A critical investigation of the relevance of theories of feminist jurisprudence to African women in South Africa
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
- Authors: Mangwiro, Heather K
- Date: 2005
- Subjects: Feminist theory Feminist jurisprudence Women -- Legal status, laws, etc. -- South Africa Women's rights -- South Africa Sex discrimination against women -- South Africa Sex role -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3712 , http://hdl.handle.net/10962/d1007328
- Description: Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
- Full Text:
- Date Issued: 2005
Law and culture in the new constitutional dispensation with specific reference to the custom of circumcision as practiced in the Eastern Cape
- Authors: Momoti, Ndyebo Kingsworth
- Date: 2004
- Subjects: Xhosa (African people) -- Social life and customs Xhosa (African people) -- Rites and ceremonies Circumcision -- Law and legislation -- South Africa -- Eastern Cape Initiation rites -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3685 , http://hdl.handle.net/10962/d1003200
- Description: This study examines the custom of circumcision in the context of culture, law and the Constitution. In Chapter 1 the writer considers the pervasive role of culture in the context of the current debate in relation to equality versus culture. In Chapter 2 the writer considers the origin, development and the legal significance of the custom of circumcision in the Eastern Cape. In Chapter 3 the writer traces the circumstances leading to the enactment of the Provincial statute governing circumcision of children. In this chapter the writer also poses the question whether an aspect of morality can effectively be regulated by law. Chapter 4 looks at the question of cultural rights in terms of the Constitution and the possible effect of the promulgation of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act 19 of 2000 on the approach of the courts in respect of constitutional challenges directed at some aspects of customary law. Chapter 5 looks at the custom of circumcision and the need for the protection of children. The writer raises the issue of the role of traditional leaders in the eradication of abuses associated with circumcision. The last Chapter comments on the reasons for the failure of the new Act governing circumcision in the Province.
- Full Text:
- Date Issued: 2004
- Authors: Momoti, Ndyebo Kingsworth
- Date: 2004
- Subjects: Xhosa (African people) -- Social life and customs Xhosa (African people) -- Rites and ceremonies Circumcision -- Law and legislation -- South Africa -- Eastern Cape Initiation rites -- South Africa -- Eastern Cape
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3685 , http://hdl.handle.net/10962/d1003200
- Description: This study examines the custom of circumcision in the context of culture, law and the Constitution. In Chapter 1 the writer considers the pervasive role of culture in the context of the current debate in relation to equality versus culture. In Chapter 2 the writer considers the origin, development and the legal significance of the custom of circumcision in the Eastern Cape. In Chapter 3 the writer traces the circumstances leading to the enactment of the Provincial statute governing circumcision of children. In this chapter the writer also poses the question whether an aspect of morality can effectively be regulated by law. Chapter 4 looks at the question of cultural rights in terms of the Constitution and the possible effect of the promulgation of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act 19 of 2000 on the approach of the courts in respect of constitutional challenges directed at some aspects of customary law. Chapter 5 looks at the custom of circumcision and the need for the protection of children. The writer raises the issue of the role of traditional leaders in the eradication of abuses associated with circumcision. The last Chapter comments on the reasons for the failure of the new Act governing circumcision in the Province.
- Full Text:
- Date Issued: 2004
A study of the powers of the Swazi monarch in terms of Swazi law and custom past, present and the future
- Authors: Khoza, Phumlile Tina
- Date: 2003
- Subjects: Kinship -- Africa Swazi (African people) -- Social life and customs Customary law -- Swaziland Constitutional law -- Swaziland Swaziland -- Politics and government
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: vital:3702 , http://hdl.handle.net/10962/d1004723
- Description: The thesis covers the branches of law known as Constitutional law and Customary law. It focuses on the powers of the Swazi monarch, which are based on a combination of the received Western law and Swazi custom. For the purposes of this study, therefore, Swazi law and custom shall be taken to include both the statutory law and the yet unwritten customary law. Swaziland is black Africa's only remaining traditional monarchy, ruled as it is by the Ngwenyama, an indigenous institution, whose origin is derived from custom. The resilience of this ancient system of government in a continent where modernisation and constitutional democracy among other factors have led to its extinction is phenomenal, particularly because some commentators have described traditionalism in modern Africa as an "embarrassing anachronism.' In Swaziland the monarchy continues to be a vibrant system and the nation is currently engaged in a process of not only codifying the customary law but also of drafting the constitution of the country. One of the key areas of concern is the question of the distribution of power between the monarch and the people under the proposed constitution. Traditionalists are of the view that the powers that the King currently exercises should remain intact as they are a reflection of the Swazi law and custom. Progressives, on the other hand, are of the view that the current position makes the King an absolute monarch and are thus proposing a change from an absolute to a constitutional monarch. In other words they want some kind of checks and balances in the envisaged system of government. The study will show that the constitutional evolution of Swaziland and the exigencies of synthesising modern and traditional systems of governance have over the years obscured the true nature of the powers of the monarch in terms of Swazi custom. Thus before we can consider whether the future of the monarchy in Swaziland depends on the harmonisation of modern and traditional systems of governance, it is necessary to revisit the past to determine the powers of the monarch in their embryonic form, for it is from this period that we can extrapolate the powers of the Ngwenyama in terms of Swazi custom. The thesis has been arranged as follows: The first chapter will review the precolonial political system of Swaziland with a view to establishing whether monarchical authority was founded on command or consensus. The various theories, which seek to explain the foundations of the monarchical system of government, will be outlined. The second chapter will focus on European influence on the Swazi traditional system of government. The third chapter will be an analysis of the powers of the monarch under the 1968 independence constitution. The fourth chapter will focus on the effect of the repeal of the 1968 independence constitution by the Monarch. The fifth chapter will focus on the constitutional reforms under the reign of king Mswati III. The sixth and last chapter focus on proposals for reform. The research method used was in the main, an analysis of relevant legal principles as contained in textbooks, legislation, journals, the scant case law that is available in this area of the law and other relevant materials. A comparative survey of ancient African kingdoms will be done, with emphasis on those Kingdoms, which later became British colonial possessions. It is hoped that this comparative analysis will help explain the evolution of these traditional structures alongside modern governmental institutions.
- Full Text:
- Date Issued: 2003
- Authors: Khoza, Phumlile Tina
- Date: 2003
- Subjects: Kinship -- Africa Swazi (African people) -- Social life and customs Customary law -- Swaziland Constitutional law -- Swaziland Swaziland -- Politics and government
- Language: English
- Type: text , Thesis , Masters , LLM
- Identifier: vital:3702 , http://hdl.handle.net/10962/d1004723
- Description: The thesis covers the branches of law known as Constitutional law and Customary law. It focuses on the powers of the Swazi monarch, which are based on a combination of the received Western law and Swazi custom. For the purposes of this study, therefore, Swazi law and custom shall be taken to include both the statutory law and the yet unwritten customary law. Swaziland is black Africa's only remaining traditional monarchy, ruled as it is by the Ngwenyama, an indigenous institution, whose origin is derived from custom. The resilience of this ancient system of government in a continent where modernisation and constitutional democracy among other factors have led to its extinction is phenomenal, particularly because some commentators have described traditionalism in modern Africa as an "embarrassing anachronism.' In Swaziland the monarchy continues to be a vibrant system and the nation is currently engaged in a process of not only codifying the customary law but also of drafting the constitution of the country. One of the key areas of concern is the question of the distribution of power between the monarch and the people under the proposed constitution. Traditionalists are of the view that the powers that the King currently exercises should remain intact as they are a reflection of the Swazi law and custom. Progressives, on the other hand, are of the view that the current position makes the King an absolute monarch and are thus proposing a change from an absolute to a constitutional monarch. In other words they want some kind of checks and balances in the envisaged system of government. The study will show that the constitutional evolution of Swaziland and the exigencies of synthesising modern and traditional systems of governance have over the years obscured the true nature of the powers of the monarch in terms of Swazi custom. Thus before we can consider whether the future of the monarchy in Swaziland depends on the harmonisation of modern and traditional systems of governance, it is necessary to revisit the past to determine the powers of the monarch in their embryonic form, for it is from this period that we can extrapolate the powers of the Ngwenyama in terms of Swazi custom. The thesis has been arranged as follows: The first chapter will review the precolonial political system of Swaziland with a view to establishing whether monarchical authority was founded on command or consensus. The various theories, which seek to explain the foundations of the monarchical system of government, will be outlined. The second chapter will focus on European influence on the Swazi traditional system of government. The third chapter will be an analysis of the powers of the monarch under the 1968 independence constitution. The fourth chapter will focus on the effect of the repeal of the 1968 independence constitution by the Monarch. The fifth chapter will focus on the constitutional reforms under the reign of king Mswati III. The sixth and last chapter focus on proposals for reform. The research method used was in the main, an analysis of relevant legal principles as contained in textbooks, legislation, journals, the scant case law that is available in this area of the law and other relevant materials. A comparative survey of ancient African kingdoms will be done, with emphasis on those Kingdoms, which later became British colonial possessions. It is hoped that this comparative analysis will help explain the evolution of these traditional structures alongside modern governmental institutions.
- Full Text:
- Date Issued: 2003
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