REPRODUCTIVE HEALTH RIGHTS OF WOMEN IN SOUTH AFRICA
5.2 HISTORY OF REPRODUCTIVE HEALTH RIGHTS OF WOMEN IN SOUTH AFRICA
5.2.3 The Post-Apartheid Experience
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freedom of association.27It is evident from the above that during the colonial and apartheid periods, the various laws subjected African cultureto „western‟ culture.28
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Moseneke and Others v Master of the High Court,36Section 23 (7) of the Black Administration Act,37 which segregated the administration of intestate deceased estates, was declared invalid and unconstitutional. In conformity with the declarations of the Vienna Conference on the protection of human rights in the face of cultural diversity,38 South African‟s Constitution accommodates the promotion of various cultural practices that are in linewith the promotion of human rights.
The cultural rights recognised by the South African Constitution accord with the provisions of some of the international instruments on the right to culture. The UDHR, which forms the foundation of most human rights instruments, provides that “Everyone as a member of society…
is entitled to the realization…of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”.39
This Article guarantees socio-economic and cultural rights of every member of the society, but subject to the fact that the rights must be necessary for the dignity and free development of the personality of such an individual. In the same vein, the UDHR further supports cultural rights, by stating that “Everyone has the right to participate freely in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”40
The declarations in articles 22 and 27 of the UDHR are profound on the recognition of cultural rights. Cultural rights are to be recognised to enhance the personal development of individuals in their various societies. Furthermore, Article 27 of the ICCPR took into consideration the right to the culture of a minority ethnic group, in a culturally diversified country like South Africa. It provides that:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their culture, to profess and practice their religion, or to use their own language.
36 (2001) 2 SA 18 (CC).
37 38 of 1927.
38 Para 5, Vienna Declaration and Programme of Action, United Nations General Assembly, UN Doc.
A/CONF./157/23, 12 July 1993.
39 Article 22, Universal Declaration of Human Rights (UDHR),1948.
40 Article 27, UDHR.
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The International Covenant on Economic, Social and Cultural Rights (ICESCR) also protects cultural rights.41South Africa signed this treaty in 1994 and ratified it in 2015. However, it asserted before the ratification of the treaty – that its Bill of Rights goes beyond all the rights enshrined in ICESCR.42 The court refered to ICESCR in Government of the Republic of South Africa and Others v Grootboom and Others.43In interpreting the meaning of “progressive realisation”, the Constitutional Court alluded to the fact that some of the provisions on socio- economic rights in the Constitution originated from the ICESCR. This case was decided before the ratification of the treaty in South Africa. To this end, it could be argued that South Africa demonstrated her willingness to comply with the provisions of the ICESCR – long before its ratification.
In line with the provisions of most international treaties that recognised cultural rights, various cultural practices are accommodated to the extent of their conformity to the Constitution; hence, they should not be given precedence over the Constitution. The South African Constitution is hailed as one of the most progressive in the world – because of its universalist conception of human rights.44In addition to its provisions on the promotion of women‟s rights in the face of various cultural practices, South Africa has adopted various legislative and policy frameworks to protect these rights. These frameworks are considered to have exceeded the provisions of some of the international and regional instruments. However, while South Africa has acceded to some international and regional treaties on the promotion of women‟s rights,45there is a gap in the
41 Article 15, ICESCR, 1966.
42 Statement of Minister of Foreign Affairs at 10th Session of the Human Rights Council, 3 April 2009. Available at:http://www.polity.org.za/article/sa-dlamini-zuma-statement-by-the-minister-of-foreign-affairs-at-the-10th- session-of-the-human-rights-council-04032009-2009-03-04.
43 (2001) (1) SA 46 CC.
44 Grant, note 28 (above) 3.
45 International Covenant on Civil and Political Rights, 999 UNTS 171, (ICCPR), ratified by South Africa on 10 March 1999; Convention on the Elimination of All Forms of Discrimination Against Women,1979 (CEDAW), 1249, UNTS 13, ratified by South Africa on 14 January 1996; International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (CERD) 660 UNTS 195, ratified by South Africa on 9 January1999; UN Convention on the Rights of the Child,1989, (CRC) 1577 UNTS 3, ratified by South Africa on 16 July 1995; and the following regional instruments: Africa Charter on Human and Peoples‟ Rights 1981, OAU Doc,CAB/LEG/67/3 Rev. 5, ratified by South Africa on 9 July 1996; Protocol to the African Charter on Human and Peoples‟ Rights on the Rights of Women in Africa, 2003, ratified by South Africa on 16 March 2004; and the African Charter on the Rights and Welfare of the Child, 1990,OAU Doc, CAB/LEG/24.9/49, ratified by South Africa on 7 January 2000.
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implementation of these frameworks. South African women are yet to realise fully their reproductive health rights – due to various cultural practices in their communities.
5.3 CULTURAL PRACTICES THAT INFRINGE ON THE REPRODUCTIVE