Will religious and traditional law take precedence over equality in the new Constitution? Etienne Mureinik looks at The Gender Question
IS the Constitution good for women? Both the interim Constitution and the final one now being written are constitutions to undo apartheid and its legacy.
The ideal of equality is therefore a central constitutional value, and it is widely agreed that the Bill of Rights should entrench that ideal strongly.
One consequence of that agreement is an equality guarantee that outlaws both sex and gender discrimination by name.
But the apparent consensus about gender equality is often superficial. Beneath the surface, there are serious tensions between gender equality and traditions followed in many South African communities.
Much of the debate has concentrated on the friction between gender equality and traditions in African customary law, such as polygyny, lobola, and male-only traditional
But there is as much friction between gender equality and important rules of religious systems, such as the Jewish law of divorce, the Muslim rules of inheritance, and the Catholic men-only priesthood. Why, then, is there so much more focus on African customary law?
Not, surely, because religion and custom are profoundly different. Many of the religious rules antagonistic to gender equality derive their force as much from tradition as from faith. And some rules of customary law may be as sacrosanct to their adherents, and carry as much spiritual meaning, as many religious
The better explanation for the difference is that customary law has been put under the constitutional spotlight by its own champions. It is because traditional leaders have demanded that customary law be recognised and reinforced by the Constitution that the question attracts attention.
When you demand that the Constitution lend its authority to a system of law, you immediately raise the question of how compatible that system is with the Constitution — including its guarantee of equality.
Religious communities such as Catholics and Jews have avoided that issue by keeping their distance from the Constitution. But the traditional leaders have invited scrutiny of their practices by seeking constitutional
So although custom may be receiving more attention in the constitution-making process than religion, both kinds of traditional rules, religious and customary, raise the same essential question: whether the ideal of equality affects all law universally, or is subject to exceptions.
Some argue that gender equality is a western secular idea, and that to impose it on non- western or religious traditions is cultural
In fact the difference between western secular law and the now-controversial traditions is largely a question of timing and degree. A century or so ago, the antipathy of western secular law towards gender equality was as marked as that of much current customary and religious law.
What is more, the power of the idea of gender equality comes not from external imposition, but from the internal logic of any system of law which aspires to do justice. Western secular law found that to achieve the kind of justice it wanted, it had to start taking the ideal of equality between men seriously.
Once it started doing that, it became difficult to explain why it was not also treating men and women equally. And then gender discriminatory rules started crumbling. Western secular law has been going through this process for a long time, and has made much progress towards gender equality.
That internal logic has the same force in religious and customary law. To achieve justice, those legal systems also need to take the idea of equality seriously, and religious or customary communities which have suffered discrimination feel that need especially keenly. But progress towards gender equality in those systems has been slower because they change more slowly.
Religious law changes more slowly just because it is thought to have divine authority. And the capacity of customary law to change has been impaired by colonial and apartheid interventions. The result is an urgent need to compress a process that has taken decades in western secular law into a very short period.
How effectively does the Constitution assist that process?
When the interim Constitution was being written at Kempton Park, the debate focused on a demand by traditional leaders for a clause explicitly exempting African customary law from the guarantee of equality.
That demand inspired women from several political parties to unite in a cross-party coalition which defeated the clause. But having spent itself on that effort, the women’s coalition lacked the energy to deal with other features of the interim Constitution which still have the potential to undermine their victory.
One such feature is a serious ambiguity about how much of customary law is covered by the interim Bill of Rights, and its guarantee of
It is clear that the Bill’s coverage includes written customary law, for instance customs codified into regulations made under a statute. But it is less clear that the coverage includes unwritten customary law — pure custom handed down by word of mouth.
The working draft of the final Constitution published recently clears up this ambiguity, making it clear that the coverage of the Bill of Rights is plenary.
The draft deals effectively also with the religious dimension of this issue.
The freedom-of-religion clause in the interim Constitution now in force contains a sub- clause insulating legislation recognising systems of religious personal and family law from challenge under the constitutional guarantee of equality. However, the drafters of the final Constitution have (in both senses of the word) emasculated that sub-clause by deploying an ingenious drafting device.
It is now becoming clear that equality is a sovereign value, prevailing over any system of traditional law enjoying constitutional reinforcement. The effect will be to energise the process of reviewing traditional systems of law for compatibility with gender equality.
Etienne Mureinik is a professor of law at Wits