Gender and Human Rights in South Africa

Wednesday, 20 February, 2008 - 06:50

The definition of gender is still a preoccupation of many schools of thought. The old, the modern and the pre-modern schools of thought provide guiding principles on the concept of

The definition of gender is still a preoccupation of many schools of thought. The old, the modern and the pre-modern schools of thought provide guiding principles on the concept of gender.

The old school of thought defines gender from a patriarchal context which emphasise roles and relationships between male and female persons at community level. Most people say the emphasis in this area is more on the physical structure of a person than anything else, particularly as the musculature of a human being dictates values, strength and position one holds in society. Male persons are understood to exert leadership obligations in public life, which is valued more than the altruistic roles fulfilled by females since they fall under patriarchal subjugation. Females are timid and emotionally weak - and therefore they cannot handle leadership mandates.

The second school of thought is defined from the modern construct which interprets gender from the individual’s biological status and determines the sex of a person. When looking at the societal definition of gender one ends up with a narrow view, where understanding of the dichotomy between purposes and needs of human beings is disregarded. Male persons have different purposes, as do female persons, and the two complement each other. The basis of different treatment between male and female persons is the cutting edge of our perception, and our arguments should be premised on these differences rather than solely on beliefs, power and duties. 

Gender needs broader definition rather than giving it a narrow scope, which cannot respond to the modern challenges faced by female persons. The state of affairs can improve when we finally accept the reality that it is about time that we consider harmonising the traditional beliefs with modern terms so that the old give way to the new gender equity. The narrow view of gender has caused a lot of damage in the society by breeding hostility, misconceptions and stereotypes in handling relationships between male and female persons. The time has come to begin appreciating the common attributes of female persons, not only to view them from relational and nurturing points of view and the male persons as proponents of respect. 

It is a well-known fact that societal fabric harbours inconsistent tenements of culture, tradition and religion that are not open to promotion and protection of women’s rights. These are deep-rooted beliefs that are not easy to diminish or open to new changes brought by development. Firstly, development doesn’t augur well for culture. In fact, it is in enmity with culture as the former tend to erode the latter. Further, the makers of cultural norms do not create development but encourage sustenance of the status quo. The other views put blame on external influences for changing old beliefs and way of thinking towards relationships of male and female persons. In addition, one can submit that the cultural and traditional way of defining members of a society existed since immemorial times and the transfer has passed from generation to generation.

One can qualify an assumption that sources of culture and old beliefs surface as a result of the legacy left by our ancestors. Also, many communities still believe that our ancestors are the makers of these old beliefs. They go as far as to posit that society owes them respect, recognition and observation regardless of their harm, or whether they fit well with modern times or if their existence is detrimental to people’s needs and values.

Gender Rights on Paper

Gender issues are not complex but the old belief system that exists in our society is making the concept of gender a very volatile topic to dwell on.

In South Africa the new dispensation coupled with international and regional instruments added value to the struggle against gender inequality. The government’s commitment to attain gender equity is embraced in our new Constitutional Order. In particular, Section 9 of the Bill of Rights prohibits any form of discrimination based on gender or sex perpetrated directly or indirectly.

South Africa is a champion of human rights and is the one country in Africa that has jurisprudential precedence at the Constitutional Court level in respect of the rights and welfare of women and children’s inheritance. In terms of culture, women are not allowed to remain the custodian of their children or to be in physical control of the estate of their late partners. The deceased’s eldest male relative, if there is no male of the age of 18 at the time of the deceased death, assumes this duty. The mother of the male and the elder sister of the sibling’s brother were completely disqualified from exercising this duty. This culture had left many children homeless, poverty stricken, and brought severe animosities among communities as the deceased’s relatives helped themselves to the assets of his/her estate.

The development of gender law, informed by international and regional perspectives, has resulted in the improvement of the rights of women. These include the United Nations Convention on the Elimination of All Forms of Discrimination against Women and the Protocol on the Rights of Women in Africa. These two instruments create progressive mechanisms for advancing the rights of women in both public and private spheres, but still need to be implemented at local level for courts to offer victims with remedies.

At the Southern African Development Community (SADC) level, South Africa is party to a Declaration on Gender and Development. Subsequent to that, an addendum was signed related to the Prevention and Eradication of Violence against Women and Children. In addition, during the SADC Summit in 2005, member states approved the drafting of the SADC Protocol on Gender and Development since protocols by nature have binding force compared to declarations.

The Hard Reality

However, the rights of women are still not respected in all spheres, including at local and national levels.

Women are the most affected by the HIV/AIDS pandemic. Violence against women and children, including rape statistics, are still high. Maintenance courts are faced with backlog of cases and we still have many fathers who abdicate their responsibility to support their progeny. Poverty affects women and children more than men, despite measures taken at global level to progressively address the disparity between male and female persons.

There’s a strong need for CSOs and other relevant stakeholders to advocate for the domestication and implementation of international, regional and sub-regional instruments promoting women’s rights. These instruments are meaningless if they are not incorporated at local level, and the failure of our courts to provide remedies to victims of violence brings disgrace to our progressive Constitutional Order.

Strong advocacy and education is also required at community level to improve the living law and unacceptable conditions through permeation of statutory law. It is through these vigorous efforts that gender advocacy will finally see self-worth and the human dignity of female persons restored in South Africa. 

- Written by HURISA Director, Corlett Letlojane.

- Picture courtesy of University of Minnesota

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