Response to king’s actions may shape customary law
Court records show the king failed to convene a customary court to hear and decide the outcome of the crimes his subjects are alleged to have committed.
His failure to do so goes against the well-established practices and traditions of customary courts.
If we accept that the king was acting to protect others are we then accepting that the type of customary law we seek to shape is one that endorses physical violence in the name of justice?
It is disappointing that traditional leaders would rally around a leader who departed so fundamentally from the deeply humanist principles of customary law.
It begs the question: what type of customary law are these leaders endorsing? One which justifies the burning down of people’s houses? Are they defending a customary law system in which a traditional leader is above the law and can act with impunity against his community? Have these leaders abandoned the inherent people-centric conception of customary law captured in a saying such as inkosi yinkosi ngabantu (a chief is a chief by the people)?
Turning a blind eye to the ways in which Dalindyebo’s actions in this instance undermine customary laws and principles, does not do the institution of traditional leadership or communities living under customary law any favours. It distracts us from interrogating the institution of traditional leadership and the worrying trend that traditional leaders can mistreat their communities with no consequences. It distracts us from interrogating recent laws and policies that embolden traditional leaders while stripping communities of their ability to hold their leadership accountable.
These are issues which require important conversations – ones that are not aimed at eradicating traditional leadership, but which aim to strengthen the institution by calling on it to put rural people first.
Nolundi Luwaya is deputy director of the Land and Accountability Research Centre (previously the Rural Women’s Action Research programme, RWAR) at the University of Cape Town