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- Volume 25, Issue 3, 2009
South African Journal on Human Rights - Volume 25, Issue 3, 2009
Volume 25, Issue 3, 2009
Source: South African Journal on Human Rights 25, pp 407 –409 (2009)More Less
Economic, social and cultural rights have a particular significance for women because as a group, women are disproportionately affected by poverty, and by social and cultural marginalization. Women's poverty is a central manifestation, and a direct result of women's lesser social, economic and political power. In turn, women's poverty reinforces their subordination, and constrains their enjoyment of every other right.
Author Sandra FredmanSource: South African Journal on Human Rights 25, pp 410 –441 (2009)More Less
Socio-economic rights and equality have the potential to form a powerful partnership. However, the precise relationship in the context of gender remains controversial. In this article, I argue that simply extending socio-economic rights to women is not sufficient. This does little to address the gendered nature of social institutions and structures. Instead, socio-economic rights should be 'engendered' or infused with substantive gender equality. This article develops this argument first by developing a multi-dimensional understanding of substantive equality, and then analysing the effect of such an understanding on the characterisation of the right itself. Engendered socio-economic rights aim to take account of the power relations in which rights are exercised, in order to enhance the set of feasible options open to women, while at the same time supporting the values of interdependence, solidarity and care, whether or not based on choice. In the final part, I consider how this approach might inform the interpretation of equality and socio-economic rights in selected human rights instruments. At both regional and international level, there is scope for interpreting equality either as an add-on to rights, or as a means of engendering socio-economic rights. I suggest that the latter gives a richer and more effective way of taking equality and socio-economic rights forward.
Author Beth GoldblattSource: South African Journal on Human Rights 25, pp 442 –466 (2009)More Less
Women in South Africa are generally poorer than men and more vulnerable. They perform the bulk of the caring functions in society, usually without remuneration. Their greater need is reflected in their disproportionate use of the social assistance system. This system is evaluated in terms of the right to social security contained in South Africa's Bill of Rights. The right is explored, interpreted and developed from a feminist legal perspective. The categories of reformism, feminist critique and utopianism are used to 'engender' the right. International law, as well as the emerging jurisprudence on the right to social security, is considered in the reconceptualisation of the right. This article briefly discusses some of the gender dimensions of each of South Africa's three, largest social assistance grants - the Old Age Pension, Child Support Grant and Disability Grant. It points to some of the areas of research and future examination that would assist those attempting to expand the meaning and reach of the right to social security so that it is able to help everyone in South Africa, and in particular, poor women to 'improve their quality of life' and 'free their potential'.
Author Cherryl WalkerSource: South African Journal on Human Rights 25, pp 467 –490 (2009)More Less
This article explores the conceptual and applied challenges that arise in addressing, firstly, land as a socio-economic right and secondly, women as a social category, and then reviews what is currently in place with regard to gender equality in land rights, in terms of the Constitution and at the level of state policy and implementation. Land rights constitute a distinctive category of socio-economic rights and the relationship between stronger land rights and enhanced well-being (for both men and women) is not a simple and unmediated one. At the same time, women's interests in land are not uniform but are shaped by complex intersections among various issues, including the broader economic context, their social location, and the effects of social change on family forms and household structure. In the South African case, given general problems with the state's programme of land reform, the question of what it means to infuse the principle of equitable property rights, more specifically land rights, with substantive equality is still an open one. Substantive gender equality in relation to land can also not be separated from other struggles for socio-economic rights.
Source: South African Journal on Human Rights 25, pp 491 –516 (2009)More Less
Women's rights and customary law are often understood as being in opposition to one another. This article challenges the usefulness of the prevailing custom / rights dichotomy, arguing that it obscures the way in which struggles to claim resources such as land combine 'human rights' equality claims with claims to customary entitlements. The article focuses on contestation over who has the power to define custom, rights and customary entitlements. It discusses the democratic potential inherent in Constitutional Court judgments that define customary law as 'living law' reflecting changing practice, and the dangers posed by national legislation that reinforces the power of traditional leaders to unilaterally define custom. It argues for legal strategies that engage with, and support, the struggles for change taking place at the interface between custom and rights in the former reserves. We draw on insights about the nature of rights and rights struggles in the work of Nedelsky, Nyamu Musembi and Merry to argue for an approach to rights that focuses on the relationships and power relations that rights mediate, rather than solely on rights as 'boundaries of autonomy'. Moreover, engaging with processes of women claiming, redefining and 'vernacularising' rights within their communities relates directly to the project of engendering socio-economic rights, given the primacy of claims of need, and of access to material resources, within indigenous constructs of relative rights.
Source: South African Journal on Human Rights 25, pp 517 –545 (2009)More Less
Housing legislation and policies in South Africa attempt to incorporate gender concerns and ensure women's participation in housing delivery. Despite this, a number of inadequacies and gaps in the implementation of legislation and policies exist. Moreover, the legal and social framework through which housing delivery takes place results in inequities in access to housing. A gendered, or feminist, perspective on women and access to housing considers the practical reality of poor women and women-headed households, as well as the ways in which law, policy and social practices perpetuate the disadvantage which many poor women face. This article adopts a gendered perspective to provide a critique of the systemic constraints which poor women face and which undermine their full enjoyment of the right to access adequate housing: namely, their greater vulnerability, when inadequately housed, to gender-based violence; their particular vulnerability to forced eviction; and the disproportionate burden they bear to provide childcare. Using the framework developed by Sandra Fredman of a capabilities and substantive equality approach to socio-economic rights, the article concludes by examining the means through which the housing sector may be gendered, by considering women's disadvantage, accommodating women's difference and encouraging greater participation of women in decision-making.
Source: South African Journal on Human Rights 25, pp 546 –572 (2009)More Less
South Africa has a commendable legislative and policy framework for basic services that explicitly recognises historic disadvantage, including gender. Yet, as explored in this article, inadequate access to water and electricity services has a disproportionately negative effect on women. This is because there is a sexual division of labour within most households meaning that, in addition to typically being singly responsible for childcare, washing, cooking and cleaning, women must usually also take on the role of managing water and energy supplies. In this role, women experience multiple obstacles in accessing these goods, related to the availability, affordability and amount of water and electricity supplied. Analysing such obstacles, this article concludes that, as public services that enter the private realm of the household, water and electricity services are perhaps uniquely resistant to gender-specific legislative and policy recommendations. It suggests that the best way to improve women's access to basic services is through a socio-economic class analysis, advancing greater access by poor households.
Author Carole CooperSource: South African Journal on Human Rights 25, pp 573 –605 (2009)More Less
Women in South Africa experience high levels of poverty, as they are forced to eke out a living on the margins of society. Main drivers of this poverty are unemployment and low-waged, menial work. Many women are found in non-standard or precarious forms of employment, including work in the informal economy, and fall outside the protection of labour law. A major factor contributing to this unenviable position is the double-working day phenomenon - a function of women's gender. Women spend inordinate amounts of time in reproductive and subsistence functions for the family and community and this often acts as a barrier to their ability to compete with men in the job market, including job creation schemes. The article addresses the question whether a constitutional right to work is necessary to address the precarious position of women in the workforce, thereby alleviating their poverty - an essential prerequisite for social justice. It analyses three forms of the right - the right to work as provision of a job, the right of access to inputs to enable women to find work, and the right to protection at work. These conceptualisations of the right are assessed in the context of international law and applied to the current position of women in the labour force. The article concludes that a right to work could play a valuable role in alleviating the plight of women, both in terms of the provision of work and access to work. Insofar as current labour law is unable fully to protect women in work, a right to work could also address those lacunae.