south africa Archives

EADI ISS Conference 2021 | For the redistribution of water, framing matters!

20 July 2021 0 min read

In the face of increasing pressure on global water resources, a degree of inventiveness in finding just and sustainable ways to ensure access to water is required. The redistribution of water is one possible way in which this could be done. But ongoing research on elite responses to a recent water scarcity crisis in South Africa shows that the redistribution of water resources will not go uncontested by water elites and that existing narratives on the sharing of water are not creating the extent of solidarity needed. We need to frame this action differently, writes Lize Swartz.

Water is intricately linked to development, both to ensure or improve people’s quality of life, as well as to help secure livelihoods such as subsistence farming. But increasing pressure on water resources due to a changing climate, as well as an increased demand for water, amongst others, is making it difficult to even sustain current access to water, let alone provide new access to populations that are not yet connected to formal water networks.

Millions of people around the world are still waiting for the moment they can turn on a tap and watch water gushing from it, to be able to flush a toilet, or to bathe under running water. In light of the need to keep an expanding access to water and sanitation facilities, but also with the realisation that less and less water is available per capita, new ways of thinking about ensuring access to water are needed.

‘Sharing is scaring’

During a recent panel session on inclusive development and water governance linked to the 2021 EADI ISS Conference, the likelihood of having to share water came up toward the end of the discussion. Emanuele Fantini[1] suggested that it’s not as straightforward as ‘sharing is caring’ when it comes to water, pointing to the many complexities that would affect the governance of water redistribution by using the term ‘sharing is scaring’. Joyeeta Gupta[2], one of the panel convenors, observed that it is likely that “there will be no win-win situation; it will be a win-lose situation” when it comes to sharing water. As one of the main challenges, she recognised the need to convince water elites of the necessity of sharing water.

My ongoing research on elite responses to water scarcity shows exactly how difficult it will be to get ‘buy-in’ from those who are able to share water: I investigate the way in which elite water users navigated the collapse of three urban water supply systems in South Africa in 2016. With ‘buy-in’ I mean that those who have sufficient water agree to share it, provided that they still have enough water to meet their own basic water needs. ‘Elite water users’ in the context of South Africa can be considered those who either have water and sanitation connections within their own homes, or who have access to non-municipal water resources such as groundwater (through boreholes) that can replace or supplement municipal water.

Some of the preliminary conclusions of my research are that:

Basic water needs are different for different socio-economic groups in South Africa. For example, irrigating private gardens to ensure that lawns remain green and plants continue to grow may be considered a basic need by those owning gardens, but not by those without gardens. This may be linked to the pride that is taken in being able to maintain ‘life’ by tending to an urban nature.
The way in which water is used is closely linked to the socio-economic and cultural identity and status of water users; water is much more than a product linked to hygiene, for example – having abundant water is a reminder of a high standard of living and prosperity. Swimming pools, fountains, and running water in general is considered part and parcel of a ‘good life’.
Water is closely linked to emotional and mental health; having sufficient water creates a sense of peace and safety among water users, which turns into anxiety when the threat of water scarcity or shortages looms. My research found that retaining a sense of water security seems to trump other considerations that may inform how water is used and whether and how it is shared.

Allegations of mismanagement stand in the way of viewing water scarcity as collective problem

In addition to the symbolic importance of water that moves beyond the idea of water needs as largely material, political factors may also affect the willingness of water elites to share water. My research found, for example, that specific interpretations of the collapse of urban water supply systems as being caused by municipal mismanagement and water losses through leakages in general may prevent water users from seeing water scarcity as a collective problem and responding to it in a similar way. Those who hold such views are unlikely to cooperate with local governments to ensure that those without water are helped out of own accord. My research also shows that water is hoarded by households out of fear of not being able to access it in the future and is mostly shared with those elites’ own social networks.

Also, in the communities studied, distrust stretches beyond the local level and is rooted in perceptions regarding the legitimacy and accountability of the national government. A certain level of mistrust is based on its perceived disability to govern in the interests of water elites, who in South Africa for the most part are also socio-economic elites. This also affects the extent to which water scarcity is considered a collective problem requiring collective action, similar to the above observation.

Capping the water use of elites?

Thus, ensuring elite buy-in of the need to redistribute water will not be a simple task. The sharing of water may involve the limiting of water use for elites by imposing a maximum daily or monthly limit (‘holding back’ water) and making greater amounts of water available for other water users who have used less water. Another example is the redistribution of groundwater by pumping it into municipal water tanks that are accessible to all. But limiting the water use of some households and not others is likely to cause dissatisfaction and perhaps even resistance.

What complicates matters further is that the amount of water used in informal urban areas is generally far lower than that of the amount used in formal urban areas – while the redistribution of water is likely to reduce the amount of water used by water elites, water use may not increase in areas where there are different water needs and priorities and where the majority of residents still share taps and toilets. This may thus not create the impression that water has been distributed more equitably so that everyone gets ‘more or less the same’.

The overall reduction of water on the other hand may be beneficial in countries like South Africa where the water supply is under severe stress. But convincing water users that it is possible – and desirable – to use less water will be a challenge.

In light of this difficulty, the redistribution narrative – and indeed a narrative of ‘sharing is caring’ – will need to be reconsidered. A reduction in the amount of water used by water elites that frees up water for a municipal ‘reserve’ may be achieved more easily if it is framed in light of the need for a water reserve to prevent the water scarcity and corresponding water use restrictions – the idea of ‘using less water now so that there will be water in the future’. This de facto would free up water that is needed elsewhere in urban areas. Elite water users may have to be convinced that limiting their water use will benefit them in the future, and that this sacrifice is worth making.

[1] Senior Lecturer in Water Politics and Communication at IHE Delft

[2] Professor of Environment and Development in the Global South at the Amsterdam Institute for Social Science Research of the University of Amsterdam and IHE Delft Institute for Water Education in Delft

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author:

Lize Swartz is the editor-in-chief of ISS Blog Bliss and a PhD researcher at the International Institute of Social Studies of Erasmus University Rotterdam, where she researches political dynamics of socio-hydrological systems. She is part of the newly formed Transformative Methodologies Working Group situated in the Civic Innovation Research Group

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Death and torture in the Life Esidimeni cases in South Africa: avenues for accountability by Meryl du Plessis

16 December 201916 May 2020 5 min read

In 2015 the lack of attention to mental health care in South Africa made news headlines when 1,711 mental health care users dependent on assistance were forced out of state-sponsored private mental health care facilities. In what has been called the worst human rights violation since the end of apartheid, 144 of these transferred patients died due to neglect. A number of national and international legal mechanisms exist to hold the perpetrators accountable, but victims and their relatives may need assistance to be able to do so.

In 2015, the South African government decided to move 1,711 mental health care users dependent on assistance for their daily functioning from a state-sponsored private hospital group called Life Esidimeni into the care of other actors, including NGOs and hospitals not specialized in the care of patients, many of whom were suffering from severe mental illness that affected their ability to lead normal lives. Following the death of 144 mental health care users due to inadequate care and neglect, the South African government stated that this decision had been made in order to implement a policy of deinstitutionalisation, to satisfy financial auditing requirements not to use one service provider for lengthy, uninterrupted periods, and to save costs.

A remaining 1,418 persons survived, experiencing conditions that former Deputy Chief Justice Moseneke, the arbitrator in proceedings between the South African government and the families of the mental health care users, described as torture (paras 58 to 141). At the time of the arbitration award in March 2018, 44 of the mental health care users had gone missing in the absence of care, lack of food, water and sanitation and systems to keep track of where users were housed. News reports in March 2019 indicated that some users were still unaccounted for, although many had been traced with the help of police and the Department of Social Development.

Investigations point to rash decision-making and a lack of care

A report by the Office of the Health Ombud has described the provincial health department’s project in terms of which the transfers occurred as “done in a ‘hurry/rush’, with ‘chaotic’ execution, in an environment with no developed, no tradition, no culture of primary mental health care community-based services framework and infrastructure”.

According to the Arbitration Award, the South African government accepted liability and acknowledged that the actions of its officials and its agents contravened South Africa’s obligations under international law, the South African Constitution, 1996, the National Health Act 61 of 2003, the Mental Health Care Act 17 of 2002, and the government’s own National Mental Health Policy Framework and Strategic Plan.

The survivors and the families in the Life Esidimeni arbitration were awarded compensation of approximately R1.2 million (approximately €73,000) each in terms of the common law and in the form of damages for breaches of constitutional rights. Justice Moseneke also ordered the government to construct a monument to commemorate the suffering and loss caused by the government’s actions and to remind future generations of the “human dignity and vulnerability” of mental health care users. He furthermore ordered that government report to the Office of the Health Ombud and to survivors and their families on the contents, as well as the implementation of its recovery plan, which seeks to “achieve systemic change and improvement in the provision and delivery of mental health care by the Department of Health in the Province of Gauteng” (para 7a). Furthermore, Justice Moseneke ordered that the health care professionals involved in the killing and the torture of the mental health care users be reported to their respective professional bodies. Steps taken in this regard should be reported on to the Health Ombud and the claimants.

Pursuing accountability: two possible avenues

The steps taken by government above are arguably insufficient to ensure accountability. Apart from measures that the South African government can choose to implement at its discretion, which accountability mechanisms can be used by social justice organizations representing the victims and their relatives to address the crass disregard for mental health care users’ rights by government officials, health care professionals, and managers of NGOs involved in the Life Esidimeni case?

The Special Investigations Unit, the State’s preferred forensic investigations unit established in terms of legislation, has been successful in claiming back portions of the funds that had been improperly allocated to some NGOs. This was done after a presidential decree to investigate whether NGOs benefited improperly from the Life Esidimeni processes. However, no accountability has followed for government officials and health care professionals who were involved in taking reckless decisions and implementing such decisions. What are the options in this regard?

Firstly, accountability in the form of criminal prosecutions is possible, although the National Prosecuting Authority (NPA) has stated that there is insufficient evidence for criminal prosecutions. However, evidence can be gathered through inquests into the deaths by courts, which have been ordered by the Arbitrator.

Moreover, if the NPA maintains its refusal to prosecute those involved in the deaths and torture, there is the possibility of private citizens instituting prosecution proceedings in terms of the Criminal Procedure Act, although the costs involved make this a prohibitive process for most persons. Funding options for private prosecutions include NGOs and private donors. Without funding and legal assistance, it is highly unlikely that it is an avenue that families would be able to pursue.

Secondly, if domestic remedies are unsuccessful, there is the possibility of laying a complaint with the United Nations Committee on the Rights of Persons with Disabilities in terms of, inter alia, articles 3, 15 and 16 of the Convention on the Rights of Persons with Disabilities. South Africa ratified the Convention, together with its Optional Protocol, in 2007. However, the Committee may only make “suggestions and recommendations” after considering a complaint (art 5 of the Optional Protocol). Unless there are political or economic repercussions that flow from adverse findings by the committee, it is my view that it is likely to be a weak accountability measure.

These are two possible avenues in the continuing struggle to ensure accountability for the deaths, pain, and suffering caused by the South African government’s, health care professionals’ and non-governmental organizations’ actions in the Life Esidimeni cases. While the report of the Health Ombud and the arbitration award have suggested repercussions for some of the health care professionals and state officials who neglected their duties, it remains to be seen whether the individuals whose actions caused the deaths, torture, and trauma of mental health care users and their loved ones will be held accountable.

About the author:

Meryl du Plessis is a senior lecturer in the School of Law at the University of the Witwatersrand. In 2019, she participated in an Erasmus+ sponsored fellowship programme at the International Institute of Social Studies.

Land and property rights in South Africa: questions of justice by Sanele Sibanda

30 October 201916 May 2020 6 min read

How we approach contestations over land and property rights in South Africa says a lot about what we believe a just post-colonial constitutional order to be. While politicians and political parties have exploited issues around land and property rights to garner votes, particularly in the 2019 election, what has become apparent from ensuing public and scholarly debates is that there is emerging a collective sense of an impending national existential crisis. At the heart of this crisis lies the thorny question: where to from here for South Africa’s constitutional democracy?

How the ground shifted in the 2019 general election

In early May 2019, South Africa held elections that were dubbed by South African Independent Electoral Commission head, Sy Mamabolo, as the “most complex, highly contested and logistically demanding” since the commencement of the democratic era in 1994. The highly contested election saw the governing party, the African National Congress (ANC) and the official opposition, the Democratic Alliance (DA) retain their overall positions as South Africa’s biggest political parties, while simultaneously losing a substantial portion of the national vote. These losses can be contrasted, first, with the continuing electoral rise of the Economic Freedom Fighters (EFF), whose policy mainstay has been the promotion of a radical programme of economic freedom, focusing particularly on land redistribution. Secondly, there was the unexpected (re)emergence of the Freedom Front Plus, whose policies reflect a retrogressive, right-leaning, white separatist agenda that opposes race-based affirmative action in any form and the redistribution of land.

While the respective decline and rise in popularity of the four parties (who between them garnered over 90% of the national vote) is notable, these shifts in numbers are far from the most interesting aspect of the election. Rather, it was how the issue of land or, more broadly, the question of property rights dominated public discourses as well as the different parties’ electoral campaigns and manifestos. Nearly, all the parties took up clear positions around the question of whether or not section 25 of the Constitution (the property clause) should be amended. Unsurprisingly, this question generated much cause for hope and anxiety, depending on which side of the economic or class divide one falls; it hardly requires mention that in South Africa there is a close correlation between race and class, and indeed class often operates as a proxy for race.

Land and Property Rights Debates

The real significance of the heated debates around land and property rights is that they clearly indicate a collective sense of an impending national existential crisis. At the heart of this crisis lies the thorny question where to from here for South Africa’s constitutional democracy? In other words, whilst much of the contestation was rooted in the EFF’s original proposal – often dismissively dubbed as populist – for “land expropriation without compensation” to be realized by an amendment to the property clause, the questions raised are much more profound. Such as, what remains of the sense of possibility in the post-apartheid constitutional project in the eyes of those who, 25 years into democracy, continue to occupy the margins reserved for those historically disenfranchised and dispossessed? To be precise, at their core these questions reflect an increasing sense of marginality, exclusion and growing hopelessness experienced by multitudes of Black South Africans who continue to be asked to temper their expectations towards attaining the ‘improve[d] quality of life of all citizens’ promised to them by what many commenters regularly remind us is the best constitution in the world.

There have been calls for the land and property debate to be less populist and emotive, but more rational and pragmatic by many commentators, who also often call for a defense of the Constitution. These calls also often oppose the very idea of an amendment to the property clause. It is notable how in making these calls for level heads or pragmatism notions of justice (in light of centuries of colonial-apartheid dispossession) remain largely absent in the arguments and reasoning advanced. Instead, these calls justify persevering with the current governmental land policies (with the caveat that they be subject to faster, better, less corrupt implementation). This silence on the justice question is quite telling, as the question of who retained land and property rights acquired originally through violent racist policies, and who was conferred with a hope to acquire land and property in a post-apartheid future speaks fundamentally to what we understand justice to be, or more precisely, what type of justice has been or can be achieved under the 1996 South African Constitution.

It is easy to dismiss questions of what type of justice or whose justice as being overly philosophical, esoteric or ethereal even. However, what cannot be dismissed with equal ease is that South Africa’s fomenting crisis has profound implications for what the citizenry understand or believe to be the constitution’s vision of justice and its potential to undo unearned material and social privilege and change South Africa’s historically racialised property relations. What I am suggesting here is that those engaging in the debate about land and property rights should stop talking past each other as is the case currently. There should be less of a focus on abstract questions of the constitutionality or necessity of an amendment, instead what is needed is an increased emphasis on setting out, examining and elaborating upon the justice claims of the different positions advanced. Elaborating on the justice claims would entail requiring being transparent in naming or expounding on the ethical, moral, philosophical and/or historical justifications that ground positions advanced, as well declaring whose or which interests their positions advance.

Competing notions of justice

At this juncture, it is fair to ask what it would mean, in practical terms, to center the notion of justice in this debate. At the risk of over-simplification, I suggest that in public and academic discourses there are at least two identifiable streams of this debate. One stream (that I associate myself with) broadly speaking, advances a probing critique of the current constitutional paradigm and calls for a decisive change to the prevailing land and property relations achieved under the current dispensation which has left much of the land, property and wealth in the hands of white South Africans. Another stream defends the constitutional compromise that largely retained the status quo on land and property relations at 1994 whilst committing (at least textually in accordance with the constitutional property clause) to progressive, piecemeal redistribution and restitution of land; this stream tends to be simultaneously critical of government’s perceived failure to fulfill its constitutional mandate. To place justice at the center would be to require that both sides equally foreground their underlying justice claims, although in fairness it must be acknowledged that those calling for paradigmatic change generally do.

Earlier this year Time Magazine dubbed South Africa as “the world’s most unequal country”, this fact of a growing divide between the haves and the have-nots coupled with the increasing angst around land and property rights suggests an impending crisis is on the horizon. Continuation of the debate on current terms signals a failure to address the underlying justice questions of how this inequality was produced and has been sustained post 1994. To avoid the descent into a cataclysm, I suggest here that a first step must be to shift the grounds of debate away from political rhetoric, a focus on legalities and policy (over)analysis as this all too comfortably skirts the questions of justice implicit in really grappling with South Africa’s racially skewed wealth, land and property holdings.

Image Credit: Martin Heigan on Flickr

About the author:

Sanele Sibanda is a faculty member in the School of Law at the University of the Witwatersrand in South Africa. He has been a visiting fellow at ISS, a participant in the joint Erasmus School of Law – ISS Project on Integrating Normative and Functional Approaches to the Rule of Law, and currently serves in the supervisory team of one of the candidates in a joint ISS-Wits PhD programme. Sibanda recently completed his PhD at University of the Witwatersrand entitled “Not Yet Uhuru” – The Usurpation of the Liberation Aspirations of South Africa’s Masses by a Commitment to Liberal Constitutional Democracy.

Confronting Apartheid Through Critical Discussion by Ana María Arbeláez Trujillo and Jeff Handmaker

17 June 201919 June 2020 6 min read

The history of apartheid in South Africa is generally well-known. Yet, apartheid is not exclusive to that country. According to international law, and on various social grounds, Israel too may be viewed as maintaining an apartheid regime. What does apartheid mean and how has the international community confronted both South African and contemporary regimes of apartheid? This article takes up this discussion, reflecting on a recent event organised at the ISS.

On 11^th April 2019, ISS hosted an event to critically discuss the concept of apartheid and its application. Inspired by the work of known South African legal scholar Professor John Dugard, who addressed this event, he and other panellists went beyond the legal-historical origins of apartheid in South Africa and explored its relevance to the longstanding impasse between Israel and the Palestinians.[i]

Beyond the legal foundations of apartheid in South Africa and it becoming a crime in international law, the panelists explored the social impact of apartheid as separate development and how civic organizations and governments have resisted or maintained this situation.

Apartheid under international law

According to international law, the crime of apartheid, as defined by article 7 of the Rome Statute of the International Criminal Court, is a crime against humanity. It consists of:

inhumane acts (…) committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.

The origins of this crime can be traced to the racialized legal regime established in South Africa from 1948 to 1990, although its definition is not restricted to that particular case. To the contrary, it is now an established position within academia, among civil society organizations, and UN agencies that the policies of Israel towards the Palestinian population also may be legally classified as an apartheid regime.

According to Dugard, Israel is more disrespectful of international law than South Africa was. He underscored that South Africa had accepted the importance of complying with norms of international law, yet argued that these norms were not applicable to the facts. By contrast, despite being party to several Human Rights Conventions that South Africa never was,[ii] Israel disregards the applicability of international law norms. This includes the Israeli government’s refusal to recognise the jurisdiction of the International Court of Justice, which in 2004 confirmed that the construction of the wall in the Occupied Palestinian Territory, the settlements and associated regime were contrary to international law.[iii]

So, how does one explain such a dismissive attitude towards international law? Both Dugard and Shawan Jabarin, who also spoke at the event, agreed that a combination of State complicity and lack of political will on the part of the United States and the European Union to ensure that Israel respected human rights and other sources of international law played a crucial role in perpetuating Israel’s domination of the Palestinian people.

As Jabarin further highlighted, although legally it is possible to argue that Israel’s occupation has many features of apartheid and colonialism, when assessing how the concept of apartheid applies in the Israel-Palestine territory, a purely legal analysis is insufficient. It is critical to consider political factors and the daily conditions that people face under the regime.

How nationality works in Israel-Palestine

Israel does not legally-recognise Israeli nationality. Instead, Israelis and Palestinians experience profoundly different conditions and enjoy different privileges, depending on their legally-mandated, privileged nationality as Jewish, or in accordance with more than 130 other officially-recognised nationalities. By disassociating the concepts of nationality and citizenship, Israel enforces a particularly strict regime of separate development. Ronnie Barkan, who also addressed the event, argued strongly that apartheid went beyond its application to Israel’s occupation of Palestinian territories, noting that not every Israeli citizen enjoys the same rights. In other words, the dual-layered legal framework of Israel privileges Jewish nationality, while excluding and/or neglecting the rights of everyone else.

Moreover, Barkan argued that Israel was built upon this sophisticated dual-layered framework that on the surface seemed like a democracy, but only protected the rights of a privileged national group. For example, although Palestinians are allowed to vote, only candidates who recognize Israel as a Jewish state are permitted to participate in elections. In this sense, the participation of Palestinians in the political system is only apparent in so far as it does not have the potential to modify power structures, or their living conditions.

Nationality also determines who gets access to land and who is allowed to live in certain areas. The blockade of the Gaza Strip and the West Bank, the establishment of settlements and the forced displacement of Palestinians from their villages are further examples of inhuman practices, through which Israel exercises its control.

All panelists agreed that the issue went beyond domination. The long term goal of Israel’s apartheid regime is not merely to exercise control over Palestinians, but to expel them from the land.

Responses to challenge apartheid

In July 2018, Israel issued the “Nation-State Law”.[iv] Among other measures, the law declares that Israel is a Jewish state, and that the only official language is Hebrew, whereas previously the second official language was Arabic. The law is by no means the first, but possibly the most blatant effort to entrench apartheid. Protests from civil society have been considerable, including a stepping-up of the Palestinian-led Movement for Boycott, Divestment and Sanctions (the BDS Movement) until Israel respects Palestinian rights.

As observed by the third panelist, Nieuwhof, the BDS Movement offers an action perspective, a tool to mobilize citizens to pressure governments and companies to support the Palestinian people. One of the early achievements of the movement, she noted, was a decision by the Dutch Bank ASN to divest from Veolia, one of many companies that has generated profits from the illegal occupation of the territory of Palestine.

All in all, the event was both timely and highly-relevant to the ISS research agenda on social justice. Regardless of one’s views, it is important to preserve spaces for discussions like this, which allow us to explore a critical perspective regarding one of the most relevant social justice issues of our time.

[i] In addition to Dugard, Ronnie Barkan, an Israeli human rights activist and founder of the movement Boycott From Within shared his perspectives, together with Adri Nieuwhof, a long-standing human rights advocate who worked from the late 1970s with the Holland Committee for Southern Africa and Shawan Jabarin, a Palestinian human rights advocate, Commissioner of the International Commission of Jurists (ICJ) and General Director of the Al-Haq.

[ii] Israel is signatory of the International Convention on the Suppression and Punishment of the Crime of Apartheid (ratified on 1973), the International Convention on the Elimination of All Forms of Racial Discrimination (ratified on 1979), the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (ratified on 1991), and the International Covenant on Civil and Political Rights (ratified on 1991).

[iii] Israel’s Supreme Court only partially recognised the ICJ’s ruling. See Susan Akram and Michael Lynk (2006) ‘The Wall and The Law: A Tale of Two Judgements’, Netherlands Quarterly of Human Rights 24(1): 61-106.

[iv] This was the subject of an earlier event, also organized at ISS.

Image Credit: © 2007 George Latuff. Wikicommons. Nelson Mandela, who spent 27 years in prison for fighting apartheid in South Africa, said that “our freedom is incomplete without the freedom of the Palestinians”.

About the authors:

Ana María Arbeláez Trujillo is a recent graduate from the Erasmus Mundus Program in Public Policy. She is a lawyer and a specialist in Environmental Law. Her research interests are the political economy of extractivist industries, environmental conflicts, and rural development.

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

He is a regular author for Bliss. Read all his posts here.

Enacting transitional justice in Colombia and South Africa by Fabio Andres Diaz Pabon

8 October 201818 May 2020 5 min read

Debates on the provision of justice in countries transitioning from armed violence to peace often fail to reflect on how the objective of justice must be linked with its practice. A recently published volume explores this through reflecting on the challenges facing the implementation of the transitional justice framework established in the recently signed peace agreements in Colombia.

Considering the practice of development and justice is as important as reflecting on what development is and what its relation is to justice. However, when we write about justice and development, we often assert what should be done, leaving aside questions on how to do it. This is commonly the case with initiatives related to the implementation of peace agreements, and in particular transitional justice frameworks. Justice and development are intertwined concepts, as discussed by Sen and De Greiff.

“Transitional justice” initiatives form a central part of the transition processes designed to move countries away from war and violence (recall that around 60% of armed conflicts relapse in under five years following a peace agreement). However, debates remain regarding what kind of justice should be sought through these processes: restorative (a system of justice that aims to heal and restore social relations within communities) or retributive (a system of justice based on the punishment of offenders), and whether local or national justice initiatives work better. Initiatives for justice and transitional justice face the challenge of bringing about development in different contexts and of integrating different, even competing, stories. This must be achieved in the face of the risk of overgeneralisation regarding what works and what does not work.

The truth is that we still lack an understanding of what really works in bringing about justice; we have opinions and beliefs on what form of justice is better, but no assessment of this has been done on a long-term basis across territories in transitional contexts—at most we have evidence specific to particular contexts in bounded time frames. However justice and development are endeavours that extend over long time periods. In addition, we must recognise that the study and practice of transitional justice is a fairly recent field; the evidence on what works or does not work is not as clear as we would like.

South Africa’s Truth and Reconciliation Commission—all talk and no action?

The South African case, and especially its Truth and Reconciliation Commission, lauded in the 1990s and early 2000s as a mechanism of transition able to bring justice to victims of atrocities and human rights abuses and to advance reconciliation, is illuminating. The case clearly illustrates the interlinkages between justice and development: marginalised black South Africans were promised empowerment, emancipation and development as an outcome of the transition away from the Apartheid regime, and this was understood as necessary to reconcile the country. However, over time the “ideal” nature of the South African Transitional Justice framework has been critiqued, and gaps in the implementation of the promises of the transition embraced by South Africa have emerged, raising questions regarding failures to realise the vision of justice the country pursued.

From this, it is clear that it is not only important to reflect on what justice is and how it is envisioned, but also on how visions of justice should be implemented. An ideal framework for justice that cannot be materialised is a mirage that erodes the legitimacy of institutions and may create or exacerbate grievances that fuel further conflicts and affect the legitimacy of the state. South Africa did not only face challenges in arriving at its vision of justice; it faced challenges in translating this particular view of justice into practice.

Colombia’s transition: facing similar problems

The transitional justice framework and the promise of justice espoused in general the peace agreements between the Colombian government and the FARC-EP illustrates the complexities of and contestations involved in determining a shared vision of justice, as well as the critical importance of the need to reflect on the challenges of how to affect this justice. Peace agreements are mere pieces of paper—they need to be enacted and realised in order to for countries to achieve peace.

Practitioners, bureaucrats and academics wanting to understand and effectively respond to the implementation challenges of development and justice work must engage the link between theory and practice and focus explicitly on practice. In the case the transitional justice components of the peace agreements in Colombia, this requires consideration of multiple elements. Academics and practitioners in Colombia and elsewhere in the global South have attempted such an exercise over the last two years—captured in the recent publication “Truth, Justice and Reconciliation in Colombia– Transitioning from Violence”.

The volume considers how the context of Colombia conditions the possibility of the justice agreements being implemented and the practical implications and requirements of the concepts of justice mobilised in the agreements. The text engages with the challenges ahead for the implementation of the transitional justice agreements, particularly in relation to rural reform, reincorporation and reconciliation, historical memory and symbolic reparation, as well as feminist and intergenerational approaches to justice and reconciliation. The volume also brings together lessons applicable to Colombia from other countries’ experiences with transitional justice—notably from South Africa, Sri Lanka, Peru and Bosnia and Herzegovina.

This kind of analysis will always face the constant tension between theory—the legislative frameworks guaranteeing human rights—and practice—the realisation of these ideas—in complex settings in which generalisations are difficult, evidence is limited, and information is limited. This is the challenging space in which Transitional Justice frameworks will succeed or fail in bringing about development in Colombia, South Africa, and elsewhere.

Picture credit: Camilo Rueda López

About the author:

Fabio Andres Diaz Pabon is a Colombian political scientist. He is a research associate at the Department of Political and International Studies at Rhodes University in South Africa and a researcher at the ISS. Fabio works at the intersection between theory and practice, and his research interests are related to state strength, civil war, conflict and protests in the midst of globalisation.

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

21 August 201818 May 2020 5 min read

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

About 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.

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

11 May 201818 May 2020 5 min read

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.

About 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.

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