Research problem

Despite collisions by representative systems and traditional systems of governance, there has been at the same time collaboration between these two systems in the policy making field.

1. To explore forms and practices of collaboration between traditional and representative systems of governance.

Traditional institutions in Africa countries are a legitimate form of power, their partaking in migration policy formulation can affect citizens attitudes towards immigrants and refugees.

Theoretical approach

The paper will be based on the theory of Neo-Institutionalism and argue from both the actors and institutions approach as both these policy making institutions act as formulators and influencers as well as recognized institutions under the constitutions in their various countries. The representative systems gains its legitimacy from electoral process and allows it to function through various arms constituted to diversify power and formulate policies. On the other hand the traditional systems of governance relies on `house of traditional chiefs' which are recognized in the constitution and thus serve as basis for legitimacy and the ability to act as an institution which can formulate and enforce policies.

Sources of data

CHAPTER 1

This chapter will touch on how the parallel forms of governance in southern African states c exit. This entails how the traditional leadership and the constitutional forms of governance have evolved and interact despite competition for legitimacy.

1.1 Evolution and survival of traditional and constitutional governing institutions in South African states

1.1.1 Traditional Governance

In this chapter, the author will analyze the powers and roles of the traditional institutions and their development since historical times. Prior to the introduction of colonialism, social organization in South Africa was characterized by many tribal regimes that existed and operated within certain areas of jurisdiction. Such tribal regimes were primarily based on the principles of patriarchy and inscriptive norms. Each tribe was led by a particular traditional or tribal leader, who was the central figure in that tribe. The tribal leader or traditional leader was further vested with the highest authority in a particular territory, however the colonial government for example in South Africa, segregated the African majority into their own states (Bantustans) with the traditional kings as the leaders of these territories with much massive power. This was a colonial way to create an independent white South Africa while the Africans were allowed independent states which was 20% of the original South Africa. This gave the traditional leaders powers and control over their jurisdiction and some independence, they had a difficult time adjusting to their reduction of powers in modern South Africa. However in South Africa for example we find that path dependency gave so much power to political traditional institutions despite outmaneuvers by the ruling ANC party to curtail powers of these political traditional institutions. These institutions had been used by both the British and the Apartheid government to maintain their rule on the masses and so were still needed at independence or else face resistance from the South African citizenry. According to (scheepers, plessis, 2000),The 1996 south African Constitution also states that national legislation must provide for the role of traditional leadership as an institution at local level on matters affecting local communities. Legislation may provide for the establishment of a national council of traditional leaders and provincial houses of traditional leaders. Provincial constitutions may also provide for the institution, role, authority and status of a traditional monarch. Provinces have concurrent legislative powers with parliament regarding traditional authorities and customary law. This clearly shows the power of the traditional institutions enshrined in the constitution of South Africa.

The former South African president Jacob Zuma (news24, 2015) acknowledged the importance of these political traditional institutions as a means of unifying the South Africans by breaking away from the colonial oppression. This was because the government intended to reform the role of the traditional institutions from a colonial tool of oppression to a tool of democratic society, however this has not been without problems as these traditional institutions have managed at some levels to play muscle with the government over policy issues especially regarding land.

South Africans after independence wanted the recognition of the customary law in their constitution. Customary law means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples (recognition of customary marriages act 120 of 1998) customary law recognizes issues on customary marriages, inheritance, divorce and many things. But mostly exalts the man as the dominant figure. The South African constitution gives the traditional institutions power to influence and make policies especially regarding land issues and reduction of poverty. The traditional institutions insisted on the constitution recognizing traditional institution itself and customary law too, however at this time, scholars (Mwere, mawekiso, 2014) site that in South Africa, the new government of the time ANC recognized and acknowledged traditional leaders but the nature of their role in the advancement of democracy and social equality among other common goods was still largely unclear and in fact underestimated. However in the subsequent years (Nthai 2003) a minister for provincial and local government acknowledged the South African peoples' desires to maintain these institutions as they have a deep role in ensuring democratic governance at local level.

Chiefs and south Africa's ruling party (ANC) have many times joined forces to push through their policies (Logan, 2008) the two parties with at times similar interests of increasing their power base and recognition have had to work together to achieve their goals. More importantly was for the traditional institutions in the 80's and 90's where their recognition was essential and at risk in ushering the new South Africa. This led to changing of ideals and attitudes between the ANC and the traditional institutions; where ANC supported their stance to recognizing the institutions while the institutions gave overwhelming support to ANC (van kessel and ocmen, 1997).

Zambia's traditional governance is a not as powerful as the south African but yet again they have the ability to influence a lot. Zambia achieved independence in 1964 from the British like many of the former African countries colonized by the British. Originally known as northern Rhodesia, from Cecil Rhodes a businessperson. (History world, N.D) gives a broad insight on the British interest on Zambia, which was mainly because of expansion by the British South African company which aimed at conquering more lands for the whites and consequently stumbled on the vast copper minerals in Zambia which were more than in the United States of America.

However achievements of this company and the British as well who later took control of the country could not have worked without the assistance and help of some of the Zambian chiefs such as Lewanika where they set up agreements to allow the company to administer the mineral rich regions. Therefore, this shows the extent to which the chiefs were respected or perhaps seen as the entry to Africa, as if you convince the king to cooperate then the people will cooperate as well.

The power of the chiefs or traditionally known as Indunas was immense and there was hierarchy among them dependent on the strength of one leader. The British used Lewanika of the lozi people who was the strongest of 38 indunas to subdue the rest of the indunas into signing concessions that gave away their lands and more rights to the British, in exchange for protection by the British, eventually even Lewanika lost administrative power and respect to the British protectorate (Patriotic Zambian, 2017). This ensured the British took control of the country but used indirect rule to subdue the people through the Indunas. Africans as previously noted are loyal to a system of leadership where in many cases, trust is conferred to the leaders and to whom they believe that their decisions or choices are for the good of the general masses and this is how Africans lost their lands to the colonialists through their tribal chiefs or tribal kings.

According to (Zambian economist, 2008), the original nature of the traditional kingdoms were remodeled to be native authorities that were structured by the colonial government to become more 'efficient' and as a go between the local people and the colonial government. This shows how important it was for the British as well to use these leaders leading to their recognition post-independence with 233 junior and senior chiefs. Most critiques on the African chiefs during the colonial period and their associations with the colonial government are negative. Empirical evidence that showcases chiefs and kings as selfish, power seeking leaders out to hang their subjects to dry by western scholars is lately coming under sharp criticisms especially from African scholars. According to (Zambian economist, 2008), Zambian chiefs have become a good example to counteract this narrative of chief brutality. The Zambian economist vindicates the chiefs by noting how the chiefs on many forms did not firmly apply the negative colonial laws and policies that would have otherwise negatively affected the people and as a result weakened their legitimacy in the eyes of the local Zambians.

As per agreement with the colonialists, the chiefs collected revenue, which was tax, and they were careful on how they received this tax and did not use colonial tactics that would have deemed them corrupt. The chiefs used this money to invest in the Zambian people through offering loans, building schools and building hospitals. We have chiefs such as Mukobela and Bunda Bunda who openly campaigned for some forms of taxation that was unjust. The chiefs also ensured law and order was upheld and this was usually in terms of revenue discipline. Everyone had to pay their taxes but the chiefs were sure to have a balance between their relationship with both the colonial government and the people. All in all Zambian chiefs were opportunistic and knew how to balance the relations which in the end ensured their continued relevance to both the people and the colonial government.

Focusing on traditional authority in post independent Zambia, these traditional institutions still tend to influence the political and social life of the Zambian people. Regardless of increased political and educational exposure of the local Zambians, they still tend to rely on the traditional authorities for guidance. Despite the constitution limiting the power of the traditional authorities to just customary matters, these traditional institutions have managed to evolve and influence political matters and hence maintain their relevance in the society.

The Zambian government created the ministry of chiefs and traditional affairs in 2011 with the purpose of promoting the affairs of the traditional institutions through formulation and initiation of policies that affect the cultural aspects of the Zambian people. Some chiefs like chief Macha (LT, 2012) laments on the need to add more powers to the traditional institutions in their areas of their jurisdiction so they can involve themselves in other matters that affect the people such as early marriages as the chiefs can deal with those matters within a short time.

There have been confrontations between the government and the traditional institutions where the chiefs have accused the politicians of misuse of power and threatening to take away power back to the people. However, the question is whether the Zambian citizens feel the importance of having traditional institutions.

African chiefs will continue to be an important facet in the African communities as they do hold important roles that are highly held by the Africans such as inheritance issues, property rights and land rights, so it is important for these traditional institutions to show their legitimacy.

1.1.2 Representative governance

South Africa is a democracy run under a constitution with a three-tier system of government and the power of the government which are the national, provincial and the local governments which are independent in terms of legislative and executive powers. The head of South Africa is the president who is the head of government with a mandate of two terms, has a deputy president and ministers and since the end of the apartheid regime, the ruling party has been the ANC, which is the African National Congress that has majority of support from the South African people. Institutions of power in South Africa have been distributed to its different cities. Cape Town serves as the seat of parliament, Pretoria serves the presidency and it's cabinet and so is the administrative capital, Bloemfontein is the judicial city that hosts the appeals court and finally Johannesburg which is the largest city in south Africa and hosts the constitutional court.

The structure of government is divided into the Executive, legislature and the judiciary, which are independent of each other. At the executive, there is the president who is the head of state and head of the national executive he/she is elected by the national assembly that in this case has majority of its members from the ANC.

The ANC which has been in power since 1994 was previously known as The South African Native National Congress traces its roots to 1912 where John Langalibalele Dube was its founder with the intentions of advocating for voting rights for the blacks and mixed races in south Africa and as a result end the apartheid rule. The party was also known as a guerrilla movement which used guerrilla tactics after its banning by the apartheid government in 1960 where it had to leave its operations from south Africa to other friendly neighboring southern African countries.

It is difficult to talk about South Africa without mentioning ANC. In all elections since 1994, the south Africans largely the black majority have always voted overwhelmingly for the ANC is credited with bringing back the dignity of the black south Africans, however with the recent loss of some elections such as municipal elections it has become a wake up call that all is not rosy between the ANC and the African electorates who accuse the government of corruption, economic mismanagement and not delivering on their promises to the people.

The representative governance system of South Africa has been in such a way it revolves around ANC, which is the dominant political party in South Africa. The constant bickering in the ruling party has totally discredited the South African ruling party in front of other African countries that have always looked at ANC as the beckon of hope for Africans under Nelson Mandela whose intentions was to bring equality for all south Africans regardless or race. As late as 2018, the south African democracy has been under pressure as its former president Zuma was forced to step down from power same way as his predecessor Thabo Mbeki who fell out of favor and pushed out. The ANC problems and lack of trust from the citizens has cost it support from the electorate and this evidently shown by the loss of some administrative regions in local elections to the Democratic Alliance which is affiliated to the white minority. This evidently shows the South African people's mindset on election is changing from race to important issues that affect them such as economy.

South Africa has undergone through different presidents since independence and all were under the ruling party ANC. Nelson Mandela was the first president from 1994-1999, Thabo Mbeki 1998-2008, Kgalema Motlanthe 2008- 2009, Jacob Zuma 2009 to 2018 and currently Cyril Rhamaphosa. However, two of these presidents have been plagued with scandals leading to their ouster.

The judiciary contains the appeals courts, high court, magistrate's court and lower courts such as land claims court which deals with land distribution. Usually this is under the jurisdiction of the traditional authorities.

The legislature consists of the elected representatives who make laws, selection of a new president and overseeing the executive. The country has two houses of parliament' the upper house of parliament consists of 90 provincial representatives from the nine south African provinces namely; Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, North West, Northern Cape, and Western Cape.

The second house of parliament is the lower house of parliament which is known as the national assembly and it consists of 400 members elected every five years and who come from the nine provinces mentioned above. This is the main house that hosts the ruling party members of the ANC and the opposition party members from the Democratic alliances and other minor opposition parties. A major opposition political party that seems to challenge ANC's status quo is the EFF which stands for Economic Freedom Fighters under Julisu Malema who was ANC's leader for the youth however his party seeks nationalization of major institutions and of late has been a challenger to the ANC.

Despite all these, assessing the changes ANC has done to South Africa, we can point out some changes and policies that the successive governments have made to the South African people. It has provided education to many of its citizens who had been denied quality education by the apartheid government, it did not kick out the white minority but rather urged them to stay and help in developing the nation, more jobs for the African people although there exists many cases of widespread unemployment, the dignity of the African people was restored although the wealth of south Africa has shared by a few minority. Despite some of these, the ANC will continue to be the dominant power in the governing system for quite sometimes as people feel a natural allegiance for its liberating the people from colonialism and apartheid.

Zambia on the other hand is a representative democratic country with a president at its helm and Lusaka as its capital city. It is a multiparty democracy system where the president has executive powers that enable him run the government with a deputy at his/her side that he appoints.

The current Zambian president is Edgar Lungu from the Patriotic Front party that was a broke away from the party of the Movement for Multiparty Democracy in 2001. Lungu who has been at the helm of power since 2015 after taking over from Guy Scott who was interim president after the death of president Michael Sata on October 2014. Lungu's predecessors are; Kenneth Kaunda, Frederick Chiluba, Levy Mwanawasa, Rupiah Banda, Michael Sata and Guy Scott. Unfortunately, president Lungu's presidency has been engulfed with resistance and conflict with the opposition party, which has also led to the detention of its opposition leader, conflict with the traditional leaders as well as with his own party members and some opposition members who seek to impeach him due to alleged constitutional breaches.

The president who is the head of state and head of government in which he has the power to appoint the cabinet members from the national assembly.

Other arm of the government is the legislature that consists of the national assembly, which has 158 members of which the people directly elect 150 and 8 members are appointed by the government. In the third arm of the government is the judiciary, which consists of the Supreme Court, the appeals court, high court, magistrate court and the local courts. The Supreme Court consists of the chief justice, deputy chief justice and 11 other judges; the constitutional court of Zambia, which began operations in June 2016, consists of a president and his vice president. The judges of the Supreme Court like in many other African countries are appointed by the president however with advice from the judicial service commission and finally receiving final blessings from the national assembly.

The representative system is enhanced by Multiparty system in Zambia which has allowed the freedom of existence of other political parties such as ADD, UPND, FDD, MMD and PF. However, under president Lungu freedom of expression in Zambia has been under threat due to government interference. For example the shutting down of `the post' that was critical of the government and the suspension of licenses for other media outlets critical of the government. The escalation on the infringement of these rights came with the invoking of the public Act order by the police which severely limited the ability of political parties to campaign in many parts of the country in 2016 (Freedom House, 2017).

Zambia has gone through tremendous change and growth since independence and running of its own affairs. Thanks to the high copper prices in the 1960's Zambia was able to formulate educational developmental policies that were instrumental in its growth and this changed the dependence of Zambia on foreign workers in its institutions to where now Zambians are well educated and lead their own country. Unfortunately poor copper prices at later years slowed Zambian growth and indeed led to radical changes by the Zambian resident Kaunda with the intention of salvaging the economy and some of these changes led to declaration of a one party state which would ensure the government's ability to control the country from threats that could affect its ability to govern and enact economic change. In the successive years Zambia has undergone fairly peaceful times however with a bit of political turmoil in the late 1990's which led to a failed coup by a junior army officer and leading to arrest of some opposition leaders such as former predict Kaunda.

Presently the government is trying to balance the development, borrowing and foreign debt. There has been the introduction of some acts such as The banking Act, Insurance Act which will contribute to accountability and transparency especially on developmental projects that will be assessed on their viability and importance to economic growth in Zambia. In 2017, the Zambian government embarked on the seventh national development plan -2017-2021 with the aim of diversifying Zambian economy from agricultural and copper mining as sources of revenue. This plan intends to cover the following areas:

· reduction of poverty;

· increase in development;

· enhancing human development;

· Diversification of economy and creation of job opportunities for the people.

All in all the Zambian representative form of governance has tried to improve the lives of the Zambian people but more needs to be done while ensuring social and political freedoms for all.

1.2 Functions of traditional institutions and how traditional institutions implement policies

In South Africa, the political traditional institutions are divided into several umbrella bodies; the local house of traditional leaders, provincial house of traditional leaders and the national house of the traditional leaders.

Figure 1. Position of the traditional leaders.

The national house of the traditional leaders is made up of members elected from the provincial houses. The main work of this national house is to represent their interests at national level, provincial house at province level and local house at local level ensuring distribution of power in the structure arms of government in South Africa (Cooperative governance and political affairs, 2016). Other functions of the traditional authority are:

· land adjudication;

· solving disputes;

· resource management;

· promote traditional leadership within the constitution;

· nation-building;

· promotion of peace and harmony;

· stability of communities;

· preservation and promotion of culture and traditions of communities;

· approval of parliamentary bills affecting the community;

· participating in intergovernmental opportunities;

· advising the national government.

The current Zambian constitution recognizes and protects the rights of the traditional rulers. According to (WIPO, N.D), the Zambian constitution gives the chiefs the powers under a house of chiefs to mainly act as an advisory body to the government on traditional and customary matters. (WIPO, N.D) points the following as the other duties of the chiefs through the house of chiefs:

· review policy and legislation relating to Chiefs Affairs;

· create an enabling environment for Chiefs to participate in Governance and National issues;

· consider and discuss any Bill dealing with custom or tradition;

· initiate, discuss and decide on matters that relate to customary law and practice;

· consider and discuss any other matters referred to it by the President;

· submit resolutions on any Bill or other matters referred to it by the President and the President shall cause such resolutions to be laid before the National Assembly;

· ensure that relevant legislation is sourced and made available to members so as to facilitate smooth functioning of the House;

· develop and implement schedules of sessions for the House of Chiefs;

· develop sustainable liaison between the House and relevant stakeholders;

· Under the House of Chiefs Regulations of 1998, a Minister or a representative from his Ministry may address the House on a matter within his portfolio which appears on the approved list of business of the House;

· House of Chiefs also exercises its discretion and allows non-governmental organizations to address it on matters affecting people in Chiefdoms;

· Other functions of the House of Chiefs include resolution of succession and Chiefdom boundary disputes.

Below is the structure of Zambian governance system and position of the traditional authority (sourced from Fitile and Hamu, 2010).

Figure 2. Structure of Zambian governance system and position of the traditional authority.

Despite their low position in the hierarchy the traditional institutions cannot be ignored as they wield much legitimacy from the black Zambian people who identify more with them and hence the need for representative governments to acknowledge them though reluctantly.

1.2.1 Surveys and Data on Influence of Traditional institutions in Zambia and South Africa

A survey carried out in 2005 by the South African Social Attitudes Survey (SASAS) was aimed at analyzing information about people's attitudes towards the different governance structures in south Africa and where a sample of 5 734 people above the age of 16 were surveyed. This research will use this survey to assess two things; first the level of trust between the South African nine provinces and the different levels of governance. In the first survey indicated in Table 2, the questions asked were like; `how much do you trust each of the following? And the responses ranged from `strongly trust' `trust', `neither trust nor distrust,' distrust and strongly distrust'. In table two, the survey indicated the level of trust between urban and rural people to the different governance structures.