To: AD HOC COMMITEE ON THE AMENDMENT OF SECTION 25OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA Regarding: Public Comment on the Proposed amendment of the constitution Name of the Committee (AD HOC COMMITEEON THE AMENDMENT OF SECTION 25OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA,1996) Name of the Act CONSTITUTION EIGHTEEN AMENDMENT BILL Topic Public input on the Proposed amendment of the Constitution. Your Name and Surname Rassool Snyman Name of the Organisation Democratic Federation of KhoiSan People Dear Sirs, Madames As the Democratic Federation Of KhoiSan People representing the concerns and aspirations of the First Indigenous Nation of Southern Africa (FINSA) articulate the following to be of grave concern to us and are of the hope that these concerns will be heeded and acted upon. Context or Preamble Whilst we agree that land transformation is a matter that needs to be urgent address to address the past injustices of colonialism and apartheid committed against Indigenous People and other inhabitants of the land we also believe that one cannot replace one injustice with another. We believe that to find peace in the country we also need justice and the form and nature of the justice must be restorative and leads to peace and stability. Peace and justice in the South African context means that the rights of Indigenous People should form the basis of restorative justice and an integral part of nation building. We also believe that the world has evolved to a post colonial state and the South African government has not kept in step with international norms regarding Indigenous Rights and the rights of Indigenous People to land, rights of self Governance and rights to self determination or rights to the wealth of the lands. We believe that there has been a gross injustice in the exclusion of Indigenous people to their inalienable rights and the government in its trajectory has not recognized those rights, neither has it catered to them in all spheres on governance including land, the economy, mineral resources and self determination and self governance and it’s our contention that the entire trajectory from colonialism to the present democratic dispensation be reviewed so that justice can be served and restorative justice be a principle on which a new dispensation can be entered into. Government as a representative, and servant, of the people has a choice in that it can serve the people and find a just working solution that leads to peace or it can continue the trajectory of colonial injustice which will inevitably lead to a confrontation between the citizen and the government around the land issue. This being said we raise the following concerns for consideration and the recommendations for action: 1. The Premise The first point is that we are dissatisfied with the premise of the constitutional amendment when the constitution itself has not addressed indigenous rights, nor has it been a consultative process that would have factored into the equation the rights, and inputs, of the indigenous people and as such raises concerns about the constitution itself that precedes the amendment 2. Majoritarianism We hereby make known that the matter or the concept of “majority” in the legislation, or other acts, by default implies that the land matter is a matter of majorities and as such denies the Rights of Indigenous people who have been made a minority through colonialism, genocide, ethnocide and disease. We believe that this forms a critical part of the problem and needs to be addressed lest land rights are defined solely through numbers and thus real and substantive rights are prejudiced if not negated. 3. Indigenous ownership We further believe and make known that the question of land expropriation cannot be addressed if the question of rightful ownership has not been addressed and such address of the land question precedes the right to expropriate in any manner and demands that the ownership, or rights to ownership, needs address prior to any expropriation by the state or any other parties or entities 4. Self Determination, Self Governance and the Land Question We further believe and make known the rights to self determination and self governance under international law cannot be given force and effect if the land question has not been settled by the state. We further believe and make known that the state has no powers to decide on the affairs of land until the Indigenous People themselves have given consent or rights or the state continues the trajectory of both colonialism and apartheid in dispossessing the Indigenous People and violating their right to self determination under International Charters and international normative values relating to indigenous people 5. International Instruments We further believe and make known that there are international instruments that demand that substantive indigenous rights to land are made manifest and those right have not been as yet been made manifest after 25 years of democracy and thus we believe that the amendment in itself would not serve justice, or the rights of Indigenous People themselves, but would perpetrate and perpetuate, an injustice to the Indigenous People adding misery rather than bringing relief. 6. The Coloured Question and Human Rights Commission Report We further believe, and make known, that the government has been made aware of the discriminatory nature of the handling of the so called “Coloured Question”, which in itself is a hindrance to realization of substantive Indigenous Rights and this as articulated in the Human Rights Commission Report. If the recommendations have not been adopted, or made manifest, within and by, the government, then any amendment thereof would serve injustice more than it would serve justice, and the rights of Indigenous People would be compromised, limited, prejudiced if not negated. This unjust labeling would further deny the right of the so called “Coloured” people to land ownership and render them landless as was intended by colonialism and apartheid. It is therefore our contention that the address of the “Coloured Question” precedes the amendment of the constitution if justice is to be served 7. Flawed Process and the Land Question We further make known that we believe that the consultation process of land question was deeply flawed, and mis-premised by the exclusion of the inputs of the Indigenous People, by both international and local standards, and thus any discussion the flows from the process, is in itself, fundamentally flawed, and does not serve the country, or the Indigenous People and in fact deepens, and extends, the injustices of both colonialism and apartheid. 8. Ingonyama Lands and all other Land Trusts We further believe and make known that Land Trusts inclusive of the Ingonyama Trust are contested terrain and should form part and parcel of the land question and this without exception. We further believe that any amendment that is exclusionary and selective does not serve the interests of Indigenous Rights neither does it serve the country as a whole. 9. Leadership Act and the Land Question We further believe and make known that government has now signed into law the KhoiSan Leadership act and that Act itself creates legislation around the land question when the land question itself has not been settled and by its prematurity creates more problems than solutions and until the KhoiSan peoples have decided on their own structures and settled the land question any and all amendments to the Constitution relating to land are premature and will create more problems than solutions 10. Religious Institutions and The Land Question We further believe and make known that religious institutions like the Anglican, Moravian, Catholic churches were a part and parcel of colonialism and served as the passive arm that helped dispossess the Indigenous People of their lands and at present still hold, and occupy, lands that are rightfully the property of Indigenous People and unless those lands are factored into the land question the amendment will not be holistic, comprehensive, honest or just and would further entrench apartheid, colonialism and injustice thereby negating the principle of restorative justice which the amendments seeks to bring about as a means of redress 11. The Land Question and Reparations We believe and make known that the land question cannot be addressed if the question of reparations to the Indigenous People is not part of the equation because landlessness and the rights of Indigenous people has not been addressed and by default restorative justice is being delayed and denied or subverted. We believe that all proceeds that form part and parcel of Indigenous Ancestral lands be paid to the Indigenous People as reparations and this inclusive of the Ingonyama Trust and other land Trusts that occupy Indigenous Lands 12. Corporations and the Land Question We believe and make known that corporations form an integral and inextricable part of the dispossession of the indigenous people and profiteering from their misery and landlessness and therefore any amendment must cover the corporations such as Crookes Brothers, Lonmin, Oppenheimers, De Beers and other mining and farming entities that are extracting wealth from our lands and rendering us both landless and poor. If justice is to be served especially to Indigenous People then corporations should form an integral part of both restorative justice and reparations. 13. Bankers and The Land Question We believe and make known that the amendment will not be comprehensive if it does not factor into the equation the ownership of land by the bankers who hold bonds on indigenous lands and profiteer from landlessness of the people and the theft of land through colonization and apartheid. We further believe that the bankers should be placed under scrutiny for their role in the dispossession of the indigenous people in particular and the African populace in general and should be part of the reparations equation. 14. Real Estate Agents and the Land Question We believe and make known that that real estate agents like Remax, Pam Golding and other real estate agents have in the past made fortunes on the lands that were unethically and immorally taken through theft and violence and still make a fortune trading on the pain and suffering of the dispossessed masses and they should be factored into the equation of both appropriation and reparation. We believe that as diamonds are considered “Blood Diamonds” so should all lands taken by force of arms considered “Blood Lands” 15. Evictions, the land question and the legitimacy given to Colonial Law We believe and make known that in many instances Indigenous People are being evicted from their ancestral lands this whilst the land question has as yet not been settled in a substantive manner and therefore the state by default recognizes the rights of the evictors under colonial law but does not recognize the rights of indigenous people under International instruments of law. We therefore hold the belief that the entire legal system should be held to scrutiny with international Rights of Indigenous people as a backdrop or term of reference and if that is not done then the rights of indigenous people are being rejected, or undermine, or negated, by the current Government which is under obligation to recognize those rights and give substance or force and effect, to them. 16. Corruption and State Capture and the land question As indigenous people, and citizens of the country, we make known that to address the land question without addressing corruption or state capture is in itself problematic. If any land is to be expropriated the said land expropriation will be housed in government hands, or custody, and if government itself has deep corruption problems that have not been settled, justice will not be served neither will the interests of the people themselves be served 17. Government Incompetence and the land question We believe and make known that in many instances as citizens of the country, and Indigenous People, that government has in many instances, proven to be incompetent in dealing with matters like ESKOM or service delivery or the management of municipalities and content that government does not have the competence to deal with the land issues and as such not only will appropriation lead to chaos but the rights of the ordinary citizen and the Indigenous People will be compromised and therefore as indigenous people we want the ownership matter settled so that we can govern ourselves this as government has failed do so in the last 25 years of democracy 18. National Debt and the Land Question We believe and make known the government is entering into national debts on the basis that the nation has resources that can be used as collateral and as Indigenous People and owners of the ancestral lands that form the basis of this collateral we have not been consulted neither have we given consent for the use of our natural resources, or lands, to be used as collateral by the government and reserve the right to reject such agreements on the basis that they are not emerging from us, and neither did we give consent to them to be used in any manner whatsoever for collateral or any form of lien. Any debt that is entered into by the government is not part and parcel of the Indigenous People and as such will reject such debt and shall seek redress in international courts if necessary. It is therefore our contention that the land question be settled only after Indigenous lands rights have been settled failing which any agreement entered into by the government shall be deemed null and void and of no force and effect as far as Indigenous People are concerned. Any agreements entered into by government shall not be binding on Indigenous People or the descendents. 19. Impartiality of government We further believe and make known that we don’t think that government has been fair in handling the matter of indigenous rights but has been complicit in denying Indigenous Rights and believe that government itself is not objective and cannot be both referee and player in the matter of Indigenous Rights 20. Ill timing We also make known that the recent process, inclusive of this process, was/is ill timed and is placed on the table for public input at an inopportune time when society itself is was not at its best placed to engage or input on a matter of such grave importance. 21. Recommendations In view of the above we recommend the following 1. The process be rescheduled to a proper time with enough time for public engagement and with adequate notice in the media in order for the process to be engaged fairly 2. The question of Indigenous Rights precede any constitutional amendment 3. The “Coloured Question” in direct relation to the land question, be reviewed and settled and the recommendations of the Human Rights Commission Report implemented and informs the process leading up to constitutional amendment 4. The KhoiSan Leadership Act be suspended until the Indigenous People themselves have reached a decision on it as the state under international law rightly cannot prescribe to them who, and what, they should be or how they structure themselves or what the land rights are and this under the right to self Governance and self Determination as contained in International Legal Instruments 5. A moratorium on land evictions be put in place and all evictions halted until all the above matters be addressed 6. For objectivity an international tribunal be constituted to deal with the matter of land in relation to Indigenous Rights and the land question as the state in itself is a biased player that lacks objectivity Rassool Snyman ______________________________ Democratic Federation of KhoiSan Peoples Representing Citizens of the First Indigenous Nation of Southern Africa (FINSA)
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