THE controversial Traditional and Khoisan Leadership Bill is open to constitutional challenge as it offends the enshrined right to freedom of association by seeking to prescribe affiliation to traditional leadership rather than making it voluntary, a parliamentary workshop on the bill was told on Tuesday.
The bill has been criticised for entrenching apartheid tribal boundaries for all time for African rural communities and for the lack of provisions for consultation with communities on matters that affect them.
It also provides for a voluntary association for Khoisan communities, but if traditional communities live in a particular area they have no option but to become part of that community under a particular traditional leader.
Speaking at the workshop, Prof Ben Cousins of the poverty, land and agrarian studies unit at the University of Cape Town (UCT) said: “I suggest that the failure of this bill to grasp the nettle of the freedom of association guaranteed by the Constitution makes it open to constitutional challenge”.
He said by prescribing affiliation to traditional leadership it could sound the “death knell” of the institution of traditional leadership itself.
One of the stated aims of the bill is to promote and protect traditional institutions.
“Yet, if traditional leadership is in fact open and transparent, offering real opportunities for participation in local decision making, delivering real benefits to ordinary people, based on a deep knowledge of customary law and its adaptability, and also, critically subject to the freely given affiliation of community members, then they have nothing to fear,” Prof Cousins said.
Lesle Jansen of Natural Justice said at the heart of the issue was the apartheid boundaries that communities were “locked into”.
The traditional communities and leadership recognised by the bill were those created in terms of the traditional leadership framework laws that recognised the tribes created under the apartheid Native Administration Act of 1927 and tribal authorities created in terms of the Bantu Authorities Act of 1951.
She said that in the bill the Khoisan were given jurisdiction over only the people who chose to affiliate with them and not over territorial land and this was suggested as a preferred option to the issue of apartheid boundaries.
© BDlive 2016