A contradiction in terms? The promotion of adolescent sexual rights and the prevention of sexual violence

by | Aug 14, 2021 | ACTA, ACTA 2020

A contradiction in terms? The promotion of adolescent sexual rights and the prevention of sexual violence

Author Salona Lutchman

ISSN: 1996-2088
Affiliations: LLB (UKZN) LLM (New York) PhD Candidate (UCT); Senior Lecturer, Department of Public Law, University of Cape Town; Attorney and Notary of the High Court of South Africa.
Source: Acta Juridica, 2020, p. 63 – 86

Abstract

This article is a contribution to the ongoing national discourse on adolescent sexuality. By juxtaposing adolescent sexuality with the high levels of adolescent sexual violence, the article seeks to highlight the tensions and challenges embedded in the current protectionist narrative. The article argues that adolescent sexual violence has a gendered dimension, with girls being the dominant victims and boys the dominant perpetrators. However, in order to understand adolescent sexual violence, one has to first understand the missing discourse, which is adolescent sexuality. It is argued that constructive approaches geared towards curbing adolescent sexual violence should deal with the inherent gender inequality embedded in adolescent sexual agency and violence.

Evolution of provisions relating to violence against women in South Africa’s Traditional Courts Bill

by | Aug 14, 2021 | ACTA, ACTA 2020

Evolution of provisions relating to violence against women in South Africa’s Traditional Courts Bill

Author Monica de Souza Louw

ISSN: 1996-2088
Affiliations: LLB LLM (University of Cape Town); Deputy Director, Land and Accountability Research Centre, Faculty of Law, University of Cape Town.
Source: Acta Juridica, 2020, p. 87 – 134

Abstract

Three versions of the Traditional Courts Bill (TCB) have been tabled before Parliament in the last two decades. Each version has raised questions about its impact on women’s experiences in customary law dispute resolution forums and whether sufficient protection is being provided for women’s rights. Concerns relate to the subject matter dealt with in traditional courts, the extent to which women’s voices are heard and taken seriously, and the impact on women of processes used to resolve disputes, including whether there are avenues for accountability. This article describes the evolution of the TCB’s approach to these matters with particular reference to women who have experienced violence or threats of violence and are involved in traditional court processes. The drafting process that occurred after the lapsing of the 2012 TCB version, and which gave rise to the 2017 TCB version, is highlighted. The analysis suggests a correlation between the prevailing gender dynamics within a particular drafting forum and the treatment of women’s concerns in the TCB’s provisions. Yet the TCB, and customary law more generally, could play an important role in protecting women from violence and providing appropriate recourse. It is therefore argued that the TCB law-making process must take public participation seriously and incorporate sincere efforts to build on women’s experiences of traditional courts and violence.

Gender construction in sexual offences cases: A case for fully reviving the Sexual Offences Courts

by | Aug 14, 2021 | ACTA, ACTA 2020

Gender construction in sexual offences cases: A case for fully reviving the Sexual Offences Courts

Authors Karin Chinnian and Aamina Petersen

ISSN: 1996-2088
Affiliations: Senior Lecturer, Department of Criminal Justice and Procedure, Faculty of Law, University of the Western Cape; Lecturer, Department of Criminal Justice and Procedure, Faculty of Law, University of the Western Cape.
Source: Acta Juridica, 2020, p. 135 – 164

Abstract

Gender inequality, male hegemony and the power dynamics at the core of patriarchal society enable the high rate of sexual offences and the low conviction rate of sexual offenders when incidents are reported. The criminal justice system does not provide a safe space for the sexual offence victim/survivor to relate her experience of sexual violence. Sexual Offences Courts provided a victim-centred approach to the criminal justice system. The closure of these courts has been detrimental to the campaign for social justice and the constitutional rights of complainants. Feminist scholarship is employed as a lens through which to analyse and expose the deficiencies in the current framework used to secure convictions in sexual offences cases. Wishik’s development and expansion of the ‘woman question’ is used to refine this method, subquestions are formulated to provide a systematic process for interrogating the status quo, and for finding remedies to redress the problems identified. The closure of Sexual Offences Courts may be seen as a form of discrimination against women. It is therefore recommended that these specialised courts are reintroduced as a matter of urgency as the state needs to meet its constitutional obligations.

A crisis of violence against women: Has South Africa fulfilled its obligations in terms of the Convention on the Elimination of All Forms of Discrimination against Women?

by | Aug 14, 2021 | ACTA, ACTA 2020

A crisis of violence against women: Has South Africa fulfilled its obligations in terms of the Convention on the Elimination of All Forms of Discrimination against Women?

Author Samantha Barkley

ISSN: 1996-2088
Affiliations: BA LLB LLM (Wits); Associate Lecturer at the University of the Witwatersrand.
Source: Acta Juridica, 2020, p. 165 – 196

Abstract

Gender discrimination in South Africa is both a historical phenomenon and a current experience. Women continue to be unfairly treated, they are regarded as inferior to men, and they are subjected to violence. This contribution seeks to examine South Africa’s fulfilment of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In terms of this Convention, South Africa is obliged to take appropriate measures to eliminate all discrimination against women. In light of these obligations, domestic law has been enacted to address the inequality and discrimination experienced by women, particularly as a result of violence. This article shows that, despite the country’s international obligations, and the subsequent enactment of domestic legislation, the problems of gender inequality and discrimination persist. Gaps in the enforcement of legislation remain. As a result, women in South Africa are further disempowered. However, women’s movements have contributed to securing women’s rights and they play a key role in ensuring the implementation of these rights. By relying on CEDAW, women’s movements and activists are able to hold government and its institutions accountable for their obligations under CEDAW, which, most importantly, are gender equality and non-discrimination. South Africa may also be commended for taking steps to enact domestic legislation aimed at articulating gender equality and nondiscrimination. Such legislation provides the mechanisms and means to prohibit harmful and discriminatory practices relating to violence against women. However, the inclusion of such rights and to a great extent their enforcement may be attributed to women’s movements and gender activists.

Does Africa need a regional treaty on violence against women? A comparative analysis of normative standards in three regional human rights systems

by | Aug 14, 2021 | ACTA, ACTA 2020

Does Africa need a regional treaty on and violence against women? A comparative analysis of normative standards in three regional human rights systems

Author Rashida Manjoo and Ruth Nekura

ISSN: 1996-2088
Affiliations: Professor of Public Law at the University of Cape Town, former UN Special Rapporteur on Violence against Women, its Causes and Consequences; PhD (UCT); human rights and gender equality consultant, Kenya.
Source: Acta Juridica, 2020, p. 197 – 226

Abstract

This article considers the utility of a specific treaty on violence against women (VAW) in Africa in line with relevant binding regional frameworks in the Inter-American and European human rights systems. It situates the discussion on VAW within a human rights analysis, applying a critical lens to existing normative frameworks and monitoring mechanisms. The article offers a comparative perspective through an overview of the legally binding provisions and implementing mechanisms in three human rights systems, the African, European and Inter-American systems. It is argued that while the Protocol on the Rights of Women in Africa (the Maputo Protocol) has provisions on the elimination of VAW, the Protocol’s weaknesses invite us to consider a specific VAW treaty for Africa, as an opportunity for strengthening the regional human rights system.

Refugee women as victims of intimate partner violence: Forever vulnerable?

by | Aug 14, 2021 | ACTA, ACTA 2020

Refugee women as victims of intimate partner violence: Forever vulnerable?

Authors Fatima Khan, Cecile Sackeyfio and Liliya Paraketsova

ISSN: 1996-2088
Affiliations: Associate Professor in Law and Director of the Refugee Rights Unit, University of Cape Town; Researcher, Refugee Rights Unit, University of Cape Town; Clara Belfield and Henry Bates Overseas Fellow, Refugee Rights Unit, University of Cape Town.
Source: Acta Juridica, 2020, p. 227 – 266

Abstract

Gender-based violence against refugees has received increasing attention over the last two decades. However, the tendency worldwide, as well as in South Africa, has been to focus on ‘truly horrific’ and ‘culturally grotesque’ acts while ignoring the more invisible forms of gender-based violence. The tendency to focus on the conditions of the country of origin, rather than individual cases, can hinder women’s access to asylum on the ground of intimate partner violence if their country of origin is hailed as having a more progressive approach to women’s rights. This article seeks to bring the more invisible harm to the fore and will focus on intimate partner violence affecting female refugees in their countries of origin and in their host country, South Africa. We make recommendations for South Africa to recognise intimate partner violence as a valid asylum claim, to tailor effective services for female refugees who are victims of intimate partner violence in South Africa, and to fulfil its international and domestic legal obligations to refugee women by adopting a transformative reparations framework.