Since the end of apartheid in South Africa, lesbian, gay, bisexual and transgender (LGBT) communities have made unprecedented legal gains under the rubric of the bill of rights. In 2004, 10 years after South Africa's transition to democracy, I undertook a year-long research project on the impact of the 1996 constitution on the lives of sexual and gender minorities living outside urban centres. Existing discriminatory laws had been scrapped, and new legislation put into effect. The question, though, was what the constitution actually meant to LGBT communities in small towns and rural areas.
It meant a lot – not because lesbians, gay men and transgender people did not face discrimination and violence. They did. Not because LGBT communities had better access to the courts and more co-operation from the police. They did not. Not because religious figures and traditional leaders were any more measured in their condemnations. Far from it.
The constitution provided something else, possibly less tangible, but equally important. It provided a sense of belonging, an unambiguous claim to "being South African", fully and equally. In short, the constitution provided citizenship. Not everyone knew what the constitution meant and few knew exactly what the legal changes were, but everyone knew that "sexual orientation" was mentioned. Being named, recognised and included meant a great deal. It offered a kind of theoretical protection from mistreatment.
The traditional courts bill threatens to undermine this security for millions of South Africans living in rural areas. The bill is the latest in a series of clumsy attempts to define, regularise and institutionalise the role of traditional leaders. In so doing, the bill undermines the protection afforded by constitutional civil rights.
The bill would grant individual traditional leaders sole authority to interpret and implement customary law. The bill would also prohibit rural people from opting out of the jurisdiction of traditional courts, preventing access to alternative forms of justice and circumventing the authority of the constitution.
Historically, the role of chiefs has long been a fraught one. Under the Bantu Authorities Act of 1951, many chiefs were notoriously compliant with the apartheid state. For this reason, rural struggles against dictatorial forms of traditional leadership were very much part of the struggle for democracy.
In recognition of the significance of customary law to the lives of many South Africans, the drafters of the constitution tried to accommodate the chiefs within a framework of democracy, but left the exact relationship unclear. A bill regulating traditional courts should attempt to synchronise these legal systems, but not at the expense of the vulnerable populations living in rural areas, whose rights could well be jeopardised by elevating traditional rulers.
It is no accident that some of the most vociferous public debates in South Africa and sites of the most violent conflict have concerned the role of women and the legal equality of sexual and gender minorities. These have sometimes been adjudicated by traditional authorities but, contrary to the way the chiefs are presenting it, the traditional courts bill elevates the role of chiefs and threatens to ossify traditional law.
Tradition, too, must evolve, and, indeed, it has done. The constitution holds that customary law should be recognised, respected, and – most importantly – subject to the constitution. Yet Contralesa and the National House of Traditional Leaders have consistently rejected LGBT people as "un-African", recently recommending that "sexual orientation" be removed from the bill of rights.
The very essence of our democracy is the protection of vulnerable people. This bill, if enacted, would effectively remove that protection for millions of South Africans. For women, gays, lesbians and transgender people, in particular, the protection of the bill of rights is necessary armour against traditional authority. If South Africans keep traditional leaders in a modern democracy, these figureheads should play a role consistent with the constitution, not one that tampers with our rights.
