Tribute to Justice Ruth Bader Ginsburg.

• Author: Mokgoro, Yvonne
• Position: Symposium Honoring the Advocacy, Scholarship, and Jurisprudence of Justice Ruth Bader Ginsburg - Testimonial

It is indeed a great pleasure to pay a special tribute to a global trailblazer who has had a profound impact on the legal thinking of many scholars and jurists around the world--men and women alike. The visit of Justice Ginsburg to the Constitutional Court of South Africa in 2006, when she delivered her speech entitled "The Value of a Comparative Perspective in Constitutional Adjudication," (2) will always be fondly remembered. It was quite refreshing and indeed many at the time marvelled at a United States Supreme Court Justice advocating the use of comparative law to enhance the quality of constitutional adjudication globally. In that speech, she cited with admiration Section 39 of the Constitution of South Africa, which enjoins the judiciary to apply international law and foreign law, and provides that: "When interpreting the Bill of Rights, a court must consider international law; and may consider foreign law." (3) Justice Ginsburg noted that other modern constitutions such as that of Spain and India have similar provisions. The importance of the comparative perspective in the legal interpretive process has not escaped Justice Ginsburg and it is in that regard too that we honour her. The incredible journey which she has travelled has not just been American or South African, nor have her battles for women's equal rights been confined to certain territories. They have been global. It is that oneness in her advocacy that should be cherished and saluted.

Constitutional Protection and Women's Rights in South Africa: Culture and Religion

The Economist reported that the latest Mo Ibrahim Index on African governance ranks South Africa fourth out of fifty-three African countries for its record on women's rights protection. (4) In the World Economic Forum's "gender gap index," South Africa ranks an impressive 6th out of 134 countries in the world? In the "gender empowerment measure" of the United Nations Development Programme, it also does well, being placed 26th out of 182 countries, (6) but in the United Nations' "gender-related development index," it is ranked a poor 129th in the world, again out of 182 countries. (7) That wide discrepancy is not only because the various bodies measure different aspects of women's development, but also because the picture of women in South Africa is so mixed. (8)

The same research notes that in the "founding provisions" of South Africa's Constitution, "non-sexism" is given equal billing with "non-racialism." To promote women's rights in what had been a predominantly patriarchal society, South Africa has brought in a slew of laws over the past eighteen years which, amongst other things, legalize abortion, give women equal rights in marriage, crack down on domestic violence, criminalize sexual harassment at work, prohibit all gender discrimination, and provide women with particular consideration for affirmative action in education, employment, and membership of decision-making bodies. South African courts have lately also dealt strongly with rape and other types of gender-related crimes. As matters stand, the Department for Women, Children and Persons with Disabilities has indicated that the Gender Equality Bill is being prepared, promoting gender equality in society, creating empowering programs for people with disabilities and promoting the well-being of children. (9)

Indeed South Africa has one of the world's most impressive legal arsenals for protecting women's rights, but the wide gap between principle and practice often remains a challenge. In some areas, of women's participation particularly in politics, South Africa is doing fairly well. Women hold over forty percent of parliamentary seats, the third-highest proportion in the world, (10) and almost forty-two percent of cabinet posts, (11) including many of those traditionally assigned to their male counterparts, such as defence, agriculture, foreign affairs, mining, science and technology, and home affairs. (12) South Africa has its first female governor of the central bank (13) and its first woman National Police Commissioner. (14) The country's main opposition party is headed by a woman (15) and so is its parliamentary leader. (16) Between 1991 and 2012, the number of female judges has increased from one to sixty-seven. (17) However, only two of the eleven justices in the Constitutional Court and unfortunately only one out of thirteen heads of Provincial Divisions of the Supreme Court are women. (18) We are certainly not where we need to be. (19)

Impact of Constitutional Rights and Case Law on Constitutional Ownership

What follows is a brief look at the constitutional provisions that aim to empower women and the impact of case law in that regard.

Women are protected by the full range of rights guaranteed in the 1996 Constitution. Indeed there is a plethora of themes which have been directly or indirectly impacted by the Courts in the realm of women's rights, namely: (1) violence against women including rape and public...