South Africa: The Zuma trial, gender and the judiciary
Former South African deputy president Jacob Zuma walked away from rape charges in a Johannesburg High Court this week, following a trial that has revealed deep rifts over the race for leadership in the county, but also exposed entrenched attitudes on issues of gender and HIV/AIDS. Judge Willem van der Merwe accepted Zuma's version that his accuser, a 31-year-old family friend who is HIV-positive, had participated in consensual sex. Zuma, whose supporters say charges against him are a plot to thwart his political career, now faces further charges on July 31 – this time on corruption. Should he clear these charges, his road towards presidential power could be unchecked. Pambazuka News has received a number of articles in response to the verdict, which we are reproducing in the entries below. The first article consists of a question and answer email exchange between Pambazuka News and Delphine Serumaga, executive director of People Opposing Women’s Abuse (POWA). In the following four articles, four South African women respond to the not guilty verdict. Sibongile Ndashe, Vanessa Ludwig, Nikki Naylor and Lindiwe Nkutha all express anger and disappointment over what the trial meant for South African women and victims of gender based violence. Next week in Pambazuka News, we will feature a series of articles on the theme ‘The fight for rights: Stories of sexual oppression’.
Pambazuka News: What is your assessment of the verdict in the trial of Jacob Zuma?
Delphine Serumaga: We feel that the verdict reflects the problems and constraints generally experienced by survivors of sexual violence. There is only a 7% rape conviction rate, and many of the reasons for this low rate were evident in this case. Some of the challenges include the legislative and policy framework, which still reflect institutionalized gender oppression. Also, the current definition of rape places a high burden of proof on the complainant/rape survivor. There is also still some application of cautionary rules in rape cases. The law becomes a tool for relentless cross-examination and secondary victimisation by defence attorneys. The Judge in this case seemingly subscribed to the defence's case and reasoning and characterisation of the complainant as being mad and incapable of telling the difference between consensual sex and rape. Women are routinely characterised as being mentally unstable, loose or of questionable morality during the course of rape trials. This reflects the patriarchal context within which courts operate. The stereotypes and misconceptions we heard inside the court were a reflection of the myths and misconceptions heard outside the court.
Pambazuka News: The judge said this would not have an impact on reporting of rape because the case was unique. What, in your opinion, does this judgment mean for women who have been raped and want to go through the legal system?
Delphine Serumaga: Prior to this judgment the conviction rate was low. Reasons for this include women's fears of experiencing secondary victimisation - particularly during cross-examination, low confidence in securing a conviction and the state's inability to protect women from violence and intimidation by the accused. There is no doubt this judgment will reinforce women's fears and low confidence levels in the criminal justice system, particularly if she has been raped before. This occurs even though statistics reflect that a) more women are raped by someone they know (acquaintance rape) than by someone they don't know (stranger rape) and b) multiple experiences of rape are extremely common.
Pambazuka News: The decision by the judge to allow questions about Kwezi's past sexual history resulted in some controversy, and in his verdict the judge spent some time justifying his permission for this. In general, feminist groups oppose the admittance of past sexual history in rape cases. What implications does the way the judge dealt with this have for future cases, if any?
Delphine Serumaga: There is a chance that this will be referred to in future cases. The new Sexual Offences Bill does propose tighter requirements and a set of criteria to be met before this evidence can be deemed admissible. The Bill, if passed as is, will still not be sufficient in protecting women from having their sexual history dragged into court. Once passed, gender activists will need to scrutinise the application of the new section.
Pambazuka News: The judge reserved some tough words for the media and the role of other special interest pressure groups, especially questioning the role of various women's organisations in their application to be friends of the court. In particular, he said "pressure groups should not jump to conclusions before hearing all the evidence". Is he correct? Why?
Delphine Serumaga: I think the Judge on more than one occasion used his position on the bench to make moral and other pronouncements. He did speak at length about pressure groups who he said were in breach of the sub-judice rule and who lodged the amicus brief. As gender violence organisations it is our key mandate to lobby for changes to unjust laws and practices, and to inform the public of the problems confronting survivors who engage the courts for justice. As made evident by the judgment, we were not jumping to conclusions. The very essence of the amicus brief was to provide expert evidence and to explain multiple experiences of rape (which he interpreted as being unlikely and therefore probably made up by the complainant).
Pambazuka News: What has the case shown about the rights of the rape survivor and her position in the legal system?
Delphine Serumaga: Overall rape laws and court processes surrounding rape cases continue to disadvantage rape survivors. Some of the aspects of this have been explained above, but additionally, the absence of legal representation for the complainant makes her vulnerable, as the prosecutor cannot be said to represent the complainant, but is there on the State's behalf.
Pambazuka News: Quite aside from the verdict and whether one holds the opinion that this was a good or a bad verdict, the trial has shown that in an environment where there is an entrenched protection for women, some very ugly attitudes have nevertheless been expressed. How has the trial reflected prevailing views in South Africa about women's sexual roles and rights?
Delphine Serumaga: This case has revealed commonly held myths and misconceptions about rape survivors that are still being held by many sections within society. This refers not only to those beliefs about women and rape, but also about HIV and AIDS. Myths and misconceptions about rape seek to maintain the current gender imbalance and reinforce male privilege and power. They further place the responsibility for the violence on the survivor (i.e. victim-blaming), effectively releasing the perpetrator from responsibility for his/her actions.
Pambazuka News: In some senses, women's rights and concepts of culture appear to have been diametrically opposed. Why have the two been so at odds in this context and how can the tension be resolved?
Delphine Serumaga: Culture is dynamic and subject to the interpretations of those with power. In South Africa we are the sum of many cultures but subject to only one Constitution. This Constitution was developed by all the people and was not imported or imposed. Much of the cultural norms about women's dress and so on are in fact imported notions of gender. Progressive interpretations of culture need to be promoted but those that run counter to this must be discarded.
* Interview conducted by email. Please send comments to
Links:
- Trial judgment
http://www.constitutionalcourt.org.za/site/lawclerks/zumajudgment.pdf