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18 June 2020 | Story Prof Karin van Marle and Prof Danie Brand | Photo Supplied
Prof Karen van Marle,left, and Prof Danie Brand.

What are our human rights in the COVID-19 crisis – not which rights do we have, but what are they as social institutions, what are they supposed to do for us? How do rights assist us in world-making? What kind of worlds can they make?

Thomas Hobbes uses rights to justify a strong unitary state. His main problem was how to ensure peace and order – in the current crisis perhaps how to prevent the spread of the virus and ensure our safety and freedom from infection. Hobbes is concerned about the ‘state of nature’, with no authority, no unity, and no foundational principles: a state of total disorder where “the life of man (sic) [is] solitary, brutish, and short”. For Hobbes, anyone with reason will seek to get out of this state of disorder by giving up all rights to the state so that it can create and maintain peace and order – pledging complete, permanent obedience in return for peace and order. In his view, the sovereign has the monopoly to make laws and to enforce them. Human rights here are a justification for the exercise of absolute state power: we hand over our rights so that the state may protect us from chaos. What our rights are, what they entitle us to, and what should be done to advance them – world-making – is handed over to the state. We become passive recipients of state rule.

John Locke also starts with the state of nature – not a state of chaos and danger, but one of orderly relations in the form of natural law. For him, humans are born equal and have natural rights to life, liberty, and property. Humans in Locke’s state of nature are not concerned with their safety and security against chaos but are driven by individual interest. Hence, we place our rights in trust with the state to protect our individual interests in the context of the individual rights of others. We may revolt against the state if it does not protect our individual rights.  Individual freedom and property are central, and individuals create worlds motivated by self-interest. Living in this world is not about sharing it with others, but about protecting and enjoying it for the self.

Jean-Jacques Rousseau sees the social contract as a means of creating equality and collective self-government. The natural freedom of the state of nature has been lost and civil society is enchained. It is only by giving up the natural right to freedom that the social contract can be made possible. At stake here is not individual autonomy or private interest, but general constraint of the common interest. The social contract here is an association where persons unite while remaining free, enabling association based on the common good. He introduces the general will as a way of overcoming decision-making based on individual interest: laws of the state must reflect a concrete community ethos. Rousseau underscores the importance of the state and its law upholding the common interest, not by authoritarian rule but through popular sovereignty. Here, members of a community work together to create a world that reflects a sense of common good. Living and the good life means a life where everyone shares and has equal stakes in the governance and enjoyment of the world.

In more contemporary transformative understandings, human rights require us to talk about and decide together about what is good for all of us, how we can best live together. The overriding concern is what kind of world do we, as a people, want to construct and maintain? As Jennifer Nedelsky (2011), for example, will have it – once a right has been identified, the conversation starts, not ends. This alternative to a classic liberal understanding of rights is to regard it as relational rather than boundary-like structures. It allows individual interests to overlap and sometimes even conflict with one another, but not in a model of stronger rights trumping weaker ones.

This third understanding of rights and how it regulates our relationship with others is closely aligned to the predominant understanding of rights in our Constitution. Its emphasis on state accountability, transparency in decision-making, engaged democracy, and the boundedness of state power clearly eschews Hobbesian absolute state power that is ostensibly exercised in the interest of us all. Its embrace of substantive equality, of rights to food, water, housing, education, and health care and of demands for redress of past injustices, show a concern not only for individual interest, but for fashioning ways of living better together. Its insistence that rights may only be limited for a public purpose, the achievement of which the limitation is rationally related, and the importance of which is proportionate to its impact on individual rights, shows a concern not only for the public good, but also for engendering conversation about what that public good entails and how best to achieve it.

Despite this, human rights in the COVID-19 crisis have mostly been asserted in either Hobbesian or Lockean terms. We hear of human rights in government’s angry response to criticism of the National Coronavirus Command Council, that its decisions should not be questioned and need not be transparent as they are taken in order to protect all our rights to life and health – i.e., we have ‘given up’ our rights so that we may be ‘protected’ from death and disorder. Hobbes also appears in the skop, skiet en donder of our police and defence force’s enforcement of regulations under lockdown. Again, the idea seems to be that we have given up our rights to the freedom and security of the person and freedom from state violence in return for being protected against the ravages of the virus. Locke’s notion of individual freedom haunts complaints about the limitations placed on, for example, individuals’ freedom of movement, freedom of association, freedom to trade – the threats by big business to disregard lockdown rules and to commence operations because the lockdown breaches their rights to individual freedom and ‘freedom to transact’. Despite vague calls for the articulation of a ‘new social compact’ or a ‘new economic vision’, we have not seen real alternatives to the understandings of Hobbes and Locke referred to above.  Calls for a new social compact and new economic vision have not been made on the basis of rights, or any normative basis, but rather explicitly on so-called ‘non-ideological’ terms, with an emphasis on efficiency and ‘what will work’.

Perhaps, to end, in this lack is where opportunity – bound to lurk in any crisis – is also found in this crisis. Crisis is, after all, at the root of critique.  The collective shock to our systems may just re-alert us to the need to continuously assert our rights, but not without the necessary critical reflection. We should assert our rights against the wanton exercise of state power and even against other people if they do us harm, but in ways that invite conversation about what is good for all of us and how we can not only build better worlds and live better, but build them better and live better together.  

Opinion article by Prof Karin van Marle, Department of Public Law, Faculty of Law, and Prof Danie Brand, Director: Free State Centre for Human Rights 


News Archive

Gender bias still rife in African Universities
2007-08-03

 

 At the lecture were, from the left: Prof. Magda Fourie (Vice-Rector: Academic Planning), Prof. Amina Mama (Chair: Gender Studies, University of Cape Town), Prof. Engela Pretorius (Vice-Dean: Humanties) and Prof. Letticia Moja (Dean: Faculty of Health Sciences).
Photo: Stephen Collett

Gender bias still rife in African Universities

Women constitute about 30% of student enrolment in African universities, and only about 6% of African professors are women. This is according to the chairperson of Gender Studies at the University of Cape Town, Prof Amina Mama.

Prof Mama was delivering a lecture on the topic “Rethinking African Universities” as part of Women’s Day celebrations at the University of the Free State (UFS) today.

She says the gender profile suggests that the majority of the women who work in African universities are not academics and researchers, but rather the providers of secretarial, cleaning, catering, student welfare and other administrative and support services.

She said that African universities continue to display profound gender bias in their students and staffing profiles and, more significantly, are deeply inequitable in their institutional and intellectual cultures. She said women find it difficult to succeed at universities as they are imbued with patriarchal values and assumptions that affect all aspects of life and learning.

She said that even though African universities have never excluded women, enrolling them presents only the first hurdle in a much longer process.

“The research evidence suggests that once women have found their way into the universities, then gender differentiations continue to arise and to affect the experience and performance of women students in numerous ways. Even within single institutions disparities manifest across the levels of the hierarchy, within and across faculties and disciplines, within and between academic and administrative roles, across generations, and vary with class and social background, marital status, parental status, and probably many more factors besides these”, she said.

She lamented the fact that there is no field of study free of gender inequalities, particularly at postgraduate levels and in the higher ranks of academics. “Although more women study the arts, social sciences and humanities, few make it to professor and their research and creative output remains less”, she said.

Prof Mama said gender gaps as far as employment of women within African universities is concerned are generally wider than in student enrolment. She said although many women are employed in junior administrative and support capacities, there continues to be gross under-representation of women among senior administrative and academic staff. She said this disparity becomes more pronounced as one moves up the ranks.

“South African universities are ahead, but they are not as radically different as their policy rhetoric might suggest. A decade and a half after the end of apartheid only three of the 23 vice-chancellors in the country are women, and women fill fewer than 30% of the senior positions (Deans, Executive Directors and Deputy Vice-Chancellors)”, she said.

She made an observation that highly qualified women accept administrative positions as opposed to academic work, thus ensuring that men continue to dominate the ranks of those defined as ‘great thinkers’ or ‘accomplished researchers’.

“Perhaps women simply make realistic career choices, opting out of academic competition with male colleagues who they can easily perceive to be systematically advantaged, not only within the institution, but also on the personal and domestic fronts, which still see most African women holding the baby, literally and figuratively”, she said

She also touched on sexual harassment and abuse which she said appears to be a commonplace on African campuses. “In contexts where sexual transactions are a pervasive feature of academic life, women who do succeed are unlikely to be perceived as having done so on the basis of merit or hard work, and may be treated with derision and disbelief”, she said.

She, however, said in spite of broader patterns of gender and class inequality in universities, public higher education remains a main route to career advancement and mobility for women in Africa.

“Women’s constrained access has therefore posed a constraint to their pursuit of more equitable and just modes of political, economic and social development, not to mention freedom from direct oppression”, she said.

Prof Mama concluded by saying, “There is a widely held agreement that there is a need to rethink our universities and to ensure that they are transformed into institutions more compatible with the democratic and social justice agendas that are now leading Africa beyond the legacies of dictatorship, conflict and economic crisis, beyond the deep social divisions and inequalities that have characterised our history”.

She said rethinking universities means asking deeper questions about gender relations within them, and taking concerted and effective action to transform these privileged bastions of higher learning so that they can fulfil their pubic mandate and promise instead of lagging behind our steadily improving laws and policies.

Media Release
Issued by: Mangaliso Radebe
Assistant Director: Media Liaison
Tel: 051 401 2828
Cell: 078 460 3320
E-mail: radebemt.stg@ufs.ac.za  
02 August 2007
 

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