Layers of Authority, Boundaries of Decision-Making: Controversies around the Traditional Courts Bill

Abstract

"This paper focuses on traditional courts and the impact of imposing fixed jurisdictional boundaries for them within the context of deeper disagreement about the nature of traditional identity, boundaries and authority, particularly as this relates to dispute resolution. It describes the Traditional Courts Bill of 2008 and controversies over its key provisions. The imposition of territorial boundaries by colonial and apartheid governments, and complementary legislation of distorted and oppressive powers assigned to traditional leaders, had many negative consequences for rural people. But this approach appears to be perpetuated by the present government. Policies and legislation that entrench fixed boundaries and authoritarian notions of traditional leadership continue attempts to define social identity, dictate jurisdictional limits and map a centralised system of dispute resolution onto the indigenous systems in operation. By giving primacy to controversial territorial boundaries (especially macro-communal ones) and refusing people the right to ‘opt out’, the Bill distorts the flexible, layered and nested social organisations and dispute resolution processes prevalent in customary communities. It also undermines means by which traditional institutions might be kept accountable. Put differently, contests over institutionally supported definitions of boundaries signify similarly deep concerns about power relations, and the tensions around authority and accountability – particularly in dispute resolution – brought about thereby. Drawing from commons literature on locally designed rule systems, layered jurisdictional boundaries and the politics thereof, and the centrality of dispute resolution in the building of authority, this paper interrogates these governance issues relative to the Bill and living customary law: Who can make the rules that govern the commons? Who has power to decide disputes arising from non-compliance? Who else can participate in dispute resolution? Whose disputes are they empowered to decide?"