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Access to Justice and Democratic Participation


Access to Justice and Rural Democracy in South Africa

For most people in rural South Africa, traditional justice mechanisms provide the only feasible means of accessing legal solutions to problems. These mechanisms are popularly associated with restorative justice, reconciliation, and harmony in rural communities. Yet, this ethnographic study grounded in the political economy of rural South Africa reveals how historical conditions and contemporary pressures have strained these mechanisms’ ability to deliver the high normative ideals with which they are notionally linked.

In places such as Msinga, access to justice is made especially precarious by the reality that human insecurity—a composite of physical, social, and material insecurity—is high for both ordinary people and the authorities who staff local justice forums; cooperation is low between traditional justice mechanisms and the criminal and social justice mechanisms the state is meant to provide; and competition from purportedly more effective ‘twilight institutions', like vigilante associations, is rife.

Further contradictions are presented by profoundly gendered social relations premised on delicate social trust that is closely monitored by one’s community. This social trust is further enforced through self-help measures, which might include the deployment of witchcraft accusations in a context in which violence is, culturally and practically, a highly plausible strategy for dispute management.

These contextual considerations compel us to ask what justice is reasonably accessible in such an insecure context and what solutions to injustice are viable under such volatile human conditions? These are the questions explored by Professor Sindiso Mnisi Weeks in her recent book, Access to Justice and Human Security: Cultural Contradictions in Rural South Africa (Routledge, 2018)

Discourse(s) in South Africa's Politico-Legal Culture Clash

Assistant Professor Sindiso Mnisi Weeks's new project investigates the challenges surrounding “rights” discourse in South Africa that signal a failure of democracy to deliver the participatory process, equal political voice and socioeconomic change promised and desired by the majority of the public. It explores the ways in which “rights” discourse in post-apartheid South Africa has fallen prey to the risks of the “fetishism of the law” in a socio-economic context within which formal legal processes are generally inaccessible to most members of the public and the political processes that are supposed to deliver respite are fundamentally unresponsive to the needs of the poor majority. It unpacks the limitations of transformative constitutionalism and vernacularization of rights set in a political economy in which lawfare reigns and, within, judicialization of politics and politicization of the judiciary. Professor Mnisi Weeks draws on ethnographic data to ask whether, in this context, "rights" as "law" do not begin to present to some members of the marginalized public as a perpetuation of the epistemic and symbolic violence of past regimes.

Photo: Aninka Claassens, Land and Accountability Research Centre, University of Cape Town. All rights reserved.

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