Constitutionalizing Difference: A Case Study Analysis of Gender Provisions in Botswana and South Africa

Abstract

This article examines the use of gender in constitutions and its significance for gender equality. New democracies, and some older ones, are increasingly including gender provisions in their constitutions. What is the impact of these provisions on women's political and economic status? Does constitutionalizing gender serve to empower women? If so, what kinds of provisions have an empowering effect and under what conditions? To address these questions, we trace the political use (legislation, policy, and judicial interpretation) of gendered constitutional provisions in Botswana and South Africa, countries that differ substantially with respect to how they have “constitutionalized” gender. The case studies demonstrate how constitutional provisions provide a legal basis and legitimacy for women's rights advocacy and how they influence the content of legislation and judicial review of laws and policies.