As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
THE LEGAL RESOURCES CENTRE TO THE PORTFOLIO COMMITTEE ON WOMEN, CHILDREN AND PEOPLE WITH DISSABILITIES ON
THE WOMEN’S EMPOWERMENT AND GENDER EQUALITY BILL 50 OF 2013
The Legal Resources Centre (LRC), established in 1979, is a South-African based Human Rights Organisation with regional offices in Johannesburg, Durban, Grahamstown and Cape Town. The Organisation uses the law as an instrument of justice for the vulnerable and marginalized, including poor, homeless, and landless people and communities who suffer discrimination by reason of race, class, gender, and disability or by reason of social, economic, and historical circumstances. The strategies employed to secure the protection and promotion of human rights include impact litigation, law reform, participation in partnerships and development processes, education, and networking within South Africa, the African continent and at the international level.
The LRC through its Gender Rights Project (“the project”) focuses on empowering women by providing: legal advice; legal representation and negotiation; and by participating in advocacy and law reform.
The Legal Resources Centre is thankful for the opportunity to make written submissions to the Portfolio Committee on Women, Children and People with Disabilities in respect of the Women’s Empowerment and Gender Equality Bill 50 of 2013.
We further welcome the introduction of legislation which seeks to realise, respect and protect the right to gender equality in South Africa. Our country has significant levels of gender inequality which manifests in the personal as well as professional lives of women. These high levels of inequality continue to prejudice women’s advancement both within their homes as well as within their formal work place.
We note and appreciate that government has taken steps to address the realisation of the right to gender equality and that a number of key statutes have been enacted to respect and protect the right to equality. These positive steps need to be acknowledged and built upon if government is to meet its Constitutional obligations in respect of gender equality.
A. COMMENTS ON THE BILL AND ITS IMPLEMENTATION
1. What the Bill aims to achieve:
The proposed purpose of the Bill is “to give effect to section 9 of the Constitution of the Republic of South Africa, 1996, in so far as the empowerment of women and gender equality is concerned; to establish a legislative framework for the empowerment of women; to align all aspects of laws and implementation laws relating to women empowerment, and the appointment and representation of women in decision making positions and structures; and to provide for matters connected therewith.”
The Preamble of the Bill goes further to state that “As the Republic’s constitutional and international commitments in the field of human rights include the promotion of gender equality and the prohibition of unfair discrimination against women and the elimination of gender based violence; and as a measure to address discrimination against women are essential to the transformation of gender relations in the Republic”
The purpose and preamble all point to the gender inequality in our country and government’s obligation and commitment to address such inequality. This commitment is noted however based upon our practical experience we are deeply concerned that the Bill in its current form cannot begin to realise all of the obligations that exists in respect of achieving gender equality for the reasons set out below.
Women are not a homogenous group and legislation focused on formal equality as oppose to substantive equality will not in any meaningful way begin to address gender discrimination and inequality in our country.
We submit the Bill uses broad descriptive ideals without addressing in any meaningful way the plight of ordinary South African women. The Bill appears to over emphasise the need for policy development both in the public as well as private sphere to empower women. It is our submission that a number of policies, programmes and frameworks are already in existence and that there implementation has been deeply problematic. Therefore the failure of gender empowerment does not lie in the lack of policies and plans, but in their implementation and execution.
It is out submission that this aspect of the Bill leaves much to be desired as there is very little emphasis on the implementation of existing or future policies and plans. The Bill relies heavily on an assumption that everyone in the private and public sphere all want to achieve gender equality and that it is merely their lack of policy that has hampered participation and transformation. The reality is a somewhat grimmer picture and this needs to be taken into account when considering the implementation of the Bill.
The powers of the Minister although broad in scope, appears limited to only enabling her use of “1 any dispute resolution mechanism to address non-compliance” with the Act. We submit that if the Bill merely requires the development and implementation of a policy the Minister would find it extremely difficult to hold anyone to account for non – compliance as all a public or private body would have to show is that a policy was in deed developed, and that there has been implementation. The quality and impact of the policy and how it is implemented does not appear to have any emphasis, which in our opinion is the key to achieving the objective of the Bill.
The Bill does off course appear to give the Minister powers to engage and make recommendations and suggestions on proposed policies, but again this does not guarantee that her suggestions would be taken on board or in the event that they are not it would be found that the body in question has not complied with the obligations of the Act.
2. Terminology and Definitions
This brings us to the terminology or definition of what the Bill seeks to achieve, which is substantive equality. We submit that the definition of substantive equality fall far short of what it should be, and the model proposed in the Bill would simply amount to formal equality, which really is gender equality in fact and law. In order to achieve true substantive equality we need to begin to look further than quota systems of 50% and start looking at meaningful transformation and empowerment. Substantive equality requires that when policies and programmes are developed to advance women the individual woman is taken into account.
The definition of gender in the South African constitution speaks to so much more than merely women, men, girls and boys. The Constitution is inclusive and the protection and obligations extend to women, men, girls, boys, lesbian, gay, bi-sexual, trans-sexual as well as intersex persons. The Bill therefore should not limit issues of gender equality and inequality as being issues between men and women and girls and boys. Gender equality in terms of our constitution cannot be limited to mean “the full and equal enjoyment of rights and freedoms and equal access to resources, opportunities and outcomes, by women, men, girls and boys;” Yet this is what the Bill proposes in the definitions clause, and we submit that if this belief system was the foundation of the formulation of the content of the Bill then the Bill is not only flawed, but unconstitutional as it discriminates in its application to sexual minorities.
The actual implementation of the Bill is deeply concerning to us. We however limit our submissions to what we believe are key shortcomings.
We would be interested in what costing has been done in respect of the actual cost for implementation of the Bill. In its current form, the Bill requires private and public bodies to provide the Minister with their reports within one year of being designated to do so. How many reports does the Minister or Department envisage receiving and what capacity does the Department have to do an in depth examination of the reports. Recommendations and suggestions to the reports are envisaged and this once again raises concern around the capacity of the Department to provide such recommendations and suggestions in order to effect real change. A very real reality is also what financial resources would be required from private bodies in order to implement elaborate policies and would lack of financial resources or claims thereof be sufficient to allow private bodies, which do not have access to government’s budget be sufficient to release them from their obligations in respect of implementation of the policies they have drafted.
A number of statutes enacted over the past few years have suffered serious implementation problems as a result of financial resources ranging from the Domestic Violence Act, 1998 the Criminal Procedure (Sexual Offences and Related Matters Amendment)Act, 1998 are amongst those. It would certainly be disheartening to see the introduction of further legislation that relies so heavily on financial resources and which proper allocation and planning has not been done.
The Bill seeks to provide the equal realisation of a number of rights in the Bill of Rights. These are the rights to Education and training, Access to health including sexual reproductive health, safety and security of the person (education on prohibited practices and gender based violence) These rights currently all fall under the mandate of existing government departments who are tasked with the realisation and protection of the rights. Our experience has been that many of these government departments such as the Department of Health and the Department of Justice have existing gender departments or women’s departments that focus on the implementation of legislation and policies so as to advance gender equality and the provision of specific services to women and girls. We therefore anticipate the very real risk of duplication of efforts and resources to achieve what is at the end of the day the same goal.
Another example of duplication would certainly be the lodging of reports by public and private bodies on implementation of their gender advancement policies. A similar exercise has been conducted by the Commission for Gender Equality over the last few years where they have called public and private bodies to publicly account to the Commission on implementation of policies seeking to advance women. In 2013 the Commission released a report after having conducted such public hearing. The Bill seeks to duplicate exactly these types of enquiries except for proposes to do so on paper by filing reports and recommendations.
We emphasise the need for an approach that sees the harmonization of interventions between public bodies in order to achieve gender equality. This is currently sorely absent in the implementation of government policies and plans. By requiring the adoption of further policies and plans as the Bill does would surely lead to further proliferation of the issue of gender equality as oppose to creating a united commitment to transformation.
The Bill deals in Section 11 with the socio-economic empowerment of women in rural areas, and makes the very serious error of assuming that women in rural areas live on farms, or are married to men who work on farms or seek access to agricultural land. Women in rural areas are not a homogenous group of individuals the problems they face in respect of gender equality and empowerment are not all related to land and farm worker conditions.
Section 11(d) further states that measures must be put in place to “ensure equal representation and meaningful participation of women in traditional councils” The Bill therefore further cements the plight of women in rural areas to work under or to submit to traditional leadership, which is steeped in patriarchal principles and believe systems. The Bill is silent on how women must achieve such representation if they so choose to participate and silent on what should happen in the event that such engagement is denied and culture or custom is used to justify the denial.
We submit that the Bill completely ignores the plight of the rural women and is indicative of little to no research being done on what is needed to realise gender equality and empowerment for rural women
The most serious of shortcomings in the Bill is the assumption that all women are formally employed and so private institutions and bodies account for the workplace equality and government accounts for the socio-economic conditions. There is no reference to the recognition of women’s unpaid work and labour, and the very real fact that women continue to do the bulk of housework and care work in respect of the children and elderly. The Bill remains silent on the gender equality at play within the private environment that women find themselves where more often than not the true reality of patriarchy and gender inequality is at play.
No recognition is given to the woman who is the community care worker and who meets the socio-economic needs of her community on her pension grant. She performs unpaid work on a daily basis and is on the forefront of gender discrimination and inequality, but without being formally employed who will be held to account to develop a policy that will address her empowerment?
The United Nations Special Rapporteur on Extreme Poverty recently released a report on Unpaid Work, Poverty and Women’s Human Rights in which she details the direct link between unpaid work, poverty and women’s inequality. She calls on governments to begin to address the issue of women’s unpaid work by giving them the recognition needed and calls for the development to address their inequality and empowerment. The Bill misses this very real opportunity to begin to address the issue.
We welcome the opportunity to engage with the Portfolio Committee and the Department on solutions to eradicating gender inequality and women’s empowerment. We therefore make the following recommendations in respect of the way forward.
We recommend that an evaluation be conducted of all existing policies which seeks to advance women’s empowerment and gender equality. That this process commences with government and that the resources be made available to enable this process. The evaluation we recommend should not merely be focused on the existence of policies and programmes, but also its content and implementation as well as the measurable impact it has had on the target audience.
Such a process would enable the different department to evaluate where their successful models of intervention lie and what gaps or failures exist. Through such a process we will be able to determine how to address the root causes of inequality without merely addressing the results thereof.
Prepared by: Charlene May and Mandivavarira Mudarikwa – Legal Resources Centre