I – The Constitution, democracy and customary law

This is a series of three briefs that critically analyses aspects of the Traditional and Khoi-San Leadership Bill, 2015. The first brief, written by Matthew Kruger, outlines some important features of the nature of South Africa’s constitutional democratic state that are relevant to the Bill.

The second brief, written by Chris Pieters, provides a short summary of some of the existing regulation of traditional rule, as well as the ANC’s attitude to this form of rule. The third brief, written by Matthew Kruger, argues that the Bill is in certain respects unconstitutional, in that its structure and content are inconsistent with the democratic foundations and values of the Constitution.

The issues that we consider are broad and complex. As such, the various arguments made and conclusions reached in these short briefs are neither final nor complete. We hope, rather, that they contribute to an existing discussion around a Bill that we think is constitutionally unacceptable.

Introduction

This is a series of three briefs that critically analyses aspects of the Traditional and Khoi-San Leadership Bill, 2015 (‘the Bill’).

The first brief outlines some important features of the nature of South Africa’s constitutional democratic state that are relevant to the Bill. The second brief provides a short summary of some of the existing regulations of traditional rule, as well as the ANC’s attitude to this form of rule. The third brief argues that the Bill is in certain respects unconstitutional, in that its structure and content are inconsistent with the democratic foundations and values of the Constitution and the rights embodied in it.

The issues that we consider are broad and complex. As such, the various arguments made and conclusions reached in these short briefs are neither final nor complete. We hope, rather, that they contribute to an existing discussion around a Bill that we think is constitutionally unacceptable.

The Constitution and traditional leadership

Section 211 of the Constitution provides that:

1. The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.

2. A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs.

3. The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.

Section 212(1) of the Constitution provides: ‘National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities.’

The Bill is legislation of the type that is contemplated by sections 211 and 212. It is meant to replace existing legislation of this same type, some of the details of which are addressed in the second brief of this series.

Section 211 of the Constitution recognises the institution, the status and the role of traditional leadership in South Africa. Importantly, this recognition is limited in two ways.  First, it is recognised only insofar as particular forms of traditional leadership are in fact consistent with existing customary law.

Second, the content of customary law is itself subject to the Constitution, which means that the institution, status and role of traditional leadership are all subordinate to the values, principles and rights in the Constitution. This is consistent with section 2 of the Constitution, which says: ‘The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’.

Given the supremacy of the Constitution, we must consider the following question: ‘What limits are imposed by the Constitution on the form and exercise of political rule?’ In this brief, some of these limits are considered.

The democratic foundations of the Constitution

The political theorist Hannah Arendt has argued that the ‘only trait that all . . . forms [of political rule] have in common is the simple fact of their genesis, that is, that at some moment in time and for some reason a group of people must have come to think of themselves as a “We.”’ [1] There are at least two important insights in this claim. First, the source of all political power lies in the autonomy of a plurality of individuals—that is, the fact that we are self-determining agents. Second, these agents must conceive of themselves and others as members of a single community. In this section, the second point is considered, with the first point considered in the next section.

As South Africans, we know the ‘moment in time’ that millions came together—in difficult circumstances, but freely and willingly—to think of themselves as a ‘We’. We also know how these individuals thought of themselves at this moment, for the content of this thought is captured in the text of the Constitution.

The Constitution takes as self-evident the constitutive, intrinsic and instrumental value of democracy. In the Preamble, the word ‘democratic’ is used three times. It is used twice in the founding provisions, four times in the Bill of Rights and close to 20 times in the rest of the Constitution.

In the Preamble, the legitimacy of the Constitution—indeed, the legitimacy of all forms of rule—is said to be based on it having been adopted by freely elected representatives; it is an expression of the will of individual citizens. The founding provisions say that South Africa is a democratic state that is based on universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of government. We have a common citizenship, with all citizens entitled to the rights, privileges and benefits of citizenship. The Bill of Rights also entrenches the freedom of association and the right to make political choices.

Democracy—understood through the lens of freedom, choice, individuality and equality—is the principle upon which the Constitution is built. It is essential to our self-understanding as a political community. It is with this self-understanding in mind that this series of briefs must be approached. It is this value, principle and idea that we shall resort to again and again when we criticise, in the third brief, the structure and content of the Bill.

Participation, representation, openness and transparency

The source of all political power is the autonomy of the individual members of a community. Their autonomy is the starting point of any political norm-creating process, meaning that the free and willing exercise of choice by a plurality of individuals is the origin of the power necessary for the exercise of authority. Thus, individual autonomy precedes and lies beyond the control of functionaries who happen to exercise political power. In short, all political power ultimately vests in the people. This conceptual priority of individual autonomy has a number of important implications for the structuring of political institutions, as well as the scope of any legitimate exercise of power.

To be autonomous, people require freedom to determine their own fate—meaning they must be able to exercise control over their own lives. Since our choices are shaped by the social and political context in which they are made, and that context is influenced by law, autonomy requires having control over the political process. This implies democracy as a system of rule, which is characterised by participation in the political affairs of the community.

In large communities, where direct legislation by everyone is not practical, people may still participate in the political process by lobbying, speaking out and choosing persons and parties to represent them on matters that affect them or their community. Whilst individuals need not actively engage in politics for the community to be democratic, they must be able to hold their representatives accountable.

Thus, the constitutive fact of individual autonomy means that representation, for it to be democratic, demands accountability to the members of that community. Accountability, ultimately, means that people must not only be free to choose their representatives, but also free to replace them with different representatives. There must be openness and transparency in public affairs, since we cannot exercise political choice—electing representatives, holding them accountable and otherwise contributing to the political process—without adequate information. [2]

All forms of political rule—regulating all types of action and pertaining to all people—must be consistent with the basic fact of our individual autonomy and the principle of democracy (as well as its conceptual correlatives, that is, participation, representation, accountability, openness and transparency).

Customary law: not top-down, but bottom-up

Before concluding this very basic outline of the democratic nature of the Constitution and its vision of political rule, it is worth commenting briefly on the nature of customary law for two related reasons. First, section 211(1) of the Constitution says that the content of the ‘institution, status and role of traditional leadership’ is determined by customary law. Second, it is sometimes said that there is a difficult tension between the Constitution’s recognition of customary law and its creation of a democratic polity.

What is customary law? In short, it is made up of those practices that have been internalised by the members of that community as binding. To determine its content is first and foremost to ask and answer a question of fact: ‘What norms do the members of this community, in fact, consider binding?’

As is the case with law that emerges in other ways—through legislation or by means of court decisions—customary law can be just or unjust. Whilst there is nothing that precludes it from being unjust, the manner of its formation is essentially democratic. It is democratic because it comes into being through the practices of all of the members of a community.

Of course, a minority of individuals may dominate the practices of a community. But, this is not unique to customary law. The past is testament to the iniquities that can arise through minority legislative and judicial decision-making. Customary law, though, is by its nature created and changed through the actions and contributions of all members of the community. It emerges in a bottom-up, rather than a top-down way. In other words, it is democratic, rather than hierarchical and authoritarian, in nature. Morena ke-morena ka-batho.

The essentially democratic nature of the source of customary law—that is, the formal equality implicit in the way it is formed, through its recognition of the autonomy of all the members of a community—must be borne in mind when analysing the structure and content of legislation that purports to recognise, codify and regulate traditional communities and the leadership of those communities. These general perspectives will underlie the analysis in later briefs.

Matthew Kruger is Legal Researcher at the Helen Suzman Foundation.

This article first appeared as an HSF Brief.

Footnotes:

[1] Hannah Arendt, ‘Willing’ in M McCarthy (ed), The Life of the Mind (Harcourt, Orlando 1981) 202.

[2] On the nature of South Africa’s constitutional democracy, see the unanimous judgment of Mogoeng CJ in Oriani-Ambrosini MP v Sisulu, MP Speaker of the National [2012] ZACC 27 (see here).