This issue of Agenda brings to the fore gender advocacy around the possibility of a transformative constitutionalism in the long-term struggle to achieve gender justice. The Constitution as the peremptory legal authority which governs all the laws on the statute book has enshrined equality, dignity and freedom as among its core values. The transition to the post-apartheid state is a long-term process, and this issue asks how far we have come. While the need for racism’s erasure from the statute book through the legislature and the courts has received most attention, gender equality, disability and the many other intersecting listed grounds of discrimination have often required legal rights activism and advocacy to be taken up. Despite the prevalence of sex and gender discrimination, they have often been afforded less weight by the courts because they are less visible than racism and because they often take place in the private sphere. This issue seeks to address how responsive the Constitution has been through its rulings in extending and expanding not only women’s formal rights to equality but substantive meanings of gender equality for women and further whether this has contributed to a citizenship that reflects the Constitution’s values of equality for all. It calls for critical reflection on the salutary aspects of the Constitution, for example, how the Equality Clause in the Bill of Rights has been translated into substantive equality in the recognition of gender difference and sexual orientation. At the same time, the progressive realisation limitation that it places on rights, especially socio-economic rights such as housing and health, has been a concern for social activists. Furthermore, the slow transformation of courts as patriarchal institutions has also acted as a restraint on the delivery of gender justice.
It is the denial and limitations of rights which have frequently provided the emerging grounds for contestation of discrimination and rights claims by women and marginalised and oppressed groups. Multiple and intersecting causes of unequal power relations exist and the route of legal advocacy has been a critical strategy in breaking down gender discrimination to achieve gender justice. The call for abstracts for this special issue invited contributions which would offer critical analysis of ground breaking cases heard by the Constitutional Court that have contributed to substantive equality, as well as the role of Chapter Nine Institutions in protecting rights. It also called for contributions that speak to the ‘unhearing’ state and the experience of discrimination on grounds of sexual orientation and/or gender expression, and to the identities of ‘unbelonging’ and ‘outsider’ felt by groups whose citizenship rights are denied, not respected or liminal.
The guest editors Amanda Gouws and Hayley Galgut highlight in the introduction that this issue comes at a time when there is little optimism, particularly when contrasted against the celebration and expectation that accompanied the passing of the final Constitution and the role of the National Women’s Coalition in ensuring women’s rights were included. They consider both the importance of the Constitution as a critical building block for gender justice, and how it serves to either deepen or erode the meanings of citizenship.
Writers in this issue demonstrate that there is a tension between formal equality on paper and what these rights mean for women who are situated differently in terms of race, ethnicity, class, gender, sex and other lines of difference. Lee Stone’s article critically reviews the importance of constitutional transformation in the context of judgments made by the Constitutional Court in either advancing or denying substantive equality. Annie Devenish’s briefing draws on case law to deconstruct two Constitutional Court rulings that have affected women’s status under customary law and which reflect that customary law is ‘living’ and evolving in relation to changing social contexts. Taryn Powys questions whether the Equality Courts established to create a means for people to access justice from the courts to challenge unfair discrimination have been of benefit in tackling cases of gender discrimination. Keneilwe Radebe profiles the need for reform of the Recognition of Customary Marriages Act and draws on case law to show how courts have interpreted custom in ways that are open to manipulation, particularly where maintenance or inheritance are concerned. Liketso Dube’s review of the novel Ifa Lenkululeko holds the focus on women’s exercise of equal rights within customary marriage and he raises the need for a feminist reading of the novel to fully address African women’s right to inheritance.
Should disability as a ground of non-discrimination and affirmative action be ranked alongside race and gender? Willene Holness explores this question in an analysis of disabled women’s position in the employment hierarchy with reference to a case heard in the Equality Court and to employment law. Tshegofatso Senne’s study conducted with a group of Deaf Black women calls attention to the Deaf participants’ experience of unfulfilled citizenship and the precariousness of being unable to access critical services as women, two examples being health care and in requesting help in cases of gender based violence as a consequence of social audism.
Azwihangwisi Helen Mavhandu-Mudzusi’s research highlights the loss of dignity and rights that heternormative health care services and stigmatisation have created for lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) students at a rural university. Two articles address the related experiences of deconstructing ‘unbelonging’ and ‘citizen-making’ by LGBTIQ groups and ‘foreigners’, refugees, migrants and asylum seekers. The importance of social solidarity is highlighted by both Matthew Beetar and LeConté Dill et al in their articles on workshop interventions. Poetry writing and the exploring of the intersectionality of identities on the African landscape reveal both loss and potential, as well as the hope of freedom within the limits of an often tenuous existence, despite the promises of the Constitution. Daniel Moshenberg’s perspective speaks to the detention of Zimbabwean women at Lindela Repatriation Centre and questions the architecture of citizenship which allows the brutal treatment, exclusion and neglect of undocumented/migrant women, refugees and asylum seekers.
The right to enough food is perhaps the most basic of all rights, and fundamental to the exercise of all other rights and in particular the meaning of citizenship. Jacklyn Cock’s article in this issue focusses on the question of hunger and women’s role in food provision in constructing new forms of eco-citizenship that are linked to women’s unequal access to resources. The question of the division of labour and women’s focus on the day-to-day needs necessary for survival prompts us to question the assumption that 20 years of the Constitution has brought transformation for the majority of poor rural and urban women.
Finally, women’s activism around their strategic needs and the demand for a larger share of resources and representation have often been grounded in long-term marginalisation and social invisibility in the male-dominated public sphere as well as apartheid. Nobuhle Ndimande-Hlongwa puts the spotlight on the history of discrimination against women’s football and the Commission for Gender Equality (CGE) investigation into women’s football.
This issue opens a retrospective view to the first 20 years of the Constitution. While it scratches the surface of what are possibly some of the major questions and struggles for equality of our time, it is hoped that this issue encourages research and debate to take forward the collective task of ensuring that substantive rights are realisable for the majority of women who live under the Constitution and not an empty promise.
Agenda is grateful for the contribution of the guest editors Amanda Gouws and Hayley Galgut.