Nothing changes if nothing changes

2014-11-12 13:45

The Oscar Pistorius case is one of several gender-based violence and femicide cases that resulted in the male perpetrator receiving a meagre punishment while the female victim got the maximum punishment.

This because of the failure to integrate gender equality analysis in judicial decision-making processes.

Pistorius’ sentence is a symptom of the problem – the problem is the system that informs the legal and decision-making processes that lead to the court’s findings and judgment.

Hence I say: Nothing changes if nothing changes. How can you expect a different outcome when you operate as if there is one ideal user, not diverse users.

Women thought that the battle for social justice was won with the introduction of the Constitution in 1996. It is intended to be “transformative” and the promotion of gender equality is central in its quest for a society based on equal enjoyment of all human rights, freedoms and opportunities.

Women underestimated the inertia of apartheid and the legacy of patriarchy and masculinity. Patriarchy, the philosophy underpinning women’s subordination on one hand and male supremacy on the other, is often referred to as the oldest form of discrimination in the world.

Dislodging the legacy of patriarchy and masculinity – the foundations of sexism – goes against the grain of existing power brokers. So it is considerably more challenging because the social patterns of exclusion and disadvantages women experienced in the past remain a systemic feature of South Africa’s social and economic landscape.

If the judiciary does not mainstream gender equality in addressing violence against women, it fails to protect women. Women are killed, or sometimes resort to violence to defend themselves, precisely because the justice system fails to protect them.

Gender-based violence is a human rights violation and a brutal manifestation of substantive discrimination against women, occasioned through the subordination of women in a patriarchal society.

Cultural and religious institutions are often cited for promoting violence against women. The frequency with which women, family and home are seen to overlap with culture to be the main vessels for maintaining and continuing cultural and religious traditions is striking.

The “one size fits all” sentences for men who kill their spouses, and those for women who do the same, shows a gender bias as some of the available defences do not benefit women.

Impressive strides have been made in the representation of race and gender on the Bench. But transformation of the judiciary is not only about representation, it leads to women in the judiciary assimilating a system not designed for them.

“Transformation” implies a change from a state of affairs that existed previously.

Therefore, the judiciary must mainstream gender equality to enforce the principles of a new legal order founded on the principles of human dignity, the achievement of equality and the advancement of human rights and freedoms, nonracialism, nonsexism, and supremacy of the Constitution and rule of law.

The judiciary must respond appropriately to the discrimination and violence in the lives of females, the ultimate goal being to ensure that men and women access justice equally.

Historical disadvantages that undermine a woman’s equal ­access to justice were not necessarily created by the current justice system, they are caused by centuries of discrimination.

Failure by the judiciary and the judicial system to identify, address and remove the underlying causes of discrimination in the justice system results in a continued skewed access to justice and inequalities between men and women.

Shabangu is minister of women in the presidency

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