This year, the Centre for Human Rights, Faculty of Law, University of Pretoria (the Centre) commemorates the International Women’s Day in its 40th year of existence. For the women’s rights activists in the Centre, the mood is not so celebratory. Many are grappling with righteous rage. Following national and international news including current affairs leaves one at pains to choose where to direct one’s rage on any given day. Today, my righteous anger is targeted at the apparent impunity of men in power for the exploitation of women and girls as is evidenced in the Epstein files. Royalty, spiritual and wellness gurus, business and world leaders are implicated in maintaining communication and interactions with the convicted and sentenced sex offender even after his crimes had been exposed and successfully prosecuted.
A recent BBC report sets out who is mentioned in the data released by the US Department of Justice. While the communication does not indicate wrongdoing on their part, the damage is in the fact that the correspondence is open to interpretation by the reader. The words, redacted or not, can have different meanings ascribed to them depending on the writer of the email/s, the context of the communication and the period when it was communicated. Words, like social norms, change with human evolution and are reflective of the time used or relied on. At a time in history when international law norms are challenged as being open to interpretation and subject to cultural or religious contextual acceptance, the peculiar position of South Africa requires constant monitoring of the jurisprudence of the national courts on the rights of women, equality and non-discrimination. This is due to the existence of an interpretive declaration limiting the application of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (the Maputo Protocol).
To illustrate the risk posed by law that is subject to changing interpretation from time to time, the current situation that Sir Richard Branson finds himself is illustrative of the conundrum of contextual interpretation of words. Sir Branson is exposed in the more recently released data as sending an email to the convicted and sentenced pedophile referencing his harem. The BBC reports that “in one 2013 exchange, Epstein thanks Branson for his recent hospitality and public relations advice, to which Branson replies that it was "really nice" seeing him, adding: "Any time you're in the area would love to see you. As long as you bring your harem!"” The Virgin Group was at pains to explain the meaning of the word harem as used by Sir Branson. According to Dictionary.com “[i]n slang, the word harem refers to ‘a group of women associated with one man. In the meaning “a group of women associated with one man,” harem is used for humorous effect. But this sense is sometimes perceived as insulting by or to women because it implies that the man collects women like objects.” Perhaps it was in jest that Sir Branson referred to women and girls whose movement was apparently under the control of Epstein - to the knowledge of Sir Branson - as his harem.
Another possible contextual interpretation for the choice of this word by Sir Branson is the historical versions of what were known as harems that have existed in many civilizations. It is reported that some still exist in Islamic territories that practice polygamy. Harems are places for women’s seclusion from public life - often wives, concubines, servants and sex slaves. The women kept in this place have varying levels of power, rights and entitlements depending on the hierarchy and their social status. Often the head of the harem would be the ‘queen’ or the ‘queen mother’. Recalling the conviction of Ghislaine Maxwell for her role in the recruitment and control of the women and girls trafficked and exploited by Epstein and his comrades, it is open to interpretation that this informed the choice to use this word harem in Sir Branson’s email in 2013.
Virgin Group clarified to the BBC in the report that ‘harem’ as used by its head referred to three adult members of Epstein's team. Even if accepted, this interpretation is subject to an appreciation by Sir Branson that the ‘adult’ women he spoke of were under Epstein’s control, particularly with respect to their movement. Secondly, while clarifying that he referred to adult ‘members’ of the team, the choice of the particular word excludes any reference to ‘adult’ men in the said team as harems are historically places of women and, perhaps, eunuchs. Be that as it may, Sir Branson finds himself in a situation where words in an email that he penned thirteen years ago remain open to the public’s interpretation now and in the coming days, possibly years. What the consequence of this will be for him is yet to be seen. For many named in the Epstein files, including former President Jacob Zuma, their response to being publicly outed as having these interactions with a known pedophile remains that inclusion of their communication is not proof of guilt. In other words, the meaning to be ascribed to the communication released by the US Department of Justice should be subject to interpretation taking account of when it was sent and the context within which it was communicated - the time and the circumstances under which they were engaging with the man should be considered in interpreting their words. Perhaps such an indulgence can be extended as they are private emails after all. The law, on the other hand, is assumed to be clear, certain and accessible.
The legal principle that the law is clear is a cornerstone of good governance and rule of law. This is more so when reference is to international law text. Forty-six African Union member states are bound by the words contained in the Maputo Protocol. Rather ingeniously, South Africa noted an interpretative declaration to the definition of “discrimination against women” in the Maputo Protocol. The declaration states that the government of South Africa is bound to apply the definition of discrimination against women according to the “meaning and scope as provided for in and interpreted by the Constitution of South Africa from time to time”. This definition is applicable to only South Africa as opposed to the definition used in the legal text of the Maputo Protocol - which binds all remaining forty-five member states that have ratified the treaty.
The effect of this interpretive declaration on the state’s international law obligations is unique. Generally, international law sets the benchmark for national governments to align their laws to promote and protect human rights. However, this interpretive declaration limits the application of discrimination in the regional women’s treaty to the interpretations made by national courts of the constitution’s prohibition on women’s discrimination. This interpretation is bound to change from time to time and means that the limits of the state obligation under the regional treaty similarly changes from time to time as national jurisprudence in South Africa develops on a case-by-case basis. By implication, South Africa cannot be held liable for an allegation of a violation of the right to non-discrimination under the Maputo Protocol if a national court does not find it a violation of this right. In effect, decisions of the courts in South Africa define the limits of discrimination against women and exclude the application of the definition set out in the regionally binding Maputo Protocol.
In the interest of legal certainty, practitioners must keep abreast with the national jurisprudence that addresses the question of discrimination against women at any point in time. Where the meaning ascribed to words changes with the evolution of society, it is important to do so to ensure the law binding on South Africa is clear and accessible to all. More so considering that the existence of the interpretive declaration poses the risk of limiting the application of the African regional treaty on women’s rights for South African women and girls.
As the Centre turns 40 and as we celebrate the 30th year anniversary of the Beijing Declaration, it remains committed in its mission to promote the implementation and popularisation of the Maputo Protocol through research, training, litigation and advocacy. To achieve this, the Centre continues to curate spaces for constructive and context-specific engagement with member states, Civil Society Organisations and African Human Rights mechanisms on the implementation of the Maputo Protocol, create awareness of the binding and non-binding legal instruments advancing the rights of women in Africa, clarifies and disrupts mis-application of the rights and the human rights norms relating to women’s rights as elaborated in the Maputo Protocol, protects women’s rights before regional and national judicial and quasi-judicial bodies and supports the interpretation of legal text advancing the rights of women in Africa.
South Africa’s interpretive declaration to override the Maputo Protocol’s definition of discrimination against women, from time to time, as per the jurisprudence of its national courts has pros and cons for the protection of women’s rights. The Centre remains steadfast in ensuring that regardless of the shifting social, cultural, technological and moral contexts of society over time, the principles of human rights, equality and dignity that are the cornerstone of a constitutional democracy are not lost in interpretation.
