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‘Hawu madoda’, woman got a right to be

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

As a man, husband, father, brother and uncle, speaking about the contribution of men in helping address gender-based violence should be simple. Our complicity in or role as perpetrators of GBV is shameful. What have women and children done to us? As the legendary Caiphus Semenya once sang: ‘Woman got a right to be.’

A recent study by UN Women, an organisation currently under the Executive Directorship of former South African deputy president Phumzile Mlambo-Ngcuka, notes that globally, almost 250 million women and girls between the ages of 15 and 49 suffered physical or sexual violence at the hands of an intimate partner in 2019. But I am not going to further stress anyone reading this with gory details and alarming global statistics on gender-based violence (GBV), which is spreading like a runaway virus. You just need to read the plethora of reports and studies on GBV to get the full picture.

The national address and Covid-19 update of President Cyril Ramaphosa on Wednesday, 17 June 2020 was one not to forget for many reasons. On the one hand, it was delightful as it signalled the beginning of the government allowing many business sectors to open their doors for business again. Many people have had their economic life and sustainability decreased under the weight of the national lockdown and Covid-19 restrictions.

On the other hand, it was sombre as the president seemed to have a big stone in his throat when addressing the growing scourge of GBV. The president highlighting GBV follows his previous address on 13 April 2020.

“It is with the heaviest of hearts that I stand before the women and girls of South Africa this evening to talk about another pandemic that is raging in our country – the killing of women and children by the men of our country,” he said. “As a man, as a husband and as a father, I am appalled at what is no less than a war being waged against the women and children of our country.”

On average, a woman is killed every three or four hours in South Africa. Every day, seven women and three children are killed in South Africa. GBV is an ongoing and visible epidemic.

It is interesting that Ramaphosa unequivocally declared GBV as a twin epidemic in the country alongside Covid-19, because the organisation Equality Now in its February 2017 advocacy report, The World’s Shame – The Global Rape Epidemic: How Laws Around the World are Failing to Protect Women and Girls from Sexual Violence, stated that: “By any measure, gender-based violence, including sexual violence, is being inflicted on women and girls in epidemic proportions.”

The irony, according to Equality Now, is that “[if] it was a medical disease, sexual violence would have serious attention and the funding to address it, from governments and independent donors alike”. 

Though judges and magistrates should operate objectively within the confines of the law, transformative constitutionalism according to the late Chief Justice Pius Langa in an article published in 2006, demands that they should not use the strictures of the law as an excuse to do justice.

We can all lend a helping hand to fight the scourge of GBV. As noted by the Minister of Women, Youth and Persons with Disabilities, Maite Nkoana-Mashabane, intervention measures can include taking “swift action… to end the surge of gender-based violence cases”. But talk is cheap. Let us do something as women’s organisations, non-governmental organisations (NGOs), government, politicians, law-makers, the legal professions, men and boys.

Our government and lawmakers must transform all laws, policies, and practices dealing with “instruments to prevent sexual violence, provide better access to justice for victims (including specialised services), and effectively punish sexual violence crimes”. The president reported that “legislative amendments have been prepared around, among other things, minimum sentencing in cases of gender-based violence, bail conditions for suspects, and greater protection for women who are victims of intimate partner violence”. 

Until the perpetrators of GBV can be handed “sentences that fit the horrific crimes they commit”, as the president said, the GBV fight will be a fight in futility. It is hoped that the legislative amendments, including the revised GBV sentencing guidelines, are well-drafted and devoid of uncertainties and exploitable loopholes.  

As I previously stated, GBV laws in this country must be given teeth. It is one thing to establish several GBV courts and it is another to have these courts working efficiently and effectively. Though judges and magistrates should operate objectively within the confines of the law, transformative constitutionalism according to the late Chief Justice Pius Langa in an article published in 2006, demands that they should not use the strictures of the law as an excuse to do justice.

“Under a transformative Constitution, judges bear the ultimate responsibility to justify their decisions not only by reference to authority, but by reference to ideas and values,” argued Langa [at p.353]. Certain ideas and values we hold to protect women and children from GBV should, in my view, also be taken into account by the judiciary. A good example is judges in the International Criminal Tribunals for the former Yugoslavia and Rwanda in the case of Prosecutor v Furundzija, Case No. IT-95-17/1, Judgment (Dec. 10, 1998), who found guilty an accused in multiple rapes of a woman and who was considered to have violated laws of “torture and outrages upon personal dignity”.

Perpetrators must be prosecuted to the full extent of the law. Retired Constitutional Justice Edwin Cameron once said that: “Our dismay and anger at the horrors criminals inflict on us paralyse us and paralyse us dangerously and counterproductively.” Cameron expressed this view during his 2019 Rabinowitz Lecture at the University of Cape Town’s Faculty of Law.

The Department of Social Development has an opportunity to be a catalyst in the fight against GBV and to show that women and children in South Africa deserve better protection and treatment. 

Cameron is not convinced that stricter minimum sentencing guidelines are a panacea for the crime. Instead, he argued, they are “a useless and costly diversion. Minimum sentencing is not that bad, it is a start to remedy the bad situation eroding the humanity of women and children in South Africa by men and boys”.

What is needed is a commitment to take GBV seriously as a public interest issue and not a human interest issue. The government must take seriously the contributions by organisations such as Not in My Name, who are of the view that their representations to the government are always allowed to gather dust on the presidency desk and in the hands of other state authorities.

The Department of Social Development has an opportunity to be a catalyst in the fight against GBV and to show that women and children in South Africa deserve better protection and treatment.

The South African Police Services (SAPS) can start treating reports or complaints of GBV seriously and not mock the victims. It is commendable that Ramaphosa “directed the Minister of Police to ensure that Family Violence, Child Protection and Sexual Offences Units are reinforced at police stations during the lockdown and beyond”. This reinforcement must go beyond the frame of Covid-19.

For the contribution of members of the legal profession – lawyers and the South African Legal Practice Council (LPC) – the sentiment of Jane Ellis (Director of the Legal Policy and Research Unit of the International Bar Association) in the foreword of the Equality Now report could not have said it better and I will restate it here without any modification. 

According to Ellis: “Members of the legal profession are exceptionally well placed to help fill the gaps in the legal protections from sexual violence available to women and girls. Throughout history, lawyers have been integral to safeguarding the rule of law and ensuring that human rights are respected and protected. Legal professionals are well equipped to help develop good laws in terms of both text and practice and to ensure such laws are appropriately enforced. Lawyers must ensure they uphold a high standard of practice when representing clients who experience sexual violence, abuse and rape. Lawyers and legal associations must also use their collective voices to advocate that sexual violence will not be tolerated and those who commit sexual violence will be prosecuted as perpetrators of serious crimes of violence.” 

Sanja Bornman, an Attorney at the Women’s Legal Centre, was one of the contributors to the Equality Now report. It takes courage and emotional trauma for a lawyer, professionally and ethically required to represent anyone who comes for assistance, to state that he/she will never defend rapists and killers again. “I’ve represented many criminals, including those like the Karabo Mokoena guy. I’ve taken a pledge that if you’ve raped, killed your girlfriend or molested a child – voetsek!” publicly declared Tumisang Katake, a lawyer, at the funeral of slain Tshegofatso Pule.

There must also be the rupturing of oppressive and inhumane cultural practices and social norms. The law alone will not be sufficient to end GBV in South Africa, a country notoriously known as the “rape capital of the world”. The patriarchal origins of GBV and its manifestation of power and dominance as were demonstrated by the South African Constitutional Court in the case of Masiya v Dir of Pub. Prosecutions (Pretoria) and Others, 2007 (5) SA 30 (CC), dealing with the common law definition of rape, must be decisively dealt with. 

Men’s behaviour and attitudes towards women and children as objects and slaves to their horrific desires must be changed – even if it means through the force of the law.

The influence and/or role of culture and related social norms on GBV in sub-Saharan Africa was identified in a report prepared for the Committee on African Affairs of the New York City Bar as part of a pro bono project coordinated by The Cyrus R Vance Center for International Justice. 

According to this report, “Culturally sensitive awareness campaigns directed at both men and women are an essential component of long-term solutions to violence against women”, [at p.4].  In South Africa, it is traditional leaders and authorities, men and boys who need more sensitivity training: “While cultural beliefs about the roles of men and women are not easily changed, national governments must adopt a long-range plan to stop the cycle of gender-based violence,” noted the report. Men’s behaviour and attitudes towards women and children as objects and slaves to their horrific desires must be changed – even if it means through the force of the law.

The president also noted what is common knowledge in South Africa: “These rapists and killers walk among us. They are in our communities. They are our fathers, our brothers, our sons and our friends; violent men with utterly no regard for the sanctity of human life.”

In my view – as a man, husband, father, brother and uncle – speaking about the contribution of men in helping address GBV should be simple. Yet, it is like a bitter pill to swallow following the passionate plea by the president to men to stop GBV. Our complicity in, or role as perpetrators of GBV is shameful. What have women and children done to us? As the legendary Caiphus Semenya once sang: “Woman got a right to be.” The lyrics of this song says volumes regarding how women, people who identify as women and children feel every day. One verse reads: “I’m a woman/Want to be free/Why can’t you see.”

Perhaps as men and boys, and as a society, we just don’t want to see that women in South Africa also deserve to be free. Though originally released in 1996, Semenya’s song still rings true across all sectors of our society.

Bayakhala omama, Bo dade wethu bayakhala, Bayakhala nogogo, Nabafazi bethu bayakhala.” Loosely translated, it means our grandmothers, mothers, sisters and wives are crying. The treatment that they receive from men is unbearable and monstrous.

The song goes further, calling for men to show respect to women, who did so much for us and sacrificed a lot. They build us homes (Basakhel’ ikhaya) and they brought us children (Basibelethel’ izingane).

Hawu madoda, nans’ indaba. Ilukhuni lendaba. Bakhala kabuhlungu nje Bakhaliswa yithi,” sang Semenya. Another verse: “Hawu madoda, nans’ indaba. (Ilukhuni lendaba). Mus’ ukuphakamis’ isandla sakh’. Ushay’ umkakho. (Ilukhuni lendaba). Uthe ma umlobola, wathi ufuna umfazi. (Ilukhuni lendaba lendaba). Sekujike kuphi na. Usumenz’ ingane yakho?. (Ilukhuni lendaba).”

I would rather not translate the lyrics to avoid diluting its impact, but I would expect every man reading this to find out what it means. If you are not African-language speaking, turn to the African woman or girl next to you to ask for a translation, and you will be humbled by what the words mean or convey.  

Semenya goes further to sing that:

When a man wants a family
He’s gotta keep it in mind
A woman ain’t property.
Just like you and me, She’s got feelings.
When she tells you “no”
Show her the courtesy.

The message to men should be simple: Women and children have got the right to be. Just deal with it. DM

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