ANCL Annual Conference The Role of the Legislature in the Promotion of Equality: Can Relevant Legislation Effect Social Change: A South African Experience
Law as instrument of social change • Assumption that social change is tantamount to social progress • Reliance on law to effect the necessary change • Law seen as a complex aggregation of principles, norms, ideas, rules, practices and the activities of agencies of legislation, administration, adjudication and enforcement backed by political power and legitimacy. • This complexity of law is often seen as a separate entity: law acts upon society not an aspect of society. • Problematic: when law is seen as independent from other aspects of social regulation, links between law and morality loosen, and disappear in popular consciousness. • Law (specifically legislation) only technical regulation lacking a clear moral element losing effectiveness.
Law, social change and gender equality • Relationship between law and social change specifically relevant to promote gender equality. • Law important arena to seek to change and achieve gender equality • Why law? Ability to regulate access to rights, benefits and resources. • Practical and Normative power: Power to include, exclude, to determine who has access to rights/resources, who falls within the boundaries of social and economic recognition/affirmation or beyond them in processes of exclusion, stigmatization and marginalization. • Possibility of using law to redraw these boundaries. • Limits acknowledged: reasons above and specifically in relation to gender more likely to reproduce existing social and economic relations rather than change them – law infused with patriarchal and masculine values.
Still important tool: gives women sense of collective identity, actively shapes public discourse and is a source of empowerment. • Public nature of rights assertion important because of the private nature of discrimination against women. • Purpose: discussion proposes to look at the limits of the law, specifically the limits of legislation to transform society to achieve gender equality. Key pieces of legislation analyzed: • Termination of Pregnancy Act • Domestic Violence Act • Recognition of Customary Marriage Act • Promotion of Equality and Prevention of Unfair Discrimination Act • Specific provisions not analyzed – focused on broad operational structure to illustrate limits of legislation to steer society towards a certain way of belief and subsequent action.
Legislation as strategy for change in South Africa • Adoption of Constitution + equality as founding value paved way for unprecedented change concerning women’s rights • Significant achievement: recognition of equality rights as substantive, requiring more than mere identical treatment and non-discrimination - social context taken into account. • Favorable constitutional and political environment – policies, laws benefiting women. • Supported by proportional representation ensuring women’s representation in parliament. • First laws: abortion, domestic violence and maintenance.. • Important achievement; touched on difficult issues of private inequalities, areas least likely to get attention by government.
Despite women in SA enjoying unprecedented political and legal equality – evidence that material conditions of majority of women remain unchanged. • Poverty deepening; high levels of violence; continued patriarchal norms • Obstacles identified – confined to public sphere, private should be addressed??
Choice on Termination of Pregnancy Act • Entrenches right to reproductive autonomy – permits termination of pregnancy • Significant legal and social gain • Ability to change social perceptions ensuring women’s right to bodily integrity, dignity and privacy?? • Challenges: implementation; legal challenges to the act; social attitudes unchanged • Clinical achievement rather than securing women’s right to self-determination.
Domestic Violence Act • High prevalence rate; embedded in our history and present unequal social, economic and cultural relations • Practical relevance of the legislation in addressing social phenomenon?? • Intended to provide accessible, speedy relief to complainants in a wide variety of relationships and broad spectrum of violence. • Research shown legislation has not affected the high incidence of DV; implementation problematic • Potential for social transformation questionable – message only to criminal justice system to perform certain functions in relation to DV. • Ultimately – limits of law in transforming unequal gender power relations inherent in patriarchal society.
Recognition of Customary Marriages Act • Build on constitutional protection, fully recognizing African customary marriages; alleviates women’s unequal status in marriage • Implementation problematic; provisions practically untenable. • Example: registration of customary marriages • Lived reality discarded.
Promotion of Equality and Prevention of Unfair Discrimination Act • Meets constitutional requirement for national legislation prohibiting unfair discrimination • Goal – large scale societal transformation. • Prohibits unfair discrimination in public/private sphere across all sectors of society • Enforced by Equality Courts • Gender equality key theme • Lived up to transformative expectations? • No – very few cases heard by Equality courts, operational nightmare • Barriers to implementation multifaceted • Empirical research needed, detailed understanding of service delivery.
Strategy Rethought • To benefit from proactive legislation – lived reality taken into account; gender power relations in society. • Failure of state to address unequal power relations in private sphere? • South African women’s movement to move beyond success – engage social and cultural spheres • Albertyn states: • ‘This means that politics can no longer be located solely in a “traditional” understanding of the public sphere as the state, where much has been won. The social and cultural domains must be subject to political struggles so that gender equality and women’s autonomy can be validated as core political and social values. This entails bringing private issues into the public and redefining what is “public” and the subject of public discussion. It also entails an “engendered” notion of democracy that deepens the participation of women in defining and giving meaning to the norms and values that govern our social and cultural live, as well as our political life’
Existing constitutional framework good starting point to engage private sphere. • To strategically use this platform key in extending the limits of law to effect social change • Platform?? • Law aspect of society not acting upon.