When it comes to conversations about land, we are all certain to unearth our political side. Nolundi Luwaya learned this from her father, who, despite professing that he was not a political man all of his life, always made clear the value of land and land rights. “I work so that you can have a better life,” he told his children. “But I’m not prepared to only return to the land in a coffin.”
Luwaya lived an almost bifurcated life: she grew up on the farm of the family that her parents worked for as a farm labourer and a domestic worker while visiting the homes of friends from her private school, who were often just back from overseas holidays.
Out of such apparently incompatible worlds came Luwaya’s interest in blending custom and culture with ideas of forming a constitutional democracy. Luwaya is working to achieve this as the deputy director of the Land and Accountability Research Centre (LARC) (previously the Rural Women’s Research programme at the Centre for Law and Society), where she has been based since graduating with her UCT law degree in 2011.
How do we begin to build a system that is accommodating of cultural and customs norms that also fits within the idea of a constitutional democracy, Luwaya ponders.
She admits (what she says is now a fairly controversial position) a love of the constitution. Her regard is rooted in the document’s basis in values. Values, she says, are where all people, regardless of context, can meet.
“What the constitution does in terms of recognising customary law is [to give us] an opportunity and it’s one that I take up, partly because of my own personal experience growing up sort of straddling these two worlds and trying to find a sense of belonging. But also because I feel a deep sense of responsibility.”
If every South African can agree that we want a democracy built on equality and dignity, as Luwaya believes they can, then we have an excellent place to start our work.
“So when it comes to assessing what norms of culture, what norms of custom one carries with us in building this constitutional democracy, [one must] start at the values point,” she says.
“When you get, give. When you learn, teach.”
Luwaya takes these words of Maya Angelou very seriously.
“I got. I got access to education. I’m the first in my family to go to university. I have had access to a particular type of education that opens doors that my own siblings have not had opened to them.”
Luwaya believes there is a reason she was given the opportunities she has had and a reason her education was paid for. Indeed, those lucky enough to be in such a position have responsibilities to take up. For Luwaya, that is working to ensure a unified South Africa that grants an equal and dignified citizenship to all.
South Africans appear to be afflicted with a collective amnesia when it comes to the grievances of the millions of people living in rural communities. Luwaya asserts that they need to challenge themselves to think outside of the events that affect them on a day-to-day basis.
Rural communities are not only on the outskirts geographically, but politically and legally as well. In addition to the structural burdens of poverty and lack of access to health and educational resources, women are constrained by the “imperceptible legacy and reality of patriarchal systems,” in the sense that custom is created through consultation with male leaders. Its patriarchal elements have therefore been foregrounded.
Within these conceptions of customary law, women are seen as perpetual minors who can never own land in their own right.
“So it’s very much this idea that a woman’s rights are inherently attached to the man who is her overlord, whether it’s her father or whether it’s her husband,” explains Luwaya.
It is imperative to push back against that narrative, she says.
A double burden
It is partially because of her own family that Luwaya is so invested in working to protect the land rights of women in rural areas. Her aunt and her grandmother lived in rural Eastern Cape.
“Watching them navigate that space really triggers an interest for me in how it is that one begins to address the vulnerabilities that those women are in.”
Indeed, women in rural areas are a vulnerable group within an already vulnerable group.
This work is littered with difficulties. In attempting to provide aid and to foreground these issues on a national scale, it is essential not to re-entrench patriarchal systems of violence, asserts Luwaya. There are many rural communities where women work at the forefront, and so one must be careful not to set all women up as helpless victims of their circumstances.
Luwaya describes Sizani Ngubane, the leader of the Rural Women’s Movement in KwaZulu-Natal, with awe.
“She is possibly one of the most incredible women you’re ever going to meet,” Luwaya enthuses.
Ngubane remains steadfast, despite working with some of the most harrowing stories of abuse and absolute discrimination against women.
Where to from here?
One of the major hurdles to properly integrating customary law into our constitutional democracy, is the tendency for law-makers to draft policy based on what looks familiar.
The issue here, explains Luwaya, is that the frameworks being used are based on apartheid legislation. These frameworks are fiercely contested. What is called for is creative law making.
There is immense value, enthuses Luwaya, in allowing people the opportunity to tell their own stories. LARC therefore brings people into spaces that they may not ordinarily have access to, such as parliament.
“People have an amazing sense of what it is they need.”
A significant portion of LARC’s work is breaking down the artificial binary between urban and rural areas and bringing supposedly rural issues onto the radar of people living in urban areas and into the national debate.
When called upon to aid communities, be it to contest a particular customary law or to assist in protecting land rights, LARC participates in action research. This approach is far messier, explains Luwaya, and doesn’t hold to the guise of objectivity. LARC staff, in partnership with others, will launch campaigns, take legal action, write opinion pieces and give radio interviews to bring the issues to the forefront of discussions.
But Luwaya is careful to remind us that no matter what issue a community may be facing, “if the community as a whole is struggling at this level, one can only imagine the types of struggles that the women in that community are coming up against.”
Story Kate-Lyn Moore. Photo Michael Hammond.