The Zulu Kingdom should develop customary law to keep the peace

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This article was first published on Mail & Guardian on
5 September 2022

The Zulu Kingdom should develop customary law to keep the peace

On the 20th of August 2022, the Zulu Kingdom held a ceremony to introduce their new King to his ancestors. This ceremony, colloquially known as the entering of the kraal (‘ukungena esibayeni’ in IsiZulu) saw the King entering the kraal at the KwaKhangelamankengane (look after the children) royal palace to perform sacred rituals, after a lion hunt the previous night. According to historians this particular ceremony was last held in 1954 and highlights some aspects that are worth commenting on for a wider audience.
Firstly, the ceremony to introduce King Misuzulu KaZwelithini to his ancestors saw various foreign delegations from Nguni nations across Africa visiting the Zulu. This shows how silly the xenophobia against African immigrants is. Among these were delegations from ESwatini, the Ngoni tribes from Malawi and Zambia, as well as the Ndebele tribe from Matabeleland in Zimbabwe. These are all tribes that are related to AmaZulu in one form or the other; the Ndebele in Zimbabwe trace their lineage to Mzilikazi KaMashobane, once Shaka Zulu’s most capable General before they fell out and he fled to what would later become Zimbabwe.
These people speak Ndebele and it’s almost indistinguishable from the Zulu language. In fact, members of the delegation when interviewed pointed out that while South Africans tell members of their tribe to go back to Zimbabwe, some Shona people in that country tell them to go back to South Africa. These were the same people that in the 1980’s suffered from Robert Mugabe and Zanu PF’s Gukurahundi ethnic cleansing campaign in Matebeleland which saw more than 20,000 Ndebele people killed. These people are not South African only by an accident of history, to call them foreigners is silly and restricting immigration against people like them would be a serious tragedy if another Gukurahundi-type event were to occur. This applies to many other people across Africa, where borders are especially arbitrary.
Secondly, the event follows what was supposedly a similar ceremony a week earlier to introduce Prince Simakade Zulu to the ancestors as the new King at Enyokeni (place of the snake) palace. That event was rather less well attended and came as a result of an ongoing dispute over the throne which is still being fought in the courts. Depending on who you talk to, the King of AmaZulu is Simakade. To compound matters a few days later another “heir” was introduced by some brothers of the late King, Prince Buzabazi, was announced as the preferred candidate to take over the throne. So, there are potentially three people vying for the Zulu throne - this highlights the need to develop customary law.
The dispute in the courts currently centres around the late King Zwelithini’s will. The will named Queen Mantfombi Dlamini, his third wife, as regent. Even though she was not the first wife, she was the Great wife of the King as her lobola was paid by the nation and she is the daughter of King Sobhuza II of ESwatini, so she is from a royal lineage. Customarily it was understood that she would birth the heir, but this precedent had been broken, before hence the dispute. It would be too hasty to say that codification of Zulu law is the answer here, but certainly a home-grown system of interpreting and establishing precedent in Zulu law is required with proper record-keeping.

Cases like these have to be dealt with through some sort of court system that belongs to the Zulu nation and provides a logic for when departure from the custom is warranted based on precedent.
Developing customary law (the common law of AmaZulu) will help bring about a peaceful resolution to conflicts over succession, and perhaps even more importantly, conflicts over land. This should be done without involving South African courts, with judges whose primary responsibility is enforcing South African law including the constitution, legislation and Roman-Dutch law. These judges will not prioritise the Zulu view of things when there’s a clash between Zulu customary law and legislation by parliament for example. This becomes especially important when it comes to Ingonyama Trust land.
Ingonyama Trust land represents 33% of the land area of KwaZulu Natal and the Zulu King is the sole trustee. This was an arrangement negotiated primarily by the Inkatha Freedom Party under Prince Mangosuthu Buthelezi during South Africa’s transition. While 33% of an entire province is a lot of land, it is a fraction of the land once controlled by the Zulu nation, it largely represents the land allocated for the KwaZulu homeland during apartheid. There is now a strong push from within the ANC to disband the Ingonyama trust and give title deeds to the people who live on the land.
While ownership in the form of title deeds will bring untold benefits to the people who currently occupy the land, it should give us some pause as to why the ANC would suddenly be championing title deeds for Ingonyama Trust land, while simultaneously pushing for the disastrous policy of expropriation without compensation for the rest of the country. This smacks of a two-pronged strategy where people are ‘given’ land, only to have it expropriated away later after they have been given title deeds to their land. The ANC does not care about property rights, for them title deeds on Ingonyama Trust land is simply a means to disempower the Zulu King who is possibly the most powerful alternative source of power to the South African government.
On the other hand, right now Ingonyama Trust land is a dead asset. While people on that land are living like serfs, poverty in rural KZN will not be solved. Meanwhile, introducing leasehold into this dead asset does not solve the fundamental problem as the Trust has tried to do, it only brings more unnecessary hardship to the poor people who occupy that land. A better solution needs to be found. So what is to be done?
A solution could lie in the previously mentioned development of customary law, a form of ownership for occupiers of Ingonyama land should be introduced. This system would give all the rights of ownership including the right to subdivide and alienate the land. The crucial difference from a title deed would be that this system would allow the trust to levy a rent as a fixed percentage of the profits produced from the land regardless of who uses or occupies the land. This would also reduce the need for Chiefs and Izinduna to allocate land, they would simply need to monitor whether productive activity is taking place on the land and the person engaged in that activity peacefully acquired it from the person who was previously given the right to use the land.
Alienating the land would not require the involvement of the Chiefs and Izinduna. It would eliminate the burden of paying leases for poor people who live on the land and whose activity is just at or slightly above subsistence level. It would also encourage economic activity and not strangle it, as a blanket leasehold system does. Best of all, it would remove the rationale for introducing title deeds into Ingonyama Trust land. The Zulu nation would still have control over their land and the economic benefits thereof. While the Kingdom would lose the ability to allocate this land, it would not lose the economic benefits of that land, and this could be used to further develop customary law and the Kingdom in general.
Finally, King Misuzulu KaZwelithini must count himself lucky that he has at his side the indispensable man of South African politics, the last statesman, Prince Mangosuthu Buthelezi. He has now stood at the side of three Zulu Kings, fought tooth and nail to ensure that the Zulu Kingdom has at least some of their historic lands, and helped ensure that AmaZulu would retain their customs and traditions. Even as an old man he is still at the centre of the most important debates in his beloved nation. Long may he live and long may the King reign.

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