ABSTRACT
Chapter 5 presents a comparison of two countries in Southern Africa, Botswana, and South Africa, which differ in the way they constitutionally recognize gender equality. South Africa takes a substantive approach, constitutionalizing gender differences in an inclusive and egalitarian manner. Botswana’s Constitution takes a more formal gender-neutral approach. The chapter analyzes how these differences affect the way advocates use constitutional rights to challenge the status quo or defend legislative gains. The cross-national comparison examines legislative reform efforts and high court decisions in four policy areas: family and customary law, gender-based violence, sexual and reproductive health, and employment rights. The results demonstrate how a gender-neutral approach to women’s equality can mask and perpetuate systemic disadvantages, particularly when cultural rights are constitutionally entrenched and protected as they are in Botswana. Botswana’s gender-neutral Constitution has limited activists’ ability to push for policies that promote women’s equality and redress systemic gender discrimination. In South Africa, by contrast, strong substantive gender equality provisions support efforts to attain, and then later defend, policy gains. In South Africa, substantive constitutional rights for gender equality have provided a critical tool to prevent backsliding.
