OPINION | Courts of African Origin must be understood
No man is infallible.
This applies to all human beings regardless of social standing, religious position, political or judicial office.
Traditional leaders too, embodying as they do all of the above positions – and more – are as prone to making mistakes as the next man.
The incarceration of King Zwelibanzi, after having been captured, tried, convicted andsentenced, for having exercised and performed what he deemed to be his powers and functions as the embodiment of the Thembu system of justice and political administration, is an abiding indictment on the African political and judicial leadership of the current SA.
In terms of African law the king and every other traditional leader is, among many other occupations, a judicial officer.
In our system of justice administration iNkosi is part andparcel of his isizwe and participates in all the activities that members of his isizwe participate in.
When a call is made that a crime is being committed, for example theft of livestock, he proceeds to the scene to give guidance on how the operation must be conducted; you see, he is the commander of his armies – big and small.
When the criminals (the westerners prefer to call them the suspects) are apprehended they are forcibly taken into custody at the royal residence to await trial. As presiding judge over the criminal trial proceedings, iNkosi participates in the trial together with his counsellors.
Nothing prevents any of the participants from sharing information that may shed light on true facts. Having pronounced judgment and the sanction to be imposed on the guilty party, nothing prevents iNkosi from participating in the execution of the punishment.
Our system of governance does not subscribe to the notion of the separation of powers imported by the whites into SA and accepted by the post-apartheid government.
I am talking here as original Africans. Our national assemblies – iimbizo – are our lawmaking forums, whose decisions are binding on all the citizens of the realm. The Lord-in-Council – iNkosi neSigqeba Sayo – is the executive authority, whose responsibility is to implement the laws passed by the national assembly. In all of these forums the traditional leader is a presiding participant, whose constraint in exercising such powers is to ensure he heeds the voice of the people and the counsel of his advisers.
When Zwelibanzi took part in the arrest of people accused of criminal acts, he was charged with abduction. When he imposed corporal punishment he was charged with assault.
His Majesty advised that those who had charged others with murder should seek to subject themselves to mediation, as is custom, he was charged with defeating the ends of justice.
When he participated in the execution of the eviction order against persons so sanctioned, he was charged with committing arson.
When the laws of parliament are found by the courts to be in violation of the Constitution they are either amended or repealed. When a magistrate or judge has erred, his decision is taken on review or appealed against. If the higher court believes the applicant or appellant, as the case may be, then an appropriate decision is taken.
Never has it happened that a judge or magistrate who conducts a case in the most shameful or foolish manner is charged for not doing his job properly. Yet King Zwelibanzi is in jail simply because he has been seen to have exercised his judicial powers and performed his functions in an improper manner. From the onset our constitutional order branded him a criminal suspect, who was liable to be prosecuted, and not a judicial officer who should have conducted himself in a different way.
Our constitution assumes that western norms, values and systems are the way to go. When confronted with the fact there are Courts of African Origin in SA, our lawmakers are gobsmacked. They do not know what to do with them. They cannot even make a law that governs and guides the manner of operation of these Courts of Origin. The courts of western origin are called by name – Constitutional Court, Supreme Court of Appeal, High Court, Regional Court, Magistrate’s Court - but not those of African origin.
The king by all accounts erred in the manner he dispensed justice. Even in the Courts of African Origin his conduct of the cases would’ve been liable to review and some of the sanctions would have been overturned on appeal for being excessive. Attention would have been given to the plight of the victims.
Those brought before him for breaking the law by, for instance, committing acts of murder, rape and sexual harassment of married women, would’ve been subjected to a proper trial.
The current system of administration has not paid attention to the suffering incurred by the victims of the king’s excesses. All that this system cares about is the punishment of the person considered the offender. The course of action open to them is to institute civil action; and for them to do so they must hire a lawyer - justice must be purchased.
Until parliament and the constitutional court craft and adopt a law that recognises and guides the Courts of African Origin alongside the current order King Buyelekhaya Dalindyebo (Ah! Zwelibanzi) should be released from jail. He made mistakes just as other judges do. He should be released.
• This is an edited version of an input in a panel discussion in EL last month by his Royal Highness Nkosi P (ah! dilizintaba), traditional leader of the Hegebe clan, ANC MP and deputy minister of labour...