The Indigenous Constitutional System in a Changing South Africa Digby S Koyana Adjunct Professor, Nelson R Mandela School of Law, University of Fort Hare

The Indigenous Constitutional System in a Changing South Africa Digby S Koyana Adjunct Professor, Nelson R Mandela School of Law, University of Fort Hare 1. MAIN FEATURES OF THE INDIGENOUS CONSTITUTIONAL SYSTEM In the African scenario the state comprises a hierarchy of component jural communities1. In hierarchical order, from the most comprehensive to the smallest, the jural communities are: the empire, the federation of tribes, the tribe, the district or section and the ward. The most common and simplest structure found amongst many peoples was the tribe, which consisted of a number of wards. The comprehensive jural community could be enlarged by the addition of tribes or tribal segments through conquest or voluntary subjugation. It is this way that empires, such as that of Shaka in Natal, were founded2. In such cases, the supreme figure of authority would be the king, and those at the head of the tribes, the chiefs, would be accountable to him. Junior chiefs in charge of wards would in turn be accountable to the chief, and there would naturally be yet more junior “officials”, relatives of the chief of the tribe, who would be in charge of the wards. The tribe itself has been described as “a community or collection of Natives forming a political and social organisation under the government, control and leadership of a chief who is the centre of the national or tribal life”3. The next question relates to the position of the chief as ruler in indigenous constitutional law. In principle the ruler was always a man. There are exceptions such as among the Lobedu tribe, where the ruler has regularly been a woman since 18004. Regarding the question of succession to the ruler, the principle of patrilineal succession or succession in the male line was applied5. Thus we see that the present-day constitutional law principle of succession to the seat of power by virtue of a system of elections conducted at fixed intervals, was unknown in indigenous constitutional law, as was the case in Europe in the olden days. In the case of a tribe that stood on its own (as was the case with the Pondo and the Xhosa and the Thembu tribes of Transkei, which were not part of a federation of tribes under one 1 A.C. Myburgh: Papers on Indigenous Law in Southern Africa. J.L. Van Schaick, 1985, p.1 2 Vorster, Van R Whelpton, & Van der Walt. 3 Report of the South African Native Affairs Commission 1903-1905. Section 212, page 41. 4 See Vorster et. al, op. cit. 14. 5 Vorster et. al., op. cit. 15. 66 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA powerful ruler) the chief exercised the functions of chief justice, and chief executive6. In this regard Kerr asserts, with reference to a statement by the Rev. H.H. Dugmore who lived and worked among the Xhosas: “The laws originate in the decisions of the chief and his council, but the same council forms the great law-court of the tribe, in which the chief sits as judge, and afterwards enforces the execution of his own sentences or perhaps inflicts the awarded punishment with his own hand”7. There was no formal or systematic approach to a process of law-making8 so that unwritten customary law was the guide in legal matters. However, there is evidence of instances of law making having taken place among tribes. Thus Moshesh (Moshoshoe I), Chief of the Basotho, prohibited killing for witchcraft, while Sarili, Chief of the Xhosa, passed a decree of considerable importance relating to private law.9 The main asset of the nation, the land, was closely associated with the ruler and he and his subordinates allocated land to the people for residential and agricultural purposes. There was no question of sale of land. The council played an eminent role in the indigenous constitutional set up. This emerges from statements by missionaries and senior officials who lived and worked among tribes for very long periods. Thus the Revd. Richard Ross, who had lived and worked for twenty-four years with the tribe he spoke of, said that “the supreme power is in the chief and councillors. The chief cannot legally act alone”10. And Mr. J. Orpen, Acting Governor’s Agent with thirty-five years’ experience in Basutoland, cited three cases in which Moshesh sought to alter certain customary law rules. The change became established only in the one instance where he had obtained the consent of the people. In the other two cases which were regarded as “his individual commands” the result was, to a great extent, utter failure11. Kerr then concluded that “in old customary law the sovereign was the chief in council”12. This conclusion is supported by Myburgh13 who states that no proposed measure could become law unless it was adopted by the recognised body as a whole14. 6 See Kerr. The Customary Law of Immovable Property and of Succession, Grocott & Sherry, Grahamstown. 3 Ed. 1991 7 Kerr op.cit. 25. 8 Kerr: Op. cit. ibid 9 He decreed that in the case of the death of a wife no cattle should be claimed or recovered by the husband from her guardian thereby altering an old rule of customary law which provided for such recovery. See Kerr: op.cit. 26 10 Kerr, op. cit. 26 11 Kerr, op. cit. ibid. 12 Ibid. 13 Papers on Indigenous Law, op. cit. 14 See at 61. 67 SPECULUM JURIS 2013(1) There is a difference of opinion on the question as to whether or not the chief was above the law, i.e. was he accountable in law. On the one hand it is contended that “the chief was traditionally below the law and could indeed be tried by his own council”15. A chief’s subordination to the law did not apply during periods of dictatorship such as that of Shaka and Sekhukhune16. On the other hand it is contended that although sovereignty is vested in the chief in council, the chief had many of the attributes of a monarch such as existed in England in the early days. One of these was that “the chief could do no wrong.”17 This stand-point is supported by Myburgh18 who states that as a rule no judicial proceedings can be instituted against him19. Kerr, like Wilson, also relies on the authority of the 1883 Commission.20 My perspective is that is that the chief was above the law. Nowhere in the 1883 Commission’s Report is it stated that the chief was subject to the law or that he could be tried by his council. It is therefore difficult to see what the proponents of the opposite view really rely upon as there is not even a single example given of a chief who was ever tried by his councillors. When pressed with questions, the respondents in the 1883 Commission21 stated that the chief was not above the law because he must act on a decision reached with the councillors. He was capable of doing wrong and when he exceeded his power he faced reaction from the councillors. That reaction included a fine being imposed upon the chief councillor by whom, it was averred, he must have been misled22 or a transfer of their allegiance by the citizens, to another chief. When thus left alone (or with very few citizens) he would then be ridiculed as “a ruler of pumpkins”23. The citizens could even take up arms against him and “assegai” him24. More support for the view that the chief faced only a reaction for any wrong he did is 15 See Monica Wilson: Freedom for my People – The Biography of Z.K. Matthews. Rex Collings, London 1981 p. 231. 16 Monica Wilson, op. cit. ibid. See also I. Shapera: A Handbook of Tswana Law and Custom, OUP 1938; Report and Proceedings of the Government Commission on Native Laws and Customs, Government Printer, Cape Town, 1883 p.82 ff. 17 Kerr, op. cit. 28. the author notes that freedom from the law was shared by the sons of the chief but was not extended to minor chiefs who were subordinate to a paramount chief, nor to their sons. 18 op. cit 19 See at 56. cf. The Black Administration Act No. 38 of 1927, Section 4. 20 p.82 ff. 21 See p. 82 ff. 22 1883 Commission p. 82 par 1200. 23 Vorster et. al. op. cit. 15. 24 op. cit. 68 THE INDIGENOUS CONSTITUTIONAL SYSTEM IN A CHANGING SOUTH AFRICA given by Professor Peires25. The author relates that Tshiwo, a senior chief, told Khwane when he installed him as chief of the Gqunukhwebe of Ciskei: “You may throw your spears against me myself if I do you wrong.”26 Furthermore, it is indeed difficult to see how chiefs could be regarded as being “below the law” and capable of being tried by their councillors because the chiefs regard themselves and are likewise regarded by their people as having derived their positions from the ancestral spirits, something similar to “the divine right of kings” that was asserted by Charles the Great in Europe. In all the circumstances Kerr27 is quite correct in his persuasion28. The fact that resort had to be had to extra-legal remedies such as armed resistance, secession or civil war whenever a chief acted in a way which, had he been a subject tribesman, would have made him accountable in law, leads one to the conclusion that, whereas the chief like any other human being, is capable of doing wrong there was no legal check upon his actions.

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