6. The 1997 Constitution of South Africa 6.1 Background South Africa’s Constitution came into effect in 1997, after the fall of apartheid. It has been amended 17 times since its adoption. Both Zimbabwe and South Africa explicitly include gender equality and nonsexism as founding values of each state. For example, in the founding provision of Chapter 1, the South African Constitution makes clear that the South African state is founded on several values, including “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms, [n]on-racialism, and non-sexism.”44 Likewise, the Constitution of Zimbabwe’s founding values and principles include respect for “fundamental human rights and freedoms;…recognition of the inherent dignity and worth of each human being; recognition of the equality of all human beings; [and] gender equality….”45 Zimbabwe’s bill of rights, however, is much more progressive than South Africa’s when it comes to gender equality. Similarly, Zimbabwe’s Constitution is much more progressive in guaranteeing women’s participation in government. 6.2 Bill of Rights South Africa’s bill of rights explicitly prohibits both private and public discrimination on the basis of gender, sex, pregnancy, and marital status. The government is entitled to pass national legislation to prevent private discrimination.46 In contrast, Zimbabwe’s bill of rights does not include an explicit prohibition on private discrimination, although it does provide both that “women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres” and “every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their… sex, gender…”47 Overall, however, Zimbabwe’s Constitution makes more explicit references to gender equity in its bill of rights than South Africa’s Constitution. For example, the Zimbabwean Empowerment and Employment Creation clause provides that “at all times the State and all institutions and agencies of government at every level must ensure that appropriate and adequate measures are undertaken to create employment for all Zimbabweans, especially women and youths,” while South Africa’s Labour Relations clause merely provides that “everyone has the right to fair labour practices.”48 44 45 46 47 48 South Africa Constitution, Ch.1, § 1(a)(b). Zimbabwe Constitution, Ch. 1, §§ 3(c), (e)-(g). South Africa Constitution, Ch. 2, § 9. Zimbabwe Constitution, Ch. 4, §§ 56 (2)-(3). Compare Zimbabwe Constitution, Ch. 2, § 14(2) with South Africa Constitution, Ch.2, § 23(1). 9