Banjul, The Gambia - The Legal Resources Centre (LRC) has called upon the African Commission on Human and Peoples’ Rights (ACHPR) to formally request the South African government to withdraw the Traditional Courts Bill currently being considered by the National Council of Provinces.

Speaking during the 51st public session of the ACHPR, the LRC said that the Bill in its current form violates various rights protected in the African Charter on Human and Peoples’ Rights, including rights relating to access to justice, freedom of association, cultural and social development and equality.

The ACHPR is the institution mandated with protecting and promoting the rights contained in the Charter. South Africa ratified the Charter soon after becoming a democratic state in 1994.

Earlier on Thursday, the South African Human Rights Commission also raised their concerns with the Bill in their submission to the ACHPR saying that the South African government is currently grappling with reconciling the protection of African customary law and its institutions and the constitutional protection of gender equality. They expressed concern that the current draft of the Traditional Courts Bill does not fulfil constitutional obligations in this regard.

While the LRC noted specific problematic aspects of the Bill, Wilmien Wicomb of the LRC stated that the Bill was ill-conceived in its entirety as it was drafted with the participation of traditional leaders only and represented a colonial-style codification of customary law which distorts living customary law as recognised by the Constitution.

The Bill cannot be saved by the provincial hearings that commenced on 18 April 2012, she said. Responding to the reports from the Alliance for Rural Democracy earlier today, the LRC said that these hearings are fatally defective in that rural communities have nowhere been adequately informed of the contents and consequences of the Bill. In addition, observers report that provincial hearings have been dominated by the presence of traditional leaders which has made it difficult for ordinary community members to speak out.

Specific problems with the Bill include that it does not guarantee the representation of women in the Courts, either as presiding officers or in appearing before the Court; it denies the right to legal representation and allows for appeal to higher courts in only a limited number of instances.

Most alarming within the context of the various boundary and leadership disputes across South Africa is the fact that any community member who refuses to appear before a chief – even one with whom she may be in dispute – will be a criminal offence. These many disputes are the result of the South African legislature’s decision to entrench the apartheid government’s boundaries of traditional communities first promulgated in the Black Authorities Act of 1951.

The public session continues until 2 May 2012.

The LRC submission, attached hereto, elaborates on the violations of Charter rights in the following terms:

• Article 3(2), which provide that every individual shall be entitled to equal protection of the law;

• Article 7(1) which holds that every individual shall have the right to have his cause heard, including to have the right to an appeal to competent organs against acts of violating his/her fundamental rights; the right to be defended by counsel of his/her choice and the right to be tried by an impartial court or tribunal;

• The freedom of association of every person guaranteed by Article 10 of the Charter;

• The Charter’s protection of peoples’ rights to cultural and social development with due regard to their freedom and identity;

• And finally, the Charter guarantee that every individual is entitled to enjoy the rights and freedoms recognised in the Charter without distinction of any kind including race, ethnicity or social status.

 ENDS.

NOTE: For more information please contact Khumbulani Mpofu, LRC's Communications and Marketing Officer, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 011 838 6601.

The LRC is an independent, non-profit, public interest law clinic, which uses law as an instrument of justice to provide legal services for the vulnerable.