The Politics of Custom is a new book on traditional leaders, capital and the state. It is edited by Jean Comaroff and John L. Comaroff, and published by Wits Press. This is an edited extract.
The Commission on Traditional Leadership Disputes and Claims, colloquially known as the Nhlapo Commission after its ﬁrst chairperson, Thandabantu Nhlapo, is the latest attempt to resolve the position of customary authorities.
It was tasked with cleansing the institution of its colonial and apartheid accretions, and with determining who is a legitimate customary authority – in contrast to those who owe their position to colonial or apartheid authorities.
Two things, among others, become especially clear when we interrogate this history: the first is the similarities in the moves by successive governments – those of the Union of South Africa, of the apartheid years, and of the postapartheid dispensation – to bring ‘traditional authorities’ firmly under the control of the state; indeed, to make them ‘the state’ at the local level.
Second is the contradictions inherent in the efforts of the government, through the Nhlapo Commission, to reverse engineer chieftaincy, a strategy that has yielded competing claims, infighting and much litigation, all of which seem destined to continue for the foreseeable future.
This raises several questions: What is the state actually trying to achieve with the Nhlapo Commission? Is it likely to succeed? What do chiefs themselves want? And what are the prospects for chieftaincy going forward?
An analysis of chieftaincy over time illustrates customary leaders’ ongoing efforts to negotiate and assert their legitimacy, to adapt to an evolving state, and to deal with changing political and economic conditions.
The argument here is that the politics of custom demonstrate continuity within the institution of traditional leadership – contrary to much contemporary literature, which draws attention to its unexpected resurrection.
The chiefs’ exertions were not instigated suddenly at the dawn of democracy, but have been continually tailored to various moments of interaction with different forms of government administration since the advent of colonialism in the 19th century.
The manner in which they have adapted their claims for recognition is to be observed in the way they present those claims – mobilising aspects of the past that position them as rightful heirs of (often) revered historic leaders – as arguments for a role in institutions of state. They assert that they would have been sovereign over their dominions had it not been for the violent imposition of colonial rule.
Successful claims, documented in letters of appointment or certificates of recognition, confer political and material benefits. This is especially the case in a province such as Limpopo, which contains some of the largest mineral reserves in South Africa.
Benefits from mining seem to flow to the [Ingonyama] trust.
KwaZulu-Natal is different and unique in that there is a recognised king of the province, Goodwill Zwelithini kaBhekuzulu, under whom all chiefs fall and in whose Ingonyama Trust is vested all land of the former apartheid-era KwaZulu homeland. Benefits from mining seem to flow to the trust, although this remains opaque.
The limitations of the Traditional Leadership and Governance Framework Act that established the Nhlapo Commission have been laid bare. Two defects of the commission itself are of relevance to this article. First, the manner in which the commission conceptualised what was under investigation was vague and circular.
The act states, for example, that “senior traditional leadership means the position held by a senior traditional leader,” this last term being loosely defined as “any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position, and is recognised in terms of this act”.
The same conceptual shortcomings are to be observed in the vague definitions of customary institutions or structures, kingship, and traditional communities. Not only do these limitations and lacunae pose interpretative challenges, they also create problems for implementation.
One obvious, unanswered question is whether claimants to office themselves, or their would-be subjects, employ these terms in a similar manner.
While the commission was charged to investigate “whether kingship, senior traditional leadership or headmanship was established in accordance with customary law and customs”, it is clear from its report that it relied on a one-size-fits-all model to which societies with very different vocabularies for leadership positions have been compelled to conform.
In almost all contexts, the terms used by the commissioners for those positions – king, principal and senior traditional leader, and headman – are hollow and do not align with the ways in which traditional authority is conceptualised in their vernacular contexts.
Although, in most cases, those who bring claims are represented by highly educated advocates, the challenge is to articulate their arguments in the official language required to make them legible on the commission’s terms. Failure to do so easily results in an unsuccessful claim.
[M]ale primogeniture [is] a fundamental criterion for arbitrating ... claims.
Even more important here is the apparatus employed by the commission to adjudicate disputes, based on formal rules governing succession to office. Among these rules is the prescription of male primogeniture, a fundamental criterion for arbitrating the many claims that have been brought.
The assumption of the commissioners is that, by virtue of identifying the “rightful” male successor to any office, the dispute surrounding it is effectively resolved.
But the reality is that there are much more intricate dynamics involved in succession disputes. This is well illustrated by one involving the Valoyi people in Limpopo. In 2001, its ruling family, and the community at large, resolved – under the democratic dispensation – that a woman, Tinyiko Shilubana, who would have followed her father as chief in 1968 had it not been for the rule of male primogeniture, should assume the office instead of Sidwell Nwamitwa, her father’s younger brother’s son.
Because the late chief had no male children, his younger brother, Nwamitwa’s father, had succeeded him, but had died in 2001, making way for Nwamitwa, who defied the decision that Shilubana, incidentally an ANC MP, accede to the chieftaincy.
He took his case to the South African courts, arguing that the custom of male primogeniture was legally protected, and won. The Valoyi royal family appealed the decision, countering that they and their community had decided to reverse past gender prejudices to meet the demands of the South African Constitution.
The Constitutional Court eventually overturned the original decision and paved the way for Shilubana’s appointment.
Historian and former member of the commission Jeff Peires argues that “[n]o historical event of the precolonial period should be adjudicated by the criteria of the postcolonial period, because the circumstances of the precolonial period were so fundamentally different that the fundamental assumptions of the present simply do not apply”.
Peires concludes that although “the mantra of ‘custom’ is frequently invoked as a universal panacea to solve all problems and cure all ills, the experience of the Nhlapo Commission shows the extent to which it serves as a mask, or even a blunt instrument, to facilitate outcomes that are the very reverse of customary”.
The commission’s determinations thus followed a line of reasoning that fixed what would have been fluid political developments in the past – in which, as shown by the Zulu case, succession processes involved usurpation, war, and the legitimation over time of a political order that came into being through what would have been considered illegitimate means.
In so doing, they disregarded the very different results that may have been, and in some cases were, yielded by the very indigenous political processes on which the commissioners purported to base their findings.
More importantly, in limiting the positions available to contemporary traditional authorities to kingship or queenship, senior traditional leadership, and headmanship, the founding legislation constrains the commission to a schema that bears little resemblance to the forms of independent polity that existed prior to colonialism.
This straitjacket, as we have intimated, bears uncanny resemblance to the management of chieftancy under British colonial overrule, the Union of South Africa, and the apartheid regime.
In KwaZulu-Natal, claims for recognition as paramountcies and for their leaders as kings were received from the Hlubi, Ndwandwe, Nhlangwini and Zulu. In its final report, the commission recognised Zwelithini as king of the amaZulu and dismissed the Hlubi claim. The Nhlangwini action was not finalised.
The Ndwandwe initiative ran into various difficulties – including infighting and the intimidation of those who had lodged it – that resulted in a largely incoherent case: various people with differing investments in the recognition of a Ndwandwe kingdom presented conflicting evidence to the commission.
Moreover, there was vocal opposition, even threats, against claimants from Zwelithini’s defenders, who saw other kingship claims as a sign of disrespect for the Zulu monarch.
Jabulani Sithole has noted that 11 of the 705 applications received by the Nhlapo Commission by the end of June 2007 were from KwaZulu-Natal. Some of them used the new legislation to assert that they had never been the subjects of Zulu kings.
A number of the claimants had long-standing disputes with the homeland rulers, dating back to the 1970s and 1980s. The official response was swift and tough: “Goodwill Zwelithini publicly condemned the submissions, dismissing them as mischievous challenges, not only to the authority of the Zulu king, but to the Zulu nation as a whole.”
In a show of force, he presided over gatherings near the territories of two would-be kings at which he vowed to deal with the alleged impostors.
Some claimants, including a certain Sakhile Shadrack Ndwandwe who had submitted a case on behalf of the “amaNguni,” were cowed into withdrawing. Moreover, both the Provincial House of Traditional Leaders and the KwaZulu-Natal government threw their weight behind the Zulu ruler.
In the end, the struggles over the various kingship claims have effectively resulted in the recognition of Zwelithini as the only king in the province. His affirmation as the sole paramount by the commission, and his elevation by successive provincial governments, has in effect made KwaZulu-Natal into a constitutional monarchy; this since the advent of democracy in the country.
[P]rovincial and national politicians fall over themselves to placate [the King].
Each year, the king officially opens the provincial legislature. He has a unit dedicated to his protection within the South African Police Service, the Royal Protection Unit. And provincial and national politicians fall over themselves to placate him each time he expresses displeasure at the government.
This was most visible in 2015, when he made statements that led to xenophobic violence against immigrants. Home Affairs Minister Malusi Gigaba publicly criticised him, after which Zwelithini retorted as an insulted party. Gigaba promptly met the monarch behind closed doors and reportedly apologised.
In bolstering the position of the Zulu monarch, the overall effect of the Nhlapo Commission has been to embolden him to advance even more claims. When the national land restitution programme was reopened in July 2014 under the Restitution of Land Rights Amendment Act, Zwelithini announced that he would demand back the land his people had lost since 1838, the year in which the first Afrikaner trekkers from the Cape arrived east of the Drakensberg mountains and hence the beginning of Boer settlement and the dispossession of African land in today’s KwaZulu-Natal region.
Opposition to the king’s impending action has been met with threatening rebuttals by people associated with the Ingonyama Trust, the structure formed in 1994 that controls one-third of the land in KwaZulu-Natal, whose sole trustee is the Zulu monarch.
The commission has proved to be one more route to state recognition, and the centralisation of authority, for those whose claims are successful. The Zulu king’s success has strengthened his hand in imposing his rule across rural KwaZulu-Natal, where he appoints local rulers who are aligned with him.
To date, chiefs in the province number in the region of 300. With appointment by the monarch and a recognition certificate from the premier’s office come rewards such as a state-funded salary, a vehicle, a mobile phone and travel allowances. Popular legitimacy counts for little.