FROM CAPE TOWN TO KABUL This book is written with passion for and deep experience of struggles for women’s rights in different parts of the globe. Professor Andrews deals with the vexed issue of the role of local cultures in defining women’s rights in both South Africa and Afghanistan. She departs from the traditional western feminist goal of autonomy for women and argues instead for recognition of women’s “conditional interdependence”. This book is bold and insightful, a rich comparative analysis, with a transformational purpose. Hilary Charlesworth, The Australian National University, Australia In this fascinating read, the author addresses the critical complexities of women’s rights in transitional societies. Developing the intriguing concept of “conditional interdependence”, she challenges feminist conceptualizations based primarily on personal autonomy. Whether in her native South Africa or Afghanistan, progress occurs only with the support of the community of women AND men. Adrien K. Wing, University of Iowa College of Law, USA FromFrom Cape Cape Town Town to toKabul Kabul From Cape Town to Kabul RethinkingRethinkingGovernance Strategies GovernanceStrategies for forPursuing Pursuing for Women’s W for omen’sJustice Justice Rethinking Strategies for Pursuing Women’s andandHuman EnvironmentalHuman REnvironmentalights Rights Human Rights SustainabilitySustainability LessonsLessons across across natural natural resource resource sectorssectors in sub-Saharan in sub-Saharan Africa Africa EditedEdited by by MerlePENELOPEMerlePENELOPE Sowman A NDREWSowman ANDREWS andS and PENELOPE ANDREWS RachelAlbanyRachelAlbany Law Wynberg LawSchool, School,Wynberg USA USA Albany Law School, USA ISBN: 978–0–415–52359–2 (hbk) ISBN: 978–0–203–12088–0 (ebk) First published 2014 (CC BY-NC-ND 4.0) 9780754679967_Discl.indd 2 02/29/20 4:34:23 PM First published 2012 by Ashgate Publishing First published 2012 by Ashgate Publishing Published 2016 by Routledge Published2 Park Square, 2016 Milton by Routledge Park, Abingdon, Oxon OX14 4RN 7112 Park Third Square, Avenue, Milton New Park, York, Abingdon, NY 10017, Oxon USA OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © 2012 Penelope Andrews Copyright © 2012 Penelope Andrews Penelope Andrews has asserted her right under the Copyright, Designs and Patents Act, 1988,Penelope to be A ndrewsidentified has as asserted the author her ofright this underwork. the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. All rights reserved. No part of this book may be reprinted or reproduced or utilised in TheanyAll rightsformOpen or reserved.Access by any version electronic,No part of of this thismechanical, book, book available may or be other reprintedat www.taylorfrancis.com,means, or now reproduced known or or hereafter utilised has been in made availableanyinvented, form underorincluding by anya Creative electronic,photocopying Commons mechanical, and Attribution-Non recording, or other or means,in Commercial-Noany information now known storage Derivativesor hereafter or 4.0 license.retriinvented,eval system, including without photocopying permission and in recording, writing from or in the any publishers. information storage or retrieval system, without permission in writing from the publishers. Notice: ProductNotice: or corporate names may be trademarks or registered trademarks, and are usedProduct only or for corporate identification names andmay explanation be trademarks without or registered intent to trademarks,infringe. and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data BritishAndrews, Library Penelope. Cataloguing in Publication Data Andrews,From Cape Penelope. Town to Kabul : rethinking strategies for pursuing women’s human rights. From1. W omen’sCape Town rights– to KabulAfghanistan. : rethinking 2. W strategiesomen’s rights–Southfor pursuing women’sAfrica. 3.human Women rights. and 1.democracy– Women’sA fghanistan.rights–Afghanistan. 4. Women 2. and W democracy–Southomen’s rights–South Africa. Africa. 3. W omen and democracy–I. Title A fghanistan. 4. W omen and democracy–South Africa. I.323.3’4’09581-dc23 Title 323.3’4’09581-dc23 Library of Congress Cataloging-in-Publication Data LibraryAndrews, of P enelope.Congress Cataloging-in-Publication Data AFromndrews, Cape Penelope. Town to Kabul : rethinking strategies for pursuing women’s human rights / by FromPenelope Cape A ndrews.Town to Kabul : rethinking strategies for pursuing women’s human rights / by P enelope p. cm. Andrews. Includes p. cm. bibliographical references and index. ISIncludesBN 978-0-7546-7996-7 bibliographical references (hardback and : alk.index. paper) 1.IS WBNomen’s 978-0-7546-7996-7 rights–South A (hardbackfrica. 2. W :omen’s alk. paper) rights– Afghanistan. 3. Sex discrimination 1.against Women’s women– rights–SouthLaw and legislation–SouthAfrica. 2. Women’s Africa. rights– 4. SexAfghanistan. discrimination 3. Sex against discrimination women– againstLaw and women– legislation–Law Aandfghanistan. legislation–South I. Title. Africa. 4. Sex discrimination against women– L K3243.aw and Alegislation–95 2012 Afghanistan. I. Title. K3243.323.3’4–dc23A95 2012 323.3’4–dc23 2012019358 2012019358 ISBN 9780754679967 (hbk) ISBN 9780754679967 (hbk) 9780754679967_Discl.indd 1 02/29/20 4:16:37 PM Contents Introduction vii 1 Setting the Stage: Transforming Women’s Lives 1 2 Reconsidering Women’s Rights 11 3 The Global Legal Campaign for Women’s Rights 35 4 Culture and Women’s Rights: A Continuing Dilemma 63 5 South Africa’s Constitutional Project: Constitutional Text and Constitutional Jurisprudence 91 6 Afghanistan and Gender Equality 133 7 Obstacles to the Pursuit of Women’s Rights: Conditional Interdependence Revisited 167 Bibliography 175 Index 215 Introduction Writing this book has been a labor of love. The title of the book and its thesis stemmed from my years of advocacy, teaching and scholarship about women’s rights, particularly the rights of black South African women and indigenous Australian women. The kernel of the book first took shape in 2004 when I was a visiting scholar at the Rockefeller Center in Bellagio, Italy, surely one of the most spectacular and peaceful places on earth. Any scholar deserves some time in Bellagio! It is therefore fitting that my first note of thanks goes to the Rockefeller Foundation, for creating the conditions for me to pursue the writing of this book. I had initially hoped that the manuscript would be completed within a year or two after my stint in Bellagio – but various projects precluded this from transpiring. First, I took up a visiting position as the Ariel Sallows Professor of Law and Democracy at the University of Saskatchewan in Saskatoon, Canada, a jewel of a place, albeit somewhat frozen for many months of the year. Over the course of that year I acquired many friends and the time I spent there was very special. I taught a course at the law school on comparative human rights, and organized two conferences: one at the University of Saskatchewan and other at the University of KwaZulu-Natal. The proceedings of the latter conference were published in a volume that I co-edited with Susan Bazilli entitled, Law and Rights: Global Perspectives on Constitutionalism and Governance. In 2007 I left New York and moved to Valparaiso, Indiana, first as a visiting professor at Valparaiso University School of Law, and later joining the faculty on a permanent basis. My years at Valparaiso were wonderful and many on the faculty there became good friends. At Valparaiso I organized a series of conferences. Between 2008 and 2010 I held a joint appointment with Valparaiso and La Trobe University in Melbourne, Australia, tripling my airline mileage but depleting my reserves of energy. I returned to CUNY School of Law as the Associate Dean for Academic Affairs in 2010. As I submit this manuscript I have just commenced my term as the first female President and Dean of Albany Law School in the capital of New York state. In addition to thanking the Rockefeller Foundation, several people have to be thanked. First, my support staff at the CUNY School of Law, including Angela Morrison, Maryann Ruggiero, Lisa Smith, and Cathy Larsen. A special thanks also goes to Vicki Hickey. I also thank my research assistants, Margaret Palmer – CUNY Class of 2012, Prathiba Desai – CUNY Class of 2012, and Rachel Sazanowicz – CUNY Class of 2014, all young women who make CUNY School of Law proud, and who will in time become excellent public interest lawyers. viii From Cape Town to Kabul Part of this manuscript was presented over the years at several law schools, including the University of Nebraska (courtesy of Professor Anna Shavers), the Australian National University School of Law (courtesy of Professor Hilary Charlesworth) and the Washington and Lee School of Law (courtesy of Professor Blake Morant – now Dean at Wake Forest School of Law). I am indebted to them for hosting me and enabling me to engage with their intellectual communities. My gratitude and thanks go to the following individuals: Professor Taunya Banks, a wonderful friend and friendly critic, Ms. Susan Bazilli, who tirelessly and fearlessly advances the rights or women, Professor Heinz Klug, a loving friend, who inspires, Professor Janet Calvo, the most generous and gracious teacher and host and Professor Andrea McArdle, a creative and thoughtful scholar and friend. They have read and commented on versions of this manuscript. A very special thank you is owed to Mr. Napoleon Williams, whose friendship, guidance and support has been a source of joy. He studied the first drafts of many chapters and gave me the benefit of his knowledge and helpful criticisms. I thank the members of the South Africa Reading Group, especially my co-host, Professor Stephen Ellmann, and the members of that group, who in the past two decades have ensured that the legal, constitutional and political project in South Africa remains of interest to Americans.