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The Equality Courts as a Tool for Gender Transformation

Tuesday, September 8, 2009 - 10:10
In March 2009, Sonke Gender Justice Network filed a complaint at the Equality court in Johannesburg against the ANC Youth League Leader, Julius Malema. This case study provides an analysis of the Equality Courts as a new legal forum for gender transformation work by examining the history and theoretical foundations for the courts, the procedures for utilising the courts, the problems and challenges faced when using the courts, and documenting Sonke’s own experiences in lodging its case
In March 2009, Sonke Gender Justice Network filed a complaint at the Equality court in Johannesburg against the ANC Youth League Leader, Julius Malema. The complaint was lodged in response to remarks he made to university students concerning Jacob Zuma’s rape accuser claiming that she likely enjoyed herself during the incident. Sonke’s Equality Court case alleges hate speech, unfair discrimination and harassment of women, and is only the second high profile gender equality case to be taken to the Equality Courts since their inception in 2003 (1). This case study provides an analysis of the Equality Courts as a new legal forum for gender transformation work by examining the history and theoretical foundations for the courts, the procedures for utilising the courts, the problems and challenges faced when using the courts, and documenting Sonke’s own experiences in lodging its case.

In January 2009, the African National Congress’ outspoken and wellknown youth leader, Julius Malema, addressed 150 Cape Peninsula University of Technology students. Already controversial for making inflammatory remarks in which he said he would be willing to “kill for Zuma,” Malema suggested that the woman who accused President Zuma of rape had a “nice time” with him because “when a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast, and ask for taxi money.”His words were met with cheers by the student supporters.

However, many others were outraged. Human rights and gender equality organisations such as Sonke Gender Justice Network (Sonke) were worried about the impact such words would have in a country with alarmingly high levels of rape, where pervasive rape myths result in rape survivors often being blamed for rape and retraumatised in the country’s police stations and courts. Sonke’s Senior Programme Advisor, Mbuyiselo Botha, explained:

“Malema’s words send a very dangerous message to the country at large. South Africa has one of the highest incidents of rape in the world. If people making statements such as these aren’t made accountable, then they detract from the gains we’ve made toward gender equality.”

Recent research reveals a dire picture of violence against women and sexual assault in South Africa. A survey in the Eastern Cape and KwaZulu-Natal provinces by Professor Rachel Jewkes of the Medical Research Council and colleagues from the University of KwaZulu-Natal, ‘Understanding men’s health and use of violence: interface of rape and HIV in South Africa’, revealed that 1 in 4 men surveyed admitted to having raped a woman.

The study also found that men who are physically violent towards women are twice as likely to be HIV-positive, and are less likely to use condoms. Any woman who has been raped by a man over the age of 25 has a 1 in 4 chance of her attacker being HIV-positive. These alarming figures, Jewkes posits, are linked to ideas about masculinity based on gender hierarchy, and to a sense of entitlement to sex evident amongst many men.

The situation is exacerbated by misconceptions regarding sexual violence. A survey of 250 000 school aged youth indicated that males were more likely than females to believe that “sexual violence does not include touching; sexual violence does not include forcing sex with someone you know; girls have no right to refuse sex with their boyfriends; girls mean yes when they say no; girls like sexually violent guys; girls who are raped ask for it; and girls enjoy being raped” ‘Literature review on men, gender, health and HIV and AIDS in South Africa’ for Sonke Gender Justice.

With this social context in mind, Sonke began seeking avenues of redress. Mbuyiselo Botha explained, “[Malema] is of high profile and influential, so he should be careful and sensible because young people look up to him.” As an organisation that supports men and boys to take action to achieve gender equality, Sonke saw this as an opportunity to prompt discussion about men’s roles and responsibilities in both colluding with and challenging the pervasive rape culture.

Research on gender activism in South Africa indicates that to date, “organisations working with men have only occasionally used rights-based activism and have focused almost exclusively on community education.” Because of this over-reliance on workshops and community education strategies, “much remains to be done to make work with men truly transformational.” Sonke felt the effort to hold Malema accountable provided an important opportunity to experiment with rights-based advocacy as a gender transformation strategy.

Sonke contacted the relevant institutions mandated by the Constitution to serve as human rights watchdogs, in this instance, the Commission on Gender Equality and the South African Human Rights Commission, before turning to the Equality Courts. The case has provided an opportunity to test the Equality Courts as a new tool for engaging men in the advancement of gender transformative work.

Co-Director of Sonke, Dean Peacock, elaborated: “advocacy offers the possibility of generating enough controversy and media coverage to engage millions of people across the entire country in meaningful conversations. [The case against Malema] also offers the possibility that it might fundamentally shape the ways in which leaders think about how they address gender transformation, and in particular, how they address rape.”

Click here to read the full case study.

This case study was written by Sonke Intern, Emily Keehn. To find out more about Sonke Gender Justice’s work and read more case studies, visit their website at http://www.genderjustice.org.za/


NOTES

1. The Department of Justice and Constitutional Development [DOJCD] notes that “the gathering of statistics on the cases presided over by the Equality Courts is proving to be a challenge.” Decisions are not published in an official reporter, so this figure is an estimate. DOJCD Annual Report 2007-2008, p.51, available at http://www.doj.gov.za/reports/report_list.html/


Author(s): 
Emily Keehn