[Svrilist] What Zuma won and South Africa lost

svrilist at mrc.ac.za svrilist at mrc.ac.za
Tue May 16 07:20:41 SAST 2006

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From: Admin <admin at genderlinks.org.za>
Reply-To: Admin <admin at genderlinks.org.za>
Date: Mon, 15 May 2006 10:31:11 +0200
To: glgenerals <glgenerals at mylist.tiscali.co.za>
Subject: [Glgenerals] What Zuma won and South Africa lost

What Zuma won and what South Africa lost

It is ironic that as South Africans celebrated the tenth anniversary of the
Constitution this week, a young woman who dared to lay a charge of rape
against the man who would be president prepared to surrender that most basic
of rights: her citizenship.

Former deputy president Jacob Zuma may have won his case, but what have we
as South Africans lost?  Much, unfortunately, in the campaign that had just
begun to gather momentum post apartheid to recognise the right of women who
feel they have been violated to speak out.

While Zuma, who has shown no remorse in a case that at the very least leaves
him guilty of adultery and irresponsible behaviour, repositions himself to
lead, a young woman whose troubled sexual past dates back to her years in
exile is forced into hiding. What would her father - Zuma's comrade-in-arms,
who died in a car crash during the struggle - have to say?

It fell on an old school judge to hear the case because, much as we have
become a nation of principle, none of the more senior black judges wanted to
handle the case. Judge Willem van der Merwe is no doubt a learned man and
his judgment must be respected. At the same time it must raise questions
about just how transformed the legal system really is.

One has to start by understanding that rape is not just another crime. It is
often about hugely disproportionate power relations between a victim under
every conceivable societal pressure to drop the case; an accused with access
to money, influence and power; and a criminal justice system that is at best
unfriendly; at worst obstructionist.

Man made laws on sexual offences - those current in South Africa included -
have been designed to paint women as temptresses; throw into question their
intentions (the so called "cautionary rule") and place an excessive burden
of proof on complainants to show beyond "reasonable doubt" both lack of
consent and "intent" to rape on the part of the accused. These laws have
also allowed judges to dredge up a complainant's past sexual history to
prove patterns of behaviour that could discredit the allegations.

The judge, who claimed to have read the South African Law Commission
research and the upcoming Sexual Offences Bill on more enlightened
approaches, said he became stumped when trying to understand why the
complainant would make such an allegation, knowing the consequences, if in
fact nothing had happened. The explanation, he claimed, could only be found
by digging up the past and establishing that she had a history of crying

This line of argument is weak and outmoded. It is especially galling that
the judge allowed evidence extending well below the age of consent (when by
law any sexual intercourse by an adult with a child is statutory rape) to be
admitted as evidence. That much of this should have come from a private
diary, without the consent of its owner, and that the judge apparently had
no ethical concerns about such conduct is deeply disturbing.

In buying into the defense line about the seductive powers of a kanga worn
without underwear and dismissing the psychologist's evidence that it is
possible to freeze during rape, especially with someone you know, the judge
reinforced the prevailing notions that women "invite" such experiences and
that unless you scream the house down (even if you know the assailant) your
case is doomed.

But this case goes well beyond legal technicalities. It is fundamentally
about the tests of leadership in our new democracy. While finding Zuma "not
guilty" the judge chided him for having sexual intercourse with a friend's
daughter many years his junior, and for the "inexcusable" fact that he had
unprotected sex with an HIV positive woman. Does such a man deserve to lead
South Africa?

In the immediate context, this case and the weaknesses in the criminal
justice system that it has revealed should prompt us to pass the Sexual
Offences Bill (ten years in the making) that tightens the definition of
consent and limits the admissibility of various types of evidence,
especially those relating to ones sexual past.

Police bungling in the Zuma case again points to the need to strengthen
investigations, one of the many loopholes in sexual offenses cases, only 7%
of which result in convictions in the regular courts.

The case should also give added impetus to the National Action Plan to end
Gender Violence endorsed by a broad cross section of South Africans last
week under the banner: "Ten years later: making the constitution work for
women and children." This should be the real yardstick of success over the
coming decade.

(Colleen Lowe Morna is Executive Director of Gender Links. This article is
part of the GL Opinion and Commentary Service.)

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