Between democracy and despotism
South Africa introduces a new law which allows traditional leaders along with third parties to decide for communities, without their consent.
Last weekend, Ugandan musician-turned-politician, Bobi Wine, touring South Africa, gave a rousing performance at the packed Johannesburg City Hall. Attendees were dressed in the signature red of the People Power Movement, the resistance group led by Wine (who’s real name is Robert Kyagulanyi Ssentamu) that formed out of popular protests against current Ugandan president Yoweri Museveni. Museveni plans to extend his 31-year long term by running for office again in 2021. Wine, who recently announced his intention to challenge Museveni for the presidency in that general election, was in South Africa to receive a prize in recognition of his vocal opposition to Museveni, having been in and out of jail over the last two years because of it.
At one point, after coming to power following a liberation war, Museveni was praised for democratizing Uganda’s political system, especially local rural government. During the revolution and immediately after he came to power, Museveni’s National Resistance Movement (NRM) detribalized rural administration by removing the power of local tribal chiefs (mostly appointed by the British as part of indirect rule). Although ultimately, the decentralization of local government in Uganda became associated with a lack of independence, ineffective funding, corruption and subject to party political struggles (Museveni reinstated parts of kinship rule to bolster his power), the extent of the reforms cannot be underestimated.
It is ironic then that just before Bobi Wine arrived, the South African Parliament announced a new law to consolidate the power of unelected traditional authorities. On November 28, President Cyril Ramaphosa signed the controversial Traditional Leadership and Khoi-San Act (TKLA). Last year, South Africa’s National Assembly passed the Act and the National Council of Provinces consented. (Only one province, the Western Cape, governed by the opposition Democratic Alliance, withheld its support.)
Directly affecting roughly a third of South Africa’s population, the TKLA is rightly marred by controversy. Along with the still-to-pass Traditional Courts Bill (which denies people living in customary law communities the right to choose whether to use state or customary courts), the pair are nicknamed the “Bantustan laws” for their reintroduction of colonial and apartheid-era dominion over rural populations, distorting the local practice of customary law and trampling on rural democracy. The law affords sweeping powers to traditional leaders, most outrageously through Clause 24 of the Act, which allows traditional councils to enter into partnerships and agreements with third parties without first acquiring the consent of the communities whose land and livelihoods will be affected.
When Museveni attempted his first reforms of local government in Uganda, he appointed political scientist Mahmood Mamdani as chair of the 1987 Commission of Inquiry into the Local Government System. In 1996, a decade after Museveni first came to power, Mamdani published his book Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. In the book, Mamdani presents a provocative and imaginative account of the enduring legacies of colonialism which stand as roadblocks to democratization. In Mamdani’s view, the gap between the urban and the rural in Africa is the starting point of its contemporary history. This gap originates in colonialism’s bifurcated state, where direct rule in urban areas was characterized as an unmediated, centralized despotism, featuring civil rights as the preserve of ‘citizens,’ a racialized category. In the countryside, tribal society was invented as a mechanism for indirect rule, predicated on chieftainships manufactured and imposed on previously stateless communities, with what was deemed ‘customary’ being based on what would strengthen a ruler’s control over their subjects.
South Africa’s apartheid and colonial experience then–as it was with many other African countries subject to British rule at some point–was one of both territorial and institutional segregation. So the task of democratization before most African states at the moment of independence required that state power was deracialized and detribalized. While the former was more or less achieved, it wasn’t so with the latter. Some radical regimes like that of Julius Nyerere’s Tanzania (a nation of 120 or so ethno-linguistic groups) made a deliberate effort to liquidate tribal identity by, for example, adopting Kiswahili as the sole national language. As Mamdani would note, however, these attempts to “unify the nation” by stamping out tribal affiliations—mimicked in Ethiopia, Libya and others—was centralized despotism refashioned as revolution from above, doing little to transform the rural-urban schism or deepen democracy from below.
As the writer Sobantu Mzwakali helpfully recalls in a piece for New Frame earlier this year, South Africa’s Interim Constitution initially set out to dismantle the powers inherited from the Homeland system by traditional leaders. In an abrupt u-turn, the 1996 Constitution in Chapter 12 enabled Parliament to pass legislation defining the role of traditional leaders. Ramaphosa’s part in signing the TKLA completes the South African government’s embrace of colonial vestiges, which started with the passing of the contentious Traditional Leadership and Governance Framework Act in 2003 which the TKLA replaces.
Much like in South Africa, as already noted—Museveni’s NRM rode to power in the late 1980s with the ambition of undercutting chiefly rule in the Ugandan hinterland. In 1986, before Uganda even decided its Constituent Assembly for drafting a new Constitution, it had already moved hastily to introduce Resistance Councils– a country-wide attempt to institutionalize village self-governance by electing bodies of representatives at the most local and immediate level, such that chiefs were “stripped of judicial, executive and legislative powers and reduced to the position of an administrative official.” But, as the 1994 elections to the Constituent Assembly approached, Museveni’s incipient regime worried that it would be unable to hold onto the support of peasants in the Buganda region that it amassed during armed struggle, so it struck an unholy alliance with Baganda royalty by reinstituting the kingship in 1993 to ward off the threat of multi-party politics– and so, as Mamdani says, “local rule in Uganda was once again at a crossroads, hovering between self-governance and indirect rule.”
In more ways than one, Ramaphosa’s so-called “new dawn” (as African National Congress party loyalists and boosters refer to his tenure in office) is instead revealing to be the return of an enveloping darkness–and to borrow a phrase from another publication, “democracy dies in darkness.” Although perhaps not so, for if South Africa is exceptional to the rest of the continent in any regard, Mamdani writes, then it is for “the strength of its civil society, both white and black.” Enormous strides have been made to advance the rights of rural South Africans, culminating in October last year with the Constitutional Court’s judgment in Maledu and Others v Itereleng Bakgatla Mineral Resources and Another. That judgment held that mining cannot proceed until compensation for host communities is determined, and that compensation requires broad community consent rather than only from traditional leaders.
Historically, it’s been the belief affirmed by the practice of the Department of Mineral Resources that a mining right extinguished informal rights to land. This means that if a mining right were awarded using the investor-friendly Mineral and Petroleum Development Resources Act (MPRDA), compensation for customary communities as an antecedent to mining was unnecessary, since the MPRDA only requires compensation for lawful occupiers and owners. However, the Constitutional Court ruled that the MPRDA must be read concurrently with the forever-temporary Interim Protection of Informal Land Rights Act (IPILRA) which protects informal land rights holders, thus customary communities are lawful occupiers of land through this legislation.
With Baleni and Others v Minister of Mineral Resources and Others, the North Gauteng High Court went further. While the MPRDA only requires that a community is fully consulted prior the granting of a mining right, IPILRA demands that the community gives its full consent, with the court confirming that no community be deprived of their land without consent. The judgment was a victory for the Xolobeni community in the Eastern Cape, which has been waging a more than ten year battle against Transworld Energy Resources (TEM), an Australian mining conglomerate desperate to extract its titanium deposits. The Amadiba Crisis Committee, which leads the charge against TEM, is spearheading the movement for the “Right to Say No” to mining, which include groups like the Mining Affected Communities in Action (MACUA) and Women Affected Communities in Action (WACUA). Alongside the “Stop the Bantustan Bills” campaign led by the Alliance for Rural Democracy, resistance efforts against the suppression of democracy in favor of the interests of traditional leaders in concert with mining companies and the state will only intensify.
So why would Ramaphosa make such an unpopular decision, one that in the above ways resemble Museveni’s in 1990s Uganda? There’s no question that it is in part to appease the Congress of Traditional Leaders in South Africa (CONTRALESA), the controversial pressure group formed in 1989 with the support of the ruling ANC, initially to build an anti-apartheid front in the Homelands. Collecting its dues in democratic South Africa, it was CONTRALESA that pushed first for the constitutional recognition of the powers of traditional leaders, and now for the TKLA and TCB. The dispute in Maledu arose after Kgosi Nyalala Pilane of the Bakgatla ba Kgafela attempted to evict villagers from a plot of mineral-rich land that they had purchased 100 years before—Pilane is CONTRALESA’s deputy president.
The ANC’s allegiance to CONRALESA re-enacts and reinforces the apartheid relation of chiefs owing their fidelity to the state, not to the people, and like it was then, it is a marriage of convenience for the preservation of power. The ANC has arguably relied on CONTRALESA to marshal rural voters to the polls in their favor, especially in a year that had an election where the ANC’s waning, urban support (chiefly with South Africa’s middle classes) has seen it turn to rural South Africa. In what will prove to be a grave miscalculation and show of contempt, it has done so bypassing the people themselves, treating them not as citizens, but subjects.
South Africa’s rural and traditional elites have been a crucial component to the mineral energies complex which so far stands as South Africa’s oldest system of capital accumulation. Yet this system is crumbling. Communities are alert to the well-documented devastation that awaits in the Trojan horse of development–environmental destruction, dispossession of productive land meaning the loss of subsistence and incorporation into precarious and casual labour, food insecurity and social disruption. It is a profound repudiation of the extractivist, capitalist economy upon which this country has been shakily built. In this period of global disaffection with the neoliberal order, it is inevitable that in the face of a disintegrating economic consensus and social compact, elites unwilling to consider just and humane alternatives would prefer the struggle to conserve and maintain the existing structure, despite all evidence to its deep failure.
The fight for rural democracy realizes Mamdani’s prescription that any reform of the bifurcated state must be “an endeavor to link the urban and rural—and thereby a series of related binary opposites such as rights and custom, representation and participation, centralization and decentralization.” The compatibility of customary law and Constitutional rights come together in “living customary law,” the actually existing practices of people rooted in self-governance. This fight is also the rejection of another false dichotomy, one looming large over African states post-independence—that between democracy and development. Development is not an end in and of itself, but a means to creating a society that is more democratic, just and fair. The means must therefore conform to the ends.
One of the songs Bobi Wine performed in Johannesburg was “Kyarenga,” loosely translated from Nkore as “It’s Too Much.” In the song, Wine tells a classic love story about a beautiful village woman coveted by two suitors. One, wealthy and pompous who charms her father with gifts and money; the other, humble and down to earth, offering her nothing but his love, pure and simple. Unimpressed with the rich man, she rejects him and against her father’s will, chooses her true beloved. The rich man takes back his gifts (to her father’s dismay) and sends a gang of thugs to intimidate his lowly but dignified opponent. After a light-hearted dance off between the thugs and the poor man’s own posse, the two parties reconcile, and the video cuts to a jovial, wedding-like party full of dancing, laughter and a pyramid of culinary delights in the center, with the two lovebirds also reunited.
The song has become an East African pop anthem, racking up 2 million views on YouTube. Since the release of his album, Wine also held his infamous “Kyarenga Concert,” coming a month after his planned Independence Day one had been cancelled (the Ugandan government had been trying to thwart Wine’s concert for months, famously barricading Wine’s home only for him to make a dramatic escape via motorcycle). While some have dismissed Wine for his pop-star fame, tender lyrics and cheesy music videos, it is precisely that simplicity which makes him so dangerous—for what is “Kyarenga” if not a metaphor for the crossroads in which most African politics finds itself today—between democracy and despotism.