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Abstract

What does the right to gender equality entail and how does it affect the role of customary law regarding gender relations in South Africa? This article presents an in-depth analysis of the remedies that international human rights treaties provide for both the right to culture, with which the ‘right to customary law’ is often associated, and the right to gender equality. Furthermore, the current and proposed status of customary law, as being part of the State law system, is discussed in great detail, giving particular notice to the controversial Traditional Courts Bill. The analysis finds that all but two of the treaties fail to provide clear insight as to the manner in which supposed conflict between the right to culture and the right to gender equality is to be dealt with. Only the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW) and the Maputo Protocol require States Parties, albeit still in general terms, to commit themselves to modify the social and cultural patterns based on the idea of inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. Given the number of objections that have been made against the Traditional Courts Bill, it is questionable whether South Africa can be said to ‘commit itself’ when such a Bill is passed.

Keywords: South Africa, Gender Equality, human rights, customary law, gender relations, international human rights treaties, Traditional Courts Bill, CEDAW, Maputo Protocol