23 Mar 2015
Despite the South African constitution's commitment to equal rights for women, the demand for gender equality is incompatible with the preservation of traditional authority in the post-apartheid era. Discuss.
Women in South Africa have the most clearly spelt out legal rights in the whole of Africa and when looking at the newly formed constitution the situation for women in South Africa seems to have made a dramatic move in the right direction. After all the constitution prohibits any form of discrimination on the basis of not only gender but sexual orientation. And although it validates both gender equality and the institutions of traditional authority, if they come into direct conflict it is gender equality that will prevail. The national parliament has also moved from being 141st in the world, in regards to the percentage of women members, pre-1994 to 7th post-1994. [i] This signals a new era in South Africa, and is mainly down to the ANCs undoubted dedication to gender equality and the introduction of its quota in national elections.
However despite the leaps forward in gender equality the fight for women's rights is far from over and it is in the rural areas that the discrimination is most severely felt by women. The South African constitution may be one of the most gender sensitive in the world but this did not come about uncontested by the traditional authorities, [ii] who believed the introduction of gender equality would lead to the end of some African traditions, such as, Lobola,  and in the long term their very institutions. Traditional authorities are seen to be the biggest obstacle facing the women in rural South Africa. This essay will discuss the history of traditional authorities and how the colonial and apartheid eras have influenced and shaped them, the affect they have had of on the development of women's rights and their relevance to understanding the rural women's position. Also the broader tension felt between the principle of elected representation and the continuation of non-elected chiefs that has implications for the position of women and the country as a whole. And finally a brief look at the question; why did the ANC make concessions to the chiefs at the time of transition. But ultimately that the ANC-led government's belief that they can recognise the institution of traditional leaders while at same time upholding the constitutions principles of gender equality and representative democracy is completely contradictory.
Today in post-1994 South Africa the term 'traditional authorities' is an all-encompassing term in which it refers to 'chiefs' of all different ranks and that have jurisdiction over rural people. [iii] But this concept of traditional authority has, over the years, has been reshaped and moulded to not only benefit the white ruling governments that have dominated South Africa's history but also the patriarchal systems. The two main institutions that were reconstructed were chieftainship and customary law. In the colonial era they were used as a cheap form of administration, later to ensure the successful use of the migrant labour system. In the apartheid era they were used in the states attempt to divide the African population into their ethnic groups so that they would be easier to control. Customary law may be seen by some as a long African tradition but others, as illustrated by Cherryl Walker, believe that customary law is not only 'sexually discriminatory in the extreme' but also a construct of the past hundred years. [iv] The 'chief' was also reinvented to become dependent on approval from the centre, for any chiefs that were perceived to be disloyal to the dominant white state, were removed and replaced by more compliant individuals. During this time the most valuable power the chief possessed was the power to allocate land, and it remains so today. This power was beneficial to the apartheid state but has caused massive complications for the reconstruction of rural areas under the new ANC-led government, [v] and has been hugely detrimental to the population of rural women and gender equality.
The issue of land allocation was one of the largest issues to be resolved facing the new post-apartheid government, and remains so to this day. For the first ten years the new ANC-led government has been very vague on the issue of traditional authorities and land allocation. Traditional authorities took advantage of this indecisiveness and used to their benefit. Things were further complicated by the fact that the constitution recognised the institution of traditional leaders but failed to specify the roles, functions and powers of said authorities. This resulted in massive confusion for the people on the ground and when elected councillors were introduced in 1995/96, the lack of a clear definition led to tension between the newly elected councillors and the traditional authorities, as neither were clear as to what role they would play and considered the other institution to illegitimate. When the ANC came to power and the new democratic constitution was enforced many South Africans believed that the newly elected councillors would take over the function of land allocation, the government indicated that it would become the responsibility of the Traditional rural councils (TRC) however the old apartheid laws were effectively still in place, government officials still used, with a few adjustments, the apartheid procedure and did not recognise the elected councillors as having power to allocate land, as a result by 2000, (the end of the transition period) the rural people had become dissatisfied with the rural councillors. [vi]
It wasn't until the combination of the Traditional Leadership and Framework Act  (framework act) in 2003 and the Communal Land Rights Act  2004, that the government finally clarified the role of traditional authorities. The combination of these two acts drew criticism from a huge range of civil society organisations, ranging from gender activists to land activists, such as, the programme for Land and Agrarian Studies (PLAAS) and the National Land Committee (NLC) they considered these new traditional councils to be, as Ntsebeza illustrates, 'a retreat from democracy' and the Communal Land Rights Act was an attempt to revive a 'defunct apartheid institution' which was above all extremely discriminatory of women. [vii] The reason that the traditional authorities being in control of land allocation is such bad news for women is because of their continuing use of customary law.  Despite the fact that gender equality should, according to the constitution, prevail over institutions of traditional authorities, in practice customary law and practice tend to win in matters marriage, divorce and property ownership (with most chiefs still unwilling to allocate land to women) resulting in deeply patriarchal decisions that lessen women's rights to those of their husbands, fathers or even sons. [viii] The principle of customary law has even been upheld in the Supreme Court rulings (2000) despite what is clearly stated in the constitution. [ix] This elevation of hereditary chieftainship to a privileged and protected position within local government seriously compromises rural women's access to and influence on local governments. [x] The framework act has created councils that are dominated by traditional authorities whilst the Communal Land Rights Act has given these structures extraordinary powers, combined they have effectively given the traditional authorities back the powers that they had enjoyed in the apartheid era under the Bantu Authorities Act. [xi] Through these acts the national government has majorly failed the women in rural areas in relation to land and women's right over its allocation and use, in effect the government has failed to uphold the very principles in the constitution of equality all they have done is further entrench the concept of male-domination in both people's minds and the institutions in rural South Africa.
One of the major reasons behind the increase in dominance in the traditional authorities in rural areas is due to the lack of a significant civil society movement in particular a powerful Women's movement post-1994 to push for equality. Before the first democratic elections in South Africa, the general women's movement was much stronger. Successfully contesting the traditional authorities proposals to have customary law exempt from the gender equality clause [xii] and later defeating their bid to have customary law entrenched itself. The women's organisations also managed to successfully mobilise itself after being sidelined in the constitutional negotiation process to form the Women's National Coalition in 1992, with the aim to draft a charter for women's rights, that would be included or at least consulted when the constitution was drawn up. However this coalition didn't last long after the charter was formalised, the ANC women's league become suspicious and believed that other parties would use the coalition to better themselves and not women as a whole, and as a result dropped out. This left the women's movement in tatters. [xiii] There was a further blow to the movement when the ANC was elected to government as many women that were at the forefront of the women's movements became members of parliament on ANC tickets. Leaving the majority of the women's organisations without key players and leaders. The situation was worse in rural areas for these organisations due to the fact they were predominantly urban based and were nowhere near as organised as the traditional authorities. As a result it was far more difficult for rural women to come together against the repressive nature of the Traditional Authorities as they had no organisation or figurehead to unite under.
The traditional nature of rural South Africa is also felt within the rural local councils, where the number of women is actually lower than that of the national parliament. This goes against the western norm that women usually do better at the local level. [xiv] Gotez and Hassim illustrate two main reasons for this, firstly that 'traditional patriarchies can be more intense and immediate in their repressive effect on women's engagement at local level compared to the national' and secondly that 'women's movements capacity to support women in local politics and help develop gender equality policy platforms can be fragmented by decentralisation'. [xv] The lack of an effective women's movement post-1994, has had a negative effect on the development of gender equality. Another problem women face in rural councils is that they are set up to accommodate a male councillors way of life and not a woman's who still have to uphold their traditional responsibilities for the home and family, Connell argues that this holds dangerous potential for 'fostering exclusivity in political leadership.' [xvi] Many believe that there are too many meetings that run late and seem to discuss the same issues over and over, which is just not practical for women councillors who have a family and a home to look after alongside their job as councillors. Unfortunately due to the smaller number of women in local councils than in the national parliament they are unable to ensure that matters such as hours of sitting and childcare are addressed, instead their concerns are ridiculed as 'women's problems' by the male-dominated councils. [xvii] These issues enforce the perceptions that women are not capable of serving as councillors and damage the potential contribution of women councillors. Problems like this show just how deeply entrenched male-domination still is in South Africa, [xviii] and not just in rural areas but on the national scale. The male domination on real power is still very evident.
The ANCs history towards Traditional Authorities is very important in understanding why the act the way they do towards them. The ANC was formed in 1912 and many of its founding members were traditional authorities who opposed to the Union of South Africa. However as time when on the ANC became a more radical movement and combined with pressure from its youth League and its communist allies the ANC split in two when it came to what to do with Traditional authorities today; the first being pro traditional authorities providing that they were critical of government policy. The second, who were clearly influenced by their communist allies, argued that the institution of traditional authorities belong to a previous feudal era and should be replaced by a more democratic institution. [xix]
One of the main questions to be looked at is why the ANC has made so many concessions to the traditional authorities at the time of transition at the expense of gender equality, in spite of their obvious commitment to equality, in particular gender equality, both in the constitution and their own party politics (i.e. the election quota). The ANC has always been split and extremely ambiguous in its views and policy towards the institution of traditional authority. It is also widely accepted that tampering with the power of chiefs threatens to create a mass amount of political problems. [xx] Because of this most politicians feel the issue is best left alone.
There are a number of possible reasons this. The first being that the ANC is fundamentally urban based and has always been considered to be very weak in rural areas, alongside that it has never had a coherent programme to build alternative democratic structures in the rural areas to try and combat this problem. [xxi] And as a result the ANC has been and remains depended on traditional authorities to be their main representation in rural areas. This originated when the party was in exile but has continued to the present day, which makes it difficult for the ANC to alienate them. The ANC has to also remember that it has to take people's commitment to 'custom', 'culture' and 'tradition' seriously if it wants keep its support in rural areas and if any program of rural construction is to succeed. [xxii] The ANC cannot just rush in and dismantle peoples beliefs and way of life as a large number of people still believe in and support traditional authorities and what they stand for, it will be long and slow process that will have to be carried out with the upmost care, Ismail  illustrates this point well that traditional leaders 'cannot be abolished overnight without causing some political disequilibrium among the indigenous people especially in rural areas.' [xxiii]
The ANC has also faced direct pressure from the traditional authorities themselves, both through the Inkatha freedom Party (IFP), the Congress of Traditional Leaders in South Africa  (CONTRALESA) and the right-wing Zulu nationalist chief Buthelezi, who is recruiting chiefs who opposed the ANC during the anti-apartheid era. [xxiv] The ANC feels it must maintain a good relationship with CONTRALESA so that it won't lose the support of the traditional authorities who are members and their followers, who the ANC consider to be important voter blocks. Ultimately the ANC had a choice to make; to take the Traditional Authorities head on in order for women's rights to not only be written in the constitution but actually be put into practice and be experienced by women throughout south African society, or to appease the Traditional Authorities and allow for gender inequality to continue despite this going against the very constitution they wish to uphold. Unfortunately (for women's rights) the ANC has seemed to favour the latter option. But the very fact that the ANC has need to make a choice between the two is evidence of the incompatibility of Traditional Authorities and the concept of gender equality.
One thing that the women's movement must remember is that getting women into parliament is not a guarantee that 'she' will help promote gender equality as not all women have feminist interests and will most likely represent their parties interests not that of women, [xxv] this can be partly due to the party-list system used in South Africa, which means if you want to stay high on the list and remain in parliament you have to tow the party line. There is also the problem that women just don't feel comfortable enough to raise the question of the prolonged gender inequality within South African society, this is generally down to the traditional view upheld by many South Africans. Friedman actually argues that by 'putting women on committees when they are not comfortable with being in a position of authority may actually be counterproductive for and long-term strategy for empowering women.' [xxvi] This can be down to the inexperience and uncertainty of women councillors which may lead to them being unable to effectively articulate their opinions and concerns, leading to the reinforcement of not only the opinion that women are not cut out to be involved in politics but also the very concept of inequality. This is shown very clearly by Goetz and Hassim with their study in Temba in 2000, in which women councillors had made 'no concrete suggestions except to second motions.' [xxvii] According to the women in Temba this is because they feel intimidated by the men who still hold the traditional values of women being inferior. 'men in the council laugh and interrupt our contributions.' [xxviii] This is a problem that is widely known about to the majority of ANC members but still little is being done to address the issue. It is clear that if gender equality is to be a success then it is not just the traditional institutions that need to change, it is the people's views about gender as well. Men need to accept women as their equals and women need to be empowered so that they can be confident enough so that they can stand up for their opinions, concerns and rights.
Traditional authorities in their current state are most definitely incompatible with the demand for gender equality. However as 'customs' and 'traditions' are never set in stone but a product of a 'complex and dynamic history of contestation, co-optation, reconstruction and invention', [xxix] traditional authorities could, if they learn to incorporate gender equality and accept the legitimate role of the democratically elected local bodies, in theory be a legitimate part of the South African democracy. However if they continue to push of their unelected body to have increased power and refuse to recognise the legitimacy of rural elected bodies and that women have equal status then they should not have a place in a democratic South Africa, as the very nature of traditional authorities is undemocratic. It is up to the government to follow through with their promise of equality, and particularly for this case gender equality by either removing them completely (which will inevitably be unpopular with a large proportion of the population especial in rural areas) or alternatively force them to become more democratic. In the current state it is unlikely that the government will do so as it could very well play into the hands of their opposition. Therefore there is a desperate need for a strong women's movement to not only put pressure on the government but to also mobilise the women of South Africa to stand up for their constitutional right of equality.
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