Introduction

On 5 and 6 December 2018, the Centre for Human Rights at the University of Pretoria hosted a conference on the Decolonisation of International Law. Taking as its point of departure the view that there is a nexus between efforts to advance the protection of women’s rights and the perception that international law tends to perpetuate disadvantage, Agenda engaged with the Centre for Human Rights to allow us to hold our Feminist Dialogue on the Sustainable Development Goals during the conference that they had organised. The Centre for Human Rights granted permission and the result was a hugely successful two-hour long event on 5 December 2018.

The two guest speakers invited to lead the Feminist Dialogue were Ms Christiane Struckmann from the University of Stellenbosch and Ms Mmatsie Mooki from the University of South Africa. The speakers were tasked with the responsibility of analyzing the question of how international law can be made more ‘effective’ for the advancement of women’s rights if it is decolonized.

Methodology and conceptualisation of the Feminist Dialogue

Ms Lee Stone, representing Agenda, welcomed everyone to the Feminist Dialogue and Journal Launch by locating the theme of the Dialogue within its context of the decolonization of international law. She commenced by quoting the French philosopher Michel Focault who argued that in order to achieve ‘effective opposition to systems of domination’, what is required is ‘controlled demolition-work, not random lightning flashes’ and that this requires ‘a specific programme’. Accordingly, the objective of the Feminist Dialogue was to confront the failure to comply with the rule of law in Africa, with specific focus on the Sustainable Development Goals. Ms Stone continued by emphasising that various scholars argue that for law to be responsive, what is needed is its ‘authoritative invocation, application and enforcement’. Referring to Sundhya Pahuja’s work in particular, the Feminist Dialogue was conceived so as to adopt a suitable strategy to achieve this end. Juxtaposed against this strategy is the reality of colonialism’s effect, poignantly expressed by Tsitsi Dangarembga in the book Nervous Conditions:

When an original culture is superimposed with a colonial or [apartheid] culture … it produces a painful nervous condition of ambivalence; uncertainty, a blurring of cultural boundaries, inside and outside, an otherness within. … “It is bad enough”, [Nyasha] said severely, “when a country gets colonised, but when the people do as well! That’s the end, really, that’s the end”. … The result is to forget who you were, what you were and why you were that.

Instructively, Ms Stone elaborated, it is Michel Focault who provides the most convincing approach to achieve the objectives of the Feminist Dialogue. As he stated: we must ‘engage in research based on a series of historical inquiries that are as precise as possible’. Therefore, a multi-disciplinary approach is appropriate because from the outset, we are forced to confront the reality that the very epistemology of the practice of law (‘the modus operandi’) is flawed because it is backward looking and is invariably only triggered by an ex post facto violation of the law, which impedes its ability to change outcomes.

As a methodological framework, post-colonialism lends itself well to decolonisation of international law because post-colonialism’s raison d’être is transformative change: to empower the dispossessed and disadvantaged within a broader framework of democratic egalitarianism. Resisting oppression and exploitation, it aims to undo hierarchies of power. The disruptive, destabilising power of post-colonialism provides the impetus to strategize about how international law and its institutions can be better employed to apply to those ‘differentially subjected to the transformative violence’ of its administration (as Pahuja puts it). Ms Stone proceeded to open the Feminist Dialogue.

A critique of the Sustainable Development Goals by Ms Struckmann

Conceding that whereas the Sustainable Development Goals (SDGs) were designed to improve the lives of women on the ground and certainly do signal improvement on the Millennium Development Goals, Ms Struckmann made it clear that they are not without robust criticism. Her primary issue with the SDGs was that they claim to prioritise the triple challenges of the eradication of poverty, inequality and unemployment, although this is not feasible given the existing imbalance in power relations and that the structural causes of these problems are not directly addressed.

Ms Struckmann’s case study engaged with the interplay of four factors, namely power, agency, neoliberal economics and indigenous knowledge, illustrating that adherence to a liberal feminist and neoliberal framework, counterintuitively, impedes gender justice. Accordingly, she explored how power inequalities continue to operate and manifest in gendered ways. Specifically, she reiterated that poverty overwhelmingly has a female face. She lamented that the formulation of the SDGs lacks an integrated gender perspective and is, therefore, unable to identify the link between the multiple and intersecting forms of discrimination. Exacerbating this state of affairs is how the SDGs characterize most neoliberal development initiatives in that they are geared primarily towards economic growth.

Analysing reproductive rights through the prism of colonialism’s legacy

Ms Mooki’s presentation was titled ‘SDGs, reproductive health rights and compliance with international legal obligations: lessons from the Women’s Protocol using abortion as a test case’ and confirmed that the legacy of colonialism obstructs compliance with international legal obligations. The paper firstly indicated that the topic of abortion is an emotive, sensitive and taboo subject in Africa which is associated with stigma. This is the case despite the fact that it is a reality in Africa as women who are faced with unwanted, unintended or unplanned pregnancies resort to it despite the status of the law or the criminalisation of the practice.

One of the purposes of the discussion was to elicit debate on whether the SDGs can be described as ‘African’, as a number of people have said they are not consistent with the African Union’s Agenda 2063 that is described as a ‘purely African document’, yet the two   share many of the same sentiments. For this reason, substantively, Ms Mooki used abortion as a test case for an analysis of the right to reproductive health. The first line of enquiry was the extent to which African countries will be able to meet the obligations imposed by the SDG in the light of the contentiousness of issues such as abortion, the role of culture, tradition and religion in the African context. In addressing these issues, Ms Mooki asked whether it would be possible for African countries to meet their SDG targets when juxtaposed against the performance of African countries relating to the implementation of obligations imposed by the Women’s Protocol in the 15 years since it was adopted. Specific reference was made to compliance with article 2 which deals with the elimination of discrimination against women and article 14 which addresses health and reproductive rights. Specific emphasis was placed on article 14(2)(c) which provides that ‘State Parties shall take appropriate measures to protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus’. Cumulatively, articles 2 and 14 of the Women’s Protocol convey the same message as Goals 3 and 5 of the SDGs, with Goal 3 emphasising good health and wellbeing and Goal 5 speaking of gender equality.  In particular, Goal 3.1 sets the goal of reducing the global maternal mortality ratio to less than 70 per 100,000 live births by 2030 while Goal 3.7 sets the target of ensuring universal access to sexual and reproductive health-care services by 2030. This will include family planning, information and education, and the integration of reproductive health into national strategies and programmes. Accordingly, Ms Mooki contended that the provision of safe and legal abortion is essential to fulfilling this commitment, on condition that states are able to adhere to the indicators set out to measure compliance. 

The second part of Ms Mooki’s presentation took the form of an exposition of recent updates regarding the status of abortion laws in Africa. The discussion concerned the scope of the problem with regard to compliance with – and enforcement of – the laws that criminalise abortion. Accordingly, Ms Mooki elucidated the myriad challenges pertaining to the implementation of the law in countries which have relaxed their abortion laws. This was discussed alongside implementation of article 14 of the Women’s Protocol for countries that have ratified it as well as the difficulties experienced by states which have entered a reservation to article 14. By way of conclusion, it was asserted that if African state parties to the Women’s Protocol fail to implement provisions of article 14(2)(c), then they will also fail to implement SDG goal 3.7 as it speaks to the same difficult topic, being reproductive and sexual health, including abortion.

The presentation generated a number of comments, such as ‘abortion is unAfrican and violates the right to life of the unborn’; ‘states should not allow abortion unless the life of a woman is in danger’; ‘the abortion clause in the women’s Protocol and the SDGs should be reviewed’; ‘abortion is a human rights issue which should be left to the pregnant women to exercise their choice’ and ‘African countries should start drafting conventions and policies that take into consideration culture, religion and diversity of thought in Africa’.

Journal Launch

Immediately following the Feminist Dialogue was the launch of Agenda’s most recent journal titled ‘The Gender Equality Discourse of Sustainable Development Goals and Other Instruments for Gender Equality: Advancing Feminist Agenda in Africa?’ This journal was the result of a collaboration between Agenda and the Southern African Aids Trust. The guest editors of the journal were Vicci Tallis and Clair Muthonsi, both from the Southern African Aids Trust.