The Search for Equality: Mandela loves women
In the prologue to the series “Pies in the Sky: Manna for Jurisprudes” we noted that legal theory serves as a toolkit that enables and disables, guides and restrains; the wielding of power, the exercise of rights and the resolution of disputes. One of such major disputes in the twenty first century is gender relations. In the West, the ‘me too’ movement is resetting gender relations. Across the world, formal equality of both genders is commonplace but challenges abound in what formal equality means in specific instances. The last century saw the struggles for ‘personhood’, the right to vote, reproductive rights and the shuttering of other structural glass ceilings. In the twenty first century women have risen to very high leadership positions, in politics and in the corporate world, realizing only some of the goals of the struggles of the last century. The bigger contentions in the twenty first century, many feminists contend, are latent barriers—micro aggressions, subtle discriminations, double standards and unequal economic opportunities for women. These challenges may lack the moral clarity behind the advocacy for the franchise or reproductive rights but are defining of life in the twenty first century for women. In Ghana we see these confrontations play out, too. But, the resolution of these contentions, just as it was in the twentieth century, must be anchored in law. Yet, the contentions do not necessarily require new responses from the law more than it requires determining (anew) the true meanings of already existing notions of law, one of which is equality. I argue in this post that the meaning of equality between the two genders within existing notions of law is a task that presents ‘manna for jurisprudes’.
Nelson Mandela became president of South Africa in 1994. In June of that same year, he exercised his prerogative of mercy pursuant to the interim constitution of the country releasing women who had children below 12 years from prison. The president based his decision on the fact that women in South Africa bore the burden of raising children and so it was in the children’s interest to have their mothers at home. Meanwhile, Mr. Hugo, who was also in prison had a child below 12 years whose mother had died. Mr. Hugo thus brought an action against President Mandela alleging that the Presidential Act was in violation of the provisions of section 8(1) and (2) (on equality and non-discrimination) of the interim Constitution in as much as it unfairly discriminated against him on the ground of sex or gender and indirectly against his son because his incarcerated parent was not a female.
In the trial of first instance, the court found in favor of Mr. Hugo and ordered the president to correct the invalidity within six months. An appeal was brought to the constitutional court on behalf of the president and the minister for correctional facilities, President of South Africa v Hugo CCT 11/96. The case before the court turned on the meaning of equality and whether or not the president’s order was discriminatory. The constitutional court overturned the judgment of the trial court and allowed the president to proceed with the order. But two judges, Goldstone J who wrote the majority decision and Kriegler J who dissented took very different positions on the question of equality in a way which makes for interesting discussion.
Both parties to the dispute as well as the bench accepted one fundamental proposition which was; women in South Africa have historically bore the burden of raising children, this fact has also been used to their disadvantage and to the advantage of men in many spheres of society. The plaintiff respondent, in spite of this asserted that that general disadvantage of women was no grounds to discriminate against him in this particular situation especially when the constitution gives him a right to equal treatment. President Mandela in his affidavit gave policy reasons for his action which mainly centered on the needs of children and the fact that he was using his prerogative powers as president which no one is entitled to.
Goldstone & Kriegler
Judge Goldstone and the majority went with the following logic: that women bore the burden of child rearing is not justification for treatment that deprives women of benefits or advantages or imposing on them further disadvantages. However, the case before it was different. President Mandela did not discriminate against male prisoners so much as to confer an advantage on female prisoners who are part of a disadvantaged group. They pointed out in addition that the president’s prerogative power to pardon are important for two reasons (1) to correct mistaken convictions and excessive sentences and (2) to pardon individuals the president thinks will be in the public interest to do so. The majority held the view that equality in the constitution did not mean equal treatment in every single case and that the meaning of equality should be looked at on a case by case basis. Beyond holding that conferring an advantage on a disadvantaged group was not discriminatory, the court took notice of the fact that men outnumber women in prison by 50:1 and it may not necessarily be in the public interest to release all of them. Thus, the president must be allowed to release the 440 women who fell within the scope of this executive act.
Judge Kriegler, delivered a dissenting opinion on the discrimination question of the president’s act. He contended that the fact that the president’s act is clearly in good faith does not mean it does not violate the equality clause in the constitution. On justifying the president’s act on women’s disadvantage Judge Kriegler reasoned as follows:
In my view the notion relied upon by the President, namely that women are to be regarded as the primary care givers of young children, is a root cause of women’s inequality in our society. It is both a result and a cause of prejudice; a societal attitude which relegates women to a subservient, occupationally inferior yet unceasingly onerous role. It is a relic and a feature of the patriarchy which the Constitution so vehemently condemns.
Further, Kriegler contended that the majority’s decision is even more flawed when it is considered that the presidential act was only to the benefit of 440 women. It does not make sense to Judge Kriegler that such a stereotype had to be rehashed to the benefit of few women even though it would adversely affect the bulk of women in South Africa.
Clearly, there are no easy answers on the question of gender equality. In the words of Judge Kriegler “I also acknowledge that this is not only a hard case but an awkward one for the development of our equality jurisprudence, one in which its application to reality is slippery”. This is why it is necessary to keep thinking about these questions. For better or worse, this century must grapple with gender equality in a broader scope than ever before, the law, as always must anchor it.
It has become fashionable in recent times to talk down on theoretical subjects. The argument is that practical knowledge is more useful especially for developing countries. Within this school of thought, there is an insistence on science even though it is often mistakenly thought that science is non-theoretical. The antipathy for legal theory exists on this skeptical axis alongside scorn for the humanities in general. As I pointed out in part 3, the tussle on methodology and approaches to knowledge acquisition and transfer (epistemology) goes back millennia. But law in particular has legal theory to thank for its increasing intricacy and enduring relevance both as an area of study and as a feature of organized society. In the nineteenth century, the insistence on bringing into the law, a sustained thinking of questions of law outside the nuts and bolts or mechanics of lawyering that was treated like a trade and learnt by apprenticeship arguably has saved the legal profession from becoming an anachronistic endeavor. That turn also brought law to the academy (university) to be studied as an academic discipline.
It should be clear by now, that, in the least, legal theory is the flashlight of the law. It is with that light that new paths have been discovered to broaden the frontiers of the law. Whether in the Universal Declaration on Human Rights, creating new forms of action outside the privity of contract, and providing mechanisms with which our corporate entrepreneurial instinct can thrive and grow our economies, every step of the way, it is that sustained thinking about the role of the law in our world that blazed the trail.
In part one of this series, it was shown how legal theory can interfere with what could be deemed personal affairs. In part two, the brooding omnipresence of the law was illustrated by showing the pointlessness of running from it. In part three we saw how only the sustained thinking about the law is our onlyresort when existing notions of law are inadequate. In part four, we continue to see how that sustained thinking can shape a more equitable world.
I hope you have enjoyed this series and that at least I have stimulated some thinking in your mind that legal theories are not pies in the sky, but real manna for jurisprudes—those who welcome the task of that sustained thinking in a bid to meet the needs of our society with the law. The antipathy for legal theory is therefore unwarranted as the great Justice Oliver Wendell Holmes puts it:
“Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in in the building of a house. The most important improvements of the last twenty five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject”.
The Path of the Law, 1897 Pp 39.
Finally, I like to express my profound gratitude to Priscilla Vitoh for writing part two and for her general contributions to the discussions that have shaped the subject matter of this series and Jude Serbeh-Boateng for his constructive critique.