Afro-feminism and the Coloniality of Gender in Constitutional and Legislative Drafting: South Africa as a Case Study

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 1-21
• Author: Mutondi Mulaudzi
• Published date: 01 June 2023
• DOI: 10.25159/2522-6800/11457

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/11457

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online ), ISSN 2219-6412 (Print)

Volume 38 | Number 1 | 2023 | #11457 | 21 pages

© The Author(s) 2023

Published by Unisa Press. This is an Open Access article distributed under the terms of the

Creative Commons Attribution-ShareAlike 4.0 International License

(https://creativecommons.org/licenses/by-sa/4.0/)

Afro-feminism and the Coloniality of Gender in

Constitutional and Legislative Drafting: South

Africa as a Case Study

Mutondi Mulaudzi

https://orcid.org/0000-0002-3468-8347

University of South Africa

tondimul@gmail.com

Abstract

Before essential feminist contributions to legal drafting were made, legislative

drafters adopted the use of the masculine rule, which established that all genders

were implicitly included in the usage of the pseudo-generic third person

masculine singulars such as ‘he’ and ‘him.’ In the 1960s, feminism acted as a

nucleus for an approach to legal drafting that was inclusive of and thus avoided

the erasure of women in constitutional and legislative language. Historically,

the concept of gender neutrality has been approached from binary cisgendered

and heteronormative perspectives. Legal drafters now have to take cognisance

of this evolving reality as there is a growing need for legislation that is gender

diverse and non-heteronormative. The Recognition of Customary Marriages Act

120 of 1998 has been subject to criticism for its use of gendered language that

excludes queer couples. This article places the development of an understanding

of inclusive legal drafting in South Africa within Afro-feminist theory. These

theories present a more useful framework for thinking beyond a binary view of

language in legal drafting. They also present an opportunity of pl acing inclusive

legal drafting as African, in the face of continued marginalisation and

subjugation of gender and sexual minorities on the continent. Using theories

such as the coloniality of gender, the coloniality of being and the coloniality of

knowledge for deconstructing Western and consequently binary notions of

gender neutrality, I suggest an Afro-feminist understanding of drafting that will

consequently be gender-neutral in a way that is inclusive of queer people.

Keywords: Legal drafting; customary law; Afro-feminism; gender and sexuality; legal

language; gendered language; gender pronouns

Mulaudzi

2

Introduction

This may be an unusual opening for an academic article, but indulge me for a moment.

In the narrative of equality, language would perhaps not play the role of the protagonist,

but it would certainly be a main or recurring character. Think of the story of racial

equality and the role that language has played and continues to play in maintaining the

dignity of the disenfranchised. Think of feminism and gender inequality and the role

that language has played in changing the status quo for women. In both examples I have

mentioned, language may not be central in the struggle to emancipate, but it has

consistently played an essential role for understanding inequality and for engaging with

inclusivity. The removal of racist and sexist language from the law and other writing,

was and continues to be a chapter in the ongoing story of equality. Where sexual and

gender equality (and inequality) are the protagonists, language plays the role of

antagonist as well as confidant. As an antagonist, language establishes and maintains

social hierarchies and the subsequent marginalisation of the most vulnerable and

excluded people. As a confidant, language acts as a ‘sidekick’ or friend to equality. In

the story of the struggle for equality for queer people, language makes another

appearance—a centralised and unequivocally important role for equality. The adoption

of inclusive language is an ongoing storyline.

In this article, I am interested in the story of queer equality and the role of the language

of the law and with that, questioning the androcentric, cisgendered, heteronormative,

and thus exclusionary nature of language as an ongoing conversation in the queer

community. This includes the re-introduction and -incorporation of singular third

person pronouns and/or neo-pronouns such as the singular use of ‘they/their,’

‘ze/zem/ziir’1 as a central focus of queer language activism. I am particularly interested

in understanding the use of gendered language in legislation and thus curiou s about the

historical use of androcentric language in law, the cisgendered and heteronormative

responses to androcentric language and the potential for Afro-feminist responses as a

more inclusive approach. Moreover, I am interested in the use of gendered language in

South African law.

It is important that I clarify my use of ‘queer’ and ‘transgender’. I use the word queer

as an umbrella term for all gender and sexual minorities. My use of these terms is

inclusive of all people who do not fit the mould of societies’ expectations when we

speak of gender and sexuality. It is inclusive of all sexual and gender diverse people

including lesbian, gay, bisexual, transgender, intersex, and others who do not conform

to cisgendered and heteronormative concepts of sex and gender. Although I recognise

the pejorative history of the word queer, I use it as an empowering descriptor. Where I

1 Ze/zem/ziir are neo-pronouns used by gender diverse/queer people. See Kaitlyn Joanne Bjerketvedt,

Transgender College Students: A Training Developing Inclusivity and Advocacy on College Campus

(2020).