By Shamillah Wilson
Shamillah Wilson is an independent feminist consultant and life coach. She is based in South Africa, but her work has focused on women’s human rights, young feminist leadership development and institutional development across the globe.
The state as an institution has invariably colluded with patriarchy to oppress women, and this has been done through codification of cultural identities that advantage men and disadvantage women. This piece exposes the relationship between state, culture and oppression.
In the past few decades, women’s and feminist movements have made great strides in advancing the rights of women. The engagement of women in international development processes following the United Nations Decade of Women (1975–85) signaled a transition for women’s movements – as they began developing holistic analyses of the issues impacting on women’s lives, and made connections between political, economic, social and cultural realities as well as between local, national and global spaces for organizing and advocating.
But reflecting on the current state of women’s rights, particularly on the African continent, gives us much to ponder on. The realities that women encounter on a daily basis include pervasive violence, economic inequality, and a struggle to survive conflict, environmental changes and a backlash in many places against the gains of recent decades. The fact that only 32 out of 54 African countries had signed the Protocol on Women’s Rights in Africa by the end of 2012 is indicative of the challenges that continue to block progress towards the goal of social transformation. Some would argue that 32 signatories is a success since there is no denying the importance of ensuring that we have the necessary national, regional and global legal instruments in place to tackle gender inequality. Yet, our reflections over time have made us realize that getting progressive policies adopted is but one step in a broader process since legislation on its own does not necessarily translate into broader gender equality nor has it really transformed the daily lives of many African women. Culturally, the patriarchal status quo remains relatively unchanged, and requires us to confront and challenge it unequivocally – and holistically.
When considering how to move forward, what we know is that, despite the promise of our past successes, many activists now find themselves struggling – in the face of increasing conservatism – to hold the line and ensure that there are no further rollbacks of the important gains we have made. So as we search for more effective ways to engage and transform power, we have to ask ourselves why our current strategies and approaches seem inadequate in terms of the struggle to overcome poverty and injustice. To do this we need to understand the complexities of power and empowerment, and then we have to strategize about how best to respond to them in ways that use, build and transform power.
One of the greatest achievements of feminist movements is our analysis of power. Analysis and concepts are necessary ingredients for effective action as they help us to ground our strategies, and develop critical thinking and political skills. And each time we analyse issues and situations, we gain new insights.
For feminists, the dominance of men in this particular arena is but one of the key characteristics of a patriarchal state. While a significant number of women now occupy important positions in government and civil society, these women are challenged by the continued dominance of the ‘male discourse’.
In looking at the state of women’s rights, our analysis as feminists starts with our understanding of patriarchy as being a system of male authority that legitimizes the oppression of women through political, social, economic, legal, cultural, religions and military institutions. Men’s access to, and control over, resources and rewards within the private and public sphere derives its legitimacy from the patriarchal ideology of male dominance. Patriarchal ideology enables and legitimizes the structuring of every aspect of our lives by enabling the framework within which society defines and views men and women to construct male supremacy (AFF, 2006). A critical component of our understanding of patriarchy is that it is systemic and not directed at individuals but is a broad system that maintains unequal relations of power.
In the context of guaranteeing women’s rights, activists have directed considerable attention towards the ‘state’. In referring to the ‘state’, I refer to governmental institutions, both elective and administrative, at both local and national levels. In the developing world, states have complex and different formations, although most are moving towards democracy and neoliberalism in the global era. This is also the most visible form of power that we see as citizens. Prior to the establishment of the modern state, other institutions – including churches, clans, tribes and traditional authorities – upheld the rules and managed the processes related to the reproduction of life. The norms, symbols, rituals and traditions that are ascribed to a particular society are often referred to as culture. While culture in its essence is meant to be an uplifting force in societies, the realities are that culture and tradition can enable or obstruct; they can oppressive or liberating for different people at different times (Jolly, 2002). However, culture is not static. It changes and it is within this context that meanings are ascribed to terms such as gender, gender dynamics and gender roles in African society (Tamale, 2007).
In looking at the reality of women’s lives, we have to understand that in many African countries, civil law exists alongside customary law. While the onset of democracy on the continent was meant to herald the promotion of equality for all, we still suffer from some very strong and outdated attitudes towards differences in genders and the rights of men or women. Very often, the project of gender equality has been attacked by the patriarchal structure and sexism of ‘traditional’ culture as a foreign concept. All state policies have gender implications and affect the social status of women as well as their control over their livelihoods. Women’s marginalization at the level of the state and state policy-making is clearly visible in the low number of women parliamentarians worldwide. In fact, women’s status has never been the main issue on party platforms, in electoral campaigns or in any party manifesto. In reflecting on visible power, Veneklasen et al (2006) note that visible power discriminates against certain interests and people through biased laws and policies as well as unrepresentative decision-making structures, which do not adequately involve the voices or interests of women.
As such, some feminists have formulated the term ‘patriarchal state’, whereby the state functions mainly in the interests of men and maintains or actively supports the oppression of women (Dahlerup, 1987; Kong and Chan, 2000). For feminists, the dominance of men in this particular arena is but one of the key characteristics of a patriarchal state. While a significant number of women now occupy important positions in government and civil society, these women are challenged by the continued dominance of the ‘male discourse’. Regardless of how many women enter into the political arena, if that arena is still defined by men’s perspectives, there will be few opportunities to promote women’s issues.
The traditional human rights framework places an emphasis on the duty of the state to uphold the rights of its citizens within the public sphere (i.e., politics and the market). The state (as opposed to individuals, communities, multinational corporations, etc.) is taken to be the primary violator of rights. However, a major obstacle is that in most African states, colonial laws provided that the long arm of rights did not extend into the private or domestic sphere.
In pluralist legal systems, this realm was basically governed by indigenous customs and cultures. Many post-independence African constitutions exempted personal (private) laws (e.g., marriage, divorce, adoption, burial, inheritance and succession) from the operation of the non-discrimination principle. In reality, males have created – and still create – political culture worldwide, so it is no surprise that male values, needs and ambitions dominate.
Furthermore, in a context of increasing conservatism and religious fundamentalism, relationships between state and religious and cultural groups are governed by whether or not the state needs the help of those groups to consolidate its power. This type of power is referred to as hidden power (Venklasen et al, 2006). While religious and cultural groups may not be formal decision-makers (elected, appointed or otherwise), they nevertheless maintain their influence by controlling who gets to the decision-making table and what gets on the agenda. Hidden power works to exclude and devalue the concerns and representation of other less powerful groups, like women. In addition to controlling the public agenda and public debate, public and private institutions are often structured to systematically exclude and discriminate against certain types of people and ideas.
We know that the family is a gendered space closely associated with women (albeit headed by men). Therefore, it follows that the African Protocol on the Rights of Women views women as the custodians of morals and traditional values. In as far as this holds true, when ‘rights’ and ‘culture’ are constructed as conflicting parallel systems, the points of contact between gender, rights and culture become extremely foggy. In other words, if African culture is synonymous with women, and the concepts of ‘rights’ and ‘culture’ continue to be viewed as being at odds with each other, then African women would first have to strip themselves of culture before enjoying their rights (Tamale, 2007).
Ultimately, the perseverance of a patriarchal model of governance continues to make women the objects of political decisions that they do not shape politically, and which are biased towards men, especially male state bureaucrats, and traditional and cultural leaders.
How does the patriarchal State collude to maintain women’s oppression?
The response to who defines law depends on which law one is referring to. Where reference is made to state law, it is the state that defines the law through its established institutions and channels. It is the state again which takes responsibility for the implementation of such laws through the hierarchy of courts established under its judiciary and other quasi-judicial structures that may be in place.
This view of the state as the sole definer of law is referred to as legal centralism. It puts the state and its structures at the centre of social order. Feminism recognises that there are regulatory forces other than the state, which the state takes into account.
The multiple legal codes in operation in Africa are part of the colonial legacy and they reflect customary, religious and imported common law values. However, this reality raises questions about whose customary laws are recognized by the courts since custom and culture are dynamic. Feminism is concerned with the regressive interpretations of customary and religious law by courts. It is just as concerned about the individual rights of women as it is about communal rights that are espoused by customary law. The multiple legal codes commonly find application in family law matters such as marriage, inheritance, maintenance, custody of children and property ownership by women, which is where the personal status of women is determined. Women also take with them into the public arena the status already accorded them within the family. Adherence to patriarchal traditionalist values lends itself to a particularly masculinist terrain that promotes gender inequality in the operation of multiple legal codes.
How this plays out in our lives is that the system of patriarchy ultimately works through a process of law to create a system that defines what it means to be men and women in a society. Veneklasen et al (2006) refer to this as invisible power. It is the most insidious of the three dimensions of power and – by influencing how individuals think about their place in the world – it shapes people’s beliefs, sense of self and acceptance of the status quo, including their own sense of superiority or inferiority as ‘natural’. This is how the process of socialization, culture and ideology perpetuate exclusion and inequality by defining what is normal, true and acceptable. These processes also help to make injustices like poverty and sexism invisible to the society at large, and make those who experience systematic discrimination the object of blame – indeed they often blame themselves.
This is evident in how the structuring of family, institutionalization of marriage and heteronormativity serve as effective gatekeepers for women, especially as the concepts are introduced at an early age and so they are internalized by both men and women. As noted by Tamale (2007), the main reasons why patriarchal, capitalist societies need to regulate and control the sexuality and reproductive capacity of women is to keep women’s bodies in the domestic arena, where as ‘decent wives’ and ‘good mothers’ they remain dependent on their breadwinner husbands. Secondly, and more importantly, it is supposed to guarantee the paternity and legitimacy of the children of the marriage.
Guaranteeing paternity is considered vital to ensuring that descent through the male line is retained and that property is bequeathed to the husband’s offspring. In order to achieve this objective, the law
…there is no explicit recognition of crimes such as physical and sexual abuse, which are currently considered private or ‘domestic’ matters not fit to be brought before a public court
makes sure that women remain monogamous. At the same time, the law does not disturb or challenge the polygynous sexuality of African men. A number of examples are telling in this regard.
For instance, the tabling of the Traditional Courts Bill in South Africa in 2012 caused considerable debate. The bill will enable traditional leaders to be appointed presiding officers of traditional courts, where they will rule on both civil and criminal matters involving members of traditional communities. These presiding officers will be able to hand down fines, forced labour or, perhaps most controversially, remove ‘traditional benefits’. In the context of communal land ownership – common in most of South Africa’s traditional-authority areas – this includes access to land, which in turn translates into access to food, income and shelter. The ability to earn a living and feed one’s family will be dependent on the whims of traditional leaders.
Legally, chiefs will rule over their subjects, making laws, deciding on cases and handing down punishments, with near complete control over people, law-making and access to benefits and land. This particular bill is set to have the most harmful impact on women.
Already, in many traditional courts, women are not allowed to represent themselves or even speak during proceedings. This bill reinforces this by allowing for women to be represented by their husbands or family members (the bill prohibits legal representation in traditional courts) – entrenching existing discriminatory practices.
In practice, many rural women already struggle with decisions by traditional authorities that regularly attempt to strip them of things like land access and inheritance rights. Other gaps include the fact that there is no explicit recognition of crimes such as physical and sexual abuse, which are currently considered private or ‘domestic’ matters not fit to be brought before a public court. Fortunately, the bill was withdrawn until further notice in late November 2012 (BuaNews, 2012), but the fact that such a dreadful bill could have been tabled in the first place highlights the on-going power of patriarchy in South Africa – in spite of the country’s progressive constitution.
Similarly, in November 2012 in Swaziland, policy-makers opposed the protection of women from stalking. The senators argued that stalking was part of social and cultural norms and so proscribing it would violate the culture of Swazis. One senator went even further and decried the criminalization of forced marriages saying that the custom was important as it ensured that a girl’s father was able to benefit from his daughter’s marriage since the girl would be given to a man who has cattle to pay the bride price (Littlejohn, 2012).
In enforcing progressive national legislation, the key challenge is influential religious and traditional leaders who use religion and culture to compromise the human rights of women. For example, Liberia and Mali are obliged under Article 5 of the Protocol to enact laws that criminalize Female Genital Mutilation (FGM) but due to pressure from religious and traditional leaders they have, to-date, failed to honour this obligation. Article 14 on reproductive health rights is another sensitive issue with religious leaders and has resulted in Kenya and Uganda entering reservations against some sub articles, while other countries have delayed ratification. In addition, some countries have taken issue with 18 years being the minimum age of marriage, even though all countries have ratified the UN Convention on the Rights of the Child (D’Almeida, 2011).
In April 2013, Uganda considered a series of extraordinary measures, including one that would see women arrested for wearing skirts above the knee in public. The proposed law would mark a return to the era of Dictator Idi Amin, who banned short skirts by decree. The government-backed bill would also see many films and television dramas banned and personal internet use closely monitored by officials. Introduced by the Ethics and Integrity Minister, a former Catholic priest, the anti-pornography bill contends that there has been an ‘increase in pornographic materials in the Ugandan mass media and nude dancing in the entertainment world’. It proposes that anyone found guilty of abetting pornography faces a 10-million shillings (US$4,000) fine or a maximum of 10 years in jail, or both (AWID, 2013).
The attacks on women’s bodies and freedoms even extend to slashing national budgets to deal with fiscal deficits. The effects on women are compounded. They range from increasing poverty among women, unemployment as shrinking budgets lead to job cuts in health care and education (industries where women predominate), and ultimately a situation where women suffer the consequences of the State’s inability to take care of its citizens.
While there are specificities according to local contexts and traditions, the common trait behind these policies and practices is the desire to exercise control and to regulate sexual and human reproduction, which impacts most dramatically on the lives and bodies of women. Therefore, they link very closely with the political project of patriarchy to help keep women in the domestic sphere by depriving them of the possibility of developing their full potential.
African women have fought patriarchy and male privilege for centuries. But we need new tools – new activist tools
– that we have had a part in designing and formulating.
We need to locate our strategies in the understanding of the changed political-economic context within which we work – a context of neo-liberal globalization in which conservatism and fundamentalism fuel, and are fuelled by, ever-increasing militarization. In addition, we need to understand how this impacts on the range of African women’s rights but particularly our reproductive and sexual rights, and our capacity to address the violations we experience.
Firstly, we need to come up with a combination of old and new-fangled ways of engaging with the decision-making and power structures of cultural and religious institutions. To do this, we need to map our possible allies and those who we can persuade to join in our efforts. It is important that we direct our efforts at all three levels of power – visible, invisible and hidden – in order to continue the fight for African women’s rights in the private sphere. Our articulation of the notion of democracy and how we conceive our states must be grounded in the idea of moving from purely representative democracies to more participatory ones.
This implies moving our struggle for political participation beyond the usual debates about quantity and quality to debates on the governance structures we are participating in, and whether or not they facilitate active, participatory democracy – and how to ensure that they confront the very systemic characteristics of patriarchy.
African women have fought patriarchy and male privilege for centuries. But we need new tools – new activist tools – that we have had a part in designing and formulating. Although we recognise the state as an important perpetuator of patriarchal power, it can also become a significant source of social reform even if the factors driving reform are not entirely pro-women.
To that end, we have to challenge ourselves with this quote:
while the state is correctly seen as patriarchal and clearly biased against women, much of the (women’s) movement’s activism is, in fact, addressed to the state and carries a definite, albeit unarticulated expectation that the state will, or should, or must, support women’s rights and equality (Shaheed 1997).
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