South Africa: Traditional Courts Bill a Step Backwards for Women’s Empowerment

September marks the annual Heritage Month in South Africa. Heritage month celebrates and affirm individual and collective cultural, traditional and ethnic diversities. It also includes traditional practices and values that have been passed on from generation to generation since time immemorial. This heritage month, as politicians stall the withdrawal of the controversial Traditional Courts Bill, it’s important to consider what the legislation could mean for the average South African woman.

While human rights activists say the Bill does not adequately represent or protect women, in particular rural women, traditionalists disagree arguing that activists should not make pronouncements about what traditional leaders can do.

In the meantime, a recent chat with a woman from the rural Eastern Cape – I’ll call her Buhle – left me questioning gains made towards women’s empowerment in this country.

Buhle has been married since age 17. Her husband is 15 years her senior and they were wed under ukuthwala, the traditional practice in which a young woman is abducted for marriage. Buhle told me that like most women in her situation – I assumed she meant women married under ukuthwala – she is not allowed to visit her family unless it is a special occasion. This is despite the fact that her family live nearby. Buhle does all the domestic chores; her husband does nothing around the home.

My ears perked up when Buhle said she has devised a way to get her husband to “help” around the home. In an unexpected solution, Buhle told me she “provokes” her husband to beat her. This guarantees one of two things: she is able to run away from his beatings and flee to her family’s village for a visit, or her husband is forced to help with household chores as he nurses her back to health.

I shudder to think about the extent of the beatings. Buhle made no mention of reporting this abuse to police.

It is sad that a woman can justify abuse. It seemed to me that in addition to the physical damage it caused, it also inflicted deep psychological harm.

This discussion calls into question the effectiveness of our gender empowerment strategies and South Africa’s overall commitment to women’s empowerment. The strategies employed in this task are too often superficial, falling short of addressing the root cause. While South Africa arguably has some of the most progressive women’s emancipation policies in the world, implementation remains poor. South Africa is also globally known for other not so progressive statistics when it comes to women. According to the Institute of Security Studies, seven women were murdered every day in South Africa between March 2010 and March 2011.

My conversation with Buhle occurred amidst ongoing and divisive debate about the Traditional Courts Bill, which would give traditional leaders the authority to make laws, adjudicate compliance and enforce penalties. It contradicts the doctrine of separation of powers enshrined in the Constitution.

The Bill would have severe implications for women like Buhle, further stripping them of their rights. A revival of traditional authorities in rural settings, coupled with poor infrastructure and oppressive customs and beliefs, is a recipe for an increase in gender-based poverty and abuse. It also threatens the constitutional and legal framework of women’s right to equality.

Moreover, the Bill deals female rural farmers like Buhle another heavy blow: it gives traditional leaders jurisdiction over natural resources such as land – women’s principal source of livelihood. Under customary law, only men can exercise land ownership rights and husbands or male neighbours must represent women in any land dispute.

The media has reported that in some cases women have been banned from hearings altogether. This is very worrying considering South African law states that such processes should be inclusive and allow input from all involved, male and female.

It is significant that delegates at the June ANC Policy Conference agreed to outlaw the harmful cultural practices ukuthwala and ukungenwa, the system under which a widow is assigned one of her late husband’s brothers as her new husband. The ruling party argues that such practices contradict the human rights ethos of South Africa’s Constitution. The Congress of Traditional Leaders of South Africa, notably, has also condemned these practices.

One thing is certain: the Traditional Courts Bill has spurred a necessary debate about how to tackle the collision of human rights and culture. Opposition to it should not be misconstrued as an attack on the institution of traditional leadership – it is rather a reminder that cultural rights do not trump women’s rights, especially in one of the world’s most dangerous places to be a woman.

This debate also underscores the need to align the traditional justice system with the Constitution and to continue pushing for better implementation of the country’s progressive women’s empowerment strategies.

Sehlaphi Dawu Sibanda is a South African activist and human rights defender. This article is part of the Gender Links Opinion and Commentary Service, bringing you fresh views on everyday news.