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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
27 October 2004
PROTOCOL TO AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS ON RIGHTS OF WOMEN IN AFRICA: FINALISATION
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
Draft Committee Report on Protocol
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa
Notes on the Protocol to African Charter on human rights and peoples’ rights on the rights of women in Africa
Department Annual Report 2003/04 (offsite link)
The Committee recommended that Parliament ratify the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa subject to reservations being expressed on Articles 4(j), 6(d) and 6(h) and interpretative declarations being made on Articles 1(f) and 31. The Committee reviewed and made corrections to its Committee Report on the Protocol so that these reservations and interpretative declarations were registered.
The Committee reviewed and made additions and corrections to the Committee Report on the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (see Committee Report).
It was noted that before an individual could have recourse to courts under the Protocol, Parliament must grant specific approval verifying that all domestic mechanisms had been exhausted.
Section 1, paragraph 7 of the Report was deleted and replaced with “Verbal reservations pertaining to 4(j), 6(d) and 6(h) were noted by the South African delegations negotiating the Protocol”.
Section 1, paragraph 8 became "Article 4(j) of the Protocol does not find application in South Africa as the death penalty has been abolished. In as much as the existence of article 4(j) may be construed to be an inadvertent sanctioning of the practice of the death penalty in party states, this may conflict with Section 2 of the Constitution which upholds the Constitution to be the supreme law of the Republic, and which invalidates law or conduct found to the inconsistent with its provisions. The Constitution invokes duties to adhere to all obligations arising from the Bill of Rights and arising from the various interpretation of the Constitution given by the Constitutional Court."
Section 1, paragraph 9 became “Section 4, subsection 9 of the Recognition of Customary Marriage Act stipulates that failure to register a customary marriage does not affect its validity. The provision was legislated as a protection for the rights of women married in terms of customary law. Article 6(d) is therefore inconsistent with the domestic protection of Section 4, Subsection 9 of the Recognition of Customary Marriages Act”.
Section 1, paragraph 10 became “Article 6(h) subjects the rights of parents in regard to the nationality of their children to provisions of national legislation and national security interests which may remove inherent rights of citizenship and nationality from children”.
The text originally found in Section 1, paragraphs 8 through 10 was moved to follow the new paragraphs.
The text originally found in Section 1, paragraph 10 was replaced with the following: “We note that individuals or non-governmental organisations may not without Parliament approving their competence approach any of the courts having jurisdiction for relief under the Protocol”.
The reservations expressed with regards to Article 4(j) were replaced with the following: “The death penalty is unconstitutional and any inadvertent sanctioning thereof may conflict with Section 2 of the Constitution of the Republic of South Africa. South Africa is in principle opposed to the application of the death penalty and no adverse legal consequences may be visited on the government of the Republic pertaining to its ratification of the Protocol”.
The Committee made minor technical changes to Article 6(h) and Article 1(f) and Article 31. Article 1(f) option (1) was the chosen option and option (1) under Article 31 was also the chosen option.
The Chairperson put forward the report to the Committee with all these changes. Nine Members voted in, favor, none against, and Mr S Swart from the ACDP abstained because the ACDP Caucus would be considering the Protocol the following day.