24 March 2022 | Story Dr Claire Westman | Photo Supplied
Dr Claire Westman, Postdoctoral Research Fellow, Free State Centre for Human Rights, University of the Free State

Opinion article by Dr Claire Westman, Postdoctoral Research Fellow, Free State Centre for Human Rights – University of the Free State.

Human Rights Day is commemorated on 21 March in memory of the Sharpeville massacre and the struggles waged for rights to be afforded to all South Africans. While South Africa has made great strides in legally and constitutionally affording rights to all the nation’s citizens, it is obvious that for many South Africans human rights are still something they need to struggle for. The Constitution, including the Bill of Rights, is a founding aspect of democracy in South Africa. Through these, all citizens of South Africa are granted rights such as equality, human dignity, the freedom of movement, and the right to life. However, on a daily basis, women and other marginalised groups, including LGBTQI+ communities, are denied these very rights which are the foundation of the democratic nation.

Gender-based violence, a South African problem 

Recent statistics indicate that between October and December 2021, 11 315 people, predominantly women and girls, reported being raped. In other words, there were more than 11 000 reported cases of rape in only three months. However, it is widely known that many women do not report incidences of sexual or gender-based violence as a result of various factors, including re-victimisation by police and the judicial system, fear of ostracisation from their communities, and the threat of further violence at the hands of perpetrators. 

Research published in 2018 by the Rape Survivors’ Justice Campaign shows that an estimated 645 580 sexual offences take place per year, with only 7,7% of these being reported. Of course, sexual violence is only one of the many pervasive and unrelenting forms of violence that women and marginalised communities face in South Africa. According to the SAPS, on average there are 2 763 murders of women a year, or about seven women a day. Based on these statistics, South African ranks in the top five countries in the world for femicide (female homicide).

The Department of Justice and Constitutional Development defines femicide as “the killing of a female, or perceived female person on the basis of gender identity, whether committed within the domestic relationship, interpersonal relationship or by any other person, or whether perpetrated or tolerated by the State or its agents, and private sources”. What is interesting to note here is the notion that femicide can be perpetrated or tolerated by the state or its agents. It could be argued that the rate at which women are exposed to gender-based violence, rape, and murder is in fact a systematic and strategic part of the development of South Africa’s post-colonial, post-apartheid national identity. That is, the sexist, racist, and heteronormative legacies of colonialism and apartheid continue to linger and permeate through South African society, and work in conjunction with patriarchal ideologies that form the foundation of the current dispensation to place women and marginalised groups in positions of precarity and make them more vulnerable to violence, discrimination, and inequality. 

Without equality, there will be no human rights

Mahmood Mamdani asserts that the notion of nationhood is problematic, as it always relies on the exclusion of some individuals and groups. In South Africa, despite the claims of a unified ‘rainbow nation’, it seems evident that the exclusion of women and LGBTQI+ individuals is a necessary aspect for the development of a heteronormative, patriarchal national identity. This exclusion is often performed through acts of violence, in particular sexual violence, as a way of reminding women and LGBTQI+ individuals that if they do not comply with heteropatriarchal norms and ideologies, they will be punished and pushed to the margins of society. In other words, violence is used as a way to keep women ‘in check’, limit their movement, control their behaviour, and ultimately restrict their access to opportunities that would possibly allow them to escape situations of subordination and inequality.

Thus, when thinking about human rights, it is necessary to think about who is considered human. The extremely pervasive ideologies that stem from patriarchal belief generally position women as less than human, as not worthy of personhood, and therefore, as not worthy of the rights that should be afforded to humans. The unrelenting violence that women face, despite the meagre attempts by government to implement programmes and plans aimed at addressing GBV, femicide, and rape, and the usually much more productive work of women’s rights organisations and NGOs, certainly appears to remind women that they are not worthy of rights, respect, or equality, and thus that they are not fully human. 

Certainly, it is clear that many women are not able to live and thrive within the democratic nation. Judith Butler asserts in line with this:

Though it is true that each person should be treated equally, equal treatment is not possible outside of a social organization of life in which material resources, food distribution, housing, work, and infrastructure seek to achieve equal conditions of livability. Reference to such equal conditions of livability is therefore essential to the determination of ‘equality’ in any substantive sense of the term.

The move to democracy and the granting of equal rights to women have not guaranteed equal conditions of liveability, particularly when violence affects women physically, psychologically, socially, and economically, thus hampering their access to resources (such as education and health resources), the accumulation of wealth necessary for financial independence, and their ability to live freely and safely in their homes. The state is complicit in creating unequal conditions of liveability for women through its lack of providing resources to recover or escape from violence, inadequate health, and policing facilities to assist survivors/victims of violence, and the inefficiency with which it is working to combat the prevalence of GBV and femicide.  Overall, then, if the rights afforded to all as entrenched in the Bill of Rights are one of the cornerstones of democracy in South Africa where these rights are reserved for only some of the nation’s members, is it possible to say that the democratic state-making project is failing? Or what is perhaps more pertinent to ask is whether the exclusion of women through violence is actually a fundamental part of this state-making project, one which aims to uphold the subordination of women and limit their ability to actively and fully participate as agents in the democracy. 

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