Abstract
This paper is about conflicts of rights, and the particularly difficult challenges that such conflicts present when they entail women’s equality and claims of cultural recognition. South Africa since 1994 has presented a series of challenging—but by no means unique—circumstances many of which entail conflicting claims of rights. The central aim of this paper is, to make sense of the idea that the institution of traditional leadership can be sustained—and indeed given new, more concrete powers—in a democracy; and to explore the implications that this has for women’s equality and equal human rights. This is a particularly pertinent question in the South African context, and I think it is worth reiterating from the outset that there is a distinct impression that women’s equality is always “up for grabs” when other, perhaps more powerful interests, come into play, in a way that would be unacceptable for other aspects of identity, and therefore signifiers of equality. It would be inconceivable, for example, to countenance a claim for a hierarchical racial arrangement in a given community, no matter how deeply culturally entrenched that arrangement was, and regardless of how much support it (ostensibly) had from the community concerned. I think therefore that we are obliged to ask difficult questions about the new legislation on traditional leadership, and to put it under the microscope of political theory in assessing the claim that this is one way of recognizing people’s rights and freedoms in a new democracy.
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Additional information
The Traditional Leadership and Governance Framework Act 2003, omits reference to the “powers” of traditional leaders, but rather refers to “functions and roles” which was regarded as something of a victory for women’s rights groups. However, the Commission on Gender Equality (CGE) and others point out that this victory has been all but nullified by the Communal Land Rights Act, 2004, which allocates powers of land administration to traditional councils, which are headed by traditional leaders. In any event, the “functions and roles” that traditional leaders are allocated in terms of the 2003 Act are sufficiently extensive that they may be seen to allocate “power” with the reference to lesser competence appearing to be a mere semantic device for the sake of compromise.
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Bentley, K.A. Are the powers of traditional leaders in South Africa compatible with women’s equal rights?: Three conceptual arguments. Hum Rights Rev 6, 48–68 (2005). https://doi.org/10.1007/s12142-005-1010-3
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DOI: https://doi.org/10.1007/s12142-005-1010-3