Authored By: Faith Tshabalala
University of South Africa
Introduction
One of the most severe and enduring societal issues confronting civilisations worldwide is gender based violence (GBV). Violence against women and gender nonconforming individuals persists at concerning rates despite decades of lobbying, awareness campaigns, and legal reform. Particularly in South Africa, where high rates of femicide, sexual offences, and domestic violence are reported annually, gender-based violence has been called a national issue.
What makes gender-based violence especially alarming is not merely its ubiquity, but the way in which it systematically undermines victims of their most basic human rights. Survivors of GBV are routinely denied dignity, equality, physical autonomy, and access to justice. Because of this, gender based violence must be recognised and dealt with as a violation of human rights rather than only as a personal issue or a social ill.
Human rights are crucial in the battle against gender-based violence, according to this essay. By presenting GBV via a human rights lens, the law identifies survivors as rights-holders and lays clear responsibility on the state to prevent violence, protect victims, and hold perpetrators accountable. This essay examines why a human rights-based strategy is crucial to successfully addressing gender-based violence using South Africa’s constitutional framework and pertinent international human rights treaties.
The Human Rights Concern of Gender-Based Violence
Gender-based violence refers to acts of violence that are directed at a person because of their gender and are rooted in uneven power relations. It involves physical, sexual, emotional, and economic abuse, as well as harassment, coercive control, and damaging cultural traditions. While GBV can affect anybody, women and girls are disproportionately afflicted owing to profoundly ingrained gender inequalities and patriarchal social institutions.
It is crucial to see gender-based violence as a human rights issue since doing so firmly places the blame on society and the state rather than the individual survivor. Historically, violence happening within private settings such as the house was typically exempt from legal examination. However, authorities cannot disregard violence just because it takes place in a private setting, according to international human rights law.
Numerous essential human rights, such as the rights to equality, dignity, life, freedom, and personal protection, are violated by acts of gender-based violence. When the state fails to respond sufficiently to GBV, it effectively allows these violations to persist. Therefore, a human rights framework acknowledges that freedom from violence is a legal entitlement rather than a luxury and calls for accountability.
South Africa’s Constitutional Protection of Human Rights
The Bill of Rights in the South African Constitution offers a solid framework for combating gender based violence. Section 7(2) of the Constitution lays a positive duty on the state to respect, protect,
promote, and fulfil the rights established in the Bill of Rights. This commitment is particularly crucial in the context of GBV, because governmental inaction can have catastrophic effects.
Section 9 of the right to equality forbids discrimination based on sexual orientation, gender, or sex. Gender-based violence both derives from and fosters inequality, making the protection of this right fundamental to any legal response to GBV. The right to human dignity, which is essentially infringed by acts of abuse, humiliation, and domination, is guaranteed under Section 10.
Section 12(1)(c) of the Constitution, which states that everyone has the right to be free from all types of violence, whether from public or private sources, may be the most immediately applicable. This clause is essential because it acknowledges the state’s obligation to shield citizens from violence by private actors, especially intimate relationships.
In decisions like Carmichele v. Minister of Safety and Security, the Constitutional Court affirmed the significance of this obligation. In this decision, the Court found that the state might be held accountable for failing to safeguard a woman from a known violent offender. The ruling made it abundantly evident that the state must take reasonable measures to stop gender-based violence and that common law must be developed with constitutional rights in mind.
International Human Rights Law’s Function
International human rights law plays a key role in shaping domestic responses to gender-based violence. South Africa has ratified a number of regional and international agreements requiring states to take proactive steps to end GBV.
One of the most prominent instruments is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Although the original language of CEDAW does not directly address gender-based violence, the CEDAW Committee has highlighted that GBV represents a form of discrimination that substantially affects women’s ability to enjoy their human rights. General Recommendation No. 19, which was later reinforced by General Recommendation No. 35, requires states to take reasonable steps to stop, look into, prosecute, and address gender based violence.
At a regional level, the African Charter on Human and Peoples’ Rights and the Maputo Protocol give extra protection. States are expressly required by the Maputo Protocol to fight all types of violence against women, including domestic and sexual abuse, and to implement institutional and legislative safeguards for victims.
When interpreting the Bill of Rights, courts must take international law into account, according to Section 39(1)(b) of the South African Constitution. Because of this, these international instruments are more than just aspirational; they have a significant impact on how South Africa’s legal duties regarding GBV are shaped.
A Human Rights-Based Strategy to Address GBV
Criminalising abusive behaviour is only one aspect of a human rights-based strategy to combat gender-based violence. While legislation is vital, human rights require a larger and more holistic approach.
One essential principle of this method is accountability. The state must make sure that GBV offenders are properly investigated and prosecuted. In addition to eroding public trust, police, prosecutors, or courts that fail to take allegations seriously violate the rights of survivors.
Access to justice is another crucial factor. When trying to obtain legal protection, survivors of gender-based violence frequently encounter major obstacles, such as financial reliance, fear of reprisals, and secondary victimisation by the criminal justice system. Legal procedures must be accessible, survivor centered, and trauma-sensitive in order to comply with a human rights perspective.
Prevention is also a crucial component of a human rights framework. Addressing gender-based violence entails confronting social norms and attitudes that normalise violence and maintain gender inequity. Therefore, community involvement, education, and awareness campaigns are crucial strategies for preventing GBV and advancing a human rights-conscious culture.
Persistent Obstacles to the Realisation of Human Rights
Gender-based violence persists in South Africa despite the country’s progressive legislative and constitutional structure. This emphasises the ongoing gap between legal concepts and lived reality. Many survivors do not report abuse owing to stigma, fear, or a lack of trust in official institutions. Where cases are reported, they are typically greeted with delays, poor investigations, or victim blaming attitudes.
Another major obstacle is the lack of resources. Legal aid agencies, counselling services, and shelters are often underfunded, which limits their capacity to provide survivors with adequate support. Furthermore, interlocking forms of discrimination based on sexual orientation, race, class, and disability limit access to justice and increase vulnerability to GBV.
These difficulties show that acknowledging GBV as a violation of human rights is just the beginning. Meaningful change needs regular execution, political determination, and a commitment to addressing the socioeconomic conditions that allow violence to persist.
Conclusion
Any successful response to gender-based violence must prioritise human rights. The law supports the dignity and agency of survivors and clearly requires the state to take action by presenting GBV as a violation of constitutional and international human rights. A robust legal foundation for combating GBV is provided by South Africa’s Constitution, which is backed by international human rights legislation. Nonetheless, the persistence of violence emphasises the need for stronger law enforcement and more profound social reform.
In the end, a sincere commitment to human rights is necessary to defeat gender-based violence. In addition to being required by law, defending equality, dignity, and freedom from violence is also morally required. A human rights-based approach offers the most complete and principled pathway towards a society free from gender-based violence.
Bibliography:
Constitution of the Republic of South Africa, 1996
Carmichele v Minister of Safety and Security and Another 2001 (4) SA 938 (CC)
Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13
CEDAW Committee, ‘General Recommendation No 19: Violence against Women’ (1992)
CEDAW Committee, ‘General Recommendation No 35 on Gender-Based Violence against Women’ (2017)
UN General Assembly, ‘Declaration on the Elimination of Violence against Women’ (20 December 1993) UN Doc A/RES/48/104
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986)
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted 11 July 2003, entered into force 25 November 2005)
