Gender and Constitution Building - Women for Women International

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THE TRUTH DOES NOT DISCRIMINATE: HOW POST-APARTHEID SOUTH AFRICA CONSTITUTIONALIZED GENDER EQUALITY also allowed to fester during that time have not been completely ameliorated. The apartheid regime resulted in widespread discrimination and underdevelopment, which still affects women in areas such as unemployment, illiteracy, poverty and domestic violence. Mainstreaming gender equality policies, especially with regard to development and poverty eradication, must remain a top priority if South Africa ever hopes to leave the shadow of apartheid’s infamous legacy. RASHIDA MANJOO is an Advocate of the High Court of South Africa and a Member of the Commission on Gender Equality. She is the founder of the Gender Unit at the Law Clinic at the University of Natal and also the Domestic Violence Assistance Programme at the Durban Magistrates Court. Manjoo is a member of the Programme Implementation Committee of the International Solidarity Network of Women Living Under Muslim Laws. She served as a member of the Women’s Caucus for Gender Justice in the International Criminal Court and serves on the Advisory Council of the Women’s Initiatives for Gender Justice. Bibliography Centre for Applied Legal Studies. “Gender and the TRC.” Report submitted to the TRC, co-ordinated and prepared by Beth Goldblatt and Sheila Meintjes (University of the Witwatersrand: 1996). Cock, Jacklyn. “Colonels & Cadres: War & Gender in South Africa.” (Oxford University Press, Cape Town 1991) The Constitution of the Republic of South Africa, Act 200 of 1993 and Act 108 of 1996. De Klerk, Eldred. “South Africa’s Negotiated Transition: Context, Analysis and Evaluation.” http://www.c-r.org/accord/peace/accord13/ saneg.html Dugard, John. “South Africa: International Law Provisions of 1996 Constitution.” 36 I.L.M. 744 (1997). Goldblatt, Beth and Sheila Meintjes, “Dealing with the Aftermath: Sexual Violence and the Truth and Reconciliation Commission.” Agenda No.36, 1997. Hay, Mark. “Grappling with the Past: The Truth and Reconciliation Commission of South Africa.” Africa Journal in Conflict Resolution, 1/ 1999. Hayner, Priscilla. “Unspeakable Truths: Confronting State Terror and Atrocity.” (Routledge: New York, 2001). Posel, Deborah and Graeme Simpson, eds. “Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission.” (Witwatersrand University Press: Johannesburg, 2002). Russell, Diana. “Lives of Courage: Women for a New South Africa.” (Basic Books, Inc.: New York, 1989). Truth & Reconciliation Commission, “Truth & Reconciliation Commission of South Africa Report.” Vols. 1-5 (1998). Truth & Reconciliation Commission, “Truth & Reconciliation Commission of South Africa Report.” Vols. 6-7 (2003). 44 SUMMER 2005 Truth and Reconciliation Commission, “Special Hearings: Women” (1998). http://www.polity.org.za/govdocs/commissions/1998/trc/ 4Chap10.htm. Tutu, Desmond. “No Future without Forgiveness.” (Rider: London, 1999). Walker, Cherryl. “Women and Resistance in South Africa.” (Monthly Review Press: New York, 1991). Endnotes 1 Walker, “Women and Resistance in South Africa.” 2 Black women’s political activism in challenging the structures of oppression predates the 1950s and includes the 1913 campaign on land, the 1928-1929 resistance to the introduction of municipal beer-halls, “pass law” opposition campaigns and defiance campaigns. 3 The homelands, originally called Bantustans, were areas set aside by the white regime for the black population to cultivate under the Land Acts of 1913 and 1936. Even though they were only 19 percent of the population, whites allocated themselves 87 percent of the land. The land allocated to Africans was generally the least agriculturally productive and was widely dispersed throughout the country. 4 This Constitution, which brought an official end to apartheid, “was negotiated by political groups which in most instances were unelected and simply reflected the political realities of the time. For this reason, it was approved only as an Interim Constitution pending the adoption of a final Constitution by a democratically elected Parliament sitting as a Constitutional Assembly.” Dugard, “South Africa.” 5 There were views that the Charter should form part of the documents that would be discussed during the Interim Constitution consultation phase, but this was impossible as the Charter was not ready at that stage. The inclusion of the Charter in the Constitution was also rejected in favor of entrenching the principle of non-sexism and providing for the right to substantive equality in the Constitution. 6 Dugard, “South Africa.” 7 A gender advisory committee with limited powers was also set up as a result of the numerous complaints and protests about the lack of inclusivity in the negotiating process. The WNC also set up a negotiation monitoring team to both monitor the process and to disseminate information to Coalition members. 8 Promotion of gender equality and the prohibition of gender-based discrimination are both addressed in Section 9 of the Constitution. 9 The OSW was tasked with formulating a national gender policy, and also ensuring that all government policy is consistent with this policy. This includes support to the provinces in ensuring that gender policies and programs are in line with national policy, coordinating and implementing of this policy and co-coordinating and arranging for training in gender planning and policy analysis in all government departments. 10 The Commission for Gender Equality Act No.39 of 1996 is the enabling law which fleshes out the powers, functions, composition and other procedural aspects of the Commission. The powers and functions of the Commission are very wide and are set out in Sections 187(1) and (2) of the Constitution and also Section 11 of the CGE Act.
11 Section 181(2) of the Constitution provides that the CGE is independent and subject only to the Constitution and the law. It must be impartial and must exercise its powers and perform its functions without fear, favor or prejudice. No person or organ of state may interfere with the functioning of the CGE. In fact, Section 181(3) provides that other organs of state, through legislative and other measures, must assist and protect the CGE to ensure its independence, impartiality, dignity and effectiveness. 12 Promotion of National Unity and Reconciliation Act No. 34 of 1995, Section 4 (1995). 13 Truth and Reconciliation Commission Final Report, v. 6, at 99. 14 Approximately 12 percent of detainees held during the 1986-87 state of emergency were women. There were several reports of miscarriages in detention, torture using electric shock on pregnant women, allegations of rape by soldiers and other forms of abuse. Cock, “Colonels and Cadres;” Russell, “Lives of Courage.” CRITICAL HALF 45
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