Louise du Toit

The South African Constitution as Memory and Promise: An Exploration of Its Implications for Sexual Violence

ABSTRACT This article considers the South African Constitution as a living text that founds the new democratic state and asks about its politics of memory. By its very nature, a constitution looks simultaneously backwards and forwards: the promise of the constitution cannot be understood separately from its memory of the apartheid past, and vice versa. The past continuously gets rewritten and reframed as we always reinterpret it anew in light of current concerns and power distributions. It is argued that these politics do not fade away but rather intensify as we move further away from the constitutional moment in time. Focusing on the urgent problem of on-going very high levels of sexual violence in South Africa, the article tries to capture the ways in which constitutional memory and promise function and should function in this respect. Two strategies of memory, namely the memorial and the monumental, are distinguished and applied to the constitutional promise to end sexual violence.ABSTRACTThis article considers the South African Constitution as a living text that founds the new democratic state and asks about its politics of memory. By its very nature, a constitution looks simultaneously backwards and forwards: the promise of the constitution cannot be understood separately from its memory of the apartheid past, and vice versa. The past continuously gets rewritten and reframed as we always reinterpret it anew in light of current concerns and power distributions. It is argued that these politics do not fade away but rather intensify as we move further away from the constitutional moment in time. Focusing on the urgent problem of on-going very high levels of sexual violence in South Africa, the article tries to capture the ways in which constitutional memory and promise function and should function in this respect. Two strategies of memory, namely the memorial and the monumental, are distinguished and applied to the constitutional promise to end sexual violence.

In the Name of What? Defusing the Rights-Culture Debate by Revisiting the Universals of Both Rights and Culture

This article unravels the perceived dichotomy between universal human and womens rights and apparently misogynist cultural claims and practices. It does so by mainly focusing on the ‘universal’ side of the dichotomy. In pursuing this argument, it first describes how recent feminist work has gone beyond a critique and transformation of the content of universals and suggested the transformation of both the status and structure of universals. At the same time, feminists find it useful to retain universals, not because they are in fact universal, but rather because of the political utility of their universalising thrust. This radical feminist critique of Western universal ideals is further fleshed out with the help of Aristotles notion of phronesis. Thereafter, the culture side of the perceived dichotomy is briefly considered and it is suggested that cultural claims often function much like universalist claims, only on a smaller scale, and that the same conditions apply to their invocation in any specific c...This article unravels the perceived dichotomy between universal human and womens rights and apparently misogynist cultural claims and practices. It does so by mainly focusing on the ‘universal’ side of the dichotomy. In pursuing this argument, it first describes how recent feminist work has gone beyond a critique and transformation of the content of universals and suggested the transformation of both the status and structure of universals. At the same time, feminists find it useful to retain universals, not because they are in fact universal, but rather because of the political utility of their universalising thrust. This radical feminist critique of Western universal ideals is further fleshed out with the help of Aristotles notion of phronesis. Thereafter, the culture side of the perceived dichotomy is briefly considered and it is suggested that cultural claims often function much like universalist claims, only on a smaller scale, and that the same conditions apply to their invocation in any specific concrete situation that should apply in the case of Western universals, as indicated in the first part of the article. The theoretical considerations are throughout demonstrated using mostly South African examples.

Facing the sexual demon of colonial power:1 Decolonising sexual violence in South Africa:

In this article the authors discuss in broad strokes the work of two theorists, namely Nigerian sociologist Oyèrónkẹ́ Oyěwùmí and Argentinian philosopher Maria Lugones to argue that a specific logic of sexualisation accompanied, permeated and coloured the colonial project of racialising the ‘native’. The sexual wound which to a great extent explains the abjection of the racialised body, is a key aspect of the colony and should therefore also be a central theme in any properly critical discourse on decolonisation in Africa. After drawing on Oyĕwùmí and Lugones to make their central argument, the authors apply this framework to the problem of sexual violence in South Africa. Understanding the nature of the sexual-racial wound of coloniality will not only ensure that the problem of sexual violence gets properly addressed as a central question of decolonisation, but will also suggest new ways of concretely addressing the problem. In particular, the dominant discourse needs to shift away from the ‘emasculated man’ trope and towards a critical feminist decoloniality which views the radical dehumanisation of native woman as key to colonial violence understood as a world-destructive.

From consent to coercive circumstances : rape law reform on trial

Abstract When South Africa’s rape law of 1957 was amended in 2007, consent was retained as a key element in the definition of the crime of rape, in contrast with the Law Reform Commission’s recommendation that the criterion of consent be replaced with the notion of coercive circumstances that would determine whether an act of sexual penetration should be deemed prima facie unlawful. The most salient aspect of the reformed law is its ostensible gender neutrality. However, this apparent neutrality is belied by, firstly, the preamble’s mention of ‘vulnerable persons’, explicitly understood as women and children, whose protection against sexual violence forms a main focus of the reformed rape law, and secondly, by the law’s retention of the notion of consent whose meanings are deeply embedded in modernity’s contradictory view of women’s sexual autonomy. Instead of the current (consent) approach in rape law which assumes even as it undermines the sexual autonomy of persons classified as feminine, an approach should rather be adopted which focuses on the material and symbolic conditions of meaningful consent. By asking about the possibilities for dissent from and refusal of sexual advances, and by focusing on a range of coercive circumstances which would undermine such possibilities, rape law has a better chance of protecting those most vulnerable to sexual violence, because it would help to equally protect everybody’s conditions for sexual autonomy rather than assume such autonomy to be always already in place.

Sexual specificity, rape law reform and the feminist quest for justice

Recent rape law reform is most saliently characterised by a turn to gender neutrality in its definition of the crime of rape. The few possible advantages of a gender neutral approach to rape are offset by a series of disadvantages regarding gender justice when viewed from a feminist perspective. Formal gender neutrality does not safeguard against the effective influence of pervasive and enduring symbolic constructions pertaining to male and female sexuality and of a normalised hierarchical binary constructed between the two sexes, in particular where sexual relations are concerned. Such efficacy may impede justice for both male and female victims of rape. The question about the place of sexual difference or rather sexual specificity within feminist theories of justice should be considered anew in light of this critical analysis of gender neutrality in rape law.Abstract Recent rape law reform is most saliently characterised by a turn to gender neutrality in its definition of the crime of rape. The few possible advantages of a gender neutral approach to rape are offset by a series of disadvantages regarding gender justice when viewed from a feminist perspective. Formal gender neutrality does not safeguard against the effective influence of pervasive and enduring symbolic constructions pertaining to male and female sexuality and of a normalised hierarchical binary constructed between the two sexes, in particular where sexual relations are concerned. Such efficacy may impede justice for both male and female victims of rape. The question about the place of sexual difference or rather sexual specificity within feminist theories of justice should be considered anew in light of this critical analysis of gender neutrality in rape law.

Old wives’ tales and philosophical delusions: on ‘the problem of women and African philosophy’

abstract This article represents a response to ‘the problem of women and African philosophy’, which refers mainly to the absence of sRong women’s and feminist voices within the discipline of African philosophy. I investigate the possibility that African women are not so much excluded from the institutionalized discipline of philosophy, as preferring fiction as a genre for intellectual expression. This hypothesis can be supported by some feminists who read the absolute prioritisation of abstraction and generalization over the concrete and the particular as a masculine and western oppressive sRategy. Attention to the concrete and the unique which is made possible by literature more readily than by philosophy, could thus operate as a form of political resistance in certain contexts. If fiction is currently the preferred form of intellectual expression of African women, it is crucial that the community of professional philosophers in a context like South Africa should come to terms with the relevance of such a preference for philosophy’s self-conception, and it should work to make these intellectual contributions philosophically fruitful. In the process, we may entertain the hope that philosophy itself will move closer to its root or source as ‘love of wisdom’.

Debating brain drain: Three objections that complicate the picture

In my contribution to this brain drain debate sparked by Brock and Blake’s book, Debating Brain Drain, I respond only to Brock’s position, and raise three objections which I suggest complicate the picture that she sketches. First, I take issue with the way in which she frames the moral question, namely by limiting her focus to what home countries may legitimately do to address the problems associated with the brain drain. I argue that the way in which she frames the question has important ideological consequences, because she does not adequately account for the larger context, in particular, by leaving out the moral obligations of the host countries who are the main beneficiaries of the brain drain. My second objection is rooted in the distinction between technical knowledge and practical knowledge found in the work of Habermas – an important distinction which gets obscured in Brock’s analysis in precisely the kind of ideological ways that Habermas was concerned about. She namely attempts to solve what are mainly practical (political) problems through purely instrumental, technical means. Several distortions accompany this fundamental confusion. My third point of critique has to do with the problem that an ethics of care (an ethics of responsibility and obligation) encounters within a liberal paradigm strongly shaped by an ethics of rights. Drawing on the work of Kroeger-Mappes, I argue that Brock arbitrarily singles out a group of people and holds them to an ethics of care which is strictly supererogatory within her own liberal paradigm.In my contribution to this brain drain debate sparked by Brock and Blake’s book, Debating Brain Drain, I respond only to Brock’s position, and raise three objections which I suggest complicate the picture that she sketches. First, I take issue with the way in which she frames the moral question, namely by limiting her focus to what home countries may legitimately do to address the problems associated with the brain drain. I argue that the way in which she frames the question has important ideological consequences, because she does not adequately account for the larger context, in particular, by leaving out the moral obligations of the host countries who are the main beneficiaries of the brain drain. My second objection is rooted in the distinction between technical knowledge and practical knowledge found in the work of Habermas – an important distinction which gets obscured in Brock’s analysis in precisely the kind of ideological ways that Habermas was concerned about. She namely attempts to solve what ar...

Gendering African Philosophy, or: African Feminism as Decolonizing Force

Although feminist authors and publications abound in other disciplines on the continent, professional African philosophy is overwhelmingly male dominated, with a conspicuous absence of feminist and gender themes. To redress the situation, du Toit and Coetzee consider the choice between applying globally dominant feminist frameworks to issues and debates in the African context or outright immersion in the masculine field of African philosophy in order to open up spaces for feminist questions in dialogue with indigenous worldviews and philosophical positions. In this chapter the authors focus on the second option, in line with recent calls to more authentically contextualize philosophical practice on the continent. The chapter examines the themes of sexual agency and motherhood. Grounded in this way, African feminist philosophy emerges as a potentially powerful source of critique and partner in dialogue with the more established strands of feminist thought.

Exploring Rape as an Attack on Erotic Goods

This chapter aims to conceptualise what is sexual about sexual violence, that is, to say how a sexual attack differs from non-sexual forms of physical attack. While it is understandable that early feminist writing on sexual violence emphasised its violent aspect in order that this form of personal attack might be taken seriously by the law as an instance of violence uberhaupt (Brownmiller, 1975), this does not mean that we finally have to choose between viewing such attacks as either violent or sexual. This chapter instead grapples with the question of why, how and to what effect certain violent attacks take a sexual form, that is, target a person’s body in its sexual and erotic capacities. I thus work to resist the obfuscation of the problematics of sexual violence that happens when it is either viewed simplistically as a sexual or lust crime (thereby neglecting its violent nature) or viewed simplistically as a violent crime (thereby neglecting its sexual nature).

A conversation with Anne Phillips on multiculturalism

During March 2015, Professor Anne Phillips of the London School of Economics was a visiting fellow at Stellenbosch Institute for Advanced Study (STIAS). On 13 March a group of nine gender scholars from different disciplines held a one-day workshop to explore the notion of multiculturalism with her. At the end of the workshop it was suggested that Gender Questions should conduct an electronic interview with Professor Phillips and that the scholars who attended the workshop would write responses to the interview. What follows are the interview with Professor Phillips and responses from four of the gender scholars who attended: Professor Amanda Gouws (Political Science, Stellenbosch University) Professor Desiree Lewis (Womens and Gender Studies, University of the Western Cape), Professor Louise du Toit (Philosophy, Stellenbosch University), and Dr Stella Viljoen (Fine Arts, Stellenbosch University). The other scholars who attended were Professor Shireen Hassim (Political Studies, University of the Witwatersrand), Professor Kopano Ratele (Unisa/Medical Research Council), Professor Cherryl Walker (Sociology, Stellenbosch University) and Dr Christi van der Westhuizen (HUMA, University of Cape Town).