AMAHLUBI, South Africa, Dec 4 (TrustLaw) - Pregnant and bereaved, Thandiwe Zondi considered killing herself and her five daughters when she was evicted from her marital home.
Under customary Zulu law, only males can inherit land. But Zondi had borne no sons when her husband, a chief, died of natural causes, so his successor moved into her house and turfed the family out.
She appealed to a traditional court of tribal leaders - but they sided with the new chief.
Traditional courts are the most accessible form of justice for poor, rural South Africans, and their power is growing, setting back the clock on women’s rights in one of Africa’s most progressive countries.
Their increasing influence is largely thanks to President Jacob Zuma, a proud Zulu who has four wives and a fondness for dancing dressed in a leopard skin cloak and a kilt of animal tails with a cow-hide shield and spear.
As Zuma fights for re-election as head of the African National Congress (ANC) in December and as president in 2014, he plans to make traditional courts the only option for millions of South Africans by denying them access to civil courts.
Zondi’s eviction was not based on any statute, and it flew in the face of South Africa’s post-apartheid constitution, which guarantees gender equality and outlaws “unfair discrimination”. But that didn’t make it any less real.
“They asked me who is going to look after me,” she recalled, sitting in her father’s cluttered mud home, overlooking a valley in KwaZulu Natal, Zuma’s home province.
“They needed a man. I said there’s no one. That’s when they started getting angry and violent. It was very painful. I had all these thoughts of killing myself and my children.”
Today, 18 family members spanning three generations squeeze into her father’s three-bedroom home. Every inch is filled with bulging suitcases, cardboard boxes and furniture shrouded in sheets. Photographs of family members hang by her daughter’s sporting trophies and pictures of Jesus.
Presided over by tribal elders steeped in customary law, traditional courts in the densely populated apartheid-era “homelands” rule on everything from land rights and domestic violence to trespassing by livestock.
The Traditional Courts Bill, which had its latest round of public hearings in September, would subject the 18 million South Africans who live in the homelands - where the tribal chiefs still exercise power - to this separate justice system.
Speaking to traditional leaders about the bill last month, Zuma lambasted South Africans opposing it for trying to be “too clever” and aping “the white man’s way”.
Critics say the bill will almost certainly be kicked out as unconstitutional, but they say the fact it is before parliament at all, and that at least one other bill boosting the power of traditional chiefs are planned, harks back to apartheid.
“It’s going to take us back to prior to democracy when, as women, our rights were not recognised,” said Priscilla Matsapola, a lawyer with People Against Women Abuse, a rights group that provides legal advice and other services to victims of abuse.
The white minority government that ruled the country before the first democratic elections in 1994 created the homelands as a dumping ground for black Africans in pursuit of its goal of a racially segregated South Africa.
Many of the black majority were evicted from their homes and squeezed onto 13 percent of the land where they were ruled by tribal chiefs co-opted into the white segregationists’ scheme. Others lived in crowded townships round the cities.
“It’s ironic that the democratic government should be moving towards realising the goals of the apartheid government,” said Sindiso Mnisi Weeks, a senior researcher at the University of Cape Town.
She and others argue that the government is distorting customary law by giving chiefs so much power and creating an illegitimate, unelected fourth layer of government.
“People are saying what’s at issue here is the transition to democracy and you are selling us out on that,” said Aninka Claassens, an expert on land rights at Cape Town University.
Women, who make up 59 percent of rural residents, would be worst affected by the bill as traditional leaders and cultures tend to be patriarchal, critics say.
There are few working age men living in the simple mud homes that pepper the green and brown hills of KwaZulu Natal. Most migrate to the cities and mines. Half of rural households are run by women, usually grandmothers or single mothers who rely on pensions and child grants to get by.
In South Africa’s traditional courts, women usually have to be represented by a male relative or neighbour.
Widows involved in disputes over their late husband’s property, like Zondi, are particularly vulnerable. They are expected to go into mourning for at least six months, without appearing in public, because they are considered impure.
“When decisions are being made about their lives and the future of their children... they are not there,” said Nomboniso Gasa, who writes on gender issues.
Instead, they are represented by their husband’s relatives, often the very same people who are trying to evict them.
Since the introduction of South Africa’s 1996 constitution, customary law has been evolving to reflect the new democratic values, such as allowing single mothers to be allocated land.
Critics regard the bill as a backlash by traditional leaders against these changes. Elders counter that the bill would bring the work of traditional leaders into line with the constitution.
“It’s not going to violate women ... That is just an exaggeration,” said Wilson Makgalancheche, head of the National House of Traditional Leaders, set up by the post-apartheid government to bring traditional leaders into discussions about the new democracy.
“Culture is definitely evolving. In as much as we want to cling to our culture and we want to hand over the culture from one generation to another, we need to be cognisant of the developments within the areas where we live.”
‘CODE FOR MISOGYNY’
The chiefs are lobbying for ANC support in exchange for their ability to deliver rural votes.
“The bill on the table now is about the kinds of stresses and pressures on the ANC to build as wide a support base as possible,” said Nic Borain, a political analyst.
“They have made very direct appeals to the traditional leadership, which is very patriarchal, very conservative.”
Zuma ousted Thabo Mbeki as ANC president in 2007 with the backing of traditional leaders whose power had been waning, said William Gumede, a professor at Witwatersrand University.
“Now they have credibility because they are aligned to the president... Now they are pretty powerful,” he said.
Several ANC parliamentarians are chiefs, such as Phathekile Holomisa, who heads the Congress of Traditional Leaders of South Africa, a lobby group which wants the clause protecting gays and lesbians from discrimination removed from the constitution.
Gasa cites Zuma’s polygamous lifestyle, rape trial - in which he was found not guilty - and his labelling of unmarried women as “a problem” as signs of a new cultural tone.
Gumede said: “He has set a new example, I think, of social conservatism and he has made it kosher again.”
(TrustLaw is a global news service covering human rights and governance issues and run by the Thomson Reuters Foundation, the charitable arm of Thomson Reuters)
Editing by Philippa Fletcher and Sonya Hepinstall