Women Empowerment and Gender Equality Bill [B50-2013]: public hearings with Minister Day 2

Women in The Presidency

30 January 2014
Chairperson: Ms D Ramodibe (ANC)
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Meeting Summary

The Portfolio Committee received written submissions from Legal Resources Centre, Triangle Project, Vodacom, Gun Free South Africa, Sandy Day, Mark Penrith, Progressive Women's Movement of South Africa, Voice Movement Therapy, People Opposing Women Abuse, and heard submissions from; Legal Resource Centre, Gun Free South Africa, Triangle Project, Women in Agriculture and Rural Development, Voice Movement Therapy and Vodacom.

The general trend from most of the submissions was that the WEGE Bill lacked clarity in definitions one such being the definition for ‘designated bodies’. It was not clear who the private designated bodies were. Many presenters were also concerned that the Bill was duplicating existing legislations such as Employment Equity Act, and BBBEE which were already struggling with implementation; hence many recommended that existing legislation should be reviewed to identify a gap and then decide if new legislation was the necessary solution.

Some submitted that the consultation process was not properly followed as rural women were excluded. Also excluded from the Bill were Lesbian Gay Bisexual Transgender and Intersex Persons who also experienced marginalisation on gender basis. As such there was a need to expand the definition of gender to cater for this group of people. Furthermore, women were not a homogenous group as they had different experiences as such experienced different forms of discrimination. If solutions were not tailored to address the particular marginalisation of different groups, the marginalised would continue to be marginalised and only those who already had some kind of social or economic basis would continue to benefit.

Patriarchy was identified as the core cause of some forms of gender inequality such as gender based violence. As such the Bill needed stronger provisions to enact measures that modified social and cultural norms and conducts which perpetuated and enabled discrimination and inequality in South African society. Overall there was support for the intention of the Bill to address gender equality.

Meeting report

In her opening remarks the Chairperson stated that since the advent of democracy, South Africa had made a significant stride in enhancing gender equality and the empowerment of women, which was supported by the development of laws and creation of structures such as the Commission of Gender Equality and the establishment of the Ministry for Women Children and People with Disabilities in 2009. She further stated that the President, Jacob Zuma, had emphasised that in the period of freedom and democracy, women’s emancipation should form an integral part of the political, social and economic transformation of the country. She added that South Africa’s 2010 Millennium Development Goals report showed that the country had attained the goal of universal primary education before the target date of 2015. She further stated that South Africa had been ranked 8th out of 188 national parliaments by the inter-Parliamentary Union in terms of women’s representation in parliament. However, there was still in need for more to be done in order to advance gender equality even though more girls were accessing primary, secondary and tertiary education there were still more sectors that impeded women’s development. A disproportionate number of women in South Africa lived in households where they were subjected to poverty, fulfilled multiple roles and were affected by gender based violence, HIV and AIDS as well as chronic diseases among other things.


She added that according to a 2013 international business report women made up 28% of senior positions in publicly and privately traded companies in South Africa. This was above the world average of 24%. She added that a 2012 survey by the Business Women’s Association of South Africa looked at women leadership in companies listed on the JSE found that female dictatorship stood at 17.1% in line with the USA and ahead of Canada and Australia. However, women only accounted for merely 3% in CEO position which was low. The report noted that though the representation of women on boards of JSE listed companies had more than doubled in South Africa since 2004, women still represent less than 1 in 6 of all members. Furthermore 21% of the companies surveyed had no women in senior management positions therefore given all the challenges faced by women in the country, the DWCPD had lobbied the Women Empowerment and Gender Equality Bill (WEGE) in order to address gender inequality in the country. The purpose of the bill was 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 was concerned and establish a legislative framework for the empowerment of women and align all aspects of laws and implementation of laws pertaining to women empowerment as well as the appointment and representation of women in decision making structures.

The WEGE Bill was introduced in Parliament on 6 November 2013 and referred for joint tagging as well as the Portfolio and Select Committees on Women Children and People with Disabilities. The bill was subsequently tagged as a section 76 Bill on 14 November 2013 and thereafter referred to the House of Traditional leaders on 19 November 2013.

The mandate of the Committee was underpinned by four pillars namely oversight, legislation, international participation and public participation which in essence were to hold the executive structures that are responsible for improving the lives of Women, Children and Persons with Disabilities to account i.e. DWCPD as well as other relevant organs of state. Also the Committee was to monitor and evaluate the implementation and oversee legislation with respect to the target groups of the Committee. In respect of the Committee’s legislative role, it was to ensure that targeted groups were considered and prioritised in all legislation policy and programmes in addition to ensuring that the needs of the Committee’s targeted groups are mainstreamed into the core functions of government departments, organs of state, public entities and civil society at large. She further stated that the Committee was mandated to create opportunities for public participation with civil society on key matters pertaining to the Committee’s target groups hence the public hearings on WEGE Bill.

The Chairperson also stated that the Portfolio Committee on Women Children and People with Disabilities had invited interested individuals and organisations to submit written comments on the WEGE Bill through the print media in December 2013. In keeping with the Committee’s mandate in respect of public participation, public hearings intended to provide a platform for the public to present their views, opinions, concerns and recommendations with respect to the Bill. The Committee would over a period of two days listen carefully to the presentations of the public, the private sector, the religious sector, non-governmental organisations and individuals as all the contributions were important for the Committee to take heed of in its deliberations concerning the WEGE Bill. She also highlighted that whilst the Bill was introduced as a section 75 Bill it was tagged by the Joint Tagging Mechanism (JTM) as a section 76 Bill which meant that the Bill would be taken to all the National Provinces where the public participation processes would be followed. She highlighted that Provincial Legislature had a valuable role to play and the Civil Society would be afforded an opportunity to make additional inputs. She added that once public hearings were concluded the Portfolio Committee would engage with DWCPD on the inputs received and a report would be compiled.
 
Gun Free South Africa submissions on WEGE Bill
Ms Adele Kirsten, Director, GFSA, said that GFSA shared the views of all Civil Society particularly those who worked in the sector of prevention of violence against women and children that the Bill in its current form did not give what women empowerment needed. The Bill had to be reworked and assessed to ascertain whether it would really advance women’s equality. The Bill’s objectives were commendable but lacked detail as to how they would be achieved; this had implications for implementation of the provisions in the Bill. It was therefore recommended that broad participation and consultation with women on proposed reforms for empowerment and equality should be secured, patriarchy should be addressed, there should be clear mechanisms for monitoring and reporting, the Bill should be well budgeted for, resources and prioritising. GFSA’s submission focused on the practical implementation of the WEGE Bill as it relates to, prevention of gender based violence and equal representation and participation in public and private bodies

It was said that gun violence had a gendered nature to it even though statistics revealed that since 2009, of the 6,428 people shot and killed (an average of 18 people per day); 89% (5,711) were men and 11% (717) were women. Men and women were affected differently by gun violence, even though women were less likely to be victims of gun violence, guns play a significant role in violence against women, guns were more commonly used in intimate femicide i.e. her current or ex-husband or boyfriend, same sex partner or a rejected would-be lover), in rape, and to threaten and intimidate. In addition women had to provide care for family member affected by gun violence and hence had to give up work or work fewer hours.

It was recommended that the Bill should include reference to existing South African legislation that prevents violence, including the Firearms Control Act (2000) and Domestic Violence Act (1998) as laws to be complied with because they contained a number of provisions that protect men and women from gun violence as certain people were prohibited from owning a gun. GFSA was calling for clarity on the Bill’s provisions for Public education on prohibited practices, including gender based violence by designated public bodies and designated private bodies to develop and implement plans to educate the public on practices that unfairly discriminate on grounds of gender, including gender based violence in compliance with applicable legislation and international agreement such as the Beijing Declaration and Platform for Action. Domestic legislation such as Firearms Control Act (2000) and Domestic Violence Act (1998) should also be listed as the Acts were aimed at protecting against gender-based violence, but could only work if the public and officials were aware of their provisions.

Also specific public and private bodies as well as key positions within these structures responsible for preventing gender violence should be identified.

 
GFSA’s second recommendation was about equal representation and empowerment in public and private bodies as provided for in Clause 7 of the Bill and urged that key public and private bodies, as well as key positions within these structures involved in violence prevention should be listed. In particular, GFSA recommended that two public bodies/ key positions responsible for firearms control should be specifically identified, namely the firearms Appeal Board and Designated Firearms Officers.

The Firearms Appeal Board was responsible for hearing appeals relating to firearm licence denials. Its structure and function were defined by the Firearms Control Act and related Regulations, neither of which required the Appeal Board to be gender-representative. As such, the board was dominated by men with legal training who were concerned with the legal aspects of gun ownership. GFSA strongly argued that the firearm licensing process was more than a technical, procedural issue and that it related to broader public and private safety. As such, an equal number of men and women who represented specific interest groups or with specialist expertise (such as community safety) should sit on the Appeal Board. Designated Firearms Officers (DFOs) - police officers responsible for gun control at police station level, were central to ensuring that firearms licence applicants were fit and proper. However, there was no requirement that DFOs be gender representative as such DFOs tend to be men. It was recommended that the WEGE Bill should require that 50% of DFOs are women.

Legal Resources Centre submission on WEGE Bill
Ms Charlene May said that steps taken by the government to address the realisation of the right to gender equality and that a number of key statutes enacted to respect and protect the right to equality were appreciated but must be built upon if government was to meet its Constitutional obligations in respect of gender equality.

The government’s commitment was noted however based upon practical experience LRC was deeply concerned that the Bill in its current form could not realise all of the obligations that existed in respect of achieving gender equality. Firstly women were not a homogenous group and the Bill’s focus on formal equality as opposed to substantive equality would not address gender discrimination and inequality in any meaningful way. It was submitted the Bill used broad descriptive ideals without addressing the plight of ordinary South African women in a meaningful way. The Bill emphasised the need for policy development both in the public as well as private sphere to empower women. Policy development was important, it was therefore LRC submission that a number of policies programmes and frameworks were already in existence with problematic. Thus failure of gender empowerment did not lie in the lack of policies and plans, but rather in their implementation and execution and the Bill had very little emphasis on the implementation of existing or future policies and plans. The Bill assumed that everyone in the private and public wanted to achieve gender equality and that lack of policy was what had hampered participation and transformation.

The powers of the Minister although appear to be limited to only enabling the use of any dispute resolution mechanism to address non-compliance with the Act. The Minister would find it extremely difficult to hold anyone to account for non – compliance because the Bill merely required the development and implementation of a policy with no measures for the impact of the policy. Furthermore, the Minister’s powers to engage and make recommendations and suggestions on proposed policies had no enforcement measures to ensure that the suggestions and recommendation would be taken on board.

The definition of gender in the South African constitution spoke of much more than merely women, men, girls and boys, it was inclusive and guaranteed the protection and obligations extend to women, men, girls, boys, lesbian, gay, bi-sexual, trans-sexual as well as intersex persons. Issues of gender equality and inequality should not be limited to being issues between men and women and girls and boys. Otherwise the Bill was not only flawed, but also unconstitutional as it discriminated in its application to sexual minorities.

The actual implementation of the Bill was deeply concerning in terms of financial implications, capacity constraints and resource allocation as impossible implementation shortcomings which the Committee had to consider. A number of statutes enacted over the past few years had 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 due to implementation shortcomings. The Bill intended to provide the equal realisation of a number of rights such as 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 were already under the mandate of existing government departments who were tasked with the realisation and protection of such rights. These government departments already had 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. The Bill would end up duplicating efforts and using up resources that could be used for something else. There was a need for harmonization of interventions between public bodies in order to achieve gender equality.

Rural women were provided for in the Bill and called for measures to be in place to ensure equal representation and meaningful participation of women in traditional councils. However, the Bill was silent on how women should achieve such representation if they chose to participate and also silent on what would happen in the event that such engagement is denied and culture or custom is used to justify the denial. Socio- economic empowerment of rural women was based on the assumption that all rural women lived on farms, were married to men who worked on farms or that that they wanted access to agricultural land, like women from urban areas they were not homogenous as such their plight could not be attributed to land or access to land.

The Bill assumes that all women were formally employed and so private institutions and bodies account for the workplace equality and government accounts for the socio-economic conditions, as such women’s unpaid work and labour was not recognised. The Bill remains silent on the gender equality at play within the private environment that women find themselves where the true reality of patriarchy and gender inequality was at play. The United Nations Special Rapporteur on Extreme Poverty recently released a report on Unpaid Work, Poverty and Women’s Human Rights in which a direct link between unpaid work, poverty and women’s inequality was found and called for governments to give women’s unpaid work the recognition needed to address inequality. Without being formally employed there was no one to be held accountable to develop a policy that would address empowerment for unemployed women.

It was recommended that an evaluation be conducted of all existing policies which sought to advance women’s empowerment and gender equality. The process should commence with government and resources be made available to enable the process. The evaluation should not merely be focused on the existence of policies and programmes, but also on content and implementation as well as the measurable impact it has had on the target audience. This would enable different department to evaluate where their successful models of intervention lie and what gaps or failures exist and be able to determine how to address the root causes of inequality without merely addressing the results thereof.

Discussion
Ms H Lamoela (DA) said she shared Ms May’s sentiments as she did with the other presenters, she asked whether if existing legislation were implemented there would be different statistics for the matter at hand.

Ms May responded that it was difficult for anyone to talk about statistics or numbers for successes or failure due to lack of critical monitoring and evaluation to look at lives of women and how they had changed which would enable engagement to see whether or not legislation was needed, what targeted legislation and where it should be targeted. The WEGE Bill was ambitious in that it tried to address all empowerment with one broad stroke. There should be some caution especially if there was no clear picture of what was truly going on the ground. What was really needed was to identify where the problem lied in order to start talking about implementation.

Triangle Project submissions on WEGE Bill
Ms Ingrid Lynch, Research and Advocacy Coordinator, Triangle Project, said that in its current form the Bill was not considered to be adequately addressing women and other marginalised groups’ lack of economic empowerment and widespread gender inequality. An alternative framework had to be developed because gender inequality was related to gender identity, gender expression and sexual orientation. Project Triangle was interested in the eradication of all forms of inequality, discrimination and violence. As such oppression based on a particular axis could not be viewed in isolation because sexual orientation, gender identity and gender expression intersect with other social positions such as those based on race, class, disability, and geographical location (urban-rural). These intersections mediated LGBTI persons’ experiences of discrimination, economic exclusion and violence and the extent to which they were able to enjoy constitutional protections, as they remained particularly marginalised.

The definition of gender in the Bill was one which relies on a normative binary that organised people into two mutually exclusive categories, that of male and female in reference to the roles, duties and responsibility which were culturally or socially ascribed to women, men, girls and boys. Such a definition did not recognise that the hetero-normative patriarchal organisation of gender negatively impacted not only women and girls (or men and boys) but also impacted LGBTI persons who were often considered as existing outside of such a normative gender binary. Any Legislation based on a narrow, exclusionary definition of gender perpetuated instead of transforming the patriarchal systems it wished to challenge. It was therefore proposed that it would be more constructive to assume a definition of gender that was sensitive to the effects of the historical binary organisation of gender, which marginalised LGBTI persons as well as any other gender non- conforming persons.

The Employment Equity Act of 1998 also explicitly mentioned sex, gender and sexual orientation as prohibited grounds for unfair discrimination. The omission of LGBTI persons from the definition of gender discrimination and gender-based violence in the Bill was in clear contrast with existing legislation. This omission was also in contrast with Government’s rejection of violence against LGBTI persons, the formation of the Department of Justice and Constitutional Development-led task team against violence against LGBTI persons, and the pending hate crime legislation aimed at addressing crimes committed based on prejudice regarding gender identity and/or sexual orientation, amongst other social characteristics. The Bill was not in alignment with either existing or pending legislation.

Many LGBTI persons experienced discrimination in the workplace perpetuated on the basis of sexual orientation and gender identity. Discrimination often began in education, which hampered future employment prospects and continued in access to employment and throughout the employment cycle. Further to this, many LGBTI persons faced rejection from their families due to their sexual orientation and/or gender identity which resulted in complicating access to secondary and tertiary education. Economic empowerment was narrowly defined as equity in the workplace; the Bill did not adequately address other aspects of structural inequality such as violence based on gender identity, gender expression and/or sexual orientation. LGBTI persons in South Africa, and notably black lesbian women residing in township areas, lived within a homophobic and patriarchal social order where compulsory heterosexuality was violently enforced.

Overall it was recommended that an alternative framework should be considered to address gender inequality. To be effective, any alternative framework should: be developed through a process of national consultation which included the voices of gender and sexual minorities oppressed through patriarchal systems. The alternative framework should also be extended beyond the context of formal employment to also meaningfully address other axes of inequality such as informal employment, unemployment, harmful social norms and cultural practices, and violence based on gender identity, gender expression and/or sexual orientation.

Women in Agriculture and Rural Development, KZN submission on WEGE Bill
The Women in Agriculture and Rural Development president stated that the Bill was supported because it was believed that it would close the gaps in existing legislation and give the Minister powers to monitor implementation.

Clauses 2, 3 and 4 were supported as they made a provision for women’s training and to be empowered to take up decision-making positions in formal sectors and women with disabilities were given an opportunity to go to school. Clause 5 was supported because it would facilitate the return of the Midwife system as women were currently giving birth on the streets on their way to the hospital. Clause 6 was supported for providing public education to address harmful cultural practices and empower women to make informed decisions on matters concerning gender-based violence. Clauses 7, 8 and 9 of the Bill were also supported specifically areas that concerned women in agriculture. Consultation was vital as women were not being consulted on issues that affected their lives such as where to put taps of water or where to construct access roads.

Access and rights to land were vital to rural women as many were marginalised through discriminatory customs. The Bill should specifically state that women should own 50% of the land that is being redistributed under the Land Reform policies. Women currently owned only a quarter of the total land that had been distributed to men. It was recommended that an addition should be made to Clause 9 to include women’s access to natural resources specifically land. Under the same section widows were not adequately addressed yet their rights were traditionally and religiously violated. Mention was also made of clauses 10, 11, 16, 14.

Voice Movement Therapy submission on WEGE Bill
Ms Boniswa Kamba, Director, Voice Movement Therapy, said that the Bill was fragmented protection and safety for women in urban areas had to be addressed as many were not free to move around in their areas and houses. More police visibility and monitoring were required to curb gangsters and drug abusers. Other areas the Bill had to address were poverty alleviation and rural areas. Some rural areas had a water scarcity that it was impossible for women to initiate organic gardens in their back yard.

The Bill must be clear on patriarchy laws as it was still existent in some rural areas. Education was not a common factor for rural women as many were illiterate as such the Bill was in favour of the elite group. Some rural women did not even understand what the word bill meant.

Disabled women were more prone to gender based violence inclusive of sexual violence as such they needed to be protected. Gender equality in terms of equal representation was target at upper class women and did not trickle down to the grassroots.

Vodacom submission on WEGE Bill
Ms Lynda Marthinus, Executive Head of BBBEE, Vodacom, said that the draft Bill defined what a private body was which gave credence to the greater coalition of NGOs, trade unions and political parties. In the WEGE Bill there was no clarity as to what a designated private body. The provision for equal representation should be clear because the EEA defines four management levels ranging from junior to senior management, each level had power to drive a process in business as such clarity was important to ensure that the WEGE Bill was aligned with BEE and EEA.

Clauses 2.2 and 2.7 showed that the Bill was seeking for a collective involvement of all parties and that no one party had the accountability to empower women as such there was a need for clarity pertaining to the roles that each party played in the Act. For instance if the Minister may regulations to assist people in the implementation of the Act there was no certainty and it would be more effective for the Minister to have a definite role.

Existing legislation such as BBBEE Act and codes allowed companies to monitor implementation of the WEGE Bill by NGOs and others. From a corporate economic business angle it was important for the Bill not to duplicate existing legislation.

Section 15 referenced to Gender Focal Point unit and the Public Finance Management Act, yet under Section 15 (2) private bodies were added which were not bound to abide by the Public Finance Management Act. This must be rectified to refer to public bodies only.

The Ministers powers to determine what mechanisms would be used to correct a particular issue should be clear as to the extent of the Ministers powers. If all the recommended changes were to be made then the Bill would be very effective.

The Chairperson stated that the hearings held a very important component to the Committee especially in the legislation process. She concluded by pointing out that 23 organisations and individuals from all sectors had presented their submissions. Many organisations supported the intent of the Bill in trying to address the persistent marginalisation of women. Concerns were raised over the process related to the consultation of the Bill as well as the content of the Bill. In the oral presentations many presenters questioned whether the Bill in its current form would achieve what it was set out to do in addressing gender equality. Points were raised on the strength of the provisions of the Bill particularly in relation to the powers of the Minister. Another important matter raised was the interrelation of the Bill with existing legislation and whether the Bill had taken an inter-sectoral approach to dealing with women and discrimination. Recommendations were made with respect to re-looking at the definitions in the Bill and the sovereignty of rights. In addition to the oral submissions, the Committee had also received several written submissions which would be examined and discussed. The Committee would engage with the DWCPD on inputs received from Civil Society as well as the House of Traditional Leaders and deliberate thereafter. All specific recommendation pertaining to amendments of clauses in the Bill would be taken into consideration. Once the entire process was concluded by the Committee a report would be adopted and published in the ATC and follows a six weeks process within the National Council of Provinces.

The meeting was adjourned.

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