Celebrating Women's Day with Dignity

CELEBRATING WOMEN'S DAY WITH DIGNITY

Adv Johan Kruger
Centre for Constitutional Rights

In commemorating Women's Day, the Centre for Constitutional Rights also celebrates all those constitutional rights - including the inherent right to dignity, the right to life, equality and privacy - which seek to guarantee a free and equal society. Unfortunately, in commemorating this day in honour of all women, we have to recognise that many women are being denied these fundamental rights - in most instances, by those closest to them.

Violence against women, whether physical, sexual or psychological, violates the equal enjoyment and protection of all of these human rights and fundamental freedoms which, according to the Supreme Court of Appeal in S v Chapman, should be "basic to the ethos of the Constitution and to any defensible civilisation". Violence against women violates a woman's dignity, it infringes upon her right to equality and it denies her physical and psychological freedom and security. All women in this country are entitled to the protection of these constitutionally enshrined rights. In the Chapman-case, the Court held that every woman has "a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives".

Despite having one of the most inclusive and progressive Constitutions in the world, South Africa has one of the highest rates of violence against women globally. In a society which remains by and large driven by patriarchal traditions and culture, we have to recognise these glaring violations committed against the freedom and security as well as the bodily and psychological integrity of women. We have to acknowledge the prevalence of this kind of violence, which through the actions of men, disrespect and humiliate women to the point where it can only be described as a gross human rights violation. More importantly, we have to do something about it.

The United Nations Committee on the Elimination of Discrimination against Women 48th Session (Concluding observations of the Committee on the Elimination of Discrimination against Women, April 2011), in relation to South Africa, expressed its serious concern about the fact that violence against women appears to be "socially normalized, legitimized and accompanied by a culture of silence and impunity". Is the sad reality expressed by this finding that we have come to accept violence against women as normal?

According to Justice Sachs in a unanimous decision in the Baloyi-case heard by the Constitutional Court, what distinguishes violence against women (and domestic violence in particular), is its "hidden, repetitive character and its immeasurable ripple effects on our society and, in particular, on family life". According to him, this kind of violation of women and their rights, "cuts across class, race, culture and geography, and is all the more pernicious because it is so often concealed and so frequently goes unpunished". In raising this constitutional concern, Justice Sachs further remarked that "[t]o the extent that it is systemic, pervasive and overwhelmingly gender-specific, domestic violence both reflects and reinforces patriarchal domination, and does so in a particularly brutal form".

The United Nations Declaration on the Elimination of Violence against Women adopted on 23 February 1994 is unequivocal in condemning these human rights violations. Article 4 requires of Member States to condemn violence against women and not invoke any custom, tradition or religious consideration to avoid their obligation with respect to the elimination thereof. It also requires governments to pursue, by all appropriate means, policies of eliminating violence against women and children by preventing, investigating and punishing acts of violence against women, whether perpetrated by the State or by private persons. Governments are also required to ensure that law enforcement officers and public officials responsible for implementing these policies receive adequate training to sensitise them to the needs of women. The Government clearly has a duty, both in terms of the Constitution and International Law, to ensure an accessible, accountable and effective criminal justice system, aimed at successful law enforcement responses to violence against women. In the Baloyi-judgement, Justice Sachs emphasised this duty when he said that "[t]he non-sexist society promised in the foundational clause of the Constitution and the right to equality and non-discrimination guaranteed by section 9, are undermined when spouse-batterers enjoy impunity".

In this regard, the Government has to date enacted a fairly progressive legislative framework and has adopted various policies, programmes and plans of action. Effective implementation of these laws and policies - especially within the criminal justice system - remains the real weakness in the Government's response. The United Nations Committee on the Elimination of Discrimination against Women remarked in this regard: "[w]hile noting that a number of policy, legislative, administrative, victims empowerment and other measures, based on a multi-sectoral approach at the operational level, have been put in place to combat violence against women in the country, the Committee expresses serious concern at the inordinately high prevalence of sexual violence against women and girls, and widespread domestic violence".

The inability of criminal justice practitioners in particular to prevent, investigate and prosecute these cases remains a concern. A recent Department of Justice and Constitutional Development Consolidated Progress Report on implementation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (tabled in Parliament in August 2012), is not sketching a brighter picture. According to this Report (covering the period January 2008 to December 2011) and since 2008, only about 4% of South African Police Service officials have completed the First Responder to Sexual Offences Learning Programme and Family Violence, Child Protection and Sexual Offences Course.

Nevertheless, even though the Government has duty to act, the Constitution also places an obligation on every one of us to respect the dignity and freedom of others - not only in the wider society, but especially those closest to us. No legislation or policy will change the mindset and attitude of men who believe it is their right to beat, harass or psychologically manipulate women around them. Violence against women - whether physical, sexual or psychological - is not acceptable, it cannot be condoned and may not be obscured by a culture of silence and impunity. It will need a change in individual mindsets and attitudes - change dearly required in our society, since men who commit these acts violate, in the most dreadful way, the most basic right of a woman - her dignity.

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Published in: Centre for Constitutional Rights