PER: Potchefstroomse Elektroniese Regsblad
versão On-line ISSN 1727-3781
KHUNOU, SF. Traditional leadership and independent Bantustans of South Africa: some milestones of transformative constitutionalism beyond Apartheid. PER [online]. 2009, vol.12, n.4, pp.81-122. ISSN 1727-3781.
The institution of traditional leadership represents the early form of societal organisation. It embodies the preservation of culture, traditions, customs and values. This paper gives a brief exposition of the impact that the pre-colonial and colonial regimes had on the institution of traditional leadership. During the pre-colonial era, the institution of traditional leadership was a political and administrative centre of governance for traditional communities. The institution of traditional leadership was the form of government with the highest authority. The leadership monopoly of traditional leaders changed when the colonial authorities and rulers introduced their authority to the landscape of traditional governance. The introduction of apartheid legalised and institutionalised racial discrimination. As a result, the apartheid government created Bantustans based on the language and culture of a particular ethnic group. This paper asserts that the traditional authorities in the Bantustans of Transkei, Bophuthatswana, Venda and Ciskei seemed to be used by the apartheid regime and were no longer accountable to their communities but to the apartheid regime. The Bantustans' governments passed various pieces of legislation to control the institution of traditional leadership, exercised control over traditional leaders and allowed them minimal independence in their traditional role. The pattern of the disintegration of traditional leadership seemed to differ in Transkei, Bophuthatswana, Venda and Ciskei. The governments of these Bantustans used different political, constitutional and legal practices and methods to achieve this disintegration. The gradual disintegration and dislocation of the institution of traditional leadership in these four Bantustans led to the loss of valuable knowledge of the essence and relevance of the institution of traditional leadership. One of the reasons for this anomaly emanated from the fact that undemocratic structures of government were established, commonly known as traditional authorities. More often than not these traditional institutions were mere puppet institutions operating on behalf of the Bantustan regime, granted token or limited authority within the Bantustan in order to extend the control of the Bantustan government and to curb possible anti-apartheid and anti-Bantustan-system revolutionary activity within traditional areas. The advent of the post-apartheid government marked the demise of apartheid and the Bantustan system for traditional leaders and the beginning of a new struggle for the freedom of the traditional authorities. This paper highlights changes brought about by the new constitutional dispensation in the institution of traditional leadership. The author demonstrates that the primary objective of the democratic government of South Africa in this regard is to transform the institution of traditional leadership and re-create the institution completely in line with the values and principles of the 1996 Constitution and democracy. The post-apartheid order rejects the old order as far as it is sexist, racist, authoritarian and unequal in its treatment of persons. All of the rules, principles and doctrines of the institution of traditional leadership apply in the new dispensation only in so far as they are rules, principles and doctrines that would survive the scrutiny of the present society when measured against their compliance with the requirements of human dignity, equality and freedom. The government has enacted democratic legislation intended to change the institution of traditional leadership and make it consistent with the 1996 Constitution. The institution of traditional leadership is obliged to ensure full compliance with the constitutional values and other relevant national and provincial legislation. The right to equality, including the prohibition of discrimination based on gender and sex, has an important impact on the institution of traditional leadership. For example, under the new constitutional dispensation women may become traditional leaders in their traditional communities, which is contrary to the old and long observed African customary rule of male intestate succession, which excluded women from succession to the position of traditional leadership. One of the remarkable features of the transformation of traditional leadership in South Africa is that gender equality has been progressively advanced. The inclusion of women in traditional government structures adds democratic value and credibility to the institution of traditional leadership, which for many years remained essentially male-dominated. The doctrine of transformative constitutionalism is well established in South Africa.
Palavras-chave : Traditional Leadership; Bantustans; Transformative Constitutionalism; Apartheid; Homeland System; Colonialism; 1996 Constitution; Legislation; Democratic Principles; Representative Government; Interim Constitution; Gender Equality; Indigenous Customs; Discrimination; Bills of Rights; Indirect Rule.