Protocol to African Charter on Human and People’s Rights on Rights of Women in Africa: briefing

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Justice and Correctional Services

04 August 2004
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
5 August 2004
PROTOCOL TO AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS ON RIGHTS OF WOMEN IN AFRICA: BRIEFING

Chairperson: Ms F Chohan-Kota (ANC)

Documents handed out:
Protocol to the African charter on human rights and peoples rights on 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
Briefing to the PC Justice by Ambassador JNK Mamabolo
African (Banjul) Charter on Human and Peoples’ rights
Draft Protocol to African Charter on Human and Peoples’ rights on the establishment of the African Court on Human and Peoples’ rights  (1997)
Explanatory Memo on Protocol on establishment of African Court on human and peoples’ rights
(email info@pmg.org.za for the above documents)

SUMMARY
The Department of Foreign Affairs’ briefing noted that the Protocol is a compromise document. It is the best document that could be put together given the existing different and deeply ingrained social practices, cultures and religions. SA has entered some reservations against Articles 4 and 6. Some provisions of the Protocol are in conflict with South African Law. For instance one article provides that a marriage should be recorded in writing before it can be recognised. This is contrary to the Recognition of Customary Marriages Act.

The Chair instructed that the following committee report be drafted for attention of the State Law Advisors:

That the Committee was concerned that some provisions of the Protocol pertaining to rights of women do not reflect any limitation. The Law advisors should make an analysis of Article 31 of the Protocol and the limitation clause. To the extent that the rights are limited in the Bill of Rights they might be construed as less favourable than the provisions of the Protocol.

The report should indicate all inconsistencies between domestic law and the Protocol. It should all indicate all instances wherein South African law provides alternatives.

The report should also indicate all rights in the Protocol that South Africa does not have in the Constitution. For instance the Protocol provides for a right to the development of personality. It is doubtful if this right is covered by the right to dignity.

The Constitutional Court has a particular view on discrimination and the equality clause as a whole. The definition of discrimination in the Protocol is too wide as it talks about any differentiation. It also makes no reference to the unfairness of the discrimination. The report should include an analysis of how our courts have dealt with issues of discrimination and the equality clause. The question is whether there is differentiation and there is differentiation whether it is justifiable.  The report should indicate all instances in which the word ‘discrimination’ is used. The Protocol contains a definition of ‘discrimination against women’. It is important to find out if the word discrimination as used elsewhere in the Protocol has the same meaning as ‘discrimination against women’.

MINUTES
Ambassador JNK Mamabolo (Department of Foreign Affairs) briefed the Committee on the Protocol (see briefing document). Ms SM Masupa (State Law Advisor) outlined some of the problematic Articles of the Protocol.

It was explained that the Protocol is a compromise document. It is the best document that could be put together given the existing different and deeply ingrained social practices, cultures and religions. South Africa entered the following reservations to the Protocol:

Article 4:  The Right to Life, Integrity and Security of the Person
South Africa entered a reservation on Article 4(j), which states that "in those countries where the death penalty exists, not to carry out death sentences on pregnant and nursing women". The reason for the reservation was that the Article contradicts Article 30 (e) of the African Charter on the Rights and Welfare of the Child, which stipulates that a death sentence shall not be imposed on expectant mothers and mothers of infants and young children. The proposal by South Africa was that these two Articles be harmonised to ensure that the death penalty would not be imposed on expectant mothers and mothers of infants and young children, let alone be carried out as set out in Article 4(j). The reason for this is that the Charter on the Rights and Welfare of the Child is already in effect and therefore constitutes the position of the Continent on the issue. The proposal was intended to avoid two conflicting positions on this issue. Due to a lack of consensus, the South African position was not adopted.

Article 6:  Marriage
South Africa entered reservations on Article 6 (d) and (h). Article 6(d) requires every marriage to be recorded in writing and to be recorded in accordance with national laws in order to be recognised. The South African proposal to add: "However, non-registration shall not be considered a reason for non-recognition" was not accepted. South Africa's reasoning was that Section 4(9) of the Recognition of Customary Marriages Act No 120 of 1998 provides as follows: "Failure to register a customary marriage does not effect the validity of that marriage".

South Africa also entered a reservation on Article 6 (h), which provides equal rights to women and men with respect to the nationality of their children. The reservation was in respect of the last part of the paragraph, which makes the provision subject to national legislation or national security interests. This reservation was noted.

Article 21:  Right to inheritance
Although various countries indicated that Article 21 was already adopted at the previous meeting, South Africa argued that the Ministerial Meeting was not under any obligation to accept decisions of the Meeting of Experts, and that the last sentence of Article 21(1), which reads as follows, be deleted:
"In case of remarriage, she shall retain this right if the house belongs to her or she has inherited it".

Due to a lack of consensus the suggested deletion was not adopted.

With regard to Article 27 there was a debate on whether or not the African Court on Human and Peoples' Rights or the Commission on Human and Peoples' Rights should have the competence to interpret the Protocol. This was in view of the fact that the African court is yet to be established. The Commission would in the meantime interpret the protocol.

Mr Mamabolo said that in terms of s231 (2) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) an international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces." South Africa must then deposit an instrument of ratification/accession in terms of Article 28(2) of the Protocol with the Chairperson of the Commission. Thereafter South Africa will have a legal obligation in terms of international law vis-à-vis the other States Parties that have ratified the Protocol.

NGOs and individuals are allowed to institute cases directly before the Commission only if so allowed by their Government.

The Chairperson asked if there are any obligations emanating from the Protocol that South Africa has not yet complied with. It is easy to say that the risk of any State taking another State to Court is minimal but this might not always be the case. She expressed concern over Article 31 of the Protocol. In essence it provides that anything more favourable than the domestic law remains applicable. South Africa has the limitations clause in the Constitution and the Protocol does not deal with the limitations clause. It could be argued that because the rights in the Protocol remain unlimited they are more favourable as compared to the limitable rights as enshrined in our Constitution.

Advocate SM Masapu (State Law Advisor) commented on conflicts between some Articles of the Protocol and South African law.

Article 6 provides that State Parties shall enact appropriate national legislative measures to guarantee that ”every marriage shall be recorded in writing and registered in accordance with national laws, in order to be legally recognised”.

This is problematic given the fact that the Recognition of Customary Marriages Act does not required that a marriage should be recorded in writing and be registered for it to be recognised.

It also provides that
“during a marriage, a woman shall have the right to acquire her own property and to administer and manager it freely”.

This Article is in conflict with South African law in that South Africa has a variety of marriage regimes with difference consequences. Adoption of the Article would seem to suggest preference of one system of marriage.

Ms Chohan-Kota said that the issue is that if a woman chooses to marry under a system that allows her to acquire her own property, such a right must be protected. In essence the Article is not necessarily in
contrast with our law. Article 6 poses no problem since South Africa has entered reservations with respect to (d).

The Chairperson pointed that Articles 6 (b) and (h) are also in conflict with South African law. South African law allows the marriage of children under 16 years provided that ministerial consent is obtained.

Ms M Mahlawe (ANC) asked for an explanation of the effect of Article 6 on customs or tradition and domestic law.

The Chairperson replied that the Protocol binds the state vis-à-vis other member states and does not bind individuals. it allows other member States to take South Africa to court if it does not comply with Articles of the Protocol. The judgement of the court does not have legal effect domestically and only has persuasive force. Parliament is not being asked to ratify the protocol in terms of section 231(4) of the Constitution but in terms of section 231(2). Ratification in terms of s231 (4) makes the Protocol part of the domestic law whereas ratification in terms of subsection (2) binds the State only.

Ms Mahlawe asked for a definition of the State. She wondered if customs, tradition and domestic law do not form part of the State.

The Chairperson replied that the State refers only to the national executive authority. The Protocol applies only to that part of the State that can enter into international relations and therefore excludes provincial or local governments.

Ms Masupa said that article 7 is also in conflict with South African law because in South Africa the concept of judicial separation no longer exists. Art. 7(d) is also problematic because in South Africa the matrimonial regime chosen by the parties is decisive.

The Chairperson said that it is only when the State excludes 7(d) that it would fall foul of this provision. The question is whether the provision provides for equitable sharing of the joint property as the only regime. It clearly does not provide for this.

Article 9(a) enjoins State Parties to promote and enact legislative measures to ensure that women participate without any discrimination in all elections. Ms Masapu felt that this should be left to the country’s Constitution.

The Chairperson indicated that the Constitution dealt adequately with issues of who can participate in elections. The only problem is that the definition of the word “discrimination” as used in the Protocol is too wide. She also pointed out that Article 9(b) is in contrast with SA’s electoral laws. Article 9(c) is too wide and could be interpreted to mean that for every male Minister appointed a female minister should also be appointed. It is doubtful if this is what is intended. Perhaps one is concerned with equitable representation.

Article 10(3) requires States Parties to take necessary measures to reduce military expenditure in favour of spending on social development and promotion of women. Ms Masapu felt that it is the prerogative of the State to make its own priorities on how it would spend its money.

The Chairperson found no problem with the provision because it is the State itself that is binding itself. The provision is therefore not strictly opposed to SA law.

Article 141(e) was problematic. The question is why should anyone be forced to disclose his or her HIV/AIDS status. The situation is different in cases wherein an HIV positive person commits a rape offence.

Ms Chohan-Kota indicated that the Sexual Offences Bill makes it an offence for a person to have sexual intercourse with another person without disclosing that he or she is HIV positive.

Article 14(2)(a) should be made applicable subject to available resources. The realisation of most rights in our Constitution is linked to available resources.

The Chairperson felt that this is covered by the words “appropriate measures”. Each country would have its own test of what is appropriate.

Ms Masapu said that Articles 20 and 21 also conflict with South African matrimonial and succession laws. She pointed out that in terms of customary law a widow is ‘allocated’ to the brother of her deceased husband. This is not really a marriage since no lobola is paid She also has to wear black clothes for some period of time during which she would not be expected to go out of the house. Moreover, in terms of customary law, women do not inherit anything from the deceased estate.

The Committee agreed that Article 21 is in conflict with the doctrine of freedom of testation. South Africa does not recognise the right to inherit or to share equitably in the property of the deceased husband or parent.

The Chairperson said that the crucial issue was whether the widow chose to abide with the custom. If she chooses not to stick to the custom, she should be free to do as she pleases.

The Chairperson instructed Ms Masupa to draft a committee report indicating the following:

That the Committee was concerned that some provisions of the Protocol pertaining to rights of women do not reflect any limitation. The Law advisors should make an analysis of Article 31 of the Protocol and the limitation clause. To the extent that the rights are limited in the Bill of Rights they might be construed as less favourable than the provisions of the Protocol.

The report should indicate all inconsistencies between domestic law and the Protocol. It should all indicate all instances wherein South African law provides alternatives.

The report should also indicate all rights in the Protocol that South Africa does not have in the Constitution. For instance the Protocol provides for a right to the development of personality. It is doubtful if this right is covered by the right to dignity.

The Constitutional Court has a particular view on discrimination and the equality clause as a whole. The definition of discrimination in the Protocol is too wide as it talks about any differentiation. It also makes no reference to the unfairness of the discrimination. The report should include an analysis of how our courts have dealt with issues of discrimination and the equality clause. The question is whether there is differentiation and there is differentiation whether it is justifiable.  The report should indicate all instances in which the word ‘discrimination’ is used. The Protocol contains a definition of ‘discrimination against women’. It is important to find out if the word discrimination as used elsewhere in the Protocol has the same meaning as ‘discrimination against women’.

The meeting was adjourned.


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