Throughout the controversial four-year life of the Traditional Courts Bill (TCB), the African National Congress government has firmly allied itself with tribal chiefs (with their new polished image and title of “traditional leaders”), even allowing them a strong hand in drafting the Bill and shaping the legislative process. Yet the overwhelming majority of rural dwellers who have spoken on the Bill have strongly rejected it. This popular opposition from below was confirmed time and again throughout provincial hearings held during April and May, and again at parliamentary hearings held in September.

Government has justified this Bill on the basis of the Constitution’s recognition of customary law and tribal chiefs. It has also relied on the constitutional mandate to repeal the Black Administration Act of 1927, which set up legislated tribal courts. Government propaganda has insisted that the TCB would bring these courts in line with the Constitution.

Yet the constitutionality of the TCB is what rural dwellers have questioned, beginning with the way the TCB violates the separation of powers doctrine.

The TCB gives tribal chiefs the power to define the content of customary law (a legislative power), but the same chiefs will also be the Presiding Officers of the envisaged courts. As if holding the power to define customary law was not already problematic enough, in their capacity as presiding officers, tribal chiefs will also hear, adjudicate and decide on disputes. In a capitalist democracy, the separation of powers doctrine implies that those who make laws cannot be the same as those who adjudicate or enforce laws. The TCB thus concentrates undemocratic, unchecked and unaccountable power in the hands of unelected chiefs.

Other core problems with the TCB include how the envisaged courts will systematically exclude and discriminate against women, deny the accused the right to legal representation, and deny people the right to opt out of these courts. The Bill also permits forced unpaid labour, opening the door to tribal chiefs to impose fines, empowers tribal chiefs to evict offenders from their land and homes, and reinforces apartheid homeland and tribal boundaries.

In practice, the TCB means that the notorious tribal chief Mandla Mandela’s decision to evict families from their land in order to build a mall and hotel could only be challenged in a tribal court that he would preside over, and which the families would have no right to opt out of. This same court has additional powers to impose further punishment if the evicted families were to defy its judgments.

By extending significant governmental, developmental and land-control powers to tribal chiefs, the Traditional Leadership and Governance Framework Act (TLGFA) of 2003 compounds the rising democratic deficit implied by the TCB. And the TLGFA will be consolidated further when the proposed National Traditional Affairs Bill is tabled in Parliament in 2014.

In other words, the ANC government has effectively re-tribalised the former homelands and reinforced decentralised despotism at the expense of democratisation of rural areas. This imposes tribal identities from above and violates the inherently open-ended, consensual and negotiated choices of customary affiliation and practices.

The ANC has also created conditions that legitimate elite accumulation in the former homelands while minimising challenges to this. In the case of the platinum belt around Rustenburg, for example, re-tribalisation and decentralised despotism have led to the rise of the Royal Bafokeng Nation group of companies, which strike deals with platinum mining companies at the expense of broader community interests. Tribal leaders have been paid off to maintain a relationship where they are required to maintain social control.

From the September parliamentary hearings, it can be expected that parliament will yield to pressure from government and the tribal elites to finalise the Bill, with the government arguing that the draconian Black Areas Act of 1927 should not be extended again.

Organising under the umbrella of the Alliance for Rural Democracy, the few rural movements that exist have joined researchers, lawyers and civil society organisations in opposing the Bill. The Alliance has systematically recorded the legislative process to date with a view to constitutional litigation that would hopefully nullify the Bill once it becomes law.

But the constitutional battle does not have a guaranteed democratic outcome. Even if the constitutional court were to nullify the TCB, the reality of emboldened and empowered tribal chiefs remains. The majority of recorded complaints against tribal chiefs already shows how they are using their position not only to exercise undemocratic, unaccountable power but also to systematically target and victimise widows and the poorest, abuse rights and use their position for wealth accumulation – all this ostensibly for rural development.

From the above analysis, we are likely to see the rise of low-intensity war in some parts of the former homelands. Typically, this is likely to start with disgruntled communities challenging the power and practices of tribal chiefs when these are exercised directly against them.

As an example, the Bafokeng Land Buyers’ Association, the Anti-Repression Committee, and the Baphiring Youth Council are early expressions of organised resistance to the excesses of the Royal Bafokeng Nation which has used the favourable laws and its relations with government and mining companies. There are examples of other emergent rural organisations in the former homelands with the eThekwini-based Rural Women’s Movement being the most prominent as it conscientises and mobilises 50,000 women under the most difficult political conditions in rural areas of KwaZulu-Natal.

In supporting the struggles of the nascent rural movements, the left must not make the mistake of dismissing or misunderstanding culture, identity, custom and customary law. It is on this terrain that tribal chiefs hold emotional hegemony and have thereby gained the rather ahistorical position of being “custodians of African culture”. African customs are by their nature multi-level, flexible, diverse, diffuse, mobile and always changing in response to broader societal changes. Ironically, many of the cultural views held by tribal chiefs are impositions and perversions from colonial and apartheid reconstructions. It is these perversions which are the foundations of ongoing resistance to tribal chiefs. Within this complexity, the left must find ways to connect with the very important struggles and emerging movements of the rural poor in the former homelands.

In the post-1994 period, it has been rural women, and not chiefs, who have driven changes within customary law through a combination of the idiom of custom with the discourse of constitutional rights, arguing that like the sons of the village they too have a right to land in their own name and right. In different districts like Keiskammahoek, Msinga and Ramatlabama, these processes of change from below have resulted in single, never-married women winning the right to land in their own name through participatory processes and sustained challenges despite stiff resistance.

This development points to the need for a left that is capable of engaging in a much-needed dialogue between the progressive, democratising evolution of customary law with notions of rights, gender equality, rural democracy, and social mobilisation. The crisis of rural poverty, combined with an accumulating rural elite, provides a foundation upon which rural movements can build with the support of the left. In such a process, the left must drop old undemocratic methods of assuming that it is there to teach rural people. Rather, what is needed is a mutual process of engagement, learning and unlearning, action, solidarity, struggle, and, hopefully, democratic victories.

It is on this terrain that the undemocratic institutions propped up by the TCB, the TLGFA and the NTAB can be defeated and replaced with democratic rural and agrarian reform. This will take sustained, patience, strategy, conscientisation, mobilisation and organisation in rural areas.

Jara is a member of the Democratic Left Front. His research work focuses on customary law and rural struggles.