She is told to dress ‘formally or traditionally’ and is warned against displays of cleavage. Someone requests that she cover herself up with a scarf. Someone else likens her dressing to that of a prostitute. All of this took place recently, in no lesser space than the Mpumalanga Legislature. The woman in question: a deputy parliamentary leader of the official opposition party. The remarks about her choice of attire: uttered by the parliamentarian representing the governing party. Notably, the Speaker of the Legislature, also drawn from the ranks of the governing party, failed to call her compatriots to order, her silence instead implying that this woman deserved the remarks thrown at her.

It is not the first such incident in Parliament or a provincial legislature. In 2013, the parliamentary leader of the opposition and her choice of dress became the subject of debate, coupled with veiled references to her weight. There have also been reported attempts at ‘body shaming’ other female parliamentarians, with phrases such as ‘elephant in the room’ being used as a double entendre with seeming reference to weight. Such comments, intended to impair one’s dignity, do very little in terms of attracting greater participation of women in South African politics.

While South Africa enjoys high levels of gender equality, as seen through various laws, it must be pointed out that such equality is mostly formal, and still falls short of substantive equality. Parliament’s apparent commitment to formal gender equality is evident from its rankings according to the international organisation of Parliaments, the Inter-Parliamentary Union (IPU). They rank South Africa 11th worldwide for gender quality in Parliament, however, this is a drop of three places from its 2013 ranking. Female representation in Parliament declined from 44% in the 2009 election, to 40% in the 2014 election. In provincial legislatures, the figure dropped from 41% to 37%.

It is true that section 117 of the Constitution grants the members of a provincial legislature a certain measure of freedom of speech. The same provision is afforded through section 58 and section 71 of the Constitution, for the National Assembly and the National Council of Provinces (NCOP), respectively. It is also true that the Constitutional Court in Democratic Alliance v African National Congress and Another has stated that “political life in democratic South Africa has seldom been polite, orderly and restrained” but has rather “always been loud, rowdy and fractious.” In the same case, the Constitutional Court added “[t]hat is no bad thing. Within the confines the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.”

The Supreme Court of Appeal (the Court) in The Speaker of the National Assembly v Patricia De Lille and Others – where a Member of Parliament challenged being sanctioned over views expressed during a debate – upheld the supremacy of the Constitution over Parliament. The Court stated that “It [the Constitution] is the ultimate source of all lawful authority in the country. No Parliament, however bona fide or eminent its membership, no President, however formidable be his reputation or scholarship, and no official, however efficient or well meaning, can make any law or perform any act which is not sanctioned by the Constitution.

Section 1 of the Constitution posits the nation’s founding values as human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism, as well as supremacy of the Constitution and the Rule of Law. Section 2 of the Constitution prohibits laws or conduct inconsistent with the Constitution and provides that obligations imposed by the Constitution must be fulfilled.

As such, while robust debate is encouraged and tolerated, it should always fall within the confines of the Constitution, even within Parliament. There should be no place for sexism or sexist language within a constitutional democracy. In the same vein with which racist language in Parliament is condemned, so too should the incidents described above – that are clearly sexist and in direct contradiction to the Constitution’s founding values – be frowned upon and condemned.

The Constitution further provides that everyone has inherent dignity, and the right to have their dignity respected and protected. Unlike other rights, which with just cause may be limited, the right to dignity can never be justifiably limited, regardless of the circumstances. These incidents are an attack on the dignity of female parliamentarians, as well as a violation of their constitutionally protected rights.

As elected representatives, Members of Parliament have sworn to be not just faithful to South Africa, but also to obey, respect and uphold the Constitution. Members of Parliament should arguably be held to a higher standard in debates, and this standard is no less than the Constitution.

Phephelaphi Dube: Legal Officer, Centre for Constitutional Rights

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