Ebook House of Traditional Leaders: Role, problems and future
In 1994 South Africa entered a new constitutional dispensation based on democracy, equality, fundamental rights, the promotion of national unity and reconstruction. Within this context the position of Traditional Leaders had to be re-evaluated. The role of traditional leaders was extensively dealt with in the 1993 Constitution. A minimalistic approach was, however, followed in the 1996 Constitution.
Section 211 of the 1996 Constitution makes provision for the recognition of the institution, role and status of traditional leadership according to customary law subject to the Constitution. Traditional leaders function subject to applicable legislation and customs which include amendments to and repeal of those legislation or customs. The courts must apply customary law when it is applicable as well as any legislation dealing with customary law.
The 1996 Constitution also states that national legislation must provide for the role of traditional leadership as an institution at local level on matters affecting local communities. Legislation may provide for the establishment of a national council of traditional leaders and provincial houses of traditional leaders. Provincial constitutions may also provide for the institution, role,authority and status of a traditional monarch. Provinces have concurrent legislative powers with parliament regarding traditional authorities and customary law.
Traditional courts as an institution also received Constitutional recognition in section 166, although indirectly, as "any other courts established or recognised by an Act of Parliament, which may include any court of a status similar to either the High Courts or the Magistrates' Courts". Traditional courts were recognised in the Black Administration Act as well as by former homelands' legislation. The Law Commission did an extensive study on the functioning of these courts and is in the process of formulating proposals in this regard.
A Kgosi (or traditional leader) is a kgosi ke kgosi ka batho ("a leader which is a leader through his people"), the father of his people and a binding and spiritual factor that serves as symbol of the unity of the group. He or she is seen by most people as the embodiment of law and order, the upholder of values and as provider for the needs of the community and, in some instances, even as an institution created by God.To say that the institution of traditional leadership is not democratic may be true from a western perspective of what is to be understood under democracy but outsiders often totally ignore the concepts of African democracy and ubuntu.
In several studies it has been indicated that traditional leaders have a role to play as an institution at local level. Their role at provincial and national level in the National House of Traditional Leaders and the Provincial Houses of Traditional Leaders has not yet been clearly defined.
The National and Provincial Houses of Traditional Leaders experience various problems that hamper their functioning. The purpose of this paper is to discuss the significant role of the National House of Traditional Leaders and the Provincial Houses of Traditional Leaders as Constitutional institutions at national and provincial levels and to make proposals regarding their future role and functioning.
In this paper a brief overview of the recognition of traditional institutions in the 1993 and 1996 Constitutions is first presented. This is followed by a discussion of the National House and Provincial Houses of Traditional Leaders in terms of their composition, role and the problems that they experience. This discussion is aimed at making recommendations with regard to the solution of the problems of traditional institutions and their future role.
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