(2017) 1 African Human Rights Yearbook 49 Early formulations of this form of equality are found in international law’s early conventions. It is now widely accepted that while formal equality guarantees the same treatment for everyone, there are various intersecting factors such as sex, age, race and disability that make it difficult to attain equality even when people are treated the same way. For women, it was only recently that formal equality resulted in any gains and even then it was successful in ‘eliminating explicit barriers to equal treatment’.39 While this conceptualisation of equality in the past resulted in significant gains for women,40 over the years the adequacy of formal equality in achieving meaningful equality has been called into question. This inadequacy of formal equality is attributed mainly with how similarity and difference are defined as well as its concern only with the form or framing of rules or laws. Formal equality it has been said: 41 Fails to understand the structural imbalance of power between men and women and the systemic nature of discrimination. Rightly so, it has come to be accepted that such a narrow formulation of equality creates an illusion of equality while potentially contributing to the entrenchment of inequalities for particular individuals or groups. The problems encountered by women on the continent highlighted in the previous section attest to this. The existence of formal guarantees to equality have not done much to improve the lived experiences of a significant number of women. The deficiencies of formal equality have spawned vast literature and scholarship acknowledging the complexities of inequality as a result of its systematic nature, and its entrenchment in social values and behaviours, the institutions, the economic systems of society.42 In particular feminist scholarship and critique contributed vastly to how a conception of equality that is wider than formal equality can derive any meaningfulness for women. The formulation of equality as substantive equality is one of these. While there are many variations or models to substantive equality such as equality of results, equality of opportunities and the four dimensional formulation,43 at its most basic level substantive equality recognises that equal treatment in itself does not and indeed did not guarantee equal outcomes or equality of opportunities; as a result the law should take into account relevant differences that pose disadvantage to an individual or a particular group. As opposed to the form of laws, its concern is with the actual enjoyment of a right and unmasking the factors that hinder attainment of equality in fact. 39 N Levit & RRM Verchick Feminist legal theory (2004) 15. As above. 41 OM Fiss ‘Groups and the equal protection clause’ (1976) 5 Philosophy and Public Affairs 107. 42 C Albertyn ‘Substantive equality and transformation in South Africa’ (2007) 23 South African Journal on Human Rights 253. 43 S Fredman & B Goldblatt ‘Gender equality and human rights’ http:// www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/ 2015/goldblatt-fin.pdf?vs=1627 (accessed 18 June 2017). 40