The case of Hosi Phillia Shilubana

By Lydia Ngwenya MP

In discussing the theme of custom and democracy I wish to focus on the story of Phillia Shilubana, whose inauguration as Hosi of the Valoyi community will take place on Friday this week in my home province, Limpopo.

Hosi Shilubana's story illustrates that, on the ground, custom is flexible and changing all the time, and that in practice, rural people often find ways to marry custom and democracy. It also illustrates however, that this process of change threatens the vested interests and autocratic power of male traditional leaders, who, time-and-again rely on apartheid versions of customary law to try to stop processes of transformative change led by rural women and men.

Hosi Shilubana won an important victory in the Constitutional Court on the 4th of June. The Constitutional Court upheld her community's decision to appoint her as Hosi of the Valoyi tribe.

When her father died in 1968 he had no sons. In those dark days of apartheid women had no rights and so his brother, Richard Nwamitwa became hosi.But by the time that Richard Nwamitwa passed away in 2001 the royal family, traditional council and community decided that Phillia was the best person to succeed him. She qualified both on the basis of her royal blood and lineage, and on the basis of her abilities and commitment. Furthermore by then the principle of equality for women was enshrined as a guiding principle of our transition to democracy. Thus the way was clear for the community to combine the best of the old with the best of the new, and to transform tradition in line with the constitution. This was done the traditional African way - through building consensus within the community, the traditional council and the royal family - all of whom endorsed and supported the decision to appoint her as hosi.

Her uncle's son Sidwell Nwamitwa opposed the appointment on the basis that he, and not Phillia, should become chief of the Valoyi Tribe. He went to court to say that her appointment must be declared invalid because it conflicts with customary law. Imagine our surprise when he won the case in the Pretoria High Court, and again in theAppeal Court in Bloemfontein.

We thought that because customary law is subject to the Bill of Rights, the courts would never strike down the appointment of a woman chief. We were wrong. Both those courts struck down her appointment. They said that the Valoyi royal family and the Valoyi traditional council had no right to interfere with the customary law of succession - according to which Sidwell Nwamitwa must succeed his father as chief.

Hosi Phillia appealed the outcome to the Constitutional Court where various organizations became involved as friends of the court. The National Movement of Rural Women and the Gender Commission supported Phillia Shilubana and Contralesa supported her cousin Sidwell Nwamitwa.

The National Movement of Rural Women put forward the argument that customary law has always been flexible and has always responded to, and reflected the changes taking place in society. As Govan Mbeki and Albert Luthuli explained it was colonialism and apartheid that froze customary law into rigid rules that propped up patriarchal and authoritarian power relations. Hosi Phillia Shilubana provided evidence that historically there were women chiefs amongst the Tsonga, as there are now inMozambique . In practice succession has never operated according to a rigid formula - more often than not the royal family and council find ways of interpreting the rules that enable them to appoint the best royal contender available.

In the end the Constitutional Court upheld Phillia Shilubana's appointment because they said it is not for the courts to strike down processes of transformative change occurring at the local level and driven by those immediately affected.

Nobody forced the Valoyi elders to appoint Phillia Shilubana as their chief. They decided to do this in the context of their specific circumstances and traditions, and because they see no contradiction between the values underlying their traditions and the values upheld by the Constitution.

What determined the outcome of the case was not the status of gender equality relative to customary law as we had expected. It was a finding about the content of customary law and in particular about who determines the content of customary law for a particular community. The Constitutional Court found that the people best placed to know and to develop their customary law are the Valoyi community, not judges sitting in Pretoria or Bloemfontein.

This case has highlighted the importance of who interprets the rules of customary law - whether it is the people directly affected, who are often very pragmatic and resourceful in adapting and developing the living law to accommodate changing social realities. Or those whose position depends on preserving the rigid and distorted "official" customary law we inherited from apartheid. Before the judgment was announced my fellow MP Inkosi Nonkonyana told me that the institution of chieftainship will be "finished" if Phillia wins the case. Finished for who? Finished for the people, or finished for those male chiefs who have older sisters?

One can understand that male chiefs have a lot to lose - not only in terms of status and power, but also in terms of government salaries and tribal levies. Once women are appointed chiefs fewer positions are available for men. This helps to explain why Contralesa - which is made up almost exclusively of male chiefs - opposed Hosi Phillia's appeal in theConstitutional Court . The problem is that chiefs who have very strong vested interests at stake then justify their arguments by talking about the "preservation of customary law".

They act as if they are the makers and custodians of customary law, whereas it is the people who live by customary law who are the owners of customary law. Customary law is changing all the time as people debate, change and adapt custom in order to accommodate the changes going on in society and in order to bring it in line with the values of the antiapartheid struggle. If customary law was not adaptable it would simply become irrelevant in people's lives. In my view this is democracy in action - living customary law reflects the voices of all the people currently negotiating change in rural areas - including women, who are the majority of people living in the rural provinces.

But that is not what the recently tabled Traditional Courts Bill provides. It centralises everything to do with customary law to senior traditional leaders - the vast majority of whom are men. Senior traditional leaders are given the exclusive power to make the law, to interpret the law and to apply the law. Currently customary courts operate with a lot of input from ordinary people. The main people adjudicating disputes are not in fact traditional leaders as individuals but councils of elders. The new Bill provides no role for councils, everything is centralised to the chief.

Recently Contralesa wrote an article in Business Day (June 5 2008) supporting the Traditional Courts Bill. In the article Contralesa refers to the "tiresome accusation of African culture being anti-woman" which it denies. Yet the very same organization opposed Phillia Shilubane's accession to the chieftaincy in theConstitutional Court . The article says that the traditional courts will "of necessity" operate through traditional councils. It says that these have been transformed and now include one third women.

Yet it does not mention that the Traditional Courts Bill includes no role for councils of any kind. Nor does it mention that traditional councils are simply the same old Bantu Authorities that sparked rebellions when they were imposed during apartheid. But now according to the Traditional Leadership and Governance Framework Act they must include 40% elected members and 30% women. The article does not mention that traditional leaders opposed the 30% quota for women when it was discussed in the portfolio committee. Nor does it mention that traditional leaders opposed a quota for women in traditional Courts when the matter was debated by the Law Commission in 2003.

It is not African culture that is anti-woman. It is the male chiefs who keep saying on public platforms that African culture does not discriminate against women, but in practice take every opportunity to oppose the processes of social change that are taking place in rural areas. The government did not say that Phillia Shilubana should be a chief. It is people of the Valoyi community who decided this. But male chiefs are fighting tooth and nail to preserve and control the rigid patriarchal version of customary law on which their power relies.

25 August 2008