Tag Archives law

Mobilising for a Just World: Legal Mobilization for Whom?

Mobilising for a Just World: Legal Mobilization for Whom?

Both scholars and practitioners engaged in either researching or advancing legal mobilization recognize that law can be used to guide legal interventions seeking to trigger transformative justice. A persistent question ...

When should you ‘Call It What It Is’? Enabling disclosure of sexual violence by Chris Dolan and Onen David

When should you ‘Call It What It Is’? Enabling disclosure of sexual violence by Chris Dolan and Onen David

The international criminal law (ICL) system can only hear and describe a tiny fraction of what people experience, particularly when it comes to sexual violence. The ICL system not only ...

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 http://www.saflii.org/za/cases/ZACC/2004/17.pdf
Shilubana v Nwamitwa [2008] ZACC 9 http://www.saflii.org/za/cases/ZACC/2008/9.pdf
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.

Human Rights Inside and Outside: Introducing the 2018 INFAR Conference

Human Rights Inside and Outside: Introducing the 2018 INFAR Conference

The ISS next week hosts a conference organised by INFAR on “Human Rights Inside and Outside”, with a special focus on the Rule of Law and human rights. These two ...

Striking at the glass ceiling: a tale of seven judges (and a lawyer) by Ubongabasi Obot

Striking at the glass ceiling: a tale of seven judges (and a lawyer) by Ubongabasi Obot

Memories came racing back for Ubongabasi Obot during a recent book launch at the ISS. The book’s theme? Breaking through the glass ceiling as an African woman. Obot’s own journey ...

Toward ‘fisheries justice’?: the global ‘fisheries crisis’ and how small-scale fishers are fighting back by Elyse Mills

The global ‘fisheries crisis’—in which fish stocks are depleted, environmental destruction has reached an apex, and small-scale fisheries are disappearing—is causing irreversible damage to both the fisheries sector and communities sustained by fishing activities. Governments implement stricter regulations and resource management strategies in an attempt to solve the crisis, but these approaches typically leave out the perspectives of small-scale fishers. Despite this, fishing communities are constructing innovative ways to make their voices heard and to protect their lives and livelihoods.

Transforming global fisheries

The overlap of the global food crisis (sparked by the 2007-2008 food price spike), and rapid economic growth occurring in the BRICS countries (Brazil, Russia, India, China, and South Africa) has contributed to significantly altering patterns of food production, consumption and trade worldwide. Economic growth has also facilitated changing dietary preferences, contributing to a rising global demand for animal protein. Fish protein has become particularly popular in light of health warnings about industrially farmed animals and eating too much red meat. This has caused fish consumption to double worldwide in the last 50 years.

Rising consumption has intensified pressure on the global fisheries sector—particularly to meet the demands of highly populated countries like China. Even South Africa, which has the smallest economy and population among the BRICS, saw fish consumption increase by 26% between 1999 and 2012. In terms of production, China is by far the world leader, and at its 2012 peak contributed 70% of fish to the global supply. Between 2012 and 2014, it further expanded its capture fishing sector by almost 2 million tonnes and its aquaculture sector by nearly 5 million tonnes. India produced at a similar level, contributing 50% of the global fish supply in 2012—ranking third in global capture fisheries (after China and Peru) and second in aquaculture. South Africa has one of the largest capture fishing sectors in the African continent, contributing approximately US$ 435 million to the national economy in 2012.

Fighting for policy change in South Africa

Capture fishing in South Africa is an important source of livelihoods for many coastal communities, of which a large proportion engages in small-scale fishing. Of the 43,458 commercial fishers and 29,233 subsistence fishers in South Africa, approximately 50,000 are considered small-scale.[i] However, despite comprising almost 62% of the fishing population, the South African Department of Agriculture, Forestry and Fisheries’ national policies have historically not recognised the particular needs of small-scale fishers and the difficulties they are facing, focusing instead on expanding the large-scale industrial fishing industry. This has sparked intense resistance from fishing communities.

After the government adopted its 2005 long-term fisheries policy, leaving small-scale fishers without any access or fishing rights, a group of fishing communities, led by community organisations Masifundise and Coastal Links, took the issue to the South African Equality Court. The Court finally ruled in favour of the development of a new policy. In 2012, the new Policy for the Small-Scale Fisheries Sector in South Africa was completed, introducing new strategies for managing the sector, which aim to secure rights and access for communities by prioritising human rights, gender, and development as key issues. This marked an important victory for South African fishers, demonstrating their capacity for mobilisation and to achieve change. In 2014, Masifundise and Coastal Links also published Small-scale Fisheries Policy: A Handbook for Fishing Communities, providing fishers with accessible information on how the policy could be applied in their daily lives.

Handline fishers off the coast of Cape Point, South Africa. Photo: Rodger Bosch

Fishers’ participation in governance processes

Considering South Africa’s 2012 policy was developed partly as a response to pressure from fishing communities, it has set an important precedent for future fisheries policies, both nationally and internationally. Masifundise and Coastal Links also played key roles in discussions with the FAO’s Committee on Fisheries (COFI), which led to the publication of the Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the context of Food Security and Poverty Eradication (SSF Guidelines) in 2015. These guidelines were the result of a bottom-up participatory process that included 4,000 representatives from small-scale fishing communities, governments, fish workers’ organisations, research institutes, and NGOs.

The development of the SSF Guidelines and South Africa’s national policy signal an important shift in the perception and governance of fisheries sectors. While small-scale fishers have been crucial contributors to the global food system for generations, their rights are only now beginning to be more formally recognised. There appears to be an important connection between this newfound recognition and increasing mobilisation within fishing communities both nationally and around the world.

The rise of a global ‘fisheries justice’ movement?

Increasing mobilisation among fishers, particularly within the last few decades, has demonstrated their commitment to participating in, and shaping, the transformation of the fisheries sector and its socio-political context. Fishers are also joining forces with farmers, pastoralists, rural, and indigenous peoples, as overlapping food and climate crises highlight common struggles between social movements. Their shared commitment to creating a fair food system has contributed both to a transnational convergence of resource justice movements (e.g. agrarian, climate, environmental), as well as the emergence of what I would argue is a global ‘fisheries justice’ movement.

A key actor in this movement is the World Forum of Fisher Peoples (WFFP), of which Masifundise and Coastal Links are active members. Founded in 1997, the WFFP now links 43 national small-scale fishers’ organisations in 40 countries around the world. It focuses on addressing the issues threatening small-scale fisheries (e.g. privatisation, climate change) and advocates for fishers’ human rights and secure livelihoods. The WFFP holds a triennial General Assembly and an annual Coordinating Committee meeting for member organisations to come together, reflect on their goals and actions taken, and develop new strategies for the future.

In an era when power within the food system is increasingly being concentrated in the hands of a few huge corporations, movements of small-scale food producers and their allies offer alternatives based on social justice, sustainable production methods, and protecting the environment that rejuvenate hope for the way forward.

[i] Small-scale fishers refers to: ‘Persons that fish to meet food and basic livelihood needs, or are directly involved in harvesting/processing or marketing fish, traditionally operate on or near shore fishing grounds, predominantly employ traditional low technology or passive fishing gear, usually undertake single day fishing trips, and are engaged in the sale or barter or are involved in commercial activity’. Definition from Department of Agriculture, Forestry and Fisheries (DAFF) (2012), Policy for the Small-Scale Fisheries Sector in South Africa.

Untitled.pngAbout the author:

Elyse Mills is a PhD researcher in the Political Ecology Research Group at the ISS. Her PhD research focuses on the dynamics of fisheries and fishers’ movements in the context of global food and climate politics. She also co-coordinates the Initiatives in Critical Agrarian Studies (ICAS), and is part of the Emancipatory Rural Politics Initiative (ERPI) Secretariat.


Toward greater tolerance? Ethno-nationalist lawfare and resistance through legal mobilisation by Jeff Handmaker

Toward greater tolerance? Ethno-nationalist lawfare and resistance through legal mobilisation by Jeff Handmaker

About the author: Jeff Handmaker teaches law, human rights, development and governance and conducts research on legal mobilisation at the ISS. He is also an associate member of the Faculty of ...