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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
12 August 2004
PROTOCOL TO AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS ON RIGHTS OF WOMEN IN AFRICA: DELIBERATION
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out
Protocol to African Charter on Human and People’s Rights on Rights of Women in Africa
The Committee discussed the status of current pending legislation, such as the Terrorism Bill, the Sexual Offences Act and the Domestic Violence Act. Committee Members sought clarity on progress achieved and how this would affect their work.
They then considered the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa. They were guided by the State Law Advisor on certain provisions that appeared contradictory or unnecessary in South African domestic law. At the end, the Chairperson requested the document be corrected where necessary and be sent to the relevant Ambassador for consideration. She proposed that a draft resolution be made available at the next meeting.
The Chairperson informed Members of an invitation extended by the Portfolio Committee on Safety and Security for three MPs to travel to Germany in October. In the following discussion, it was decided that the identity of the three people would be decided at a later stage.
The Chairperson conveyed a request from the Speaker of Parliament regarding Tuesday’s debate on women’s rights, to be held as part of the celebration of Women’s Month and ten years of democracy. The Speaker had requested a report from the Committee on its activities designed to empower women. The report needed to focus on progress regarding the Sexual Offences Act, Domestic Violence Act and the issue of maintenance. The Chairperson asked whether she could complete the report unilaterally rather than organising another meeting. The Committee agreed and she promised to supply copies to Members.
The Committee was waiting for a number of Bills to be processed through the Department, which complicated compiling their Committee Programme. The process of drafting Justice bills was complex and lengthy as a new legal system was being designed, with potential unintended consequences to be considered in the Child Justice Bill etc. There was also a new Justice Minister who required briefings from the Deputy-Minister on Bills currently in production. The Chairperson had met with Department drafters during the recess to establish progress and would notify Members of developments.
Mrs S Camerer (DA) reminded the Committee of certain Bills gaining extensive publicity in the media, e.g. the Terrorism Bill. This Bill was currently before the NCOP Select Committee on Justice and appeared to be moving in a new direction with substantial amendments. She sought clarity on the bill’s current status and whether the Committee would have an opportunity to revisit deliberations. She also mentioned the Sexual Offences Act and the agitation by many NGOs regarding certain proposed legislation. The Children’s Bill currently before the Portfolio Committee on Social Development seemed to be introducing legislation in contradiction of provisions in the earlier Child Justice Bill passed by this Committee. She asked whether the Committee might have to reconsider aspects of the Child Justice Bill in light of developments within the Children’s Bill.
The Chairperson responded that the Committee had been invited to make submissions on the Children’s Bill at the public hearings. There did not appear to be complications with their legislation. The Department of Justice has also made a submission to the Committee on Social Development. Despite this, it was their intention to closely follow developments in the Children’s Bill. The completion of the Child Justice Bill would greatly assist in this task. The Children’s Bill referred to a Children’s Court while the Child Justice Bill fell squarely within the ambit of criminal justice. A criminal court could refer a particular case to the Children’s Court where a child was being abused or was abandoned.
With regard to the Sexual Offences Bill, the Chairperson was aware of numerous actions undertaken by concerned NGOs who claimed that they had received insufficient notification prior to the original public hearings on the matter. One NGO was claiming publicly that the draft Bill reversed much of the gains made in arresting the trafficking of women. The Chairperson expressed confusion at this position and stated that the Committee would never work against such advances made in human rights. The final instructions forwarded to the drafters by the Committee had not been finalised and they awaited a copy. Therefore, the NGO community appeared to be criticising provisions that had not been finalised and made public.
In terms of the Terrorism Bill, the Committee had not received any new documentation on alterations being implemented within the Select Committee. An opportunity to comment would be afforded the Committee in due course. She did not intend to approach the Select Committee Chairperson at this stage but rather wait for an invitation once their deliberations had concluded.
Protocol to African Charter on Human and People’s Rights on Rights of Women in Africa.
After the teabreak, the Chairperson related that some of the provisions of the Protocol did not appear in South African law and Members should consider the relevance of certain clauses in the domestic context. The Protocol could not be regarded as a stand-alone document but existed as part of a system of Human Rights protection and the African Court.
The Committee was not attempting to ratify the provisions into domestic law but needed to consider the implications of the Protocol in accordance with 231(2). This meant South Africa wanted to express solidarity with the terms and spirit of the Protocol. The state would be bound by the provisions and not ordinary citizens, and therefore the state could be held accountable if the domestic system acted in contravention of certain principles. Potential grievance could only be raised by other states, implying no effect on domestic law . Repercussions would be felt in the realm of international relations. Parliament would not be under any obligation to pass specific laws in accordance with the provisions. The Constitutional Court retained superiority over the African Court.
The State Law Advisors had been previously asked to consider certain issues where disjunctures might arise and tabulate them. Therefore, the document before the Committee was an audit of issues appearing in the Protocol that might be contrary to domestic law.
State Law Advisor’s briefing
Advocate Masapu started that Article 3 (2) referred to the right of women to be respected and allowed the opportunity for free development. The Chairperson thought that no such provision existed in domestic law and proposed a reservation. The danger of supporting controversial clauses was that the State could be seen to be condoning unacceptable practices in other countries.
Mrs S Camerer (DA) emphasised a difference between the previously expressed reservations of the Department of Foreign Affairs, and the potential reservations of the Committee. The decisions of the Committee should not be influenced by the positions of Foreign Affairs. The Constitutional basis of provisos needed to be paramount.
The Chairperson reminded Members that this was not a comprehensive document and not intended as a final account.
Adv Masapu referred to article 5(b) which sought to eliminate harmful practices against women and, in particular, genital mutilation. However, adequate legislation existed such as the Promotion of Equality and the Prevention of Unfair Discrimination Act. The Chairperson recommended that this clause be removed.
In Article 6(b) on equal rights between married partners and the marriage minimum age, the Committee indicated that minors needed parental consent after the age of 18 and before the age of 21. Prior to this, Ministerial consent had been required. Clarity on this was requested. The Chairperson indicated that it was possible for women to be married from the age of 15 with Ministerial approval. Reference to male minors needed to be removed.
Adv. Masapu highlighted Article 7(a) that focused on rights relating to divorce and separation, such as equitable sharing of assets and the need for judicial orders to dissolve marriages.
The Chairperson interjected that it was necessary to add that Muslim marriages were also likely to be dissolved without judicial orders.
Ms S Camerer (DA) sought clarity on the wording of article 7.
The Chairperson suggested that “in community of property” be added after “equitable sharing” as an example of such an arrangement.
Ms Camerer questioned the relevance of Article 7 because it did not affect current legal standings on divorce. She was concerned over the relevance of the Protocol to existing South African law that already contained many such provisions.
The Chairperson highlighted the importance of equitable sharing of assets and said this should not be taken for granted in South Africa. A strict interpretation of the Protocol could cause anomalies but it did not prohibit inequitable distribution as other options remained. It was agreed that the issue would receive further consideration.
Adv. Masapu continued that Article 8(d) emphasised the equality of men and woman before the law having equal rights in terms of protection and benefit. The Chairperson added that an important component was that police be trained in gender equality issues.
Mrs Camerer agreed but stated that the issue needed to be expanded to include the police’s role in domestic violence legislation, and other legislation to protect the rights of women.
The Chairperson questioned the relevance of this article, citing extensive legislation already governing law-enforcement agencies and the protection of rights. He recommended that the article be removed.
Adv. Masapu focused on article 9(b) that stressed the participation of women in politics and governing institutions, and as beneficiaries of development programmes. South African law did not provide for this but government policies were in place to encourage transformation. The Chairperson concurred that it was important to acknowledge the presence of such policies.
Mrs Camerer declared that the provisions were possibly over-ambitious in that legislation on equal representation had not been achieved and no timeframes existed. Would it be necessary to provide a strict quota system?
The Chairperson agreed that shortcomings existed in current legislation and no quota systems were in place. However, there were measures designed to achieve equity and promote gender representation at all levels within government.
Adv. Masapu then dealt with article 13(f) that focused on equal opportunities for women in the workplace and the protection of women in the informal sector. He referred to the relevant Constitutional principles on social assistance but included the proviso that such assistance could only be provided if the state had sufficient resources.
The Chairperson asked for greater clarity on the notion of social insurance and protection for women in the informal sector.
Adv. Masapu was not sure of the exact framework but suggested a system similar to the dole system in Britain.
The Chairperson stated that the proposals seemed geared at women in the informal sector.
A suggestion from the Committee was that the proposed system was similar to the Unemployment Insurance Fund. The Chairperson stated that this issue would be returned to at a later stage.
Adv Masapu continued with Article 13(m) on prevention of exploitation of women in advertising and pornography. The Chairperson stated that this article was not necessary and should be removed.
Mrs Camerer declared that the Constitution protected children from abuse but it could not be expanded to include women, and so Article 13(m) appeared unworkable. She was concerned why abortion and reproduction rights had not been referred to. The Chairperson responded that the drafters of the Protocol were aware of such issues.
Mrs Camerer argued that the clause appeared contradictory to the provisions of the Constitution and should be resisted through reservation. Doubt was expressed as to the position of the Department in this regard.
The Chairperson said the Department had expressed their position at the previous week’s meeting. It was Members’ duty to highlight concerns and questions to be carried forward to the next stage, the resolution of the Protocol.
Adv Masapu dealt with Article 18(e) that focused on the transportation and disposal of toxic waste. The Chairperson recommended that the article be removed.
Adv Masapu continued with Article 20(c) detailing the rights of widows. The Department had commented that such provisions were adequately dealt with by the laws of succession and the Constitution. Infringements of such rights tended to occur in traditional communities.
Mrs Camerer reminded the Committee that the laws of succession had not been amended in ten years.
The Chairperson responded that the important issue was whether certain issues were unconstitutional. This particular clause was unnecessary because the Constitution prevented such infringements from occurring. Victims could approach the Constitutional court for redress. She recommended that the article be removed.
Article 21(1) and (2) were then examined which dealt with a widow’s inheritance and women’s rights to inherit parents’ property. The rights of the firstborn male were also discussed in terms of customary law where women did not have rights of inheritance.
The Chairperson stated that the Protocol should more explicitly express current South African legal provisions on freedom of testation. She also referred to Muslim Shariah law that allocated a specific percentage of the estate to female children. The fact that women did not have an automatic right to live in the matrimonial home following the death of her spouse needed to be added, as well as the two broad regimes in South African law of testate and intestate succession. In intestate succession, a widow would have a claim for maintenance against the estate of the deceased, but not the right to live in the home. The rights of the firstborn in terms of customary law were regarded as unconstitutional.
Mrs Camerer asserted that where provisions of the Protocol appeared ‘out of sync’ with South African law, then it was the responsibility of Members to voice reservations.
The Chairperson commented that there seemed to be a reluctance by the Department of Foreign Affairs to clash with the principles of the Protocol for the sake of diplomacy - even when South African laws were more substantial and progressive. The decision-making process needed to considered when acceptance of particular provisions might cause problems in domestic law.
Mrs Camerer questioned the relevance of associating with a Protocol that appeared unrealistic and ‘out of touch’ with everyday circumstances.
The Chairperson responded that such Protocols could be positive forces on domestic legislation, particularly for countries that required “improvements” in rights legislation. She requested the document be corrected where necessary and be sent to the relevant Ambassador for consideration. She proposed that a draft resolution be made available at the next meeting.
The meeting was adjourned.
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