Green Shoots: Misogyny, power and the law

The Judicial Conduct Tribunal is a mechanism intended to hold judges to account. We saw one in action in the case of a charge of sexual harassment brought against Selby Mbenenge, Judge President of the Eastern Cape Division of the High Court. The tribunal found him not guilty of the serious charge of sexual harassment, but guilty of a lesser “degree of misconduct’ in that he initiated a relationship with the complainant Andiswa Mengo, a junior secretary in his office. The Judicial Service Commission will consider the finding, but there is no basis for impeaching the judge.

In a country where gender relations are so often defined by unequal power dynamics, this finding is seen as an important decision in the context of our Constitution and justice system. I found two articles that held quite opposite views, and they got me thinking about what we can learn from the decision and processes of this tribunal.

The first article celebrated the triumph of the evidentiary process over moral commentary on the actions of the judge. At the outset, the tribunal had said that the relative positions of authority enjoyed by the protagonists – a senior judge and a junior secretary - would not impact considerations needed to arrive at a finding. It would be an objective review of the evidence presented. And it found that sexual harassment could not be proved by the complainant. The author celebrates the dignity and authority with which the respondent and his lawyer showed up, and hailed the upholding of the law above the moral commentary of the liberal media. Invoking Fanon, the author dismisses the finding of ‘lesser misconduct’  as coloniality’s insistence on the baseness of black identity in order to extend moral supervision. 

The second article talks about the Constitution of South Africa and its contextual approach to neutrality in a society that has such deep historical and structural power differentials. The Constitution does not hold neutrality as an absolute, but leans towards greater protection for those who are historically and currently disadvantaged in society. In this instance, the author claims, the tribunal should have recognised and applied Constitutional provisions that, while not presuming the respondent is guilty, requires that the complainant only needs to establish a prima facie case of discrimination based on their gender. The burden of proof shifts to the respondent to disprove the allegations. 

In a society as violent as ours, and defined by massive inequality in wealth and the disproportionate distribution of power, engagement with the legal frameworks that govern our interactions is critical, even for those like me not properly schooled in the subject. Colonial patterns of ownership that have defined our country and continent for so many generations are still largely evident in the ownership of black bodies one encounters in everyday interaction. We might have dethroned the white overseer in 1994, but we’ve replaced him with an economic and social order that mimics and entrenches the skewed power relations that defined apartheid and colonialism, where black men were dehumanised as a matter of course. These legacies feed violence and are ubiquitously presented as root causes for the femicide happening in our communities. But it is not enough as an explainer of male violence, or as an excuse.

Women - black women - like black men navigate these legacies too, only their route is littered with daily existential threats. The colonial dynamics that define our social structure – at home and in the workplace - have created the conditions in which misdemeanours can quickly escalate to violence and even death. 

So we’ll carry on shaping our constitutional order to uphold fairness while addressing the historical legacies that continue to marginalise so many groups. We as critical members of society must contribute by continuing our own interrogation of such decisions, and maybe adding to a public conversation that will fine tune the legal measures we can access to fight misogyny.

We must also be looking to challenge those things within our sphere of influence that foment violence. We must not accept behaviour (those misdemeanours) that reek of misogyny that are enabled by the positions of authority and power we hold as men, whether in our homes, offices - or in our courts. In my view, the law is a vital instrument whose capture by the powerful must never be allowed. It must inspire us to break the cycles of violence, to rise above our history of dehumanisation, and claim an African identity that is progressive.