SADC Gender Protocol on Gender and Development: Departmental briefing, Oversight Report & Study Tour Report adoption

NCOP Women, Children and People with Disabilities

15 November 2011
Chairperson: Ms B Mabe (ANC, Gauteng)
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Meeting Summary

The Department of Women, Children and People with Disabilities gave a briefing on the Southern African Development Community (SADC) Protocol on Gender and Development (the Protocol). The SADC Heads of States adopted the Protocol on 17 August 2008 in Sandton, Gauteng. It encompassed commitments made in all regional, global and continental instruments for achieving gender equality and enhanced these instruments by addressing gaps and setting specific, measurable targets where these did not exist. The protocol further advanced gender equality by ensuring accountability by all SADC Member States. In addition it provided a forum for the sharing of best practices, peer support and review. It had come out of the 1997 SADC Heads of State declaration on Gender and Development, and elevated this to the most binding regional instrument. It set out 28 substantive targets for achieving gender equality by 2015. It would place SADC member countries in a position of innovation with global and continental commitments, and laid the basis for mainstreaming of gender in future SADC protocols and policies. It included clear and comprehensive mechanisms for Monitoring and Evaluation, thereby ensuring accountability. Thirteen of the fifteen Member states had adopted the Protocol in 2008. Botswana and Mauritius did not sign it. However, only seven countries had to date ratified and deposited the instrument with the SADC Secretariat. The Democratic Republic of Congo had still to deposit the instrument. A two-thirds majority must ratify and deposit, and two more ratifications and deposits were needed before the Protocol came into force. The Department noted that already in South Africa, various policies and programmes were in place to ensure compliance with the Protocol. South Africa’s national Parliament would have to ratify. It was necessary to consider whether the Protocol and Constitution were in line. The Constitution had several provisions, which were briefly outlined, in respect of non-discrimination, and gender equality, and affirmative action, but had no claw-back clauses, although sections 15 and 30 dealt with possible conflicts between the Constitution, law and practice.

The Department outlined the principles, objectives and provisions of each of the Articles of the Protocol, noting where time frames were mentioned, and how the mechanisms for implementation and sharing of best practice would also seek to achieve deepened regional integration. Of particular importance were articles 4 to 8, which noted that all constitutions in the region must enshrine gender equality and give such provisions primacy over customary law, whilst all laws that were discriminatory to women were to be repealed. The Protocol also had provisions around the rights of widows and widowers, in relation to property, guardianship of children, inheritance from their spouse, and the right to remarry a person of his or her own choice. Article 9 provided for issues covering people with disabilities, noting that their particular vulnerability and abuse had to be dealt with, including in the workplace. Article 11 dealt with both the girl and boy child, whose protection and development had to be enhanced. It was noted that the region had hitherto placed much emphasis on the girl-child whilst neglecting the boy child, although boys must be included for socialisation purposes. The Protocol also covered representation of women in all areas of decision making, both public and private, and in South Africa the proposed Women Empowerment and Gender Equality Bill would ensure implementation and compliance with policies. The Protocol also called for equal access to quality education and training for women and men, and their retention, at all levels of education. Productive resources and employment, and economic empowerment were also addressed, and Member states were to conduct time-use studies and adopt policy measures to ease the burden of women who played multiple roles. The Protocol also addressed gender-based violence, and provided for implementation of a number of strategies, including legislation to address violence, provisions for treatment and care, and provisions around trafficking. Countries had to adopt integrated approaches, including institutional cross-sector structures, with the aim of reducing current levels of gender-based violence by half by 2015. In South Africa, it was hoped that the enacted National Council Against Gender Based Violence would play a vital role in dealing with gender based violence. Article 26 provided for the adoption and implementation of policies and programmes to address the physical, mental, emotional and social well-being of women, with specific targets for reducing the maternal mortality ratio and ensuring access to quality sexual reproductive health services, whilst Article 27 dealt with HIV and Aids. Article 28 called for equal representation of women in conflict resolution and peace building processes, as well as the integration of a gender perspective in the resolution of conflict in the region. Other topics were media, information and communication, where in the past the prominent position of men in the media houses meant that much of the reporting on women had been negative. Implementation and monitoring were covered, and member states were to submit comprehensive reports to the Secretariat every two years, indicating progress achieved in the implementation of the provisions.

Members agreed that more focus had to be placed on men and boys, since they needed to be both safeguarded and included in the processes, and a balance must be struck between differing needs. Members asked for clarity on enforcement and asked how the Department would promote the programme.

Members considered, and adopted, the Committee’s Draft Report on the USA Study Tour, the Draft National Policy for Women Empowerment and Gender Equality, and the Committee’s Draft Report on the Oversight Visit to the Saartjie Baartman and Thuthuzela Care Centres for Abused Women.

Meeting report

The African Children’s Charter (Prof Julia Sloth-Nielsen)
Professor Julia Sloth-Nielsen, Member of the African Charter Committee, African Union, said that the inclusion of children’s rights within the African Union (AU) considerations was not a new phenomenon. The African Union had firstly made a Declaration on the Rights and Welfare of the Child, in 1979. The African Charter on the Rights and Welfare of the Child more commonly known as the African Children’s Charter (ACC) was drawn in July 1990 but was finally ratified by the requisite number of states on 29 November 1999. She explained that the nine-year delay was the result of a lack of signatories, and the slow ratification by various states.  The AU had adopted the ACC because many African states felt that Africa had been marginalised in the ten years of the drafting of the United Nations Convention on the Rights of the Child, when only four Northern African states had participated. There was also a feeling that African values were not sufficiently reflected in that Convention.

The African Committee of Experts on the Rights of the Child (AC) was established in 2001, with the mandate of overseeing the implementation of the African Children’s Charter (ACC). The ratification status was currently at 85%,  with 46 states having ratified. The AC received member party reports on the implementation of the Charter. So far, it had received 16 country reports, of which ten had been finalised.

The challenges faced by the AC included the lack of a Secretariat and the lack of resources allocated by the AU. The entity definitely needed more capacity, research assistance and resources.

Prof Sloth-Nielsen noted that the ACC set higher standards for African countries to meet than the United Nations Charter on the Rights of the Child (UNCRC). For example, the ACC set 18 years as the minimum age for recruiting child soldiers into armed forces, while the UNCRC set an age of 15. The ACC was even more unique because it did not just focus on the rights of a child, but also the responsibility of a child. The rights of a child were also reflected in various pieces of legislation, especially in South Africa.

The nature of State party obligations in the ACC were also unique,  because this Charter referred to culture, tradition, religious practices and customs, and specifically said that those which were inconsistent with the rights of a child should be discouraged. The ACC made provisions for four cardinal values which were similar to those in the UNCRC: namely, non-discrimination (as set out in Articles  3, 26(2) and 26(3), consideration to the best interests of a child (Article 4), the right to survival, life and development (Article 5), child participation (Article 4(2) and Article 7).

Article 6 highlighted the importance of the right to registration, to a name, and to acquire a nationality.  The freedom of expression was highlighted in Article 7. Article 8 dealt with freedom of association, whilst freedom of thought, conscience and religion were covered by Article 9. The protection of privacy of children was covered by Article 10. The protection of children with disability was covered in Article 13. Protection against child labour was set out in Article 15, whilst protection against child abuse and neglect, such as sexual exploitation, drug abuse, sale, trafficking and abduction, were covered by Articles 27, 28, 29). The socio-economic rights focused on the right to education (Article 11), the right to leisure, recreation and culture (Article 12), and the right to health (Article 14).

The ACC made unique provisions for harmful traditional practices, juvenile justice, use of children in begging, children of imprisoned mothers and the responsibility of a child.

Prof Sloth-Nielsen said that she was the newest AC member appointed by the Heads of States of the AU, in the face of other candidates from various African states. She thanked all who had effected her nomination, and also commended the role of the Department of International Relations. She noted that she currently had a non-renewable five year contract, which ended in January 2015.

Prof Sloth-Nielsen saw the ACC as complementary to the UNCRC. A comparison of the ACC with the UNCRC showed a bias of visibility towards the Geneva Convention, but Prof Sloth-Nielsen said that she was hoping to see this trend change. The reporting guidelines provided that state parties be permitted to submit the same reports as were submitted to the Geneva Committee under the UNCRC also to the AC, with an addendum or additional report highlighting the specificities of the ACC. However, many countries had not reported until recently. South Africa had failed to report under the UNCRC Convention since 1997, and was now four reports behind. South Africa even failed to submit its initial report to the African Committee of Experts on the Rights and Welfare of a Child. This report from South Africa was ratified in the year 2000, and was due to be submitted in 2002. The first periodic report would have been due in 2005, the second in 2008, and the third in 2011. However, it had submitted nothing and this was a matter of grave concern. She added that the committee would also consider holding discussions with Non Governmental Organisations (NGOs) where governments failed to report.

The mandate of the African Charter Committee was to “protect and promote the rights and welfare of the child” (as set out in Article 32).  Article 42(b) stated that the Committee should “monitor the implementation and ensure the protection of the rights enshrined in this Charter.”  With respect to promotion, the tasks specified in Article 42(a) of the Charter were similar to the tasks specified for the Commission under Article 45(1).

The African Charter Committee would interpret the provisions of the present Charter at the request of a state party and institution of the AU, or any other person or institution recognised by the AU, as set out in Article 42(c). The African Charter Committee also received individual communications similar to the mandate of the African Commission on Human People’s Rights. The entity had been receiving communication since the early 1990s on behalf on individuals who wanted to issue complaints against governments.  It would, therefore, accept communication from a state that was not a signatory to the Charter, if this would, overall, relate to the best interest of the child. In so doing, the Committee should collaborate with other related agencies implementing Conventions and Charters, to which the non-signatory country was a party.

The Committee had conducted investigations, and had also instituted the “Day of the African Child”, which was celebrated on 16 June annually. The Committee had increased cooperation with the African Commission, African Union Commission and other partners on African Human Rights Strategy. The legislative reform of the Charter’s provisions was being domesticated, via South Africa’s  Children’s Act of 2005. The child law reform was set to happen within a 30 year framework for and the implementation of the legal framework was a key developmental outcome.  

The Acting Chairperson thanked Prof Sloth–Nielsen for the presentation and said it was unfortunate that South Africa, despite its democratic Constitution, could not function as expected in regard to reporting on the ACC. She congratulated Prof Sloth-Nielsen on her appointment.

Ms G Tseke (ANC) also congratulated Prof Sloth-Nielsen on her appointment to the AC, and said the Committee hoped to work closely with her on advancing Children’s Rights issues. The Committee was aware of the non-reporting of South Africa and the issue had been raised with the Department of Women, Children and People with Disabilities (DWCPD) during its budget report in February 2011. The latest information from the Department was that the Report was ready and still with Cabinet. The Portfolio Committee was looking forward to hearing more from the Department on the details of the Report.

Ms Tseke asked for the background paper on the celebrations of the African Child, so that the Committee could get more information regarding the themes highlighted for 2012. She was of the view that the AC did not do well with regard to children with disabilities. The Portfolio Committee had many oversight tours around the country and noted many challenges. The background information would help Parliament to prepare itself for upcoming events on children.

The Chairperson asked whether the AC interacted with the Department of Social Development, who also dealt with children, and what the nature of their relationship was. She agreed entirely that there was a serious need to monitor adopted children. The Portfolio Committee had encountered serious problems when it did its oversight, and was disturbed in the manner which some children were looked after. Continuous follow up was needed to monitor the welfare and the wellbeing of adopted children.

Ms S Rwexana (COPE) asked whether the AC Committee was based at the University of the Western Cape (UWC).

Prof Sloth-Nielsen replied that the AC consisted of independent experts elected by the Heads of States of the AU, who served as individuals in their personal capacity. No country was allowed to have more than one representative on the AC. Meetings of the AC were usually held at the AU Headquarters, except when a country offered to host a meeting. The AC did not have a seat as such, and it was not based at UWC. It would cost a lot for a country to host the AC offices and its supporting staff.

Ms S Rwexana (COPE) asked if the AC was monitoring the Charter, because she had serious concerns that Africa was seen today as a gateway for child trafficking. She asked how the AC gathered its information on children’s issues.

Prof Sloth-Nielsen responded that the AC worked closely with NGOs. In the 2006/07 financial year, it had hosted a psychologist on child trafficking, and recently had invited Mozambique to make a presentation on child trafficking. The AC did not only listen to governments but also to NGOs, so that different perspectives would be taken into consideration.

Prof Sloth Nielsen said she would like to have the opportunity to make a presentation to the Portfolio Committee on Social Development, and she had personally worked with that department on Children’s Rights.

The Acting Chairperson expressed her gratitude and appreciation for the Report and hoped that the interaction with Prof Sloth-Nielsen would continue.

The meeting was adjourned.  


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