The United Nations High Commission for Refugees (UNHCR) estimates that of the 27 million refugees world wide, 80% are women and/or children. In South Africa, however, the Department of Justice's recently released 'Gender Policy Statement' states that women constitute only 5% of persons who have been formally granted refugee status in this country. The huge disparity between global demographic trends amongst refugees and those granted asylum within our own borders is largely the result of an international refugee system which perpetuates a perception of asylum seekers as politically active males, thus negating the persecution faced by women and making it more difficult for women to meet the legal criteria for refugee status.

In 1951, the international community adopted the UN Convention relating to the Status of Refugees. This document and the 1967 Protocol that followed it form the foundation of international refugee law. They define a refugee as one seeking protection from persecution by the state on the grounds of political or religious beliefs, ethnic or social identity. Born out of the experiences of the Second World War era, the Convention imparted to the field a generalised assumption of a typical asylum seeker as a male dissident, tortured or imprisoned by the state for political involvement.

The mainstreaming of post-modernist thought has in recent decades led to an academic reassessment of accepted social constructs and long held assumptions. In the area of forced migration this new thinking has lent itself to a re-evaluation of traditional concepts of the typical asylum seeker, as well as the reformulation of traditional asylum determination processes to reflect a wider range of persecutory experiences. The greatest beneficiary of this reconstruction stands to be the refugee woman, who in international discourse is for the first time witnessing an acknowledgement of the gendered nature of persecution, as well as that of the instruments and institutions designed to protect people from persecution.

This article looks briefly at the varying ways in which women experience persecution and conflict in their countries of origin. How the use of traditional determination processes in South Africa and elsewhere have until now prevented women from seeking the protection due to them under the spirit of refugee law will also be focused on. Finally, it will outline the progress made by South Africa in beginning to address these concerns, and make recommendations for carrying this process forward.

The reasons for women's inability to benefit from the 1951 Convention are two-fold. First, women's experiences of persecution often differ from those experienced by men. Women may face persecution through cultural practices that are based on an assumption of the inferior status of women, and which manifest themselves in discrimination severe enough to amount to persecution. Examples of such practices include (but are not limited to) Female Genital Mutilation (FMG), Sati (widow burnings), bride burnings (for unpaid dowries) and child marriages. Women may also be subject to punishments disproportionately severe for transgressing social mores that confine them to a certain role in society. For example, in Afghanistan today a woman may be stoned for going out of the home unaccompanied by a male relative. A woman who asserts her independence by laying claim to certain rights - whether they be the right to be sexually active, to exercise reproductive rights, or to refuse cultural practices - is taking an inherently political stand. The defiance of these norms is not only a personal act but also a political rebellion against a state-imposed institution of patriarchy. The broader political implications have until now, however, been marginalised by a refugee process that did not recognise the doctrine of patriarchy as a politically held belief and thus relegated women's fight against it to the realm of 'personal actions'.

Furthermore, for women who become politically involved, conventional activities such as attending protests, writing publications and joining political parties may not be possible in the social confines of their society or culture. Their political activities are much more likely to take the shape of less conventional interactions, such as providing community services, food and shelter to activists, delivering messages, and so on. These activities are rendered political by the context in which they take place and the goal they hope to achieve. The support women provide for more traditional political activities is both vital as well as risky, yet in the context of international refugee law, this support is often misinterpreted as non-political and personal, thus denying them the protection of asylum.

The type of persecution suffered by politically active women can also differ. For example, the use of rape as a method of torture is a gender specific persecution. It is utilised not only as a means of punishment, but also to ensure the silence of the victim in societies where rape brings tremendous shame and perhaps even social exclusion. As Amnesty International notes "Rape sometimes appears to be used as a form of torture because those responsible realise that their victims may be constrained from revealing what has occurred after their release from custody. The same associated with rape can be a strong inducement to silence." Whilst the reasons for the harm inflicted on a woman may be the same as that of a male counterpart, the methods used to inflict that harm can be gender specific. Coupled with social understandings of sexual violence, a woman may be persecuted twice over, once during the act, and secondly by the isolation and silence it imposes on her, which prevents her from seeking help.

Secondly, international asylum practices fail women in their limited understanding of the element of state persecution. In modern warfare, the use of rape as a weapon is becoming widespread, yet the nature of the crime has led almost automatically to the assumption that it is a 'personal crime' as opposed to a state-sanctioned tactic. It is only recently that international bodies are recognising the true political nature and brutal intent of such actions. Subsequent to the Gulf War, it emerged that there actually existed in Iraq an official office in the civil service for the rape and torture of women. More recently, during the tribunals for war crimes in Rwanda and Yugoslavia rape was condemned as a crime against humanity, and a UN panel in 1994 ruled that rape related to ethnic cleansing constituted a "war crime and legally constituted genocide".

However, for most women human rights violations occur not during wartime, but in the private sphere of everyday life at the hands of family and community. Such persecution has regularly been sidelined by the argument that the element of state responsibility required to appeal for international protection does not exist in cases of private abuse. This has been found to be manifestly untrue by international bodies in cases where the state does little to protect a citizen or is by its silence complicit in the deed. This narrow view of persecution denies the loci of the majority of gender persecution. A state has both a negative obligation not to violate the rights of its citizens, as well as a positive obligation to protect those same citizens. In countries where abuse of women is widespread, there can be no doubt that a state's unwillingness or inability to protect a portion of its population amounts to indirect persecution warranting the calling into effect of international protections. For example, in Sudan where over 80% of young girls are infibulated (circumcised), the existence of official legislation condemning the practice amounts to little when the state does not possess the political will to impose the laws. This example of persecution is particularly pertinent today, as in Canada, the United States, and the United Kingdom cases of asylum premised on the threat of female genital mutilation have already taken place, and it is only a matter of time before South Africa must make its first such ruling.

The Refugee Act of 1998 adopted by South Africa is in many respects one of the most progressive pieces of domestic refugee legislation globally. While other states, beginning with Canada in 1993, have created non-binding guidelines for asylum determination officers to assist them in the evidentiary processes around gender persecution cases, South Africa is one of the first countries to legally and formally recognise gender as a 'social group' eligible for protection under the Convention definition of a refugee. With this new Act came an opportunity to reform determination processes to reflect the realities of the current global refugee population. The test, however, will lie in the implementation of the legislation through a real transformation of current asylum determination processes.

There has as yet been no research conducted on the experiences of female asylum seekers at the hands of Home Affairs officials, and therefore it is difficult to know with certainty what is needed in order to assist women in applying and negotiating the determination process (see the article by Lee Anne de la Hunt and Helen Moffett in this issue, pp. 21-24, which provides a preliminary starting point to address this issue). From international experience, however, there is the issue of translation, a fear of male authority that prevents women from disclosing their stories, the obstacles of cultural misunderstandings, and the impediment of including the family in the refugee hearing. Although training programs have been envisioned for determination officers and gender and cultural sensitivity is being targeted, reforming old attitudes and perceptions will not be a short-term project. Reconceptualizing the goal of asylum protection will take time, and it is imperative that in the interim strategies are employed to monitor the progress made.

One possible recommendation would be to follow the example of the Danish Refugee Appeals Board, a quasi-judicial body that includes representatives of two non-governmental organisations. The Board reviews negative decisions taken by the Danish Immigration Service in order to lend the process additional credibility. A further international example is that of Canada, where the non-binding regulations governing gender persecution cases are enforced by ensuring that each negative decision concerning such a case must be accompanied by written reasons for denying the application.

International observers have expressed concern that in South Africa of the 20 000 applications received from over two-dozen nationalities in 1998, over 13 000 were rejected. It is suspected that many claims are being automatically rejected if the officer feels that they do not come from 'traditionally refugee producing countries' - a term used to describe the political stability of a country as opposed to its ability or willingness to protect the most vulnerable elements of its population. This is particularly problematic for women whose persecution may not be 'political' (in the traditional sense with which the word is mostly used) but of a cultural or gendered nature.

Whilst government must as a priority implement extensive training of its officials, as well as a restructuring of its current processes, non-governmental organisations too can play a part in integrating women's experiences of persecution into the asylum determination process. As gateways to information on the international plight of women, local non-governmental organisations can assist by feeding the Department of Home Affairs up-to-date information on gender violations in all provinces. Furthermore, they need to ensure that a network is created which disseminates this information to all asylum determination officers in order that they make the most informed and gender sensitive decisions possible.

Each of these measures will ensure that the progress South Africa has made in recognising the differential nature of gender persecution is not lost between intention and implementation. It will furthermore speed up the process of addressing the disparity between the number of women granted asylum in South Africa and the plight of women refugees world wide.