This is a guest post by Laura Dimon. Laura is the Africa program intern at the Council on Foreign Relations.
On June 16, the New York Times reported on the role of tribal courts in South Africa and the debate over integrating them into the national legal system. Currently, their official role is not well defined. Some speculate that the ANC will support the bill, in hopes that it will help them gain rural votes.
There are strong arguments both for and against proposed legislation that would regularize traditional courts. Those in favor of it argue that tribal courts—because of proximity and familiarity with the individuals and understanding of the traditions specific to that region—are more effective than government courts in addressing societal problems and civil disputes. Cases are argued in the local language, whereas English is the main language used in government courts. Tribal courts give people in rural areas easier access to justice when government courts involve significant travel expenses.
Nelson Mandela has spoken about his support for tribal courts, saying that they are deeply democratic in giving every man a voice that otherwise might not be heard. Tribal courts take into consideration values and traditions that are not addressed in the constitution but are still important to many. Further, traditional South Africans view the tribal courts as a symbol for remaining “un-white” and doing things their way.
But there is another side to the story. Some traditional leaders are corrupt and use their power in unjust ways, imposing taxes for their own benefit, for example. Also, tribal courts do not necessarily acknowledge fundamental human rights protected by the constitution. For example, many traditional leaders are hostile to gay men and women. Far from accepting gender equality, the courts often do not permit women to speak in court. However, legislative proposals would require tribal courts to allow women the right to represent themselves.
The distinction between official government and traditional systems is a blurry one, especially in isolated rural areas where literacy rates are low. President Jacob Zuma emphasizes his traditional roots – he openly practices polygamy, for example, and in his notorious rape trial (he was acquitted) he insisted on the use of the Zulu language and built his defense on Zulu traditions. A nod toward traditional courts could help shore up his political base as he faces a challenge to his leadership at the ANC party convention in December.