The African Human Rights Law Journal is hosting a symposium to explore how the concepts of dignity takings and dignity restoration manifest in the African context. This is a written symposium with no in person meeting. The intent of the symposium issue is to broaden the expropriation debate beyond land to include other types of tangible and intangible property dispossession occurring on the continent. The Symposium Issue will be published in Fall 2018.
Discrimination within the South Africa Legal Profession
Jonathan Klaaren, Professor, Wits Institute for Social and Economic Research, University of the Witwatersrand
The first part of this paper will look at the concept of dignity takings and dignity restoration in the employment context, using a sociolegal perspective. The second part will then explore the use of the concept of dignity within the contests over diversity in the legal profession in South Africa. The article will also consider the parallels between the taking of tangible property and the taking of job opportunities. The analysis will also identify constitutional themes including dignity, property, and substantive equality and how they relate to this analysis. This gives the opportunity to examine the line between regulation and property line of takings analysis in South Africa constitutional law.
Popela Case in South African Constitutional Court
Sanele Sibanda, Senior Lecturer, University of the Witwatersrand
Bernadette Atuahene, Professor, IIT, Chicago-Kent College of Law
This Article tells the story of the Popela people—a resource poor, but culturally rich African community from South Africa’s Limpopo region whose land rights were progressively eroded during apartheid. Although under the new democracy the Popela community has a constitutional right to an equitable remedy for past property rights violation, it was not until they got the assistance of Nkuzi (a South African NGO) that the community was able to take its case all the way to the Constitutional Court. The court ruled that the state must purchase the land from its current owners and return it to the Popela community. But, the Popela community’s sweet legal victory soon turned sour because, after almost a decade, the executive still has not implemented the court order. Justice remains elusive because the community cannot afford a lawyer to sue the executive for non-compliance and Nkuzi has no more funding to help the community. Through interviews of community members, this Article contributes to the literature about dignity restoration by exploring the political and psychological costs of justice delayed.
Bride Wealth Payment for Child Marriages in Africa
Jane Chinoyerem Diala, University of Cape Town
The distortion of the meaning and significance of bridewealth payment has deeply affected African women. Originally a legitimating symbol of marriage and token of appreciation to the bride’s parents, the nature and form of bridewealth has changed due to urbanisation and acculturation. In several African communities, bridewealth demands are so high and exploitative that the women become commodified. This paper uses empirical evidence from Southern Nigeria to argue that the distorted version of bridewealth amounts to a dignity taking, since it transforms women into a commodity. It further argues that high bridewealth payments exacerbate gender inequality and devalues a woman’s worth. A reclamation of bridewealth’s original aimas a legitimating symbol of marriage is required.
Violent Indignities: Homophobia and Proper(ty) Restoration in South Africa
Melanie Judge, Adjunct Associate Professor, University of Cape Town
Kerry Williams, Partner, Webber Wentzel
This Article explores how homophobic violence might be approached as a form of dignity taking. We draw on aspects of constitutional equality law in practice in South Africa, understandings of the cost of homophobia, and theorising about the relationship between violent exclusion and law. The paper also explores what dignity restoration may entail for those affected by homophobic violence given the limits of law and the continued violent othering of queers.
State Accountability for Sexual Violence in Kenya
Ruth Nekura, Ph.D. Candidate, University of Cape Town
‘Due diligence’ in human rights law expands the limits of State accountability to include violations committed by non-State actors. This expansion opens new fronts for exploring content and meaning of State obligations to provide adequate reparations for sexual violence against women. Through its Constitution and recent jurisprudence, Kenya has crystallised State obligations to prevent and effectively respond to sexual violence. However, it remains unclear how sexual violence as a violation of dignity can be redressed beyond the criminal justice system, refractory as it is. I argue that effective redress and restoration of dignity requires a victim-centred approach that centres the needs and rights of victims.
Making Modern Slavery and Taking Dignity: The Kafala System
Khaled Beydoun, Associate Professor, University of Detroit Mercy School of Law
The domestic worker industry is pervasive throughout the Arab World, and reliant upon a pool of laborers that originate from impoverished communities in poor Asian and African nations. The industry is also built upon Kafala – a system that mandates domestic workers to have an in-country sponsor, typically their employer or an interlocutor, responsible for securing legal status for the foreign laborer to work within an Arab State. Although Kafala is enforced distinctly in different Arab nations, the system facilitates labor exploitation, physical and sexual violence, and an aggregate dehumanization that strips domestic servants of dignity attached to property, civil and human rights, and in line with Professor Bernadette Atehuene’s framing, a myriad of dignity takings. This Essay will explore, and articulate, how Kafala enables and advances the dignity taking of domestic worker populations in the Arab World.
In the Shadow of Legal Pluralism: Matrimonial Property Division Outside the Courts in Southern Nigeria
Anthony Diala, Post-Doctoral Fellow, University of Cape Town
Scholarly interest in the co-existence of normative orders in African social fields tends to focus on conflicts that arise from the interaction of customary law with State law. This article takes a different path by revealing the normative influence of State law on actors involved in matrimonial property division outside the courts in southern Nigeria. Based on individual interviews and focus group discussions with 86 female divorcees, their parents, priests, traditional leaders, NGOs, and social welfare officials, I analyse customary law power inequalities in property division during and after divorce, which I will argue often leads to dignity takings. I reveal how the Social Welfare Department, a statutory body mandated to protect the interests of women and children, plays a prominent role in the privileging of gender, class, and women’s dignity. Spurred by statutory regulations, this Department increasingly orders men to divide matrimonial property and/or pay compensation to women. I argue that its quasi-judicial orders on marriage gifts, properties bought by women, and child custody, contribute significantly to ‘dignity restoration’ for women previously ignored by the customary law of matrimonial property. By revealing the driving forces behind shifts in traditional understandings of matrimonial property, I demonstrate how the non-judicial dialogue between State law and customary law facilitates the emergence of a living customary law of matrimonial property in southern Nigeria.
How the Human Right’s Discourse is Interfering with Dignity Restoration
Tshepo Madlinglozi, Lecturer, University of Pretoria
The aim of this theoretical paper is to critically engage with Bernadette Atuahene’s innovative proposition that land dispossession causes “dignity-taking”. I aim to show that indigenous people in the territory that settler-invaders would later name South Africa understood land dispossession to presage “death of the land”. Ilizwe lifile! (“the land is dead”!) was recurrently uttered by indigenous peoples during the 100-year Wars of Dispossession (1779-1879). Death of the land sought to convey the fact that land dispossession went beyond individual “dehumanisation” and/or “community destruction” (Atuahene, 2014). Rather, it presaged the shattering of autochthonous worlds on three planes. First, the conquered experienced generalised mutual resentment in the social world. Second, they experienced destitution and loss of ancient relation with non-human beings in the material world. Most importantly, ilizwe lifile was a cry to the gods because disorientation on the material and social planes were felt to have affected both the inner and the inter-subjective spiritual worlds and portended disharmony of the onto-triadic community constituted of the living, the yet-to-be-born and the living-dead. Understood in this way, land dispossession goes beyond “dignity-taking” which Bernadette Atuahene (2014) defines as “deprivation of property that…involve a loss of dignity;” dignity understood here as “equal human worth and autonomy”. Atuahene goes on to explain that property-deprivation-as-dignity-taking serves to remove victims from the social contract and/or is tantamount to the rescinding of the social contract. For indigenous peoples the remedy to ‘death of the land’ was/is encapsulated in another anti-colonial cry, namely, mayibuye iAfrika! (return/resurrect Africa!). Mayibuye iAfrika and ilizwe lifile propose that land dispossession is but one aspect of the constituting of the setter-created polity and concomitantly the perpetual subjugation of indigenous sovereignties and life-worlds. Based on this understanding I show that remedies predicated on exclusion or rescission of the social contract serve to entrench the extant, albeit transforming, settler-created polity and to mask transition from settler domination to settler hegemony. The conditions of possibility for mayibuye iAfrika go beyond compensation” and “asset provision” by insisting on the death of “South Africa” which is achieved by the reinstatement of indigenous sovereignties, resurrection of the material, social and spiritual worlds and the constitution of Azania based on African humanness.
Dynamics of Post-Apartheid Urban Socio-Spatial Change: A Dignity Question?
Dr. Geci Karuri-Sebina, South African Cities Network, Wits School of Governance, University of the Witwatersrand
One of the most vivid legacies of apartheid has been the stubborn effects of apartheid planning on the spatial form of South Africa. A call for “spatial transformation” therefore unsurprisingly resounds in all key contemporary South African vision and planning documents, including the National Development Plan 2030 and the Integrated Urban Development Framework. But what this “transformation” means and implies across the different spatial categories – e.g. of traditional inner cities compared to former black townships – and how the complex dynamics of social justice and gentrification play out may differ. This paper explores these issues, applying the novel lens of dignity takings and dignity restoration.
Our Bodies, Our Queer Selves: Criminalization of Same-Sex Conduct as a Dignity Taking
Ari Shaw, University of Chicago
In June 2016, the Mombasa High Court in Kenya upheld the constitutionality of forced anal examinations and HIV testing of men suspected of engaging in homosexual acts. The invasive, humiliating procedure was performed solely to gather evidence for use in criminal prosecution stemming from the criminalization of consensual same-sex conduct. This essay explores the issue of criminalization as a dignity taking that violates the right to “body as property.” I argue that the institutionalized stigma against homosexuality creates both direct dignity takings, in the form of compulsory medicalized examinations, and indirect dignity takings by enabling a context of legitimized physical violence on the basis of one’s real or imputed sexual orientation or gender identity. Drawing on original fieldwork, including semi-structured interviews with Kenyan activists and internal documents from local NGOs, I also examine local efforts to decriminalize consensual same-sex conduct through the lens of dignity restoration. The concept directs our attention to the bottom-up agency of Kenyan LGBT activists who make explicit claims to human dignity in their challenges to the law, and the efficacy of international human rights norms and institutions in making dignity claims where domestic pathways to reform remain closed.