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Abstract:
This paper describes the role of culture in perpetuating violence against women. It does this by contextualizing violence against women in South Africa within the grand project of transformation taking place there, and highlighting the possibilities of fundamental restructuring, with respect to rights and equality for women, when the feminist project intersects with the non-racial project. The paper, therefore, visits a familiar question, namely, the obstacles to transformation when the eradication of racism takes precedence over the elimination of sexism, as it historically has in South Africa. In addition, this paper describes recent attempts by the legislature and courts in South Africa to curb violence against women. This paper concludes by focusing on the possibilities and limitations of the law in eradicating violence against women, and argues that a comprehensive approach involving institutions other than the law would ultimately be more fruitful.

violence against women, culture and law, South Africa

Abstract:
This Article addresses the issue of violence against Aboriginal women. Part I concerns the historical violence against Aboriginal people generally, and Part II concerns violence against Aboriginal women in particular. Part III considers how the priorities and perspectives of Aboriginal women and non-Aboriginal women differ in significant ways despite their congruence in others. In particular, the Article evaluates the awkward relationship between Aboriginal women and the largely white feminist movement in Australia as a consequence of these different priorities and perspectives, and suggests how political victories for white or non-Aboriginal women could be translated into gains for Aboriginal women. The fourth part of the Article refers to the advantages or possibilities, on the one hand, and the limitations on the other, of the utilization of international human rights law and policy by Aboriginal women to confront these questions in a satisfactory manner.

Part V of the Article peruses some local efforts by Aboriginal women to stem violence. Included is a brief reference to some approaches adopted by Black women in South Africa. The Article's conclusion suggests that these local programs and projects, buttressed by a global human rights discourse that is more accessible than ever before, are far more likely to deal with the issue of violence comprehensively and satisfactorily.

human rights, women's rights, indigenous rights, violence against women

Abstract:
South Africa's post-apartheid constitution has been widely admired and constantly referenced by international scholars, and especially international human rights scholars, for its comprehensive embrace of gender equality. But the commitment to gender equality has been tested by other liberatory discourses, including African nationalism and cultural and religious autonomy. This Article examines the evolution of South African legislation and constitutional jurisprudence in the face of competing imperatives, for example, between equality, legal pluralism, customary law/religious law, and the recognition of polygamy. In particular, it focuses on the Recognition of Customary Marriages Act, a statute that purports to regulate customary marriages, including the establishment of such marriages, as well as their termination. The Article evaluates the influence of this statute, if any, on gender equality, and whether its purported protection of women in polygamous marriages in fact results in such protection.

South Africa, polygamy, equality, constitutional law, indigenous law, gender equality, gender

Abstract:
South Africa and Australia, albeit markedly different in their demographics, politics, and history, share a colonial past, where race was the fault line throughout the society. Although there were marked differences in the colonial structure and various policies of the colonial administrators, both societies shared certain patriarchal attitudes that cemented during the colonial period and left a particular legacy of violence against black women. In both, the incidence of violence against women was so systemic and so ubiquitous that it has been described as a continuing violation of their human rights. The intersection of colonialism, patriarchy and violence and its consequences for black women informs the main thesis of this paper, namely, critical race feminism and its particular perspective on the issue of violence against women. In other words, this paper addresses the following question: How can critical race feminism contribute to the continuing feminist project of unmasking structures, legal and otherwise, that generate, tolerate and acquiesce in violence against women? Colonialism's rampant racism, patriarchy, and cultures of masculinity left women in a particularly vulnerable position. In excavating the many causes of violence, my paper references not just the colonial experience, but the remnants and effects of both colonial and indigenous culture. In both South Africa and Australia, however, it was the ordinary processes of law and legalism which kept the colonial structures in place and which continue to raise questions about the role of law today. In my paper, the theme, violence against women, will combine the focus of these two societies.

critical race feminism, violence against women, South Africa, Australia

Abstract:
In this chapter I explore judicial independence and legal transformation in South Africa. My central thesis is that judicial independence is one of the key ingredients to ensuring that the transformative possibilities embodied in the Constitution become a reality for the majority of South Africans. Despite widespread approval of the principle of judicial review amongst legal scholars, many have warned that an unelected body sitting in judgment of the powers and functions of elected representatives may erode the basic tenets of democracy. This is particularly so in the case of economic or social policy where courts in their judgments may be at odds with the executive, the legislature and popular sentiment on these matters. Two issues that come to mind are the death penalty and procedural rights for the criminally accused, where evidence suggests that the Court's judgments are not viewed favorably by significant sections of the population. I argue that because of the lingering effects of authoritarianism, racism, sexism, and other forms of prejudice - cultural by-products of colonialism and apartheid - an independent judiciary may rise above these sentiments and ensure that South Africa remains committed to the promises of rights embodied in the Constitution. But my thesis also considers judicial independence in light of the racial and gender transformation of the judiciary. I argue that although thus far the courts, and particularly the Constitutional Court, has demonstrated an impressive independence, the political and racial loyalties of some sectors of the public to the governing party may pose a threat to judicial independence.

judiciary, constitutionalism

Abstract:
This paper was presented at a symposium, "The Scholar as Activist", dedicated to the work of Nadine Strossen, President of the ACLU. This paper focuses on the subject of international human rights law and the engagement of scholars as activists in this area of law. At fifty-plus years, and therefore soundly middle aged, the global human rights project today provides occasion for reflection and evaluation. This paper observes that human rights have increasingly become the language of progressive politics. In many ways, this focus on human rights globally echoes the struggle for civil liberties and civil rights in the United States in earlier decades. Then, despite widespread opposition, the vision of a society underpinned by human rights and dignity seemed attainable; this emboldened generations of activists and inspired many scholars. And sometimes, inspiration and boldness merged to shape the scholar as activist. The path-breaking contributions of scholars like John Hope Franklin, C. Vann Woodward, and Kenneth Clark to the 1954 decision of Brown v. Board of Education reflect the scholar as activist in the finest light. Using the South African democratic process as a case in point, the article assesses the transformative potential of human rights law.

human rights

Abstract:
This article discusses the quest for women's rights in South Africa and how the transition from apartheid to democracy led to a commitment to gender equality as incorporated in South Africa's transitional and final Constitutions. This paper refers to the organizational attempts by women prior to and during the constitutional drafting process to ensure that the new Constitution embodied the aspirations and reflected the struggles for women's rights by women activists in South Africa. This article is divided into six sections. Section Two describes the legacy of apartheid for all women in South Africa. This section shows how the laws and policies of apartheid were comprehensive, not only in enforcing rigid racial segregation, but also in racializing gender. Section Three focuses on the Constitution and outlines the myriad of ways this document details comprehensive rights for women both in the public and the private spheres. This section demonstrates how the South African Constitution, in particular its section on equality, has been described as one of the most impressive human rights documents of the twentieth century. Specifically, the Constitution details rights expansively and comprehensively, while its inclusion of sweeping rights for women satisfies South Africa's international legal obligations. Section Four of this article focuses on two cases regarding women's rights decided by the Constitutional Court, arguing that South Africa's evolving constitutional jurisprudence demonstrates a deep commitment by the highest courts to eradicate odious discrimination against women. Section Five analyzes the lobbying efforts of women's organizations during the transitional period to ensure that women's rights were incorporated into the new Constitution. In addition, this section analyzes how these lobbying efforts resulted in significant formal gains as reflected in the Constitution. This article concludes by assessing some of the remaining obstacles to attaining women's equality despite the significant advancements made thus far.

Women's Rights, Human Rights, Constitutional Law

Abstract:
This Article will address the South African context of reparations and reconciliation within the broader project of national reconstruction and nation building. This Article will also raise the concerns of truth and forgiveness and their place within the Truth and Reconciliation Commission (TRC) process with specific reference to the question of racial healing, racial harmony, and racial reconciliation. In addition, this Article will note the tensions inherent in individualizing racial harms by demarcating individual victims and perpetrators within a context of systemic and structural racial oppression and subordination. Particularly, it will highlight the complications in implicating the beneficiaries of racial privilege, and assess both the nature of the harm and causation for victims and beneficiaries. This Article will also discuss the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance by highlighting the difficulties of the global reparations project.

aparheid, truth and reconciliation, racial reconciliation, transitional justice

Abstract:
In addition to assessing the pertinence of critical race theory in unmasking international law's colonial, racist and patriarchal underpinnings, this paper attempts to suggest practical ways in which a critical race theory approach can enrich the international legal system, by giving a voice to the voiceless and by addressing the conditions of marginality in which much of the developing world is trapped.

This paper will do three things. First, it will peruse the contemporary global situation with respect to international law and human rights. Second, it will assess the contribution of critical race theory in advancing an understanding of, and solution to, America's predicament of race. Third, it will suggest ways in which these approaches may engage with contemporary attempts to deal with the human rights endeavor globally.

critical race theory, international law, civil rights

Abstract:
In this short essay I focus on the contemporary human rights movement, and in particular three broad areas of human rights. I provide a descriptive listing or cataloguing, commencing with a short consideration of the definition of what we refer to as the human rights movement. Based on my remarks as part of a panel discussion, I consider the human rights movements in three somewhat distinct categories: first, the structure and proliferation of human rights organizations; second, the seemingly growing human rights culture; and third, human rights violations by nations and private actors.

human rights

Abstract:
This Comment contextualizes the issue of polygamous marriages within the South African constitutional paradigm, one committed unequivocally to the principle of equality. This Comment analyzes how South African law, European in origin, had to incorporate the laws and institutions of indigenous communities within the national legal framework, as part of the overall transformative legal project underway in the country since 1994. By focusing on the Recognition of Customary Marriages Act, this Comment examines such incorporation, while questioning its effect on the overall project of constitutionalism, human rights, and equality.

Women's Rights, Human Rights, Constitutional Law

Abstract:
This chapter assesses the human rights project in South Africa by examining first how international law has been incorporated in the Bill of Rights. Second, it evaluates the interpretation of these rights by the Constitutional Court, and more specifically, how the Court has embraced international law in its jurisprudence. The chapter argues that despite the mandate to consider international law in its deliberations, the Constitutional Court has strategically adopted international law when appropriate, but disregards international law when difficult political choices demand such marginalization, as it did with the challenge to the Truth and Reconciliation Commission.

International Law, Constitutional Law

Abstract:
Consideration of racial and gender diversity, and to a lesser extent disability and sexual orientation diversity, has propelled the transformation of the judiciary in South Africa. This consideration is underpinned by both the stated and unstated assumption that a majority white judiciary cannot adequately and fairly serve and deliver justice to a majority black population. The very legitimacy of the judiciary, and indeed the project of constitutional democracy, is contingent on a bench that reflects the racial and gender diversity of the society. Moreover, with equality as the primary principle in the "Bill of Rights," the judiciary has to accommodate this principle unequivocally in its appointments, processes, and jurisprudence.

Judiciary, constitutionalism, race, women

Abstract:
This comment examines the vision of women's rights and equality as outlined in CEDAW. It raises some of the possibilities and limitations associated with universalizing legal norms in a context of enormous global disparities, particularly in material and cultural terms.

women's human rights, culture

Abstract:
In South Africa, post-apartheid legislation promulgated in pursuit of the constitutional commitment to equality demonstrates that the government, at least at the formal level, is committed to a comprehensive democratic framework that promotes such equality. Statutes such as the Promotion of Equality and the Prevention of Unfair Discrimination Act, the Prevention of Domestic Violence Act, and the Black Empowerment Act amongst others, attest to the commitment of such a vision. In addition, statutes such as the Recognition of Customary Marriages Act, that purport to protect women in polygamous African customary unions, suggest that the South African Parliament is deeply committed to recognizing the rights of those in indigenous communities who prefer to regulate their private lives according to indigenous principles. This is so even though those principles might at first glance contradict majoritarian notions of equality, as polygamy arguably does.

The South African situation therefore raises the central question: How can a country with such a wonderful and expansive constitution, in which gender equality is embraced comprehensively, evince such widespread and systemic violence against women? In addition, what accounts for a democratic government, seemingly committed to the principle of equality in the public sphere, demonstrating such reluctance to decisively confront the egregious consequences of public and private violence against women? It is my thesis that despite the formal embrace of gender equality in the Constitution, and despite attempts by all branches of government to address the legacy of racism, sexism, and patriarchy, the interlocking cultural underpinnings of sexism and patriarchy were never dislodged. Moreover, a formal vision of equality was unequivocally endorsed across all sectors of South African society with respect to the eradication of racism, but this universal endorsement was absent with respect to gender equality. Indeed, patterns of violence that incubated during the years of apartheid were unleashed as the society became more open and democratic. Ironically, the transparency of the new democratic order revealed the underbelly of apartheid violence, a very public violence as described in the final report of the Truth and Reconciliation Commission. But this transparency has also highlighted the chronic reality of private violence, particularly against women. It was this violence that apartheid never fully revealed, and that has come to be a major impediment to women enjoying the human rights encapsulated in the South African Bill of Rights.

Women's Rights, Human Rights, Constitutional Law

Abstract:
The question that the Jacob Zuma rape trial and its aftermath raised was how a country like South Africa, with such a wonderful Constitution and expansive Bill of Rights, could generate such negative and retrogressive attitudes towards women. In line with this inquiry, this article raises three issues: The first focuses on the legacy of apartheid violence and specifically the cultures of masculinity, the underbelly of apartheid violence. Second, the article explores the findings of the Truth and Reconciliation Commission (TRC), a vital part of the post-apartheid transformation agenda, to examine how the TRC pursued violations of women's human rights. The third part of the analysis is an examination of the last twelve years of constitutional transformation in South Africa, and particularly the pursuit of gender equality and the eradication of violence against women.

international law, comparative law, women's rights, human rights, transitional justice, equality

Abstract:
This Article analyzes the status of women's rights in the newly democratic South Africa. It examines rights guaranteed in the Constitution and conflicts between the principle of gender equality and the recognition of indigenous law and institutions. The Article focuses on the South African transition to democracy and the influence that feminist agitation at the international level has had on South African women's attempts at political organization. After dissecting the historical position of customary law in South Africa and questioning its place in the new democratic regime, the author argues that, although South African women have benefited from the global feminist endeavor, they have adopted the shape and substance of women's rights to accommodate conditions peculiar to South Africa. The Article concludes that this balancing of respect for indigenous culture and the ultimate goal of eradication of all forms of sexism provides the best means for women in South Africa to make progress in their quest for equal status in that society.

women's rights, constitutionalism, race, south africa, culture

Abstract:
This paper views the meaning of Brown v Board of Education in the South African context as three-fold. First, Brown represented the repudiation of racial discrimination on legal or constitutional grounds. Second, it furnished a model of public interest lawyering for South Africans who wanted to challenge unjust laws in the courts. Third, Brown reiterated the importance of non-discriminatory education in a democracy. In this paper I examine the lessons of Brown for the South African struggle for racial equality, South Africa's constitutional transition and the significance of Brown in pursuing the right to education in South Africa. I conclude that although Brown was of tremendous symbolic value to South Africans, the South African constitutional framework, negotiated in the early 1990's, reflected global human rights developments more substantially than it did the American civil rights struggle. This is demonstrated by the mandate of the South African Constitution to consider international law and by the limited references to Brown by the Constitutional Court in comparison to the court's citation of international legal materials. Brown's waning substantive influence may also be attributed to the different path towards non-racialism taken by South Africans in contrast to the civil rights struggle in the United States.

civil rights, race, South Africa

Abstract:
Editors introduction: This collection of articles by noted scholars examines what law and legal institutions can do to alleviate poverty and economic inequality in the new economic and political environment. The articles explore the contours of many struggles for distributive justice. They describe contemporary constitutional strategies, such as the incorporation of economic, social and cultural rights in constitutions in relation to grassroots anti-poverty campaigns in many parts of the world, including campaigns for rights in South Africa, and poor people's economic and human rights campaigns in the United States. Such campaigns face well-known disadvantages in contending with entrenched, powerful, and vastly wealthier interests.

poverty, human rights, constitutions

Abstract:
This is a critique by two non-white law professors in the form of a conversation about the relevance of feminist law journals on their lives and scholarship. We conclude that the impression that feminist scholarship now is accepted in mainstream law reviews may be illusory and thus there is a continuing need for feminist law journals. In the past rather than creating a new type of journal, feminist law journals tend to replicate the traditional law journal model. Only the focus is different. Twenty years later not only do race and sexuality continue to separate us, but increasingly, careerism as well. The resulting lack of trust between women means that we need more open and honest conversation among and between feminists and non-feminist women. Refocused feminist law journals may be able to provide both the public and private space to pursue these conversations.

feminist legal scholarship

Abstract:
This chapter will explore the South African Constitution, and more particularly, the Bill of Rights, as a vehicle for social and economic transformation. By analyzing the provisions relating to gender equality in South Africa's Constitution, as well as decisions of the Constitutional Court, this chapter will examine whether the constitutional rights framework in South Africa contains within it the transformative possibilities that will lead to gender equality in all spheres of South African society, and particularly in the economic sphere.

gender, human rights, constitutional law, women

Abstract:
An evaluation of the success or otherwise of the TRC may seem premature, but there have been some interesting reflections thus far. One such work is David Dyzenhaus’ book, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order. The book is a narrative and critique of the legal hearings which took place over three days at the TRC. This is a review of the Dyzenhaus book.

restorative justice, human rights