Beyond the binary: negotiating cultural practices and women’s rights in South Africa by Cathi Albertyn

In a recent lecture at the ISS, Professor Cathi Albertyn of the University of the Witwatersrand discussed how South African women navigate civil and customary laws to claim women’s rights within culture. Here she shows that women in South Africa do not seek to oppose culture and custom, but desire equality within their own communities.

Women in South Africa have long opposed discrimination in the family, in both civil and customary law. When the South African Constitution was negotiated in the early 1990s as the apartheid dispensation made way for a democratic political system, few expected the conflict that occurred between women pursuing equality and traditional leaders seeking to affirm culture and custom. Women fiercely opposed the traditional leaders’ 1993 call for customary law to be excluded from the equality guarantee in the Bill of Rights, arguing that all South Africans should be recognised as rights-bearing citizens in the new democracy. In the end, the 1996 Constitution created a plural legal system that recognised customary law, as the written and unwritten indigenous law regulating the lives of many black South Africans (especially in rural areas), and subjected it—together with all law—to the values and rights of the Constitution.

As with earlier forms of civil law, women suffered multiple inequalities under customary law, including unequal status and rights in the family, to inheritance and land, as well as participation in customary courts and positions of leadership. But in calling for equal rights, they did not seek to oppose culture and custom. On the contrary, organisations such as the Rural Women’s Movement were very clear that women wanted equality within their communities. In constitutional terms, they asserted both the right to equality (section 9 of the Constitution) and the right to participate in their culture (sections 30 and 31).

The relationship between equality and culture

How, then, should we think about the relationship between equality and culture? In the early 1990s, international law did not seem to be particularly helpful. Whilst the Convention on the Eliminations of All Forms of Discrimination against Women (CEDAW) set out important rights, it did not engage the cultural domain beyond calling for change. Rather, it seemed to imagine completely separate and hierarchical spheres of women’s rights and discriminatory culture. This tended towards a trumping relationship between women’s rights and a “cultural other”.

South African lawyers and policy-makers imagined a different relationship, drawing on the idea of “harmonising” customary law with the Constitution. Here they were influenced by the work of Women and Law in Southern Africa (WLSA), who recognised that women’s rights needed to be strengthened within their customary context. Their research pointed to ideas of custom and culture that were not bounded, rigid and unchanging, but more flexible and responsive to a changing world, and to women’s needs. In contrast to the official customary law, codified under colonial rule, the “living law” revealed practices in which women secured rights to inheritance, land, and so on.

This idea of “living law” in which women were agents within an evolving system, able to draw on multiple ideas to negotiate change from within, became a key idea in both legislative and judicial reform of customary law in South Africa.

For example, research in South (and southern) Africa which showed that women actively seek out rights in marriage, reaching to civil marriage when they could not secure rights in customary marriage, influenced the enactment of the Recognition of Customary Marriages Act in 1998. The RCMA granted women equal status and rights in marriage, while preserving customary forms of celebration and—controversially and directly against CEDAW—recognised polygamy.

In addition, Classens and Mnisi’s research into land rights—with land usually held by men—has uncovered practices in which women (particularly single women with children) are able to negotiate access to land in their communities by drawing on customary and constitutional values of equality, democracy, need and dependency.

Criticism of “harmonising” two law forms

These examples point to the possibilities of claiming women’s rights within culture, and that cultural rules and practices can accommodate and affirm women’s rights and gender equality. But this approach is not without problems, nor is it uncontested.

A major criticism by writers, such as Himonga (2005) and Nhlapo (2017), is that legislative and judicial attempts to “harmonise” customary law with the Constitution are too reliant on civil forms and lack the imagination to embed customary values in new legal forms. As a result, they have not always been followed within rural, customary communities.

Others, such as Nyamu-Musembi (2002), point to the problems of power and vested (male) interests within communities, suggesting that the potential for change is limited as long as women lack authority and voice. Even where women succeed, it is by conforming to gendered “stereotypes”, such as the “dutiful daughter”. Further, meaningful cultural change is often only possible with support from “outsiders”, such as local NGOS (Nyamu-Musembi, Hellum and Katsande 2017,).

Working from within is a contradictory and uneven strategy. However, it cannot, and should not be dismissed. Women need rights within their communities and “top-down”, trumping strategies, while important, can have significant limits. In the end, there is no magic bullet for women’s rights.

List of useful references
Catherine Albertyn ‘Cultural Diversity, “Living Law” And Women’s Rights in South Africa’ in Daniel Bonilla Maldonado (ed) Constitutionalism in the Global South (2013) Cambridge University Press 163-.
Aninka Claassens & Sindiso Mnisi-Weekes ‘Rural Women Redefining Land Rights in the Context of Living Customary Law’ (2009) 25 South African Journal on Human Rights 491.
Anne Hellum & Rosalie Katsande ‘Gender, Human Rights and Legal Pluralities in Southern Africa: A Matter of Context and Power’ in Giselle Corradi, Eva Brems & Mark Goodale (eds) (2017) Human Rights Encounter Legal Pluralism: Normative and Empirical Approaches 119–136.
Chuma Himonga ‘The Advancement of Women’s Rights in the First Decade of Democracy in South Africa: The Reform of the Customary law of Marriage and Succession’ 2005 Acta Juridica 82.
Thandabantu Nhlapo ‘Customary Law in Post-Apartheid South Africa: Constitutional Confrontations in Culture, Gender and “Living Law”’ (2017) 33 South African Journal on Human Rights 1.
Celestine Nyamu-Musembi ‘Are Local Norms and Practice Fences or Pathways? The Example of Women’s Property Rights’ in Abdullahi A An-Na’im (ed) (2002) Cultural Transformation And Human Rights In Africa 126.
Bhe v Magistrate Khayalitsha [2004] ZACC 17
Shilubana v Nwamitwa [2008] ZACC 9
UN GA Report of the independent expert in the field of cultural rights, Ms. Farida Shaheed, submitted pursuant to resolution 10/23 of the Human Rights Council, 22 March 2010, A /HRC/14/36
UN GA Report of the Special Rapporteur in the field of cultural rights, 10 August 2012, A /67/287
UN GA Report of the Special Rapporteur in the field of cultural rights, 17 July 2017, A/72/155

Picture credit: Max Pixel

image-20160512-16407-1phc8djAbout the author: 

Cathi Albertyn is Professor of Law at the School of Law, University of the Witwatersrand, South Africa, where she teaches graduate and post-graduate courses in Constitutional Law and Human Rights. Prior to joining the School, she was the Director of the Centre for Applied Legal Studies (2001-2007) and headed its Gender Research Programme for ten years (1992-2001). She was appointed to the first Commission on Gender Equality and later served on the South African Law Reform Commission. research interests include Equality, Gender Studies, Human Rights, the Judiciary and Constitutional Law.

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