Within conversations you have had in the past, chances are good that you would have encountered reference being made to how colonisers eventually found themselves as so-called owners of the land.
This narrative suggests that the Indigenous Peoples were captivated by “shiny things” and happily traded land for these amazing foreign objects. A narrative believed due to what one could deem impressive indoctrination of the Indigenous Peoples over generations.
It is this deal-making relationship between two parties that sparks this piece, as I connect it to two recent activities/events in the Republic of South Africa.
On May 30 the Constitutional Court delivered its judgment on the matter Mogale and Others vs Speaker of the National Assembly and Others (Case CCT 73/22). This judgment ultimately declares the Traditional and Khoisan Leadership Act (TKLA) (3 of 2019) unconstitutional.
However, it is to be noted that, as per the judgment, “The order declaring the act invalid is suspended for a period of 24 months to enable Parliament to re-enact the statute in a manner that is consistent with the Constitution or to pass another statute in a manner that is consistent with the Constitution.”
What does this mean to the Indigenous Peoples fighting for recognition within the Republic of South Africa? Well, you can scrap the next two years if the route of the TKLA is what you will persist with.
Reality bites even more when noting that this case focused on the lack of public participation and not other flaws of the TKLA, which can still be challenged if the TKLA is re-enacted – refer to Articles 19 and 38 of the UN Declaration on the Rights of Indigenous Peoples.
At the University of Stellenbosch, a series of cultural events have recently taken place, with this featuring as part of the official renaming of the university’s building housing the departments of History and Psychology. Formerly named after RW Wilcocks, the building is now named after the often-referred-to Indigenous matriarch, Krotoa.
Although the renaming process was already reported on in August of 2021, recent weeks have seen the Indigenous Peoples holding multiple cultural ceremonies, acting as the cultural ceremony marking the official renaming.
Part of these cultural ceremonies was a collaboration with the Australian High Commission. This resulted in the First Nation community of the lands, now called Australia, also being represented and producing a cultural collaboration between the First Nations of Australia and the Republic of South Africa. This collaborative effort is to be commended.
It is important to observe these advantages and benefits, as it is critical that Indigenous Peoples understand that any action we take falls within the greater body of work. This work fundamentally speaks to the restoration of our status as the original stewards of these lands. Work that aims to restore the Indigenous Peoples’ culture, language and economy.
With this viewpoint, one then analyses the actions directly affecting Indigenous Peoples because it is not merely about driving the redress and developing the culture, language and economy.
Just as the case some 370 years ago, and ever since, what impact does an agreement or deal have on those involved in the act? Can we consider these acts as acceptable progress because we have “a foot in the door”, or is it simply “shiny things” being over-hyped?
As much as we respect and honour every action taken to ensure that Indigenous rights are acknowledged and upheld, we also understand that the system in place is designed to distract you with shiny objects. We understand this as there are global best practices to refer to when strategising and developing locally.
In relation to the TKLA, what will the response from the National KhoiSan Council be? As one of the respondents in the aforementioned matter before the Constitutional Court, will they persist with the TKLA? Hopefully now, as global best practices rather see examples such as Brazil.
Recently, newly-elected President Lula acknowledged the Indigenous Peoples of those lands by establishing a Ministry of Indigenous Affairs. This follows similar actions by Australia, which has a Minister for Indigenous Australians. There are numerous other countries with similar departments.
This will also mitigate further objections to legislation such as the TKLA, as it upholds the rights identified in Article 8 of the UNDRIP.
The actions of the University of Stellenbosch also fall far short of global best practices. This is more interesting when noting that the University of Johannesburg was part of the recent cultural ceremonies. Globally recognised institutions of education, how is it that the best they could produce is a renaming of a building? What about their policies? Does this benefit the Indigenous Peoples? At the end of May 2023, the University of Ottawa, Canada, reported that they are waiving the tuition fees for First Nations students. Similarly, at the University of California, tuition and service fees for in-state Indigenous students are fully covered.
These are actions that have a greater impact and should be the minimum expectation from Indigenous Peoples in the Republic. Having a global view will assist in deal-making and ensure that we put an end to deals/agreements that are as unequal as the societal make-up of the country.
We cannot accept absurd agreements such as the levy of 1.5% of farm gate price as an acceptable benefit-sharing Rooibos agreement.
The beauty of our rights, though, allows for us, through the principle of Free, Prior and Informed Consent, to revisit these deals/agreements and renegotiate for more equitable conditions.