South Africa

South Africa continues to be a nation that is celebrated for producing one of the most progressive constitutions in the world. In an effort to depart from its oppressive apartheid past, the Constitution of South Africa, as the supreme law of the land, ‘...lays the foundation for an open society based on democratic values, social justice and fundamental human rights...’.

While this legislation continues to guarantee the rights of its citizens, after two decades of democratic governance, it is evident that what is aspired to in the Constitution is not being fully realised in reality. There exists a disjuncture between the ethos of this – and other laws – and the realisation of the human rights they embody, especially for people who do not conform to hegemonic gender and sexuality norms. One area where this gap manifests itself is in South Africa’s high levels 

Partners

Our partner

  • SONKE Gender Justice is a non-partisan, non-profit organisation, established in 2006. Today, SONKE has established a growing presence on the African continent and plays an active role internationally. SONKE works to create the change necessary for men, women, young people and children to enjoy equitable, healthy and happy relationships that contribute to the development of just and democratic societies. SONKE pursues this goal across Southern Africa by using a human rights framework to build the capacity of government, civil society organisations and citizens to achieve gender equality, prevent gender-based violence and reduce the spread of HIV and the impact of AIDS.

Case study

The policy audit produced by Charles and Sonke Gender Justice commented upon the policymaking processes that led to the development of the White Paper on Families. The report highlights the power dynamics that have led to the inclusion and exclusion of specific content and language, particularly around the notion of what constitutes a family in contemporary South Africa. It considers the diverse roles played in the drafting of this document by civil society representatives, government representatives and the general public. 

The case study produced by Lewin, Williams and Thomas examined two cases of homophobic hate crime in post-apartheid South Africa. It illuminated how activists have used the legal system to address the violence faced by many lesbian, gay, bisexual, transgender, queer or intersex (LGBTQI) South Africans.

Finally, the case study examining Sexual and Reproductive Health and Rights (SRHR) within South Africa's constitutional and legal framework reflects the country's commitment to match international benchmarks. Nevertheless, women's rights are still abused and overlooked. Numerous policies detail the provision of services around sexual and gender-based violence, fertility, maternal, perinatal and newborn health, sexually transmitted infections (including HIV), and cancers of the reproductive system. This case study presented five examples of the violation of sexual and reproductive health rights of women living with HIV, and explores the underlying causes and dynamics

Methodology:

In approaching the policy audit on the White Paper on Families, Sonke Gender Justice participated as a civil society representative on the Governmental ‘task team’, which was composed of government representatives from various departments and civil society organisations, mainly to assist with the white paper’s development. This insider access made it possible to identify the actors who framed what is included and excluded in the policy, while observing the power dynamics undercutting this framing process. The main methodology that was employed to evaluate the progress of the white paper was participant observation – a methodological approach which centred on direct engagement with the studied group (in this case, the task team) and observing their practices as a fellow member of that group. It was complemented with interviews with Sonke staff, government officials, civil society representatives and other relevant individuals within the task team, as well as those who attended any open meetings and other discussions on the paper. Content analysis of the White Paper on Families was employed as an additional research methodology to measure what information was included or excluded in the drafting process.

The team working on the homophobic hate crime case study engaged with the work of many feminist and LGBTQI activists who have been working in this field over a long period of time. It has drawn on interviews with activists and researchers, as well as on research conducted by Human Rights Watch (2011) and by the Human Science Research Council in South Africa (Mkhize et al. 2010). One of the authors of this paper, Kerry Williams, led the legal team on the Mazibuko case and her intimate knowledge of the criminal justice system in South Africa was central to the findings. The explanation of the Mazibuko case draws on the case transcripts. The Nkonyana case study draws on the press coverage of the case, as well as interviews with key stakeholders.

The case study looking at Sexuality and Reproductive Health Rights was based on a review of current literature on SRHR issues for HIV positive women in South Africa, including academic literature, grey literature, a review of policy briefs and research reports. A review of the legal framework was performed to examine the relevant legislation and policies. Following an analytic framework on policy process, the actors, networks and institutions involved in the process of SRHR policy were also mapped. This desk-based research was complemented with interviews with key informants on SRHR for HIV positive women in South Africa from civil society organisations and academic institutions, including people involved in policy reform.

Sexuality and the Law: Case Studies from Cambodia, Egypt, Nepal and South Africa

  • Engaging with the law and seeking policy reform is potentially a dangerous activity especially in countries which do uphold the rule of law or where laws are in rapid flux and have little correspondence to lived social realities.
  • Sexuality is significant in relation to law and development
  • Sexuality should be explored as a broad concept and not to be confined by specific forms of categorisation of sexualities but identities and constructs can also provide entry points and modalities for legal recognition, funding for essential services and other advantages.
  • Even when the rule of law is strong, this does not ensure that the law and legal processes are appropriate or accessible.

Case Study: Sexual and Reproductive Health Rights of Women Living with HIV in South Africa

  • This case study presents five examples of the violation of sexual and reproductive health rights of women living with HIV, and explores the underlying causes and dynamics. 
  • The review presents a number of key recommendations for South African activists, the South African government, and international donors such as measures to harmonise existing policies to fit the needs of women living with HIV
  • Establish and institutionalise rights-based training for health care workers and to institute redress mechanisms for women whose rights have been violated

Case Study: A Progressive Constitution Meets Lived Reality: Sexuality and the Law in South Africa

  • In the South African legal context, hate crimes are not yet recognised as a specific category, despite high levels of physical and sexual assault based on sexual orientation or gender identity.
  • Homophobia, conservatism and a weak rule of law have made it difficult for gay, lesbian and transgender people to realise their rights as enshrined in the South African Consitution.   

Policy Audit: 'Marriage Above All Else': The Push for Heterosexual, Nuclear Families in the Making of South Africa's White Paper on Families

  • South Africa is the only country in Africa where same-sex marriage is legal.
  • Despite a progressive constitution which outlaws discrimination on the basis of sexual orientation, non-heterosexual families continue to be excluded from the benefits of the South African welfare system