ADVOCATE S MANCOTYWA – CEO OF THE NATIONAL HERITAGE COUNCIL
REMARKS AT THE DIALOGUE ON THE PRESENT AND FUTURE OF AFRICAN ROYALTY. THE INSTITUTION AND HERITAGE OF AFRICAN ROYALTY AND CONTEMPORARY CHALLENGES.
23 OCTOBER 2018
Programme Director, Traditional Leaders Present, Ladies and Gentleman
Thank you for the opportunity to participate in this discussion on the Heritage of African Royalty Given contemporary challenges and opportunities. The nature of my profession limits me to engaging with specifics on matters that the full bench of a high court has pronounced on, so you will appreciate that there will be instances where I will not make direct specific references, but will deal with principle and framework.
The National Heritage Council, in which I serve, has identified the Cultural Heritage of African Royalty as a very significant area in the context of pursuing social cohesion, cultural heritage transformation and creating sustainable human settlements that feature a better life for all. The NHC has determined that its contribution will be primarily around knowledge production in these areas. Therefore today’s engagement is very helpful in that regard.
I know that one of the delicate matters that are at the backdrop of today’s discussion is the nearly unprecedented imprisonment of His Majesty King Zwelibanzi kaDalindyebo. Except in times of war, it is not common for sitting monarchs to be imprisoned, for actions arising from their royal duties or contexts.
As we all know, His Majesty is the son of King Jonguhlanga that warrior King who hearkened to the clarion call of the freedom struggle, whose intervention at Kabwe Conference helped turn the tide in the then four pillared struggle. King Zwelibanzi himself subjected himself to military and political discipline in Caculama and elsewhere, serving in uniform for freedom of this country.
His Majesty’s birth name is very prophetic, that of the call to come back home. When he was born there was a call for a return home, today there is a call for his return home.
When his prophetic name came to fruition for the first time and he returned home after years of growing in exile, he served with us in the first provincial legislature of the Eastern Cape. With his unusual foresight and wisdom, when the matter of a bill for a House of Traditional Leaders came for discussion in the legislature, he opposed it. On the basis of the conflict of sovereignties, and the implications of a traditional authority drawing its fiscal arrangements from treasury. So part of the present conversation has a link to that problem of cultural sovereignty.
The problem of our time is a problem of the position and relationship between African Traditional Law and Value System vis a vis the Roman Dutch Law, English Law and Global Western Law. The second problem of our time is a problem of transformation and decolonization. The third one is the problem of equitable life for rural and urban, for people in the margins and the centre of the global frameworks.
Enforcability or otherwise of the decisions of traditional tribunals; immunity or otherwise from prosecution for actions in the execution of judicial duties under those tribunals is a matter arising from the first two problems or issues.
Colonization is the author of the repugnancy doctrine, the doctrine that anything not consistent with colonial western law, is invalid. The repugnancy doctrine is not an objective function of natural justice, it is an expression of power and hegemony of the colonial authorities. Whatever the present state of it, its origins are in political power and cultural power rather than an innocent pursuit of global justice.
Law like any other discipline is an evolving discipline that adjusts with its time and context. One of the significant investments of colonialism and apartheid was on distorting, arresting and misappropriating African Traditional Law for centuries. This went along with the destruction of so many other cultural institutions and values of African Society. While the Globalisation Consensus largely reflects the balance of forces at the conclusion of the colonial project and start of the global neo-colonial project. Values and outlooks of traditional communities and previously colonized communities are often written out of the global legal and constitutional consensus. This makes the global and western outlook poorer. This is an outlook that if focused on retribution, that always needs a winner and loser, that is costly to access, that does not have concepts like Ubuntu.
Having said this – Modern Constitutionalism as reflected in South Africa’s constitution is a collective advance for all humanity and for all South Africans, rural and urban, black and white, men and women. The human rights guaranteed by the constitution and the duty to recognize the injustices of the past, to honour those who worked for freedom, to work together to build a society where there is a better life for all, cannot be traded for anything. It is not owned by some hidden enemy out-there. It is our collective property, for us to shape and develop.
That being said, there is a clear challenge in terms of a consciously inclusive, diverse, decolonized, transformed cultural, legal and constitutional system. The law is practiced and shaped in a cultural context, societies that are diverse, should have their laws benefit from the influences of that diverse cultural context. That context includes and should include African Indigenous values and outlooks.
The role of African Royalty should get better defined, enjoy parity of esteem, appropriate internal arrangements for checks and balances in exercise of the judicial and other duties, appropriate indemnities and consequence management arrangements should be developed. The absence of such is likely to continue to co-exist with problematic outcomes. The effects of distortion and contamination is likely to get more embedded over time, often discrediting traditional law.
Western law did not always have a penal system that has easy parole terms, education in prison at stage cost, televisions. There was a time when Western Law had what international law calls – cruel and unusual punishment, forced labour, had stocks, had guillotine and hanging as normal part of punitive and penal regime. The positive impact of the passage of time, re-examination of the law, influences of society and many other factors result in the situation we now see in many constitutions, that we so positively welcome. The law of the formerly colonized people may mostly have received contamination by the colonial practices and negatively impacted by its distortion, arrest and abuse. So when we engage with whether Traditional Law is right or wrong, the Institutions of African Royalty are right or wrong we must fully factor in the impact of the colonial project.
Too many of us have tried to take a simplistic view around African Royalty, which has generally narrated this royalty as one of the following:
- Always universally heroic resisters of the colonial project – this is not always true, there are complex histories around this, there is a decent number of collaborators, next to the many gallant commanders and leaders of our people;
- Untrustable, unelected undemocratic leaders of doubtable legitimacy. This too is a notion that warrants attention as it is becoming clear that elections are not always a guarantor of inclusive democracy and better quality of life or even the best leadership;
- An irretrievably contaminated tool of indirect rule; This also is a huge problem of throwing the baby with the bath-water
- A mixture of these elements.
The colonial project fully understood that to control a people you need a few powerful ingredients:
- Disconnect people with their culture and heritage – Cecil John Rhodes is known to have famously said that to be born an Englishman is to have won the jackpot in the lottery of life;
- Disconnect people with their institutional frameworks
- Distort and reconfigure traditional institutional frameworks
- Achieve and exercise indirect rule and use traditional institutions in this, isolate and destroy those that do not toe the line. In this regard – I cannot forget the suffering visited upon King Jonguhlanga, Nkosi Dalagubha Joyi and many others, for the stand they took in opposing collaboration under the Bantu Authorities Act, and rejecting extension of indirect rule;
- Steve Biko has famously said the most powerful weapon in the hands of the oppressor is the mind of the oppressed; therefore a hatred and unconditional rejection of African traditional institutions may be a reflection of self-hate and self-rejection
Self-hate therefore is not an option, uncritical repetition of what is written in what has become known as “customary law” can also not be taken without a pinch of salt.
The above being the case – therefore, demands that we relook with urgency, the acceleration of the decolonization and transformation agenda with regard to rural life, institutional and judicial arrangements that affect are and used by rural people. The costs of access to Western Style and Urban style justice has been observed as unduly prohibitive by no less a person than the Chief Justice and many other esteemed members of the bench. Open traditional courts are accessible. What lessons can be learned from countries like Botswana, Swaziland, Lesotho, Ghana, Uganda. What lessons can be learned from religious community judicial systems. Lessons do not mean copying everything, they mean learning, observing, sometimes choosing the best, leaving out the not so good.
The characteristics of that transformation and decolonization agenda in my view will include:
- An agenda that pursues a better life for all, rural and urban – in all respects
- An agenda that pursues equity and redress for especially rural people and the institutions that they have greatest access to
- An improved, clearly defined and mutually agreed roles for all the different role players including traditional authorities;
- Glen Grey or Cecil John Rhodes is recognized to have famously said that the Supreme Chief of All Natives is the governor general
- A revisiting of the legal frameworks to ensure that the judicial arrangements within traditional communities, cultural and religious communities, in ways that leverage from diversity, that guides the roles and responsibilities, that assists with checks, balances and consequence management, that deals with opting in and opting out arrangements;
- With time there may need to be greater synthesis
Many professionals enjoy immunity from the consequences of their actions, if these actions arising in the performance of their duties, if they acted within standard operating procedures of within the scope of their authority. Proper mechanisms for each of these are put in place. The delay in the development of these should be one of the considerations in dealing with the case that many among us want to make reference today. How can this kind of immunity and related issues be applied in the context of traditional leadership institutions.
In 2018 October, on the eve of 25 years of post-apartheid democracy we sit with a situation where the relationship between the Institution of African Royalty and the Institutions of South African Constitutionalism have either at best a poorly defined relationship at worst a vexed relationship. The Roman Dutch law and English Law have come to enjoy a dominance that is inherited from the doctrine of repugnancy. The cultural diversity seems to continue to carry a hierarchy of sorts. And in that hierarchy, African Traditional Law and values often come short. Our transformation and decolonization agenda can and must result in an situation where African Traditional Law no longer comes short.
Excellence in law is framed in terms of excellence in Roman Dutch Law, English Law and Global Constitutionalism. The global constitutionalism has not incorporated indigenous laws of the diverse former colonies, has not enjoyed the benefits of values like Ubuntu and related valued. The dominant discourses are penal, punitive, and retributive. It is possible that some of these dominant values have seeped into the practice of African Traditional Law and institutions.
The lessons that have dominated our recent interactions with traditional leadership have been about succession disputes. This must and can change. This noble institution of Africa has a very important place in the life of the community, the protection and promotion of cultural heritage and in supporting sustainable relationships amongst neighbors in communities. Social cohesion is built one family, one community at a time. The rural communities face challenges of a scale and type that never existed before, and when the authority of the traditional leader, the community leader, the mothers, the fathers, the teachers, the elders is restored and values of Ubuntu are back we will be closer to cohesion. When people live for something bigger than them, fear something, hope for something bigger than money, we will be closer. The people who will lead the charge in this regard is traditional authorities.
Most heritage transformation discussions, most decolonization agendas are framed in the language and context of urban areas, urban life, urban experiences, statues, names of towns, museums, collections and archives. When it goes to institutional transformations, it’s about inclusion in existing committees and structures, boards, shareholdings, reference groups. Not everything that is Western, Urban and Roman, Dutch or English is good for all time for all places.
The reality is that over 40% of South Africans are living in rural areas, the majority of them at least for now have a relationship with Traditional Authority however well or ill defined. The poor attention paid to the institution of traditional authority, mimicks the inadequate attention paid to rural life, rural heritage, rural realities, in the time of the Global Village. If we deal with the principle and framework issues properly we will most probably not have to engage with sitting Monarchs being imprisoned except in exceptional circumstances.
The coming of the post-colonial state in a time of globalization and neo-liberalism has been accompanied with the framing of problems, solutions and opportunities in language, idiom and outlook that is mostly urban and metropolitan. The global village has forgotten the rural village. As we conclude the first quarter of our life as a free democratic people, we have to prioritize the cultural heritage of rural people as part of the valuable contribution to the life of the nation. South Africa and the world be poorer if this does not happen. We are all having to deal with a global village that is very urban, that is more like a global city than a village. African Royalty and related value system, is part of the contribution to diversity and to a more humane world.