There is obviously substantial dispute about the concept of traditional courts, with advocates promoting their use of non-adversarial values, and opponents fearful that such an approach removes the key power of courts to protect the weak and vulnerable against the patriarchal power of traditional structures. A recent post in the international access to justice blog, provides an interesting analysis of how this tension works out in the debate over the South African proposed law.
On the one hand:
When deciding upon disagreements traditional courts should apply customary law and customs. Through bringing justice to the communities the Bill aims to:
- Affirm the values of traditional justice which is based on restorative justice and reconciliation. In the language of the Bill, restorative justice and reconciliation are true African justice values;
- Affirm the role of the institution of traditional leadership;
- Enhance the effectiveness, efficiency and integrity of the traditional justice system;
- Enhancement of the quality of life of the traditional communities through mediation;
- Promote access to justice for all persons in South Africa.
As foreseen in the Bill, traditional courts should prevent conflict, maintain harmony and resolve disputes where they have occurred. For instance, the sanctions imposed by the Traditional courts cannot be inhumane, banish one of the parties from the community or be humiliating (corporal punishment is explicitly outlawed)
On the other:
Some challenge the wisdom of centralization of local powers in the hands of non-elected and unaccountable traditional leaders. Moreover, the structure of the traditional courts centralizes significant powers to a single individual. It is not difficult to see traditional leaders disposing justice despite of conflicts of interests.
Others challenge the patriarchical fundaments of the institute of traditional leadership in South Africa and warn that such institutions can further harm the interests of women and other vulnerable groups such as foreigners who make sizeable proportion of the population of many rural areas. An example of the attitude that some traditional leaders might have towards women is a story from Prudhoe village, where an eight-month pregnant woman tried to claim damages from the man who made her pregnant and then abandoned her. The tribal court decided that she was just speculating with the good name of the man. Also the court said that the man’s father is rich and important and it is not desirable for the community to “pull their family name in the mud”. At the end, instead of being given relief, the pregnant woman was sentenced to corporal punishment.