Culture in Governance: Learning from Ghana and South Africa

 

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What can we learn from Ghana's and South Africa's experiences in utilizing opportunities offred by cultural instittuions in their current governance system?s

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Learning from Ghana and South Africa Culture in Governance: Culture in Governance December 2014 Learning from Ghana and South Africa 1

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Culture in Governance: Learning from Ghana and South Africa December 2014 1

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Culture in Governance: Learning from Ghana and South Africa Table of contents Introduction.......................................................................................................................... 3 Culture and Governance: Uganda in the African context The Cross-Cultural Foundation of Uganda............................................................................ 5 Culture and Constitutional governance: experience from South Africa JC Van der Merwe................................................................................................................ 12 Traditional Authorities and Governance Processes in Ghana Bernard Yangmaadome Guri................................................................................................ 19 The role of women traditional leaders in modern governance: inclusion, exclusion and transformation Kansa Ewuriche Azara Veronica Bukari.............................................................................. 25 2

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Learning from Ghana and South Africa Culture in Governance: Introduction As our country continues to debate the way forward regarding the way we govern ourselves, 100 prominent individuals from Government, academia, cultural institutions and other sections of civil society gathered in Kampala in December 2014 to draw lessons from Ghana’s and South Africa’s experiences in utilising the opportunities offered by cultural institutions in their current governance systems. Participants heard J.C. van de Merwe, Deputy Director of the Institute for Reconciliation and Social Justice at the Free State University in South Africa; Bernard Yangmaadome Guri, the Director of the Centre for Indigenous Knowledge and Organisational Development (CIKOD) in Accra and a leading Ghanaian Queen Mother, Kansa Ewuriche Azara Veronica Bukari, explain how traditional chiefs and queen mothers participate in their countries’ governance. Several salient points emerged from these presentations: ¨¨ In the post-colonial period, sometimes after protracted negotiations, in both Ghana and South Africa, traditional cultural authorities have been incorporated at national, provincial and local levels of government. In both countries, there are National Houses of Chiefs and equivalent institutions at decentralised level (as is also the case elsewhere on the continent - Zambia, Botswana, Zimbabwe, etc.) 3

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Culture in Governance: Learning from Ghana and South Africa ¨¨ In South Africa, the 1996 Constitution and national legislation mandates a National House of Traditional Leaders to provide advice to the President. Legislation has transformed the composition of traditional councils at provincial and community levels to allow for elements of democracy: the law states that 40% of members must be elected, and that one-third of members must be women. Legislation has also opened up an opportunity for municipalities and traditional councils to achieve cooperative governance. ¨¨ In Ghana, traditional authorities also share the political, social and cultural space with modern state structures. While at the time of independence some people viewed this as anachronistic (this feeling has not completely died down), the institution of chieftaincy was enshrined in the 1992 Constitution. A Ministry of Chieftaincy and Culture has been created to integrate issues of indigenous knowledge, practices and culture into modern governance and development. Chiefs are represented on the Council of State and on other state commissions. ¨¨ Evidence in South Africa and Ghana suggests that the role played by traditional institutions is appreciated, particularly at the local level. This positive attitude can be attributed to cultural institutions being perceived as unifying forces; they are able to mobilise the population behind development initiatives, and offer, among others, alternative and accessible arbitration services. They enact local bye-laws, often act as representatives of local communities and play an important role in safeguarding and promoting local traditions. They co-operate with other government and non-government organisations; help to ensure conservation and environmental equilibrium; and articulate the needs and priorities of communities. ¨¨ In both countries, the role of traditional institutions is still however to some extent contested, and accompanied by mistrust and a ‘big brother’ attitude on the part of state elements. The articulation between state and traditional institutions is not always clear. ¨¨ These institutions in a way demonstrate some form of participation, accountability and responsiveness which are perceived as basic principles and mediating values of democracy. Traditional leadership is also seen as having a sacred and ancestral dimension. This debate was set against the Uganda background, where the role of culture in Governance has been and remains contentious, even conflictual. While 13 cultural institutions are recognised by the State, they are confined to ‘cultural’ issues and the issues of territoriality and relationships with central government remain unclear. Research work done by the Cross-Cultural Foundation of Uganda (CCFU) also shows a widespread pluralistic practice of governance: ‘traditional’ governance mechanisms are found to be both relevant and resilient in many parts of the country, in part because of dissatisfaction with statutory mechanisms and in part because non-state structures are immediately available, familiar and understood. Cultural leaders are however seen as unaccountable and women are often excluded; they can become the focus of conflicts; and are not necessarily among the most exposed members in a local community, hence a credibility gap. While participants therefore recognised that Uganda’s Constitution makes provisions to include culture and cultural institutions, they expressed a desire to reappraise the Constitutional positioning of cultural institutions, in the light of the positive experiences from Ghana, South Africa and from other parts of the continent. CCFU is privileged to share the papers presented at this event and takes this opportunity to thank all those who made the event possible, especially Action Aid Uganda for their financial support. 4

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Learning from Ghana and South Africa Culture in Governance: Culture and Governance: Uganda in the African context - The Cross-Cultural Foundation of Uganda 1. Culture and the current search for governance solutions Throughout the globe, rare are the situations where citizens feel that they are governed in a manner that brings them unmitigated contentment. Recent media reports indeed tell us that, from Scotland to Nigeria, from Irak to Catalonia, citizens have recently expressed, at times violently, a desire for a profound change in the way they are governed. This desire has, at least in part, been voiced in terms of a “return to cultural values”, to “cultural identity”, or to reflect “cultural diversity”. In many cases, aspects of the nation-state and established governance systems are being challenged. Three reasons for this come to mind. First, because of globalisation (whether expressed through migration, the perceived hegemony of western cultural values, etc.), promoting, respecting or even only accommodating cultural diversity has become a 5

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Culture in Governance: Learning from Ghana and South Africa political challenge throughout the world. This is especially the case, as Koenig & De Guchteneire point out1, where social movements, whether based on ethnicity, language or religion, demand full and equal inclusion in society, while claiming the recognition of their particularistic identities in the public sphere. In effect, they criticise “the classic model of the nation-state (…whose core feature) is a structural coupling of political organisation and collective identity which has deeply shaped our political vocabulary including such notions as constitutionalism, democracy, human rights (…and) citizenship”. Indeed, under the impact of that model, state-formation and nation-building were often accompanied by policies of cultural homogenisation. Today, conflicts about cultural diversity contest these and pose the question: which constitutional arrangements guarantee the functioning of a common sphere, while leaving room for the maintenance of diverse cultural practices and identities? Developments in international human rights law, the authors point out, also contribute to a de-legitimisation of the classical model of the nation-state with its assumptions of cultural homogeneity of its citizens. They strengthen the position of ethnic, linguistic and religious minorities and thus necessitate new public policies of governing diversity. From a somewhat different perspective, the Cross-Cultural Foundation of Uganda (CCFU) notes that we witness everywhere a growing recognition that important aspects of our cultural heritage provide important sources of inspiration and learning to address current development challenges, including how resources, identity and diversity are managed for peoples’ benefit2. The authors argue that, if governance is defined as the “evolving processes, relationships and structures by which a group of people organise themselves to achieve the things that matter to them”, then people need to make decisions, among others, about group membership and identity, authority, accountability, and enforcement. Governance is therefore as much about people, power, and relationships, as it is about formal structures; “(...) and it is certainly not culture-neutral. It is indeed rooted in our cultural values and defines what we consider ‘the right way’ to get things done”. Furthermore, in a multi-cultural environment, one can expect this ‘right way’ to be contested: “if governance is inextricably linked to identity and to the ‘political community’ one relates to, then citizens will act in a space which may not be the nation state: it may be related to religion, ethnic group or other dimensions of locality where ethical principles prevail, where rights and responsibilities are exercised.” This understanding of governance, legal pluralism and civic action challenges the supremacy of a ‘unique law’ and encourages us to examine the existence of several value systems, although the State may see ‘its’ system as universalistic (or at least superior) and exclusive of others. This may explain why ‘culture’ and ‘rights’ are often seen as opposed, and why ‘customary law’ is generally considered ‘below’ statutory law. The tension between the ‘local’ and the ‘universal’, between different sets of values is evident in current debates on human rights, which have become a key theme in the development discourse. International conventions stress the universal character of human rights and, amongst NGOs the acceptance of the universality of human rights is even more widespread than amongst states. Yet, the authors point out, at the minimum we must recognise that legal frameworks are inspired by a cultural context and reflect international power relationships. Can we therefore not legitimately ask whether, if human rights are to be at all universal (as the rights of all human beings everywhere), they must be integral to the culture of all societies, and not only of Western ones? A third and more instrumental consideration comes from the recent emphasis on decentralised governance and a growing realisation that successful local development is essential to meet the Millennium Development Goals. Lutz and Linder thus note3 that this aspect of governance implies a stronger focus on community empowerment and local governance in development work. However, “In the rural areas of many 1 2 3 Koenig, M, De Guchteneire, P (2007), “Political Governance of Cultural Diversity” in Democracy and Human Rights in Multicultural Societies, UNESCO/ Ashgate, Aldershot. The Cross-Cultural Foundation of Uganda (2010), “Culture in Governance. Does it work?” Lutz, G & Linder, W. (2004), “Traditional Structures in Local Governance for Local government”, Institute of Political Science, University of Berne. 6

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Learning from Ghana and South Africa Culture in Governance: developing countries(…) the existence of traditional authorities means that both the decentralisation and the strengthening of local governance is not taking place in a vacuum. Recent experience has shown that successful decentralisation has to take existing traditional structures into account. While the standard view has been that they are a historic burden on the road to modernity, it is now widely recognised that for many people, traditional structures are often more legitimate than the modern state”. 2. The Ugandan experience In Uganda, the series of constitutions and constitutional amendments before and since independence illustrates how the “modern” nation-state was essentially established at the expense of cultural entities and, gradually, of locally rooted value systems. Thus, in 1894 the British government declared Buganda a protectorate (a territory later expanded to include other kingdoms and chiefdoms). At the time, the main concerns of the chiefs lay in preserving Buganda as a self-governing entity, continuing the royal line of Kabakas, and securing private land tenure for themselves and their supporters. Meanwhile, the other kingdoms saw their kings and their chiefs reduced to agents of the colonial administration while in the rest of Uganda a quasi-Buganda system of administration was introduced. The 1900 Buganda Agreement (and similar), and the 1902 order-in-Council (arguably Uganda’s first Constitutional Order) put these arrangements into effect. Selected cultural institutions were enshrined in the 1962 Uganda Independence Constitution, granting a federated status to Buganda and other kingdoms, while the rest of the country was governed under a different arrangement. Soon, however, the 1966 crisis highlighted “the deep antagonism between the nascent Ugandan state and what was then considered anachronistic remnants of pre-colonial autocracies”. A republican Constitution, abolishing the kingdoms and confiscating their assets, was forcefully introduced, under which Uganda’s successive regimes have governed the country. Once President Museveni assumed power in 1986, Buganda’s demand for the restoration of its kingdom again came to the fore. In 1993, the President assented to the enthronement of its kabaka, hence the passage of the Constitutional Amendment which restored the traditional cultural institutions as cultural entities, and an Act that restored their assets. Buganda has however not been satisfied with a ‘cultural’ king, a status further defined in the Institution of Traditional or cultural Leaders Act (2011). Museveni then proposed a new tier of regional government between districts and the centre as an addition to the decentralised system, known as the regional tier (seen by some commentators as a tool to increase the President’s scope of patronage through another layer of political appointees). While incorporated in the 2005 revised Constitution, the scheme was opposed in Buganda because it posed a threat to emasculate the kabaka. It suggested, inter alia, to subject a prime minister (katikkiro) to a popular vote4, while leaving more control and funding in the central government. Since 1993 a number of former kingdoms (save for Ankole) and newly created ‘kingdoms’ and chiefdoms have enthroned their cultural leaders ostensibly for the purpose of mobilising people for cultural, social and economic development. Thirteen are recognised by the State and their heads benefit from various 4 International Crisis Group (2012), “Uganda: no resolution to growing tensions”, Africa Report # 187 7

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Culture in Governance: Learning from Ghana and South Africa material advantages, at taxpayers’ expense. According to Article 246 of the Constitution and the 2011 Act, a cultural leader however remains confined to ‘cultural’ issues and should not involve himself in partisan politics, although the National Land Policy empowers traditional leaders in determining land disputes, where customary tenure prevails. This brief timeline shows how contentious the issue of culture in governance has been since independence. As of now, culture as a generic cross-cutting issue is given lip service but is rarely reflected in the implementation of sectoral plans and policies5. The recognition of cultural institutions as ‘cultural’ rather than ‘political’ continues to create tensions, as do uncertainty about their geographical areas of ‘jurisdiction’ and claims of political co-option by the State. The 2009 Buganda riots were ignited by the government’s refusal to allow the Katikkiro of Buganda to visit Kayunga. The Rwenzori region recently saw violent conflict in part expressed through competing cultural institutions, where ‘kingdoms within kingdoms’ have emerged (often in accordance with current constitutional provisions, but whose legitimacy has been contested). The relationship between the central government and traditional and cultural leaders remains unclear, and is not seen by many as a result of a historically arrived at consensus by the people of Uganda or their representatives6 Meanwhile, cultural leaders have used their considerable influence to involve themselves in ‘development’ initiatives, stressing cultural values. Thus, the Buganda ekisaakaate spearheaded by the Queen of Buganda, has made an important contribution to the revival of moral values among the youth. Other leaders have variously promoted healthy life styles, tree growing, and education. In 2013, queens, princesses and women cultural leaders gathered in Kampala to launch the African Queens and Women Cultural Leaders Network, an organisation intended to “uplift the lives of African women and children using culture as a development framework”7. Beyond constitutional provisions, CCFU’s work has also recently demonstrated that a pluralistic practice of governance is in fact widespread in this multi-cultural and artificial colonial creation and that one often needs to look beyond kings and queens to clan leaders and elders to find cultural expressions in governance. Thus, the publication “Culture in Governance”: Does it work?” presented four cases. All illustrate the interface between forms of ‘community governance’, culture and the State and focus on: the experience of the Land Equity Movement of Uganda in promoting customary land tenure in Northern and Eastern Uganda8; traditional and modern conflict resolution mechanisms in Pokot9; an elders’ association – the Isaazi - speaking out against corruption in Tooro through the radio; and an Alur Chiefdom managing conflicts in fishing communities along the Nile in collaboration with state organs. These showed that ‘traditional’ governance mechanisms were both relevant to local communities and resilient, in part because of widespread popular dissatisfaction with statutory mechanisms and in part because non-state structures are immediately available, familiar and understood, as they resonate with local values, and are often considered non-corrupt, impartial, non-partisan, and usually free of charge. The case studies offer pointers as to whether non-state spaces, whose rules and values people are intimately connected to, offer opportunities for civic action. The appeal of traditional leaders in the area of land administration and a dispensation of justice which stresses reconciliation and compensation, rather than punishment and retribution, has also been amply demonstrated by others10. CCFU also showed that, while based on ancestral values, these systems were open to change. 5 6 7 8 9 10 The Uganda National Culture Policy (2006) provides a framework but its operationalization remains patchy at best. HURINET, op.cit. See “Culture can play a powerful role in the development of nations” (Daily Monitor, 4/9/ 2013) The resonance of customary tenure with local cultural values of care and solidarity and its management mechanisms that are accessible to local people are considered, albeit a system still often seen as a remnant of an earlier epoch, to be gradually replaced with freehold tenure. The case shows that having parallel, disconnected systems that aim at the same objective not only results in the ineffective use of resources, but occasionally in the mismanagement of conflict situations and “forum shopping”. See inter alia: Rugadya, Nsamba-Gayiiya and Kamusiime (2008) “Northern Uganda land study analysis of post conflict land policy and land administration”, Iversen (2009), “Transition Justice in northern Uganda”, Roskilde University International Development Studies”; ACCS (2012): “Ownership, resettlement and accountability: A situational analysis”, Refugee Law Project, Makerere University. 8

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Learning from Ghana and South Africa Culture in Governance: The study however concludes that one must avoid falling into the romantic notion that we must ‘respect the local culture’; or ‘avoid importing foreign models’: cultural leaders are generally formally “accountable” to none but themselves, women are often excluded; there may be a tendency towards the ‘big man’ politics that we recognise in other institutions; and leaders may succumb to the power of the wealthy. It was also noted that cultural leaders are not necessarily among the most exposed members in a local community, which in part explains a credibility gap, especially with the urban elite and the mobile, cosmopolitan youth. Finally, there was a widespread perception of ‘tradition’ being opposed to ‘modernity’; and of rights opposed to culture, hence a lack of synergy between state and traditional systems. 3. The global picture – successes and challenges Beyond Uganda, and immediately after the early years of the post-colonial period, new governments in Africa and elsewhere emphasised the ‘undemocratic’ ‘anti-development’ nature of pre-colonial or colonially inspired ‘traditional’ systems of governance, epitomising rural patriarchy in different forms. But the tide changed: thus a 1997 symposium sponsored by the Commonwealth Secretariat brought together traditional leaders, mayors and senior local and central government officials from across the African continent. This was held against the background of growing interest throughout Africa and the wider Commonwealth, including Canada and Australia, in the role traditional leaders could play in the modern, pluralistic state. Its conclusions foresaw an active role for traditional leadership in development and service delivery, social change, transformation and governance, as well as with regard to its better known functions in the areas of land and customary judicial administration. The symposium also concluded on the desirability of a “constitutional and administrative framework which ensured the partnership of all stakeholders in local governance and agreed that co-operation between traditional leaders and local development agencies would enhance the potential for the effective delivery of development services to local communities”. It however recognised the need for traditional leadership structures to evolve and be trained. It suggested that the representation of traditional leaders in local government structures should be achieved either by statutory provision through the appropriate and relevant houses or groupings of traditional leaders in the community; or that traditional leaders should serve in an advisory and consultative capacity on an ex-officio basis. At all levels of a state’s administration - local, provincial/regional and national - there should be an open-door relationship between government structures and institutions of traditional leadership. Over the years, this re-assessment has found expression in constitutional changes across the continent. Thus, besides the Ghanaian and South African cases being presented in more detail below, in Zambia the 1996 Constitution reintroduced at the national level a House of Chiefs composed of three traditional leaders from each province. In Botswana, the Constitution allows chiefs to discuss any matter and to call Ministers to assist them in their deliberations. Traditional leaders preside over matters of concern and interest that affect their community in a kgotla (traditional gathering place at the chief’s place). Traditional leaders also have a role to play in the judiciary through customary courts, which are seen as “a quick, transparent and inexpensive way of delivering justice” and handle about 75% of the criminal and civil cases in the country. Chiefs also have seats in the Zimbabwe senate. 9

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Culture in Governance: Learning from Ghana and South Africa The value of traditional leadership is increasingly recognised to be contained in its contribution as a unifying force with continuity, as a base for strengthening national identity and culture, able to mobilise the population behind development initiatives, and offering accessible arbitration services11. Thus, traditional institutions have variously been charged with responsibilities for matters related to safeguarding and promoting local traditions and customs; presiding over customary courts and over community meetings where matters of interest to the community are discussed, preventing offences within their boundaries; encouraging rural development and co-operating with other government and non-government organisations; and building on traditions of communal provision of services by mobilising local resources. Traditional leadership can also help to ensure conservation and environmental equilibrium; and assist in civic education and community education programmes, for example in respect of primary health care. They can also articulate the needs and priorities of the communities which they represent, thus serving as an effective two-way channel of communication between the government and the people. Lutz and Linder have analysed different models of co-operation between state and traditional systems. In the first, authority is essentially vested in the traditional structures, as in rural areas where society is still very “traditional”, and there are some formal or informal links between these structures and ‘modern’ government at the national and/or local level. The national government might have the right of administering the traditional leadership. This is a common model, although it is rarely formalised. In a second model, separate structures interact at the local and national level. A house of chiefs at the national and local level exercise certain rights and has an advisory function at the national and/or local level and/or needs to be consulted for different issues. Traditional leaders have a clear function in local government as part of one or more local government bodies. This can be done through reserved seats or through allowing (or encouraging) traditional leaders to run for certain local offices. In yet other contexts, traditional leaders serve in advisory bodies of the local government. Some countries have not chosen to grant traditional authorities a role in formal decision- making, but have formed a special body or procedure to guarantee an advisory function or to consult with the traditional authority prior to a decision. Finally, there may only be informal involvement in development programmes, with traditional leaders treated as one of many possible actors. In spite of these experiences, questions remain. Are traditional institutions, for instance, ‘democratic’? Do they always exclude women? Proponents of a closer involvement of traditional institutions in governance suggest that traditional leadership and the contemporary state make different appeals to people on the question of legitimacy. Thus Prof. D.I. Ray notes that, while the legitimacy of the contemporary state in Africa derives primarily from democracy and constitutional legality, traditional leaders can claim to be the carriers of political authority and legitimacy that is derived from the pre-colonial period – they can claim that their particular traditional authority represents those indigenous, truly African values and authority that existed before the changes imposed by the colonial system began to take effect. The second source of legitimacy is that based on religion: “To be a traditional leader is to have one’s authority, one’s power legitimated by links to the divine, whether the sacred be a god, a spirit or the ancestors. For a traditional leader to function that office must maintain and demonstrate its links to the divine”12. He further argues that the interests of government and people would be best served if the political legitimacy of governments, including local government, could be expanded (or added upon) so as to create the pre11 12 The Outcome Document of the 2010 MDG Summit, published ten years after the Millennium Declaration, emphasised the importance of culture for development and its contribution to the achievement of the Millennium Development Goals. These crucial messages were reiterated in two consecutive “Culture and Development” UN General Assembly Resolutions in 2010 and 2011, which called for the mainstreaming of culture into development policies and strategies, and underscored culture’s intrinsic contribution to sustainable development. Ray, D.I, (1997), “Traditional Leadership and Local Government: Some Policy Questions for Consideration”, The University of Calgary, Canada. 10

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Learning from Ghana and South Africa Culture in Governance: conditions for democratic development, with a political culture that promote both people and the various communities to which they see themselves belonging: “We would agree that democracy incorporates and accepts (indeed perhaps depends upon) diversity, difference and plurality (…) Legitimacy can be based on different arguments (or logics) and these can vary over time, between and within cultural and historical contexts”. Furthermore, “traditional structures do not necessarily neglect important aspects like legitimacy, responsiveness or transparency. In any case, internal governance of traditional authorities needs to be compared with the reality of local government in developing countries, not with how local governments are supposed to work in theory”. Ray concludes that, if legitimacy is not seen as a zero-sum, winner-takes-all situation, then the different bases of legitimacy that the state and traditional leaders have need not be an obstacle to the achievement of development and democratisation by local and central/national governments. To the contrary, if there is a strategy of adding the legitimacy resources that traditional leaders have to those of the state, then it should be possible to mobilise more quickly the compliance, co-operation and other resources of those people who are both citizens of the state and subjects, as well as increasing the cultural fit of democratic structures. 4. Reflection points How can the issues and experiences described above orient our reflection in Uganda? As voices are clamouring for a revision of the electoral process – and the attendant constitutional amendments – it is suggested that further thought could be directed towards the tentative following questions: 1. State mechanisms: how can they better take into account the cultural context, its diversity and the strengths of traditional systems of governance in terms of influence, access to information, and community management? 2. Capitalising on legal pluralism: If legal pluralism offers a description of the world we live in, what further spaces should be created – if any – for legitimate cultural governance mechanisms to co-exist and link up with state mechanisms; where aspects of both types of governance perspectives can be brought together, e.g. through joint planning, implementation and review meetings ‘across institutions’ to discuss, say, national and district planning processes, operational plans, budgets and funds allocated? Could elders be formally part of LC courts? 3. Could any ‘linkages’ go beyond the structural: e.g. integrate the principles of integrity and accountability used in ‘traditional’ systems into state governance. Could retired civil servants, politicians, and others be mobilised into a National Forum “to bring together all these un-expired brains and they would be willing to come and work without pay.” 4. What are the ‘risks’ involved in providing greater synergy between state and cultural governance structures, if any? Would the legitimacy of cultural institutions be compromised, for instance, because they may be seen as ‘political’? Would any scenario undermine the voice of women? How can these risks be mitigated? 5. How could cultural mechanisms be ‘modernised’ and be helped to respond to changes in the wider environment, including the influx of new ethnic groups, the influence of education, religion and trade? Could elements of traditional practice that are aligned with human rights and other state-led practices for instance be codified? 11

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Culture in Governance: Learning from Ghana and South Africa Culture and Constitutional governance: experience from South Africa JC Van der Merwe13 1. Introduction The establishment of a post-apartheid government in South Africa in 1994 was celebrated as a victory of democracy, non-racialism and freedom over the racist, sexist, authoritarian and oppressive system of governance under Apartheid. Values and principles such as gender equality, constitutionality, and representative governance were put forward as some of the hallmarks of the new multi-party democracy. With the new constitution being adopted in 1996, it became clear that the hereditary institutions of Traditional leadership, which were largely based on rural patriarchy, had to be transformed in order not to compromise the democratic project14. The debate about the role of Traditional Leadership in a democracy is an on-going one in South Africa 13 14 JC Van der Merwe is the Deputy Director of the Institute for Reconciliation and Social Justice at the University of the Free State in South Africa. For the purpose of this paper, I subscribe to the description of Traditional Leadership provided by Carolyn Logan: “Despite the many ways in which the institution has evolved over the years, for the most part, people know who we mean when we refer to their country’s “traditional leaders.” And although these authorities are very diverse, they also tend to share common characteristics. They generally occupy their posts by virtue of some sort of hereditary (albeit often contested) claim rather than through elections. But more importantly, they are recognized as having connections to their society’s cultural and historic roots in ways that official government figures do not” (Logan 2008:3). 12

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Learning from Ghana and South Africa Culture in Governance: and is often framed as a debate between two opposite schools of thought, the so-called ‘traditionalists’ or ‘romanticisers’ versus the ‘modernists’ or ‘trivialisers’. In its most cruel form the main arguments from the two sides can be summarised as follows: Traditionalists will argue that traditional leaders are “the true representatives of their people, accessible, respected, and legitimate, and are therefore still essential to politics on the continent, and especially to the building of democracies” (Logan 2008:1). On the other hand, modernists are of the opinion that traditional leadership is a “gerontocratic, chauvinistic, authoritarian and increasingly irrelevant form of rule that is antithetical to democracy” (Logan 2008:1). A more sophisticated description of the opposing views in this debate is that it is one between proponents of an organic democracy versus those who favour democratic pragmatism. Sithole and Mbele (2008:15-16) describe the main differences between these two as follows: “(T)he pragmatists focus on their arguments for a ‘middle road’ on the basis that traditional leaders should be useful for as long as the extension of democratic local governance is not sufficient towards rural areas. The proponents of organic democracy on the other hand see traditional leadership as occupying its own space in governance – one that attends simultaneously to the social, the cultural as well as the everyday survival issues of communities. The two approaches therefore sometimes propose what might appear as moving towards the same solutions but imply a different legal and resource attitude for traditional leadership”. What is often lost in the debate is the fact that democracy is not a perfect system and that some aspects of traditional leadership are indeed undemocratic and cannot be accommodated in a constitutional democracy. In order to have a productive debate about Traditional Leadership in South Africa the complexities of a constitutional democracy as well as the diversities within Traditional leadership as an institution need to be taken into account. 2. Traditional Leadership before 1994 The nature of Traditional Leadership in South Africa has changed significantly over the last two centuries as a result of colonialism, apartheid and the establishment of a democracy. As George (2010:16) argues, traditional leaders had “absolute authority over their communities prior to colonisation, and to some extent even during colonialism”. Under British colonial rule, a policy of indirect rule was followed, recognising traditional leadership by incorporating it into the colonial structure. Traditional leadership was used to legitimise the colonial cause as it was viewed as a “strategic vehicle to put themselves into a position where the colonised could accept them” (George 2010:31)15. To ensure that they had control over the traditional leadership structures, the colonisers introduced legislation such as the 1913 Land Act and the Black administration Act (Act 38 of 1927) that gave the government the power to appoint and depose traditional leaders if deemed necessary in their view. This resulted in people 15 CONTRALESA played an important influential role during the Codesa (Convention for a Democratic South Africa) negotiations in the early 1990’s and continues to campaign for matters of general concern to Traditional Leadership institutions. However, it is not representative of all traditional leadership structures in South Africa and has had a troublesome relationship with the ANC – especially with regard to issues of gender equality and homosexuality. For an in depth discussion on CONTRALESA, see Klopper (1998). 13

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