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Siyanda Magayana
Siyanda Magayana, Senior Officer: Gender Equality and Anti-Discrimination Office, Unit for Institutional Change and Social Justice, UFS.

Opinion article by Siyanda Magayana, Senior Officer: Gender Equality and Anti-Discrimination Office, Unit for Institutional Change and Social Justice, University of the Free State.


The world is experiencing a surge in backsliding on human rights, particularly for women and marginalised individuals and communities. Across the continent, hard-won freedoms are being stripped away, raising the question – whose rights really matter? From Iran to Africa, to Afghanistan to the United States, we are witnessing a systematic erosion of rights for women and gender-diverse persons under the guise of culture, religion, sovereignty, tradition, and political convenience.

 

In Afghanistan, for instance, the Taliban’s return to power has led to the near-total eradication of women from the country’s public life, i.e., banning them from the workplace, from getting an education, restricting how they dress, and even banning them from public spaces without a male guardian. In addition, in Iran, we see the brutalisation of women protesting for bodily autonomy following the death of Mahsa Amini, highlighting the deadly consequences of gender oppression. Even in so-called liberal democracies such as the US – the repeal of Roe vs Wade, which highlighted the fragility of women’s rights as governments roll back on reproductive rights and freedoms.

Africa, as a continent, is not exempt from this wave of regression. For instance, in Sudan, the continuing conflict has disproportionately affected women, with various reports of sexual violence growing. Even in stable democracies, restrictive abortion laws and patriarchal traditions continue to suppress women’s agency and autonomy. This regression is not just a legal one, but also cultural, as it is sustained by prevailing societal norms and standards that uphold gender inequality.

A justification for these setbacks is often the manipulation of culture and religion, seeking to enforce outdated and discriminatory gender roles. Followed by arguments such as ‘our forefathers had no problem with women not working because they supported them’, or ‘men are the heads of the household, as stated in religious and cultural teachings’, are used to defend and justify the systemic oppression of women’s and other vulnerable groups’ rights. These endemic narratives not only ignore the varying socio-economic realities that demand women’s and other diverse groups’ economic participation but also dismiss their agency. When culture and religion are weaponised to justify oppression and violence, they stray far from their true essence, which is compassion, mutual respect, and justice.

LGBTQI rights under threat

Beyond the regression in women’s rights, the LGBTQI+ community faces escalating persecution. For instance, Uganda’s anti-homosexuality act, which includes harsh penalties – even the death sentence – for same-sex relationships, reflects an alarming trend of state-sponsored homophobia. Similarly, this can be seen in Ghana, where proposed legislation seeks to criminalise LGBTQI+ identities entirely. These policies not only deny people their basic right to humanity but also embolden violence and discrimination against non-heterosexual individuals.

This regression is not limited to African nations. In countries such as Russia, for instance, LGBTQI+ activists are silenced through outdated laws, while in the US, there is an evident rise of anti-trans laws. These laws and targeted attacks on marginalised communities are evidence of a broader and more insidious attempt to control, erase, and dictate identity, behaviour, and personal rights and freedoms.

The question of masculinity, fear, and the regression of rights

A key driver of this regression and repression is the ‘masculinity anxiety’ or ‘crisis of masculinity’, which is the perception that traditional masculinity is being challenged, threatened, or devalued in modern society. This anxiety may stem from global cultural shifts regarding gender roles, the advancement of women’s rights, and the protection of gender-diverse people, which are often framed as attacks on traditional masculinity and male authority. Many men, for instance, conditioned by patriarchal systems, feel displaced when women gain independence and when gender roles evolve beyond rigid binaries.  This fear manifests in resistance to gender equality, as well as the vilification of LGBTQI+ individuals.

However, this perception is deeply flawed and problematic. Masculinity does not and should not rely on the oppression of others. Men are not made weaker by women’s empowerment or by the protection of LGBTQI+ rights, as is the current rhetoric; on the contrary, societies that support gender equality and inclusivity are more stable, humane, and safer. The discourse around masculinity must shift from one of dominance and control to one of mutual respect, partnership, and shared progress.

Therefore, instead of clinging to outdated notions of manhood, we need conversations that redefine masculinity in a way that embraces emotional intelligence, care, and the ability to exist alongside women and gender-diverse individuals without feeling threatened. Initiatives promoting positive masculinity, mentorship for (young) men, and education on gender equity are critical to dismantling these harmful fears and replacing them with a framework and discourse that sees strength in equality rather than opposition to it.

The impact of rights regression

The regression in human rights has profound consequences, both at a local and global level. When women are denied access to education, reproductive rights, and economic opportunities, the entire economy is susceptible to stagnation and/or collapse. And, where LGBTQI+ rights are criminalised, there is a risk of repealing the freedom of expression, leading to increased systemic and individual violence, discrimination, and harassment. The Global South, in particular, is vulnerable to these backward shifts, as weakened legal protections and entrenched conservative ideologies and practices make it difficult to push back against state repression.

In South Africa, for example, the regression of women’s rights is manifesting in a particularly violent manner. GBV and sexual violence have reached crisis levels, threatening the very existence of women; femicide incidents are also among the highest globally. The failure to address these crimes reflects a broader societal problem, which is the normalisation of violence against women and gender- and sexually diverse individuals, and subsequently, the lack of accountability for perpetrators. When women and other vulnerable groups live in constant fear for their safety, their freedoms are curtailed, and the promise of gender equality becomes hollow rhetoric.

What can be done?

As a nation, we must refuse to be silent and to be silenced; human rights are critical to the prosperity of not just the nation’s economies, but also its people. Civil organisations, institutions of education, grassroots movements, and other relevant stakeholders must continue to resist the removal of the rights of women and marginalised groups. Additionally, we need to change the narrative; the rights of women, children, LGBTQI+, and other marginalised groups are not foreign or ‘Western’ concepts imposed on Africa, they are universal human rights. By framing equality and freedom within African values and discourse, we can challenge regressive ideologies from within.

Equally, education remains our most powerful tool, therefore we must continue to invest in teaching about creating an equal, safe, just, and tolerant society that ensures that the next generation does not repeat the mistakes of the past. The global retreat of human rights is a warning sign to all of us; if we do not act now, the freedoms and rights we take for granted today may not exist tomorrow.

News Archive

UFS law experts publish unique translation
2006-06-21

Attending the launch of the publication were from the left:  Prof Boelie Wessels (senior lecturer at the UFS Faculty of Law), Prof Frederick Fourie (Rector and Vice-Chancellor of the UFS), Prof Johan Henning (Dean: UFS Faculty of Law) and Adv Jaco de Bruin (senior lecturer at the UFS Faculty of Law). Prof Wessels translated the treatise from corrupted medieval lawyer Latin into English, Prof Henning is the leading author and initiator of the publication and Adv de Bruin assisted with the proofreading and editing. Photo: Stephen Collett

UFS law experts publish unique translation of neglected source of partnership law

The Centre for Business Law at the University of the Free State (UFS) has translated a unique long neglected Roman-Dutch source of the law of partnership law from Latin into English.  This source dates back to 1666. 

The book, called Tractatus de Societate (A Treatise on the Law of Partnership), by Felicius and Boxelius is published as Volume 40 in the research series Mededelings van die Sentrum vir Ondernemingsreg/Transactions of the Centre for Business Law.  It is the first translation of this Roman-Dutch source into English and comprises of a comprehensive discussion of the South African common law of partnerships.  

“Apart from various brief provisions dealing on a peace meal and an ad hoc basis with diverse matters such as insolvency, there is no comprehensive Partnership Act in South Africa.  The law of partnership in South Africa consists of South African common-law, which is mainly derived from Roman-Dutch law,” said Prof Johan Henning, Dean of the Faculty of Law at the UFS.  Prof Henning is also the leading author and initiator of this comprehensive publication.

“Countries such as America, England, Ireland and The Netherlands have drafted or are in the process of establishing new modern partnership laws in line with new international guidelines, practices and commercial usages,” said Prof Henning.

“However, in South Africa the most recent policy document released by the Department of Trade and Industry explicitly excludes partnership law from its present company law reform programme and clearly regards this as an issue for another day,” said Prof Henning.

“Unless there is a political will to allocate the necessary resources to a comprehensive partnership law revision program, it is a practical reality that South Africa will not have a modern Partnership Act in the foreseeable future,” said Prof Henning. 

According to Prof Henning South African courts have been using the Roman-Dutch partnership law sources as authority.  “The English Partnership Act of 1890 is not binding and the English text books should therefore be approached with caution,” said Prof Henning.

“A treatise on the law of partnership that has been regarded by South African courts as an important common law authority is that of  a Frenchman by the name of Pothier.  This treatise was translated into English and was regarded as an au­thority of significance in The Netherlands towards the end of the eighteenth century,” said Prof Henning. 

“Pothier’s opinions are however not valid throughout in the Roman-Dutch partnership law as it did not apply to the Dutch province of The Netherlands and it sometimes also rely on local French customs for authority,” said Prof Henning.

For this reason the Centre for Business Law at the UFS decided to focus its attention again on the significance of the comprehensive treatise of Felicius and Boxelius on the Roman-Dutch partnership law.  Felicius was an Italian lawyer and Boxelius a Dutch lawyer.

This long neglected source of partnership law was published in 1666 in Gorkum in The Netherlands.  "A significant amount of Roman-Dutch sources of authoritive writers trusted this treatise and referred to it,” said Prof Henning.

The translation of the treatise from corrupted medieval lawyer Latin into English  was done by Prof Boelie Wessels, a very well-known expert on Roman Law and senior lecturer at the UFS Faculty of Law.  Prof Wessels, who  has 15 degrees, spent almost ten years translating the treatise.  The proofreading and editing of the translation was done by Prof Henning and Adv Jaco de Bruin, a senior lecturer at the UFS Faculty of Law.

“We want the South African courts to use Volume 40 in the research series Mededelings van die Sentrum vir Ondernemingsreg/Transactions of the Centre for Business Law as the primary source of reference when cases where Roman-Dutch Law partnership law principles are involved, are ruled on,” said Prof Henning.

The first part of the publication comprises of selected perspectives on the historical significance of the work as well as a translation of selected passages. “The intention is to follow this up expeditiously with the publication of a very limited edition of a complete translation of the work,” said Prof Henning.

A total of 400 copies of the publication will be distributed to all courts, the Appeal Court and the Supreme Court.

Media release
Issued by: Lacea Loader
Media Representative
Tel:   (051) 401-2584
Cell:  083 645 2454
E-mail:  loaderl.stg@mail.uovs.ac.za
21 June 2006

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