Afro-feminism and the Coloniality of Gender in Constitutional and Legislative Drafting: South Africa as a Case Study

Abstract

Before essential feminist contributions to legal drafting were made, legislative drafters adopted the use of the masculine rule, which established that all genders were implicitly included in the usage of the pseudo-generic third person masculine singulars such as ‘he’ and ‘him.’ In the 1960s, feminism acted as a nucleus for an approach to legal drafting that was inclusive of and thus avoided the erasure of women in constitutional and legislative language. Historically, the concept of gender neutrality has been approached from binary cisgendered and heteronormative perspectives. Legal drafters now have to take cognisance of this evolving reality as there is a growing need for legislation that is gender diverse and non-heteronormative. The Recognition of Customary Marriages Act 120 of 1998 has been subject to criticism for its use of gendered language that excludes queer couples. This article places the development of an understanding of inclusive legal drafting in South Africa within Afro-feminist theory. These theories present a more useful framework for thinking beyond a binary view of language in legal drafting. They also present an opportunity of placing inclusive legal drafting as African, in the face of continued marginalisation and subjugation of gender and sexual minorities on the continent. Using theories such as the coloniality of gender, the coloniality of being and the coloniality of knowledge for deconstructing Western and consequently binary notions of gender neutrality, I suggest an Afro-feminist understanding of drafting that will consequently be gender-neutral in a way that is inclusive of queer people.