affected the balance of power in African communities that were locked into colonially imposed “tribal” identities, with complacent “chiefs” rewarded by the regime with the role of being the sole voice of the people under their jurisdiction.

In his writings in 1962 about the Bantustans, ANC leader Albert Luthuli asserted: “Inside this closed world, there is no hint, not even the remotest suggestion of democratic rule. There is provision only for the march back to tribalism – but in a far more dictatorial form than Shaka dreamed of. The modes of government proposed are a caricature. They are neither democratic nor African. The Act makes our chiefs, quite straightforwardly and simply, into minor puppets of the Big Dictator. They are answerable to him and to him only, never to their people.”

The powers exercised by “chiefs” not only gave them despotic power over the people residing in their jurisdiction. They were also deeply entrenched in colonial modes of controlling and determining the use of land, occupation and inheritance in the interest of the white minority, capital and, of course, patriarchy.

The new order

Under the pressure of rural struggles during the negotiations, the 1993 Interim Constitution said the “homeland” system would be dismantled and that the powers given to traditional authorities at local level would be removed.

Ultimately, what the Interim Constitution conferred was ambiguously contradicted by the 1996 Constitution under Chapter 12 and Section 211-212, enabling legislation on the role of traditional leaders to be defined later by Parliament. This resulted in a spate of laws and policies introducing increasingly serious threats to the access to land and basic citizenship rights of millions of South Africans living in the former “homelands”.

Today, two highly contested bills are waiting to be signed into law: the Traditional and Khoi-San Bill and the Traditional Courts Bill.

The twofold purpose of the Traditional and Khoi-San Bill is said to be:

  • To recognise the Khoi-San leadership structures and communities which have not yet been recognised in law; and
  • To combine all the laws on traditional leadership into one law and address all problems with current laws.

In reality, if the bill is passed into law it will apply in the former Bantustans, except for the provisions about Khoi-San groups and leaders, as it proposes jurisdiction over land for traditional authorities in the former Bantustans and jurisdiction over people for Khoi-San authorities. This is especially relevant in light of the government’s recent promises to Khoi-San groups that changes in the law will allow them to claim back land that was historically taken away from them.

Furthermore, the bill retains discredited, apartheid-created structures and boundaries. This undermines the consensual nature of customary law, making traditional leaders accountable to the state, not the people, and making anyone in the former Bantustans a subject to traditional leaders without the option to “opt out”.

The bill’s provisions potentially give traditional authorities extensive roles without ensuring that they are accountable. In precolonial South Africa, it was said that inkosi yinkosi ngabantu, an inkosi is an inkosi by the people. In this law, people deemed to be traditional leaders are not required to consult with ordinary people. Citizens are, to use Mamdani’s terms, to be turned into subjects. The bill also gives new life to previous “tribal” boundaries and structures.

The Traditional Courts Bill will govern dispute resolution in forums recognised as “traditional courts”. This bill has a long and controversial history in Parliament, with previous versions widely criticised in public hearings and by organised rural dwellers. This new bill is an improved draft by the Department of Justice, which, for example, now includes a mechanism for opting out of traditional courts. However, some aspects of the bill – such as the status of the courts – remain unclear, concerning or difficult to implement.

Both these bills aim to extend colonial and apartheid notions of customary law and geography into the present. Together, they aim to extend an authoritarian system of social control over rural people by “tribalising” them.

In many parts of the country, alliances between traditional authority and mining companies, in which elites in the ruling party often have a stake, have been devastating for impoverished rural people. Many critics take the view that access to mineral wealth is a key driver of this deeply reactionary and anti-democratic legislation.

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