In its presentation to the Select Committee on Security and Constitutional Development in Parliament on 21 September 2012 on the Traditional Courts Bill (TCB) the Commission for Gender Equality (CGE) highlighted numerous issues that are unconstitutional. In his presentation the Chairperson of the CGE, Commissioner Mfanozelwe Shozi raised the following:
(i) The guiding principles in the bill which claim to align the bill to the constitution are misleading because a majority of the clauses go against the Constitution.
(ii) Presiding officers in traditional courts can be exempted from training. This will lead to a skills gap where different presiding officers will deal with similar issues differently. Such circumstances will give rise unfair discrimination which is prohibited by Section 9 of the Constitution.
(iii) Traditional leaders enforce traditional practices and will also preside in disputes flowing out of such practices. This is in conflict with the nemo iudex in propria causa principle.
(iv) Settlement of criminal disputes by traditional courts as set out in the schedule will violate an accused’s right to a fair trial as set out in Section 35 of the Constitution because the accused will be treated differently from any person tried for the same offence in the Magistrate’s Court due to the absence of an opt out clause.
(v) Traditional leaders in general are intolerant towards the Lesbian, Gay, Bisexual, Transgendered and Intersexed (LGBTI) community and there is strong likelihood that disputes by such individuals will not be adjudicated fairly.
Furthermore, the CGE has conducted extensive monitoring of the public hearings undertaken by the National Council of Provinces (NCOP) and has observed that insufficient consultations have taken place.
Under the circumstances the CGE does not support the Traditional Courts Bill in its current form and recommends redrafting in order for the Bill to be compliant with the Constitution. Our submission is included herewith.
