As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
It should not be controversial to state that South Africa remains a deeply sexist and patriarchal society. Despite the fact that our Parliament has the third largest number of women members (just over 44%, the highest number after Rwanda with 56% and Sweden with 46%), most women in South Africa still carry a shockingly unequal burden in caring for children and taking care of the home (usually without remuneration), find it difficult to break through the glass ceiling in the corporate world, and are often subjected to sexism and even harrassment at the hands of men.
It should also not be controversial to point out the obvious fact that our current President (who is also the President of the ANC) is a patriarch and – in his private affairs, at least – a Zulu traditionalist.
During his rape trial President Zuma gave evidence in formal Zulu, which some commentators have argued was aimed at establishing himself as “an authentic Zulu man”. Some commentators (including Shireen Hassim and Mmatshilo Motsei) pointed out that the idiom he used at the trial was deeply patriarchal, referring for example to Khwezi’s private parts as “her father’s kraal”. Zuma claimed that as a Zulu man he had no choice but to have sex with Khwezi because she invited it in her dress; that he had been taught that leaving a woman in a state of arousal “was the worst thing a man could do”.
In the light of the above, the ANC discussion document on gender, tabled at the ANC NGC this week, makes for interesting and, I would argue that given the political context, provocative reading. But the authors of the document did not seem to have the courage of their convictions as the document shies away from the implications of its very persuasive gender analysis when it has to make recommendations about how effectively to deal with the problems.
On one level, the document merely re-affirms the ANC’s long standing commitment to gender equality and its opposition to sexism. If it was not for the ANC policy that 50% of its elected representatives should be women, our Parliament would not have had the high number of women it does have (the DA being rather more male oriented – despite its female leader).
The ANC was also instrumental in drafting the South African Constitution, which prohibits discrimination on the basis of sex and gender and subjects the right of individuals to enjoy their culture to the equality provision in the Bill of Rights. In terms of our Constitution, no one has the right to engage in cultural practices that in any way discriminate against women. Equality trumps tradition and culture in our Constitution. (That is why those who claim that polygamy is a constitutional right are wrong: if our courts decide that polygamous practices discriminate against women, they will have a duty to declare such practices unconstitutional or to develop the customary law to bring it in line with the Constitution.)
The ANC document on gender provides an admirable definition of what the ANC means by Gender Equality.
It implies a fair distribution of resources between men and women, the redistribution of power and care responsibilities, and freedom from gender-based violence. It entails that the underlying causes of discrimination are systematically identified and removed in order to give men and women equal opportunities. It takes into account women’s existing subordinate position within social relations at aims at the restructuring of society so as to eradicate male domination… Gender inequality and other forms of patriarchy-related social ills are an integral part of what should be the transformation agenda of the ANC. IN effect what this NGC must look at are ways of actually addressing patriarchy within its realms and the realms of society as a whole, as well as look at the concept of “decolonizing the human mind”.
The document points out that the manner in which almost all societies still unfairly allocate social roles, duties and responsibilities to men and women (with women carrying a disproportionate load), reflects the power that men still hold over women in our society. According to the ANC document, patriarchy – “a whole system encompassing ideologies, beliefs, values and practices” – subordinates women in all spheres of life. In this regard, the traditional family remains the most oppressive institution where patriarchy asserts itself most profoundly in order to ensure the continued subjugation of women and the domination of men.
One of the ways in which this scandalous state of affairs can be dealt with, according to the ANC, is by the fast tracking of a Gender Equity Bill which will help to achieve 50/50 parity in the private sector and the corporate world. The document also suggests that the Electoral Law should be amended to force all political parties to adhere to a 50/50 gender balance in nominating candidates for election to the legislature. The document further recommends that many other steps should be taken to help eradicate gender discrimination and to address the effects of past gender injustice in the public sphere and to help women gain access to social and economic benefits and services.
What is entirely absent from the document is any recommendations on how to deal with two of the most profound problems facing women in South Africa. First, it is silent on the way in which most women who live in rural areas under traditional rule are subjugated and oppressed because of the overwhelming influence of traditional leaders and the iron grip of a traditional culture (a culture which has been fundamentally transformed, and in some respects disfigured, by colonialism and apartheid). Second, the document makes no recommendations about ways of addressing patriarchy in the private sphere – a pervasive problem which results in the oppression of women in the family.
The drafters of our Bill of Rights understood that much of the subjugation of women (and black South Africans as a whole) happened in the private sphere and hence deliberately included provisions to make clear that the equality clause also applied to private relations and institutions. It furthermore included section 9(2) which states that true equality can only be achieved if the state took positive measures to promote the achievement of equality. As the Constitutional Court stated in the case of Minister of Finance v Van Heerden that section 9 of our Constitution:
embraces for good reason a substantive conception of equality inclusive of measures to redress existing inequality. Absent a positive commitment progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under-privilege, the constitutional promise of equality before the law and its equal protection and benefit must, in the context of our country, ring hollow.
The state therefore has a duty to take steps to address the oppression of women in the private sphere. This oppression includes the way that men relate to and treat women in intimate relationships inside and outside marriage. This is not a short-term project as one cannot legislate away sexism (just as one cannot legislate away racism). But one can begin to take steps to protect women who suffer under patriarchal husbands and boyfriends. This our government has not shown any appetite to do.
While the ANC document recognises this fact, it contains no suggestions about what positive action should be taken to eradicate patriarchy. One looks in vain for suggestions of what measures could be taken to deal with the cultural assumptions and traditional practices that help to keep many women subjugated. The fact that many women in personal and intimate relationships remain little more than second class citizens who must obey the instructions of the patriarchal boyfriend, husband or father and must serve him and his children without complaint, is also not addressed.
Could this reticence on the part of the discussion document have anything to do with the fact that the leader of the ANC is a patriarch and traditionalist, a man with three wives and – as far as we know – at least two more girlfriends, a man with more than 20 children who seem to believe that women (or at least the women in his personal life) should take care of the home and the children?
This is of course an awkward point to make. On the one hand, one is acutely aware of the need to respect different cultural traditions and practices and to avoid the snobbish cultural imperialism of someone who assumes their way of doing things and being in the world is the only correct way. Given our history in which traditional African culture and custom have been denigrated and, at times, strategically used and abused by colonial rulers to reinforce the supremacy of their dominant Western culture and their rule, one could easily be accused of cultural imperialism for raising this point.
But as the Constitution makes clear that gender equality trumps culture and tradition and as black women living in rural areas are probably the most vulnerable and most marginalised and oppressed group in our country, it is important that any attenmpt to address gender inequality focuses on the way in which traditional cultural practices – including, possibly, practices such as polygamy – help to keep women subjugated and in their place. The fact that the ANC document is silent on this issue, says much about the inherent contradictions in the ANC, who styles itself as a modern movement who opposes sexism and patriarchy, while at the same time being led by Mr Zuma who has demonstrated in the past that he has not freed himself entirely of patriarchal tendencies.BACK TO TOP