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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.


Loyola University Chicago International Law Review , Vol. 5, Issue 1 (2007), pp. 15-28