Data Analysis and Findings - Social Justice and human rights theory

Social Justice and human rights theory

4.4 Data Analysis and Findings

Traditional Leadership and Governance Framework Act (RSA, 2008) emphasises the role of traditional leaders as custodians of culture, tradition and custom.

South African’s judicial environment is plural and this pluralist culture plays itself out in the rural areas with traditional leaders as custodians and advocates of traditional justice and the formal justice structures of the courts and police. The (KZN PGDS, 2011:64) suggests that the changing role of the traditional leadership is an area that requires greater attention and a new strategy for the province. It is ultimately incumbent on people to choose the justice system most responsive and suited to their needs. However, studies have revealed that rural people are neither always empowered nor knowledgeable enough to choose the means through which they want to access justice. The data analysis for this study reveals that the indigenously-driven justice system is the justice system of choice for the rural community in Impendle. This is in line with the view expressed by Ndlela, et al (2010:1) which states that rural people rely on traditional leaders for governance in matters regarding justice, land rights, customary and traditional practices.

Within the context of the village of Impendle and the province of KZN, data analysis and findings from this study are next discussed.

4.4.1.1 Theoretical Framework and Philosophical Worldview

In this study the theoretical framework is drawn from the work of John Rawls (see Figure 2.4).

Studies generally have an underlying philosophical worldview, although it is not always stated.

In Chapter 3, the advocacy/participatory framework was identified as underlying this study.

This philosophical worldview complements the theoretical framework since this framework revolves around addressing structures and discourses of disadvantage with an aim to empower marginalised and alienated groups while the advocacy/participatory framework also addresses these issues by seeking to give voice to and empower historically marginalised groups – such as citizens who live in the deep rural areas of KZN.

Matrix 4.1 illustrates the link between the theoretical framework underpinning the study and the worldview which drives the study. Elements of the advocacy/participatory worldview are integrated with the theoretical framework; this assisted the researcher to illustrate the alignment between the two features of the study. As Matrices 4.1 to 4.4 indicate, there are four components of the advocacy/participatory philosophical worldview; namely: reform agenda, overcoming oppression and inequality, overcoming marginalisation and alienation, and advancing consciousness-raising and empowerment. Data suggest that, in some ways, the CCJD is engineering the reform of the traditional justice institution. As a result of the history of colonialism and apartheid in South Africa, the traditional justice structure has had an unfavourable relationship with people who viewed traditional leaders as agents of oppression who perpetuated the injustices associated with these unjust systems. According to informants, the CCJD acts as an agent that facilitates transformation of traditional justice structures and building people’s confidence in the indigenous governance system. The CCJD facilitates a working relationship with local Izinduna and Amakhosi. As indicated in one interview session,

“the CCJD co-opts members of the tribal court council to be part of their committee to encourage cooperation and strengthen relations between these two structures”. This also helps Amakhosi and Izinduna keep abreast of what is happening in their area and they are updated on amendments to laws by the CCJD. Empowerment is an important element of both the social justice theory from which the theoretical framework emanates and the advocacy/participatory worldview driving this study. For Creswell (2009), the advocacy/participatory worldview, focuses on the needs of groups and individuals that may be marginalised in society. Harper (2011) states that paralegals offer quasi-legal services such as legal education and advocacy, as well as advice to traditional leaders on statutory law; they can act as a system of checks and

balances. Matrices 4.1 to 4.4 display data that spoke to the alignment of the theoretical framework with each of the elements of the advocacy/participatory philosophical worldview.

Matrix 4.1 Alignment of Theoretical Framework, Reform Agenda and Advocacy/Partici patory Philosophical Worldview

Advocac y/

participator y worldvie w:

Element of Worldview:

Reform Agenda

Theoretical Framework:

Addressing structural disadvantages as discourses of oppression

Theoretical Framework : Addressing discourses of disadvantage

Theoretical framework:

Empower ment

“If a person realise that he/she is not satisfied at the traditional court, the person is able to take their matter to CCJD.” FGP3, 5, 7

“The chairperson of CCJD is Induna or councillor of the tribal court. My aim was so that matters that are handled at tribal court will be matters that I will be informed of.”

PM3

“I received help from CCJD with funeral policy. Main member had died, they faxed claim forms but it was in English, I didn’t know where to start. I went to CCJD, she helped me directed me what to do and who to talk to, police station. All went well I received my money.” FGP1’

“People who have long been on pension or whose family members are deceased, I do follow up on their payment.

If it takes too long I arrange transport, negotiate a reasonable fee with taxis in the area to take these people to former employers, I go with them, mostly

Johannesburg and Durban”

PM 3

“Since there is CCJD now they have made us women know that we have rights too; in the beginning we knew that males were the ones that are in control, its him who will say and do everything.” FGP8

“CCJD’S family mediation process creates a neutral platform for family members, usually man and wife to talk through their differences without involving police and arresting each other. They are empowered to facilitate problem solving.”

PM3

Key to matrices

FGP means focus group participant PM means public manager

The numbers following designations represents codes assigned to study participants.

The views expressed in Matrix 4.1 affirms Creswell’s view (2009) that participatory action is dialectic and focuses on bringing about change in practices, as expressed by PM3, they intervene directly with organisations and companies on behalf of their clients. Social justice theory, as a theory driving the study, advocates for equal access to social goods by members in society, with justice being one of these social goods. In addressing important social justice issues in the community such as oppression and inequality, Oyeike (2012) argues that the formal justice system in its current form and application is oppressive and perpetuates the divide between the

so-called “haves and have nots”. Using foreign language and procedures, for example, restricts access to those who fit the Western mould. As shown in Matrix 4.2, using indigenously driven methods and techniques, the CCJD brings the law closer to people. It also creates a link between state and customary-driven dispute resolution mechanisms (Ubink and Van Rooij, 2011:9). The CCJD conducts capacity building workshops for traditional leadership in the area as well as other justice structure such as the Community Policing Forum (CPF). Harper (2011:11) states that paralegals are positioned between the indigenous and formal justice systems; they offer context relevant, flexible, and workable socially legitimate solutions that are enforceable. In this way the CCJD encourages a synergistic relationship between different structures in society that work within the justice sector; sharing case load results in the speedy resolution of cases. The approach adopted by the CCJD is in keeping with the participatory/advocacy paradigm underlining this study, as it asserts that research must be sensitive to the politics and political agenda of the wider society Creswell, (2009).

Components of the advocacy/participatory worldview include guarding against the marginalisation and alienation of people and groups as depicted in Matrix 4.3. This study identified different levels and pockets of marginalisation that need to be tackled, which warrants the study being guided by an advocacy/participatory worldview. Oyieke (2012) maintains that the legal system marginalises people living according to customary laws and principles and favours those whose lives are ordered according to Western formal law. In doing so, the legal system also effectively marginalises indigenous traditional justice systems which are the justice Matrix 4.2 Alignment of Theoretical Frameworks, Oppression and Inequality with

Advocac y/Partici pator y Worldview Oppression and

Inequality

“CCJD also call Izinduna to be present in their workshops.” FGP4 & 6 “We work with them, sometimes we need to tell them that they made a mistake and they listen.”

PM2

“CCJD really does a lot of work because there is nothing they cannot resolve. They are social workers.” FGP3 & 13 “CCJD and traditional leaders are very connected in the community;

chairperson of CCJD is Induna in traditional council.” PM3

“We are here to bring the law or explain the law in a way that they will understand, simplifying it.” PM2 &

structures of choice for the majority of rural people. This study was conducted at Impendle.

South African rural communities suffer extreme marginalisation and deprivation in comparison with their counterparts in urban areas. While conducting field data collection at Impendle, the researcher was confronted with extreme deprivation of basic infrastructure such as water, sanitation, electrification, and a telecommunication network which is in stark contrast to the urban areas. In view of these levels of deprivation, it is hardly surprising that rural communities in South Africa are still locked in conditions of extreme poverty and underdevelopment. Hence access to basic services can be an important catalyst for change and strengthening local social capital.

Finally, Chopra and Isser (2013) identifying pockets of marginalisation as problematic, assert that customary systems are based on patriarchal social norms that reaffirm the subordinate role of women and children and are thus incompatible with the Constitution. This is also contrary to Rawls’ social justice and human rights theory as it involves egalitarianism, a belief in the equality of all human being where no one is entitled to more privileges than another (Tesoriro, 2010) Matrix 4.3 reveals an interesting dynamic insofar as the marginalisation of women in rural Impendle is concerned. Women are increasingly being assigned positions of power. They are well represented in the tribal council that makes a special effort to ensure that women preside and adjudicate issues pertaining to women. The presence of the CCJD in the area has also empowered women and men in matters pertaining to their rights and women’s rights and entitlements in particular. The matrix also reveals that customary systems and norms are regarded favourably by local people and women in particular.

Oyieke, (2012) introduced a new approach to legal practice, based on Steve Biko’s Black Consciousness which appeals to black people to realise their self worth and potential for greatness despite seeming obstacles. Biko challenged the legal fraternity to recognise that the law is not neutral; it excludes certain groups of people and is undemocratic and unconstitutional.

The legal professional must be conscious of their conservative style and must be able to cha nge it. However, for this to happen a critical stage of consciousness-raising must occur for both the legal fraternity and the community affected by an unjust legal system. This is in keeping with Paulo Frere’s critical consciousness approach; this approach encourages a closer examination of the structures of social and economic relations in society as this raises people’s consciousness, which is a precondition for the realisation of one’s condition as deprived. Critical consciousness seeks to provide poor people with access to better opportunities by challenging the root causes of poverty. Consciousness-raising is consistent with addressing discourses of disadvantage in society as a theoretical framework. It also corresponds with empowerment as an ideal of the theoretical framework insofar as the overall objective of the framework is to increase the power of disadvantaged groups in society (Tesoriero, 2010). Consciousness-raising and empowerment are consistent with the advocacy/participatory worldview underpinning the study as they focus on the needs of the marginalised in society as indicated by Matrix 4.4.. Some of the objectives of the CCJD, such as legal empowerment as well as educating disadvantaged communities about their rights and enabling disadvantaged communities to claim their rights to justice and services Matrix 4.3 Alignment of Theoretical Framework and Marginalisation and Alienation Compone nt of Advocac y/Partici pator y Worldview

Marginalisation and alienation

“Projects cannot just happen in our area without the knowledge of Izinduna and Ink osi.”

FGP4 & 9

“CCJD has done a lot in ensuring that justice is served by tribal council, they do follow up assisting people with tribal court

issues”FGP3, 5, 10

“At tribal court there are women that see to the problems and cases brought to court by women.” FGP6

“CCJD has taught us men that we should respect our women, we must not touch them when they are tired.”

FGP12 & 13

“We are here to bring the law or explain the law in a way that they will understand, simplifying it.” PL2

are compatible with the advocacy/participatory worldview as they focus on empowering the marginalised so that they are capable of engaging with the legal system.

Matrix 4.4 Alignment of Theoretical Framework with Consciousness-Raising and Empower ment Components of Advocacy/Partici patory Worldview

Raising consciousness and empower ment

“CCJD create a way for your case to carry on if you are not satisfied at tribal court.” FGP3, 5, 10

They teach you what to expect when you go to tribal court for the first time so that you are not intimidated and they teach you about your rights.” FGP 6 & 12

“CCJD conduct workshop and let us know about certain laws.” FGP15, 13, 21

This section discussed four components of the advocacy/participatory philosophical worldview and how it relates to the theoretical framework which guides the study along with excerpts from informants that reveal interaction between the theoretical framework and philosophical worldview. The following section discusses the themes that emerged during the study with guidance by the theoretical framework.

4.4.1.2 Emerging Themes from the Study

Interaction between the theoretical framework and the worldview underlying it helped idenitify themes. The overarching themes that emerged from focus group and interview data as well as observations of the researcher are:

Theme 1:

Customary law and traditional justice through Izinduna and Amahkosi is highly relevant in rural Impendle while formal law and legal procedures seem to be alienating rural people.

Theme 2:

The CCJD, as an NGO plays a pivotal role in providing access to social justice for Impendle residents independently and in concert with traditional justice structures.

Theme 3:

Informants prefer restorative justice through CCJD practices rather than the rights-based justice provided by the police and courts.

74 Theme 4:

CCJD programmes – including workshops, community awareness campaigns and addressing women and children-specific issues – have gained considerable credibility in the community.

The me 5:

Through the use of indigenous governance systems and structures, the CCJD helps rural communities empower themselves to engage with the law while balancing individual rights with family values.

In order to arrive at these five themes the researcher first matched questions from the data collection tools (interview questions and the focus group guide) with the research objectives and research questions. (See Appendix D TableA4-1). Through content analysis and thematic analysis, the researcher designed a number of matrices which display actual excerpts from study informants – giving voice to participants in accordance with the advocacy/participatory worldview. The theoretical framework likewise assisted with the emergence of themes. Table 4.2 presents a thematic analysis of the theoretical framework; the researcher developed themes from the data coming out of the focus group responses; further to this, themes are integrated with the ideals of the theoretical framework to establish if there is consistence and alignment between these components of the study. The researcher observed that in much the same way as with other aspects of the analysis, themes relate across all ideals of the theoretical framework, such that each ideal is aligned to more than one theme. This thematic analysis allowed the researcher to demonstrate how the theoretical framework integrates with data from the study; hence themes encompass all aspects of the data gathered.

As indicated earlier, the themes linked with the theoretical framework in Table 4.2 arose from focus group discussions and interviews as detailed through the voice of study participants. In Matrix 4.5 which covers themes 1 to 3 and Matrix 4.6 which covers themes 4 and 5, the Table 4.2 Linkages between Theoretical Framework and Themes from the Study

Addressing Structural Disadvantage as structures of oppression

Addressing discourses of disadvantage

Empower ment

Theme 2:

CCJD, as an NGO plays a pivotal role in providing access to social justice for Impendle residents independently and in concert with traditional justice structures

Theme 1:

Customary law and traditional justice through Izinduna and Amahk osi is highly relevant in rural Impendle while formal law and legal procedures seem to be alienating rural people

Theme 2:

CCJD, as an NGO plays a pivotal role in providing access to social justice for Impendle residents independently and in concert with traditional justice structures

Theme 3:

Informants prefer restorative justice through CCJD practices rather than rights-based justice provided by the police and courts

Theme 3:

Informants prefer restorative justice through CCJD practices rather than rights -based justice provided by the police and courts

Theme 4:

CCJD programmes – including workshops, community awareness campaigns and addressing women and children-specific issues – have gained considerable credibility in the community Theme 4:

CCJD programmes – including workshops, community awareness campaigns and addressing women and children- specific issues – have gained considerable credibility in the community

Theme 4:

CCJD programmes – including workshops, community awareness campaigns and addressing women and children- specific issues – have gained considerable credibility in the community

Theme 5:

Through the use of indigenous governance systems and structures, CCJD helps rural communities empower themselves to engage with the law while balancing individual rights with family values

Theme 5:

Through the use of indigenous governance systems and structures, CCJD helps rural communities empower themselves to engage with the law while balancing individual rights with family values

Theme 5:

Through the use of indigenous governance systems and structures, CCJD helps rural communities empower themselves to engage with the law while balancing individual rights with family values

researcher aligned a few excerpts from focus group data to demonstrate how themes emerged as data were gathered. The use of consciousness-raising as identified by Biko is evident in the way paralegals interact with the community. Community members are empowered with knowledge and skills on how to work with government departments; they are taught about their rights such that they are able to see if their rights are violated and they can seek recourse.

Matrix 4.5 Themes Emerging Through Excerpts from Focus Group Responses

Themes 1 – 3 Focus Group 1 Focus Group 2 Focus Group 3 Theme 1:

Customary law and traditional justice through Izinduna and Amahk osi is highly relevant in rural Impendle while formal

law and legal

procedures seem to be alienating rural people

“Izinduna help in cases where you are looking for a land to build your house. They also get involved in dispute relating to live stock that people keep.”

FGP 9, 0

“There are women that are always there waiting for cases from women and girls, such as with virginity testing.” FGP9

“They tighten the law in this community.”

FGP7, &8

“Procedure starts with area representative of tribal court such as Izibonda in different areas or tribal court councillor, then goes to Izinduna, it is escalated accordingly only if the matter could not be resolved in any one of these levels.” FGP4, 8 Same procedure is followed but at tribal court there are women who are part of tribal council they deal with women specific issues.”

FGP6

“They tighten the laws in this community, and play a role in peace keeping and laws and assist resolve dispute.”

FGP22

FGP14, 13, 18

“Same procedure is followed but at tribal court there are women who are part of tribal council; they deal with women specific issues.”

FGP16 Theme 2:

CCJD, as an NGO plays a pivotal role in

providing access to social justice for Impendle residents independently and in concert with traditional justice structures

“They attend to all social problem and work related problems in the area and they are able to solve them.”

FGP3 & 8

“Knowledge on how to deal with government department, they do follow up for us if it take long to get resolved. They teach us about our rights and how to enforce them”

FGP6 & 2

“They arrange

community workshops and training on many matters affecting people in this area and they also call on Induna to be part of these meetings and workshops.”

FGP3 &2

“ They also teach men about women rights”

FGP2, 3, 6

“CCJD conduct workshops on a variety of issue affecting people in community. CCJD also teach people on how to deal with police should they have a need to do so. They make sure to invite Izinduna

to be part of workshop.”

FGP13, 17 , 18, 20

Dalam dokumen The role of the Centre for Community Justice and Development in indigenous governance of social justice in Impendle, KwaZulu-Natal. (Halaman 82-126)