Traditional & Khoisan Leadership Bill, 2015

1. Traditional & Khoisan Leadership Bill, 2015 Lesle Jansen, B.Proc. University of Western Cape; LLM (University of Arizona), LLM (Loyola University) Expert Member, African Commission’s Working Group on Indigenous Populations, Gambia, Natural Justice

2. Presentation Outline:x3 Inputs (1) Why it is important to have this Bill: (1.1) Based on excerpts from former Pres Nelson Mandela’s book Conversation with Myself; (1.2) Africa’s Rebooting by reviewing African regional and national policy and legal frameworks; (1.3) Reflections from Carl Jung on the issue of identity (2) Criteria for the recognition of Khoisan ‘communities’ (Chapter 2, section 5(1)a) (3) Former homelands and apartheid boundaries (Sections 3, 4,5,6)

3. 1.Why its important to have this Bill 1.1) Conversations with Myself - Nelson Mandela Never the less in the mid-1940s when I was drawn into the political struggle, I could adjust myself to discipline without difficulty, perhaps because of my early upbringing.” “And in 1941 when I was twenty three, I came to Johannesburg and learned to absorb Western standards of living and so on. But…my opinions were already formed from the countryside and…you’ll therefore appreciate my enormous respect for my own culture- indigenous culture-of course Western culture is something we cannot live without, so I have got these two strands of cultural influence. “ • “But we must never forget that the institution of traditional leaders is sanctified by African law and custom, by our culture and tradition. No attempt must be made to abolish it. We must find an amicable solution based on democratic principles and which allows traditional leaders to play a meaningful role in levels of government.” • Many of Mandela’s distinctive habits were acquired early. One of the most important, from his traditional background in Thembuland, was listening carefully to his elders and to all who spoke at tribal gatherings …habits of discipline, order, self-control and respect for others were demanded by… traditional authority…”

4. 1.2. Africa is ‘rebooting’Dr. Albert KwokweBarume, ACHPR, Working Group on Indigenous Populations/communities, UN Expert Mechanism on the Rights of IPs • Africa is‘re-booting’ its legal, policy and institutional frameworks to resuscitate traditional values and institutionsas a driver of development • The re-booting’ is borne out of the Africa’s need to redress colonial legacies and anchor its comparative advantages on cultural diversity, traditional values and institutions of its peoples • An initial test for these values in fact emerged immediately after the formation of the Organisation of African Unity (OAU) regarding colonial boundaries which artificially separate people from one another. • Organisation of African Unity Charter did not perceive this as threat. They resorted to legal principle of utipossidetis( a principle which upgraded former administrative delimitations established during apartheid boundary limitations support of maintaining the colonial boundaries in the interest of Africa.

5. African legal & policy frameworks resuscitating African values, institutions and culture: • African Charter on Human and Peoples’ Rights in 1981 • African Union report of 2003 • African Charter for African Cultural Renaissance of 2006 • African Charter on Democracy, Elections and Governance (ACDEG) of 2007 • African Union Agenda 2063 • African States: Agenda 2020, Vision 2030 • African Youth Charter (2006): Eliminate all traditional practices that undermine the physical integrity and dignity of women; • Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa • The African Charter on the Rights and Welfare of the Child • Key African Union policy documents

6. Dr. Albert Kwokwe Barume, concludes: • in line with the current African States’ attempts to re-set or re-boot their governance and development paradigms and shift away from neo-colonialist thinking that considered traditional values and institutions as a threat to national cohesion and political stability. • The Bill provides an opportunity for the South African Government to realize how traditional institutions are key partners for its development. On the other hand, the Bill offers an opportunity for South Africa to do justice to all its communities whose cultural identities have been left on margins,’ such as the Khoisan in this case. • He confirms, ‘Yes, African cultural and traditional values are to be brought back into the picture, as required by many African Union’s instruments and policy documents, but there should be a distinction between the negative and positive cultural practices, with a view to ensuring traditional values and institutions are a vehicle for equality and inclusive governance.

7. 1.3) Carl Jung: ‘Insanity of living without myth • He is helpful to explain the danger we face not having our African customary institutions to act as custodians for our cultural identity. • He calls it a mutilation of a human being to live without myth/history. • We think we can be born today and think we can live in no myth, without history, that is a disease. It is absolutely abnormal. • Because man is not born every day. He was born in a specific historical setting with this specific historical qualities and therefore he is only complete when he has a relation to it. • It was as if he was born without eyes or ears.

8. 2) Chapter 2, Section 5(1)(a):Criteria for recognition of Khoi-San community • A community may, subject to paragraph (b), apply to the Premier concerned to be recognized as a Khoi-San community if it— (i) has a history of self-identification by members of the community concerned, as belonging to a unique community distinct from all other communities; (ii) observes distinctive established Khoi-San customary law and customs; (iii) is subject to a system of hereditary or elected Khoi-San leadership with structures exercising authority in terms of customary law and customs of that community; (iv) has an existence of distinctive cultural heritage manifestations; (v) has a proven history of coherent existence of the community from a particular point in time up to the present; and (vi) occupies a specific geographical area or various geographical areas together with other non-community members

9. Khoi-San community criteria: continues • Forcibly labelled Coloured • Deep disruption to their cultural institutions, way of life and values • Resulted in the their cultural myth as Carl Jung points out, being deeply disrupted for the most part, through being labelled Coloured (with the exception of a few Khoisan communities). • Result of living without myth/history= x18 prisons in Western Cape, Coloured community comprises at least 60% of prison populations in all x18 prisons • Current criteria = penalizes the Khoisan for having been forcibly labelled Coloured • It fails to take in consideration the unique and violent nature apartheid was on also the Khoisan with being forcibly labelled Coloured • Criteria should reflect the historical trajectory of the Khoisan community within the South African historical context. The apartheid system outlawed their culture and forced them into becoming labourers and farm workers. How does the criteria consider this.

10. Recommendation to Section 5 (1) (a): • Amend community recognition criteria to take a “restorative approach”. • Use the Status Quo reports (Khoi-San) as a guiding standard for a restorative approach • The Status Quo reports can help find the balance between –restoration of the Khoisan communities on the one hand AND – how to maintain the standard for legitimate traditional communities. • The Status Quo reports sets out who the historical Khoi-San communities were. This will allow the modern day Khoisan descendants to self identify and take membership of those historical communities which the report confirmed did in fact exist historically, whether they are “coherent” a community or not.

11. 3) Former homelands and apartheid boundaries- (Sections 3,4,5,6 ) Critique to notion of apartheid boundaries: • At the heart of the issue are the apartheid boundaries that communities are locked into. The traditional communities and leadership recognised by the Bill are those created in terms of the TLGFA which recognises ‘tribes’ created under the apartheid Native Administration Act of 1927 and ‘tribal authorities’ created in terms of the Bantu Authorities Act of 1951 Preferred option: • Khoi-San leadership are given jurisdiction over only the people who choose to affiliate with them, not over territorial land. This was suggested as a preferred option to the apartheid boundaries issue. • Yet the Khoi-San and their modern day descendants continues, especially in the Western Cape, to live within apartheid boundaries. • Symbol of grave inequality: Mitchells Plain /Constantia • enjoyment of jurisdiction over people who belong to their cultural affiliation has not solved the problem of their extreme marginalisation. • Khoi-San form of recognition is not the best legal response to the agitation around homeland communities. • Challenge of apartheid boundaries= ‘utipossidetis’ similar to African colonial boundaries

12. If the importance of colonial boundaries were not overrated at the African regional level but main focus has been placed on the realisation of rights including the right to culture, it is logical to argue that the protection of human rights and access to resources and benefits within the homeland apartheid boundaries are also more important considerations. That is said without negating where communities, women or children did or continue to encounter human rights violations. And those decolonization efforts should continue. And its therefore critical that civil society work around customary communities are supported. This presentation supports their continued efforts.

13. Conclusion • Taking inspiration from Pres. Mandela and the legal and policy trends on the African continent, there is in fact a place and role for traditional leadership, cultural values, traditions. • However those cultures, practices and traditions should comply with human rights and our democratic and participatory values as outlined in Constitution. • African communities needs to continue living their myths and history, especially the Khoisan communities who is deeply entrenched in their cultural restoration processes. We need the criteria to enhance their cultural revival not prevent it. • African customary institutions, historically set about this role of creating and supporting its community’s myth, history and cultural identity. For whatever we feel traditional leadership might have become today, no reason can ever be strong enough to justify African communities not having their institutions in order to continue this role of facilitating the myth or history and culture of its people.