Twenty Years of the Constitution: Reflecting on Citizenship and Gender Justice

This special issue of Agenda aims to consider the trajectory of gender equality and justice since the inception of the final South African constitution in 1996. During the run-up to the finalisation of the Constitution and during the negotiation process women and feminist activists were instrumental in changing the gender landscape. Through the mobilisation of the Women’s National Coalition they wrote the Charter for Effective Equality, or the Women’s Charter as it became known. The African National Congress (ANC) Women’s League ensured that the ANC accepted a 30% quota for women’s representation against resistance of many men in the party. The first five years under Nelson Mandela’s presidency, through the involvement of femocrats (feminists in government) and women activists, many women friendly laws were passed by parliament. Women in the rural areas contributed to the inclusion of the Equality Clause in the Constitution even though traditional leaders objected to its inclusion. There was a certain euphoria among women and feminist activists that the trajectory of gender justice would be one to level the playing field of inequality between men and women.

Twenty years later it is time for stock taking in a time of great pessimism about the future of democracy globally and in South Africa in particular. South Africa is experiencing pervasive racial polarisation and challenges to the multicultural idea of the “rainbow nation”. It is a time of a discourse of decolonisation and an ideology of “fallism” (#Rhodesmustfall, #Feesmustfall etc) deeply rooted in people’s and specifically students’ (or “born frees”)¹ experience of what can be considered a deep disappointment with democracy. Women students highlighted the deeply ingrained patriarchal aspect of democracy and institutional spaces through the #Patriarchymustfall and #EndRapeCulture campaigns. These students use the body as a site of resistance, for purposes of subversion, but also as a medium for change and movement building. What is remarkable is that they embrace feminism and publically call themselves intersectional feminists. They have generated a certain feminist solidarity with other oppressed groups across campuses. Based on their intersectional approach they link the struggles of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community to theirs and transgender people play an important role to give voice to transgender issues, giving us a glimpse of what the greater inclusion of sexual orientation and sexuality in democratic frames may look like.

The impact of neo-liberalism and the Washington Consensus is felt across the globe, but its fallout is clearly visible in developing countries, with women and children bearing the brunt of the havoc it reaps. One of the challenges to multiculturalism is the rise of market fundamentalism, and the endemic inequality it produces and entrenches, that provides a fertile breeding ground for religious and cultural fundamentalisms, unleashing a new wave of terror and migration across the globe. This has led to a right wing backlash against multiculturalism, economic migration and refugees fleeing different wars being waged in the Middle East and elsewhere, putting more pressure on democracy, directly and indirectly challenging gender equality and foregrounding identity politics.

When we entered the terrain of the “new democracy” we were challenged to, what Jodi Dean has called, “re-site” the political – which is an attempt to recognise the multiple terrains and spaces that produce politics and that is produced by politics (Dean, 1997:2). These terrains also opened up spaces for contestation around gender equality. For Dean there is a multiplicity of meaning to the word democracy and for feminists it is the opening up of debates about the intersectional identities of race, class, gender, sexuality, sexual orientation, and disability in relation to oppression and the nature of difference. It calls for mobilization and activism as well as engaging the new institutions of democracy to enable gender equality.

In taking the “personal is political” seriously identity became a site for politicisation. South Africans took up this challenge in their call for the recognition of all kinds of identities, which led to new opportunities for strategic alliances, for activism, and resistance. For many it meant to foreground their sexuality in struggles that would be according to Nancy Fraser (2007) for both recognition and redistribution. The passing, for example, of the Civil Unions Act 17 of 2006 that recognises the rights of gays and lesbians to marry showed a new form of political articulation that gave meaning to the Equality Clause in the Bill of Rights in the Constitution.

As Dean (1997:3) has argued “re-siting” means new possibilities for agency and democratic contestation at the very same time as global politics and terror is a re-siting of politics that makes the world an increasingly unsafe space for citizens of many countries.

South Africans took up this challenge in their call for the recognition of all kinds of identities, which led to new opportunities for strategic alliances, for activism, and resistance.

Citizenship

Citizenship is a status and a practice or agency. As a status it refers to the relationship between the individual and the state, as well as between individual citizens where access to justice and rights regulate this relationship. Citizenship as agency refers to the participation of citizens in the body politic (Gouws, 2005). From a feminist perspective citizenship is about inclusion and exclusion; about who is included as the “real” citizens and who is excluded. It is also an objection against the second class citizenship to which women are often confined through their care work in the private sphere and their exclusion from political participation or as political actors in the public sphere. While unpaid care work for children, the aged, the sick and the disabled rests on the shoulders of women, care is not considered a dimension of citizenship. Under neo-liberalism there is a shift away from the state’s responsibility for social welfare to greater family responsibility, increasing care work for women (Gouws, 2005).

In liberal democracies law reform of discriminatory legislation is considered as the primary mode of changing exclusion into inclusion. We therefore need to ask the question to what extent law reform in the past 20 years has changed women’s exclusion from equal citizenship and increased gender justice. Yet, good laws often fail in their implementation. When implementation fails citizens can protest or they can shift politics to the arena of the judiciary.

For democratic systems to be successful there needs to be a separation of powers between the legislature, the executive and the judiciary. In South Africa the judiciary has become the most important oversight body over non-delivery by and excesses of the state. More recently, it has stepped into the breach left by the dismantling of the National Gender Machinery and the dysfunctional Ministry of Women, Youth and People with Disabilities that was closed down in 2014. We need to ask to what extent legal adjudication has contributed to gender justice?

Involving a feminist jurisprudence based on activism and empirical social science or legal theory puts the focus on women’s experience with the law and criminal justice system, especially around gender based violence (Artz, 2009). Those who have used a feminist jurisprudence have shown that there is a range of practices that are inherently discriminatory and structurally inadequate in terms of substantive law. Activists and feminists have through their praxis attempted to create law that is more responsive to women and to shift legal paradigms and approaches (Artz, 2009). Feminist campaigns for justice had mixed results but led to rights claiming and pressure for the implementation of law for women in South Africa. While the law and legal institutions may be criticised they are still the most formidable tools South African women can use to ensure gender justice and as Artz (2009) argues, absolutely critical.

Gender Equality and Transformative Constitutional Law

In this issue authors ask questions about the jurisprudence of the Constitutional Court and interrogate the outcome of court cases involving gender issues through which women were excluded from rights and citizenship. Lee Stone engages case law emanating from the Constitutional Court to determine whether the Court has lived up to the expectation to develop substantive law and equality and to transform the South African society. She argues that the Court has made bold and courageous decisions and through her analysis reveals that the jurisprudence of the Constitutional Court has been instrumental in developing international and foreign law. In this way it confirms the mutually-reinforcing relationship between South Africa’s international obligations and domestic law. She concludes that the Court draws on the philosophy of Ubuntu in developing jurisprudence regarding the Bhe and Shilubana cases, She considers these cases watershed moments in South Africa’s jurisprudential history because they successfully confronted social exclusion and thus reinforced the constitutional conception of substantive equality. She, however, also believes that the Court can do more to counter women’s lack of agency, autonomy and empowerment.

Annie Devenish delves deeper into the Bhe and Shilubana cases to understand their importance for constitutional jurisprudence. These two cases provide for the deconstruction of customary law practices in a way that enabled the law to evolve, and for citizens and communities to contribute to its development, reflecting the ‘living tradition’ of such law. She views these cases as catalysts for a more comprehensive process of deconstruction, that provide a starting point for exploring how gender equality can in fact become part of an evolving social and legal culture, compatible with the values in the Bill of Rights. Innovative interpretations of customary law have contributed to the development of living customary law, in a way that incorporates both cultural diversity and gender equality. As she argues:

… the Constitutional Court ruling in Shilubana and Others v Sidwell Nwamitwa (2008) breaks new ground for women’s rights by providing judicial recognition for the appointment of a female chief, and for the concept of living customary law, through its acknowledgment of the power of traditional authorities … .

The article shows how the rule of primogeniture disadvantages women, trapping them as perpetual minors in law and discriminates against them as women. By contextualising and historicising this law, the Court opened a debate and reflection over the relationship between law and social institutions, the definition of culture itself, and the impact of customary practices on society, enabling customary practices to adopt social change. The Bhe and Shilubana cases draw our attention to the important role the judiciary has to play in harmonising gender equality and cultural identity in the new South Africa through the deconstruction of customary law.

the Court opened a debate and reflection over the relationship between law and social institutions, the definition of culture itself, and the impact of customary practices on society

Taryn Powys attempts to determine whether the Equality Courts that were established by the Promotion of Equality and the Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) have lived up to their promise to contribute to gender equality. While the courts do good work they are underutilised due to the poor implementation of PEPUDA. Equality Courts suffer from challenges of affordability, access, a shortage and insufficient training of personnel, community awareness, a lack of resources, and knowledge of the courts. Using the Equality Courts can enhance equality through impact litigation that aims at advocacy and lobbying to establish a rights based culture. One such example is the case of Sonke Gender Justice against Julius Malema who said that the woman who accused Jacob Zuma of rape “had a good time”. He was found guilty of hate speech, but despite the guilty verdict he took 15 months to comply with the court ruling. If utilised better the Equality Courts can contribute significantly to gender justice.

Willene Holness focuses on women’s exclusion through disability and on the remedies of the Equality Courts in relation to disability. She analyses a case of discrimination against a partially blind woman whose application for the position of magistrate was not short-listed based on the argument that she would not be able to obtain a driver’s licence. There is an irony here because one would not expect this type of discrimination in the judiciary. But if we consider the lack of gender transformation (in terms of the number of women judges, for example) in the judiciary one should not be surprised by discrimination on other grounds as well. The Equality Court ordered the Magistrate’s Commission to revise its criteria for short-listing in the appointment of magistrates to reflect the necessary racial and gender composition in appointments in the judiciary. Disability needs to be included as an intersecting identity, and given priority as a listed ground of discrimination in the Bill of Rights, employment equity law and PEPUDA.

The research provides another example of the intersectional dimension of disability with other grounds of discrimination.

In her briefing Tshegofatso Senne explores the experiences of a group of Deaf Black, unemployed women in accessing full citizenship rights. Drawing on an intersectional feminist framework that includes the South African Constitution and feminist concepts of citizenship, she examines the barriers that nine Deaf Black women face in claiming their citizenship rights, analysing the data collected from six focus groups with these women. The research provides another example of the intersectional dimension of disability with other grounds of discrimination. The research calls attention to the need for social advocacy to address the social exclusion, the difficulty in accessing health services and the justice system and the gender specific vulnerabilities that the research participants report.

In the focus article titled ‘Gender inequality and discrimination in South African Football: Black women demand a bigger share of the pie and the limelight’, Nobuhle Ndimande-Hlongwa reflects on the issues of gender discrimination and exclusion highlighted in the South African Commission for Gender Equality case of The South African Women’s Football Association (SAWFA) v The South African Football Association (SAFA) in 2012. After tracing the history of South African women’s football and its achievements, Ndimande-Hlongwa engages critically with its myriad challenges, including those of race and gender inequalities and the role of hegemonic masculinity in maintaining discrimination in the women’s game. After asserting the inequity of female representation in South African football, that women’s football is poorly resourced and generally given scant recognition, the article sets forth recommendations for gender transformation within South African football and calls for women’s football to emerge out of the shadows and come into its own as a popular women’s sport.

Continuing to highlight the disjuncture between lived realities and the promise of substantive equality, the contributions by LeConté Dill et al, Matthew Beetar, Azwihangwisi Helen Mavhandu-Mudzusi, and Daniel Moshenberg focus on the impact of persistent discrimination on experiences of substantive citizenship, freedom and security.

Sexual rights have shifted citizenship to a context of belonging. Mikki van Zyl (2005) has emphasised the embodied-ness of citizens that makes the sexual nature of citizenship visible and blurs the division between the public and the private spheres to indicate their interdependence. She argues that sexual citizenship assumes membership in a group that is outside the norm – that of heteronormativity. Articles in this issue describe the difficulties that members of the LGBTIQ community experience in exercising the right to equal citizenship, both in terms of identity and practice (eg to practice lesbian sex).

In elucidating experiences of intersectional discrimination against LGBTIQ migrants and asylum seekers in South Africa, the contributions by Le Conté Dill et al and Matthew Beetar discuss experiences of marginalisation and exclusion resulting from complex discrimination based, inter alia, on sexual orientation, gender identity and/or expression, race, citizenship and/or ethnic or social origin. Dill et al’s article illustrates the experiences of internal and cross-border displacement, tenuous citizenship and strategies of citizen-making among nine LGBTIQ migrants living in Johannesburg. Their experiences were shared in the context of participatory research which took the form of poetry workshops aimed at integrating social action with research.

Beetar’s contribution engages with lived experiences of xenophobia and homophobia shared in the context of a workshop that explored what it means to legally and socially belong in South Africa as LGBTI foreigners. Drawing on the experiences of the workshop participants, Beetar’s reportback calls for an intersectional understanding of sexual and national belonging in a context of violent structural and substantive unbelonging and institutionalised homophobia and xenophobia. It also powerfully challenges the premise of substantive equality offered by the Constitution given the lack of universal access to its guarantees and protections as reflected in the learnt understanding of workshop participants that constitutional protections do not apply to everyone.

Azwihangwisi Helen Mavhandu-Mudzusi’s briefing complements the articles by Dill et al and Beetar in setting out the findings of a study documenting the discrimination and stigmatisation experienced by LGBTI students seeking to access health care services at a rural South African university. Calling for the fulfilment of the rights of LGBTI students to needs-responsive and non-discriminatory health care services, recommendations are made to confront progressively the hetero-centricity of the health services provided as well as the hetero-normative prejudice held by university health care personnel.

The perspective by Daniel Moshenberg considers the situation of Zimbabwean women asylum seekers in South Africa, and those in Lindela Repatriation Centre in particular, whose numbers, the author avers, go unreported and their presence largely ignored by the state. Reading Lindela Repatriation Centre through the lens of Bessie Head’s story of women’s incarceration in newly independent Botswana, Moshenberg calls for a rethinking of the components of citizenship, and the inclusion of an understanding of citizenship based in tenderness. After tracing the history of South Africa’s citizenship framework, Moshenberg argues that Lindela detention centre is a constitutive element of citizenship in contemporary South Africa, reflecting South Africa’s architecture of citizenship: “exclusionary, violently gendered, and heavily fortified”. Echoing the assertions made by other contributors regarding the disjuncture between constitutional promises and the lived realities of human lives, the article reiterates that the rights and protections provided for in the South African Constitution are not only for ’citizens’ but also for all who reside within its borders, including immigrants, migrants, refugees and asylum seekers.

the rights and protections provided for in the South African Constitution are not only for ’citizens’ but also for all who reside within its borders

Jacklyn Cock gives us a glimpse of future issues for citizenship around that which we take for granted - access to food. She points out the gendered impact of a food crisis and the right to sufficient food. For her a feminist response to the food crisis involves recognising the specificity of gendered experience. Cock helps us to think through a feminist positionality in relation to patriarchal power in neo-liberal conditions. What is needed is the acknowledgement of women’s care work that involve practical expression of collective care such as co-operative food gardens, the socialisation of domestic labour and the provision of facilities for childcare, in a way that everyone takes responsibility for care work. It poses a direct challenge to the gendered division of labour in the private and public spheres. Twenty years after the Constitution there are numerous citizens without enough food to eat, without liveable lives, exposed to what Judith Butler (2004) would call “precarious” lives. It is not only a vision of the future but a vision of the now.

The Conflict between Culture and Rights

Wendy Brown (2006:151) suggests that the current culturalisation of conflict through the explanation of political or civil conflicts as “culture clashes”, is problematic because not all conflict can be reduced to culture. At issue here is the understanding that liberalism is “universal” while culture is used to frame “others” as non-liberal. Women’s rights and culture are often viewed as mutually incompatible or that there is a tension between culture and rights. For Susan Moller Okin the solution in her book Is Multiculturalism Bad for Women? (1999) is to outlaw all harmful cultural practices. But is this necessarily a sound solution?

South Africa has chosen the route of legal pluralism (accepting both common law and customary law) and a provision for harmonising culture and custom with the Constitution. The tension between rights and culture in South Africa often plays itself out on the bodies of women through harmful cultural practices, such as virginity testing, ukuthwala (bride seizure) and the denial of agency to women to act for themselves (for example to be able to enter traditional courts without a male member of the family under the provisions of the now shelved Traditional Courts Bill²). Since 2007, South Africa has experienced a shift to greater traditionalism with more political power being granted to traditional leaders – for example, to distribute land under the Communal Land Rights Act 11 of 2004. Gender equality is often the trade off, since in this case, even though traditional leaders can now redistribute land they often deny women right to access and ownership of land.

The juxtaposing of culture and rights has certain consequences as Meeto and Mirza (in Gouws and Stasiulis, 2014:6) argue, such as the idea that culture can be invoked as the justification for certain behaviour, eg violence against women as a form of discipline, or a cultural relativist argument that “nothing can be done” to change behaviour because it is “part of culture”.

Elsewhere Gouws (2014) has argued through an analysis of the Traditional Courts Bill, that unless there is a redistributive dimension to the recognition of the identities of women living under customary law there will be no improvement of conditions of gender inequality. For gender justice to prevail there needs to be parity of participation for men and women living under customary law so that women can negotiate access to rights on their own behalf. Legal pluralism can be enhanced through a return to living customary law.

In this issue, Liketso Dube in a review of Ifa Lenkululeko by Alpha Shange, offers a feminist interpretation of the novel in which the main protagonist confronts her late-husband’s family who demand she forego her inheritance. He highlights women’s need to contest inequality in customary marriage. He explores the role of the legal system and African culture to expose the difficulties in empowering women who marry under customary law. As he argues: “ … events in the novel in question present a stubborn patriarchal system in South Africa”. It will take women more than being aware of their rights to equality but also standing up and fighting for the right to equality in marriage and personal relationships.

The Recognition of Customary Marriages Act 120 of 1998 has gone a long way to enforce the rights of women married under customary law, yet it still falls short of ensuring that certain cases do not fall through the cracks. Keneilwe Radebe discusses how the broad definition of customary marriages and customary law can disadvantage certain women, especially upon the dissolution of marriage or in the case where the husband dies. The provision in the Act that a marriage be concluded under appropriate custom for it to be recognised has forced many women to go to the courts to prove that the marriage took place. The difficulty faced by judges in deciding whether a customary marriage has taken place and the disadvantage to women are demonstrated with cases that have been heard by the courts.

Conclusion

This special issue takes women’s experience of citizenship as the starting point in an attempt to determine the progress that has been made to give women full and equal citizenship since acceptance of the final Constitution in 1996. The articles speak of the importance of the rights enshrined in the Constitution, and of the Constitutional Court as an adjudicator to ensure gender justice in cases where rights are in conflict, or where rights claiming fails. It also elucidates the limits of law and a rights discourse. Citizens living under customary law often experience the limits of a rights discourse, when customary law is used to trump rights. Culture and rights are only in tension as long as citizens believe they are in tension. New and innovative thinking about living customary law is needed to escape this binary, where citizens are often forced to choose between culture and rights – a choice that is often portrayed by some powerful male traditional leaders as a zero sum game.

Additional information

Notes on contributors

Amanda Gouws

AMANDA GOUWS is a Distinguished Professor of Political Science at the University of Stellenbosch, and holds the SARChi Chair in Gender Politics. She received her PhD from the University of Illinois in Urbana-Champaign in the United States of America. Her specialisation is South African Politics and Gender Politics. Her research focuses on women and citizenship, the National Gender Machinery and representation. She is the editor of (Un)Thinking Citizenship: Feminist Debates in Contemporary South Africa (UK: Ashgate and Cape Town: Juta, 2005), and co-editor with Daiva Stasiulis of Gender and Multiculturalism, North/South Perspectives (Routledge, 2014). She is a guest editor of this special issue of Agenda.

Hayley Galgut

HAYLEY GALGUT is a human rights attorney and Senior Researcher at the Gender, Health and Justice Research Unit, University of Cape Town (UCT). She has litigated numerous high profile, public interest test cases aimed at giving meaningful content and effect to South African women’s rights. Hayley has also volunteered at Rape Crisis and participated in the South African National Prosecuting Authority’s Sexual Offences and Community Affairs Unit’s Thuthuzela Project at GF Jooste Hospital, Cape Town, as a volunteer counsellor for rape survivors. She has consulted on, conducted and/or participated in research, advocacy, training and law reform initiatives in a number of countries at grassroots, civil society, judicial, government department and parliamentary levels, spoken at many conferences, supervised university-based International Human Rights Law Clinics and lectured at several universities in South Africa, the United Kingdom, Israel and Palestine on a variety of human rights, gender law and transitional justice related-topics. She is a guest editor of this special issue of Agenda. Email: [email protected]

Notes

1. Those born after 1994.

2. See Gouws (2014).