If rape victim has exhausted all remedies nationally, she must go international, says activist
Johannesburg - Rape victims in South Africa, such as Andy Kawa, who has waged a decade-long battle for justice, including holding the police to account for their tardiness in investigating her case, should seek recourse from the UN Committee on the Elimination of Discrimination against Women, says human rights activist Zonke Majodina.
“If she has exhausted all remedies available to her nationally, she must go international, her case deserves to be heard at that level. What she has been through, amounts to a form of torture, as defined by the International Convention Against Torture,” said Majodina.
Kawa’s battle for justice is being decided by the Constitutional Court after she was raped in a 15-hour ordeal on a beach in the Eastern Cape on December 9, 2010.
She was victorious in the high court but the decision was overturned on appeal.
In court papers, it was said that the officer assigned to her case was negligent in that he stopped his search 20m short of the point where she was being held captive.
Had he not done so, given that his trained sniffer dog was “off-lead” it would probably have found her – and lessened the torture she experienced throughout the night when she was repeatedly raped.
Majodina is a former commissioner with the Human Rights Commission and is currently a visiting professor attached to the gender justice programme at the Centre for Applied Legal Studies at the University of the Witwatersrand. She is passionate about gender justice and writes frequently on the subject.
She told the Wits Justice Project that, under international human rights law, the kind of gender-based violence (GBV) in the country amounted to torture.
“The case of Andy Kawa is unique in many ways, with so many unnecessary twists and turns, and what has happened to her is traumatising,” she said.
“Torture is defined in the International Convention Against Torture in terms of its severity; the highest level torture at its worst form, and then there's cruel, inhuman and degrading treatment.”
The Convention on the Elimination of all Forms of Discrimination Against Women is an international treaty adopted in 1979 by the UN General Assembly. Described as an international bill of rights for women, it was instituted on September 3, 1981, and has been ratified by 189 states. South Africa signed the convention in January 1993 and ratified it on December 15, 1995.
“For me, apart from this being a criminal case, it’s also a gross violation of Andy’s human rights. We don't concentrate on this aspect of the case, we just concentrate on the legalities of it.
“Yes, her case has been going on over the years and, as you know, accountability has not been forthcoming from the police.
“I believe that this is no longer a case of an individual's rights, being violated. It’s about social justice. It reflects the deep structural relationships of power, domination and privilege between men and women in our society, and violence is used in maintaining these relations of domination.”
Kawa said the justice system moved “too, too slow”, and that the only time it took a shorter period to get justice was when cases were so widely publicised that the system had no option but to make sure the case comes to finality, like the case of Tshegofatso Pule. She was stabbed multiple times and hanged from a tree in Roodepoort on the West Rand in June last year. Pule was eight months’ pregnant.
Within a year, the case has come to finality but this is a rare occurrence. Last month, Mzikayise Malephane was sentenced to 20 years in jail for her murder. Malephane said he had been offered R7000 by her ex-boyfriend to carry out the killing but had declined. He accepted after the price went up 10 times that amount.
In another case that bucked the trend, Eastern Cape prison warder and marathon runner Ntombisintu Mfunzi, who was raped and almost bludgeoned to death with a hammer on November 12, 2016, saw her attacker jailed for 22 years in February 2018. She was one of the fortunate ones to witness justice, which helped ease the trauma somewhat. “I am in a better space now, thanks to the support I have received and, in turn, I want to help empower other survivors,” she said.
Majodina said that in most instances the battle for justice was hampered by poor policing or the slowness of the judiciary.
“I’m talking about the whole social justice system because it's not just the perpetrators. It is the victims, their families, everybody around them. So, this whole matter of bringing justice to victims has many dimensions.”
Answering a Parliamentary question last year, Police Minister Bheki Cele said only 3% of the reported gender-based violence cases were successfully prosecuted – with poor performance of police officers under his watch – and the attached secondary trauma and victimisation in the system a deterrent for victims. Majodina said she once interviewed members of People Opposing Women Abuse, and was told that many women have no faith in the criminal justice system.
“They don't even report abuse, because they say, it's not going to help anybody.
“I don't know how long it's going to take, and what it's going to take to change, because, for example, there is little compassion among our gentlemen of the police service.
There are policy guidelines, and the mandate of police is for them to prevent, combat and investigate sexual offences and operate with respect to victims, with an understanding of their needs, (which is) point number one in their mandate.
“And then there are other policies; police stations must have standing or station orders, specific ways on how to handle gender-based violence. Most police stations don't even have such orders, according to research.
“It has been said that most police stations don’t even have a domestic register. Most police stations don’t have victim-friendly rooms, people are interviewed willy-nilly by whoever is at the front desk in a very aggressive manner, sometimes told to go back home.”
Majodina said that when a case was investigated, the quality of the investigation was so poor that it resulted in premature closure of the case. It was not just the police but the whole system, although the police were the face of it.
“If the police did not do their job, we may as well close shop and stop spending billions on initiatives that are not working, Andy is correct when she says ‘our bodies will continue to be crime scenes’. She is spot on.”
Majodina was critical too of politicians who talk about GBV during Women’s Month only, “making speeches and talking about setting up hotlines that don't work”.
“You look at Kawa’s battle through the court’s for 10 years; it should drive her insane but she has shown remarkable resilience. What has happened to her is really disgraceful.”
* Edwin Naidu writes for the Wits Justice Project (WJP). Based in the journalism department of the Wits University, the WJP investigates human rights abuses and miscarriages of justice related to SA’s criminal justice system.
*This article was originally published in the Sunday Independent