The democratic constitution and the gender question

• Nov 12, 2012
• pallo jordan, gender equality, constitution, anc
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Pallo Jordanⁱ, in a discussion paper in preparation for the 50^th national conference of the African National Congress (ANC) in August 1997, makes the important point that although 27 April 1994 will remain a very significant day in South African history, in reality it merely marks a high point in a continuing process. “In that ongoing process there will be moments of rapid advance, but there will also be the need, sometimes, to retreat. Retreating does not mean conceding defeat, it is most often a tactical manoeuvre undertaken to put off until a more opportune time an action one would have preferred to take in the present.”

He goes on to observe, correctly so, that the 27 April 1994 victory was further consolidated with the signing into law of the Constitution in December 1996.

• The guiding principlesⁱⁱ in the “ANC Policy Proposals for the Final Constitution”, tabled by the ANC in 1995, are as follows:
• The constitution of South Africa shall create the framework to build a united and undivided nation.
• The character of the state shall be a multiparty democratic state based upon democratic majority rule.
• The constitution shall commit the country to a non-racial and non-sexist order based on the inherent dignity of all persons and the equal enjoyment of all human rights.
• There shall be a Bill of Rights guaranteeing all accepted human rights including socioeconomic rights and which shall be, where appropriate, applicable against all sources of power.
• The constitution shall as far as possible empower the poor and the vulnerable to enforce their rights and shall inter alia create a Human Rights Commission and a Public Protector to perform this function.
• There shall be regular elections, at no longer than five-year intervals, on a common votes roll based on universal adult suffrage at all levels of government. The electoral system at the various levels shall ensure accountable representation.
• Parliament shall, subject to the constitution, be the supreme lawmaker, and the expression of the will of the people. The executive will be accountable to it.
• Parliament must not be limited in its capacity to legislate so as to address the legacy of the past, including such issues as land restoration, redistribution and affirmative action.
• Government shall be formed by the majority party or voluntary coalitions, if any.
• Government shall be honest, accountable, transparent and cost effective.
• There shall be a democratically elected government at regional and local levels, both urban and rural, whose powers shall be set out in the constitution. The powers of regional government shall be subject to the need for national uniformity, national reconstruction and development, as well as the values in the Bill of Rights. National government shall be ultimately responsible for financial and fiscal matters.
• The civil service shall be representative, impartial, and shall loyally serve the government of South Africa, and mechanisms shall be adopted to ensure the accountability and transparency of the public service.
• Separation of powers between the organs of government shall be provided for in a manner consistent with the accountability of the executive to Parliament.
• The role and status of traditional leaders in the non-partisan promotion and protection of customs, culture and customary law shall be recognised, subject only to the principles set out above.
• Powers should be distributed to the provinces so as to promote on the one hand government closer to the people, and popular participation in governance, and, on the other, to minimise antagonistic divisions between provinces and between levels of government.
• All provisions of the final constitution shall be capable of amendment subject only to the constitutionality prescribed majorities and procedures.

These principles as set out by the ANC in 1995 did find expression in the final Constitution that came into law in December 1996. As Jordan argued, “… revolutions are not a moment, they are processes. They are processes in which there are nodal moments – like 27 April 1994 – but they are a continuum. Our own national democratic revolution is no different.”ⁱⁱⁱ

Nodal moment

Indeed, December 1996 marked such a nodal moment. The Strategy and Tactics^iv adopted by the 50^th national conference of the ANC held in Mafikeng in December 1997 notes that “The new constitutional order and the government based on the will of the people express both the immediate and long-term interests of the overwhelming majority of South Africans. They accord with the world trend towards democratic, open and accountable government. But the balance of forces both within South Africa and internationally is such that these interests can be subverted by capitalism’s rapacious licence. In this sense, therefore, the basic framework of our democratic achievement in South Africa is irreversible: but it can be derailed, leaving us with a shell of political rights without real social content.”

The Mafikeng conference of the ANC reaffirmed the characterisation of South Africa as a British colony of a special type – a situation in which both the “colonial power” and the colonised shared the same territory. But, most importantly, this conference elevated the gender content of the struggle for liberation.

The 1997 Strategy and Tactics document states, “For both the reproduction of the colonial state and the reproduction of the homestead, the productive role of women was vital. As such, one feature of the evolution of the colonial system was the coincidence of patriarchal controls embedded in customary laws and practices, with the objectives of the colonial state to restrict women to inferior roles in society, including their access to employment and their movement out of the homestead

“It is thus in the very intersection between colonialism, capitalism and traditional authority that the added oppression of women became embedded, and assumed various forms with the development of colonial society. The manner in which patriarchy asserted itself, within both the coloniser and oppressed communities, also depended on the different classes, races, religions and cultures to which women belonged.”

The document went on to say, “From the early stages of colonialism, women resisted the new evolving relations of patriarchy directly, including oppressive traditional practices, as part of the struggle against class and national oppression. Over many decades, their resilient struggles against colonial and gender oppression helped entrench the cause of gender equality as an essential element of the liberation struggle, be it in mass and armed action, underground and international work, or negotiations … By the seventies, the intersection of class, national and gender oppression was firmly identified and a simultaneous struggle against each of these was intensified. These activities influenced and were themselves impacted upon by the international gender struggles.”^v

The 1997 Strategy and Tactics document notes that negotiations entailed compromises on the path to be followed to the final objective, which were influenced by the prevailing balance of forces – “In the first instance, at the beginning of negotiations, neither the liberation movement nor the forces of apartheid had emerged as an outright victor … as the regime made tactical blunders, the resolve of the mass of the people and the groundswell of local and international public opinion shifted decisively in favour of a speedy resolution of the conflict. In the end, the regime conceded the basic outlines of a democratic settlement that accorded with universal principles of democracy, including gender equality.”

The final settlement, codified in the Constitution adopted in 1996, contains the framework for democratic majority rule and the platform to build a truly united, non-racial, non-sexist and democratic society.

Pallo Jordan, in his discussion paper, says, “…revolutions are not a moment, they are processes. They are processes in which there are nodal moments – like 27 April 1994 – but they are a continuum. Our own national democratic revolution is no different.”^vi

In my humble opinion, the adoption of a democratic constitution is one such a nodal moment.