Document handed out: Report on Summit with Stakeholders on SALRC Report Project 107 Sexual Offences Adult prostitution; Draft Report of Summit with Stakeholders on the SALRC Report Project [Committee Reports available under Tabled Committee Reports once available]
The Multiparty Women’s Caucus (MPWC) met to consider its reports on the SA Law Reform Commission (SALRC) Project 107 Sexual Offences and Adult Prostitution and the Summit on Sex Work. Members were taken through the report on the summit with stakeholders on the SALRC report in terms of the work the MPWC had done in relation to sex work to date, MPWC engagement on sex work, resolutions adopted and consultations.
Members were then taken through its report on the summit with the stakeholders on the SALRC report project in terms of submissions received and positions supported. Members would then have to make recommendations on the report of the summit and craft a way forward.
Members were unanimous on the view that there was a need for further discussion and consultation on the matter to ensure the views of all South Africans were fairly represented. This was especially in regard to those in deep rural areas and informal settlements. Members said the ground covered would be there for many generations so representivity was key. It was noted that not everyone could afford to make submissions before Parliament - it was those who could not afford to do so that needed to be heard most. Members endeavoured to visit all provinces to get as many views as possible as currently not enough has been done - full public participation has not been good enough. Too many in the public sphere were not aware of this work taking place. It would be important to also engage the Ministries of Justice and Police as it was alleged the police themselves were exploiting sex workers.
Members were not pleased that SALRC had not done enough to move this matter forward. Further engagement with the entity was required for full understanding and interrogation of the report. It was also suggested that Members look at the models used in other countries in decriminalising sex work to inform legislation and write a proper report. The matter of considering the curbing of trafficking of young girls and boys was raised.
The Committee was due to be briefed by the Independent Electoral Commission (IEC) on initiatives to implement gender quotas in view of the upcoming elections. The IEC was unable to do so after having been called to engage the President. In a previous engagement, the Caucus was disappointed by the IEC CEO because he simply pushed issues raised by Members aside. Members were disappointed that SA was regressing in its 50/5 gender representation. It was emphasised the mandate of the Multiparty Women’s Caucus was to advocate for women. Members agreed the IEC should be called with the Portfolio Committee on Home Affairs to ensure there was legislation that advocates for representation of women before Parliament before the end of the year.
Members noted the matter had been on the table for some time. There was a responsibility on the Portfolio Committee on Women and MPWC to introduce legislation compelling political parties to have 50/50 gender representation. In the Fourth Parliament, there was the Women Empowerment and Gender Equality Bill which unfortunately lapsed. Members discussed the need to reintroduce the legislation to deal with these issues directly.
Deliberations on the Summit with Stakeholders on the SALRC Report Project 107: Sexual Offences Adult Prostitution
Ms Joy Watson, Senior Parliamentary Researcher, said the report spoke to the work the Multiparty Women’s Caucus (MPWC) did in relation to sex work to date. A summit on sex work was hosted on 5 March 2018 to elicit public participation on whether or not to decriminalise sex work as well as to hear inputs on the report of the SA Law Reform Commission (SALRC) on sexual offences and adult prostitution. Members would need to look at political decisions around recommendations as the report presented does not have recommendations as yet.
In terms of background to the MPWC engagement on sex work, this actually started in the Fourth Parliament when the former MPWC started a process of engaging on sex work with a view to look at the role of Parliament and the Women’s Caucus in this regard. This work was carried over to the Fifth Parliament and at the 2015 Women’s Parliament, it was noted that the criminalisation of sex work resulted in a situation that encouraged exploitation of sex workers and that Parliament should work to address this. At the 2016 Women’s Parliament, the matter was raised again and the report of the 2016 Women’s Parliament noted that the decriminalisation of sex work needs to prioritised, decriminalisation has advantages for protecting the lives of sex workers and facilitating their access to services. Further, the report noted that decriminalisation enables those who choose sex work as a profession to have the right to do so and is a way of protecting bodily integrity and autonomy.
At the 2016 Women’s Parliament, a resolution was adopted which said that sex work should be decriminalised, and the Women’s Caucus was tasked with taking the matter forward. Over the course of the last three years, the Women’s Caucus engaged extensively on the different legislative options in relation to policy reform on sex work. There are four options the Women’s Caucus has engaged with:
- Full criminalisation or prohibition (current situation)
- Partial criminalisation (used in countries such as Sweden, Norway and France; selling sex is not illegal but many activities related to the sale of sex are)
- Legislation regulating sex work (sex work regarded as a legal occupation but can only be performed under special laws and regulations e.g. sex work limited to certain areas, regular health examinations and registration as a sex worker)
- Full decriminalisation (removes criminalisation and sanctions on consensual adult sex)
Under options 3 and 4, laws applying to child sex work, trafficking, forced labour and sexual coercion were looked at and would still be in place i.e. distinction between those involved in voluntary sex work and those forced into sex work.
The SALRC then developed its position paper on sexual offences and adult prostitution. Some civil society organisations registered concern that the process had been underway for many years without output by the SALRC. The MPWC then engaged the SALRC and the Deputy Minister of Justice to expedite the process and the report was then released on 26 May 2017.
The report is based on four pillars (1) overview of the investigation conducted by the SALRC (2) selling of sex and associated theoretical approaches (3) purchasing sex work and theoretical approaches (4) third parties and beneficiaries of sex work. The report considers the four legal/policy options discussed earlier and recommended the legislative option of total criminalisation, which is the current legal situation and, partial criminalisation with the option of diversion. Total criminalisation was the preferred option put forward by the SALRC.
The SALRC also put forward two draft amendment bills to the Criminal Law Sexual Offences Amendment Act based on the models of partial criminalisation with diversion and total criminalisation.
The MPWC has had a number of consultations and meetings to date on the issue of sex work with a view to hear from all stakeholders and the public at large. This was done so that the legislative option most suited to the South African context was determined. On 17 August 2017, the MPWC hosted a meeting on sex work with related stakeholders – the decision of the meeting was that the MPWC would support the stance of decriminalisation but a decision was not taken whether this would entail full decriminalisation or criminalisation with regulations. Once the SALRC put its report in the public domain, nine months later, the MPWC decided it would host a summit on sex work to consult on the contents of the report and open a platform for public comment. Formal recommendations on the Committee report on the summit would need to be made by Members.
Ms Robinson noted that in the overview of submissions, Sisonke mentioned that the word “prostitution” is regarded as derogatory while Embrace Dignity does not regard the term as offensive – Members should be aware of this.
Briefing by the Content Advisor on the Draft Report of the Summit with Stakeholders on the SALRC Report Project
The Content Advisor outlined that the MPWC hosted the sex work summit on 5 March 2018. In response to its call for written submissions, the Committee received a total of 62 written submissions. 30 of these stakeholders availed themselves for oral presentations on the day of the summit. Out of the 62 submissions and oral presentations, 37 (59.6%) stakeholders supported full decriminalisation of sex work while 14 (22.5%) stakeholders supported the current status quo of continued criminalisation, six (9.6%) stakeholders supported partial criminalisation, three (4.8%) organisations submitted the current status quo should be coupled with diversion while two (3.5%) stakeholders did not voice any preference.
The SALRC also presented at the summit where it was said the Ministry of Justice was evaluating its recommendation. It was said the Department of Justice would table draft legislation in the latter half of 2018.
Members would now have to make recommendations on the report of the summit and craft a way forward.
Ms R Semenya (ANC) said it was clear there was still a need for discussion on the matter for further convincing. Members could note the report but recognise the need for further discussion on the issues so that there was a law fairly representative of the views of South Africans. The High Level Panel on the Assessment of Key Legislation was critical of legislation passed by Parliament being short of a people-centred and people-driven approach. Members therefore must continue discussions on the matter until there was convergence.
Ms C Majeke (UDM) said that at the end of the summit, there was a view that there must be extensive meetings within the deep rural areas and informal settlements where many people were poor and where children became sex workers. How far had these discussions in these areas taken place? How many areas had been reached? She stressed the need to reach the very rural people.
Ms N Khunou (ANC) noted that Members were not making laws for themselves but for the country and representation needed to be widespread in this regard. Submissions made thus far were not widespread and representative of the whole country. There were many complaints that the legislation passed by Parliament did not take into account the views of everyone. It should be remembered that the only people who could come to Parliament to make representations were those who could afford flights and transport – the people who really mattered were those who could not afford to come to Parliament. She suggested the Committee make a point of going to different provinces to get as many submissions as possible. Currently, not enough has been done.
Ms D Ngwenya (EFF; Gauteng) echoed the sentiments of other Members – the Committee could not discuss matters and come up with legislation which was not representative and did not improve the current situation of those affected. The people under discussion represented 40% – 45% of the population and the Committee must ensure their views are covered. The Committee should not rush to make decisions and develop legislation unless everyone was covered. This work would cover generations to come. The report should be received but more deliberations were required. People always complained that Parliament was talking about them without them – these people needed to represent themselves and could be treated as faceless.
Ms Robinson was somewhat disappointed that this process, which began in the Fourth Parliament, was not completed in the Fifth Parliament. Full public participation has not been good enough. Too many in the public sphere were not aware of this work taking place. She agreed that public participation must be taken forward. She suggested the Committee emulated the work of the NCOP when it went out into all provinces. The process had been going on for too long while the effects on the people were really bad. Members, and Parliament, should put all energy into this work so that it could be noted the MPWC in the Fifth Parliament was decisive to change the status quo.
Dr S Thembekwayo (EFF) agreed on the need for an extension of an inquiry into this matter. Stakeholders consulted were too limited. More comparative research was needed to arrive at a conclusion on this matter. Those involved in this area need to be given an ear and a voice in the process.
Ms Khunou said it seemed as if the police themselves were alleged to be exploiting sex workers. The Committee must find a way of including the enforcers into the programme so that they were also heard – Members would have to hear how the police would protect these sex workers if the route of decriminalisation was chosen.
The Chairperson thought the contributions were sensible and valid points were raised by Members. Members should bear in mind that it was not the responsibility of the Caucus to deal with legislation. The intention was to reach the NGOs which showed interest at that time but Members feel this consultation should be extended to provinces to reach almost everyone in SA, especially rural people. The SA Police Service (SAPS) was alleged to be abusing sex workers instead of protecting them. The Caucus had a big responsibility – it had done good work. It was unclear as to what the SALRC said it would review – this should be followed up. The SALRC has not been of assistance to the Caucus.
Ms Watson said the SALRC was a bit vague in its presentation but it did say it would be tabling a Bill during the course of this year. The SALRC report included draft Bills which looked at the preferred option of total criminalisation i.e. status quo. The SALRC has embarked on this process for many years and has been engaged in consultations for more than 10 years on the matter. It is likely that the legislation to be expected would be in line with a continuation of the current situation.
Ms Semenya noted that the Caucus did previously indicate, at the summit, that there was a need for an additional meeting with SALRC to further engage on the report so that there was full understanding and interrogation. The SALRC must be called to provide further clarity on the report and so that Members could deliberate. Members need not wait for legislation to deal with enforcement – the Caucus should meet with the Portfolio Committee on Police to discuss what stakeholders raised and for the Minister to take up these issues.
The Chairperson was concerned about the length of time the process was taking. This has been under discussion since 2014. The Committee could not take this long. One could see the eagerness of those involved in this space – once the topic was seen on the agenda, people were eager to know more. These people had confidence in Members but the dilly-dallying was bad.
Ms Robinson said the SALRC was working too slowly and not moving forward. Members needed to push for a conclusion because it was needed. The climate in SA, and globally, had changed regarding rape, abuse and sexual matters. There was a much more enlightened attitude due to “Me Too” campaigns. Exploitation of sex workers was taking place. Members needed to be decisive and bold hopefully before the term of the Fifth Parliament came to an end. There was a need for wider communication and a tour of all provinces to get meaningful engagement. The MPWC must then push the SALRC to look at the reality. Action was needed. One could not wait around while people were exploited and abused.
Ms Khunou said that when the matter was dealt with, the Committee should call the Ministers of Justice and Police to report on the progress. The Committee would wait forever if it waited for the SALRC.
The Chairperson thought a motion should be moved, and a report tabled, on progress made on the matter and to expose the non-action of SALRC. The Ministers and police could be invited. A request should be made to the Chair of Chairs by the Steering Committee to conduct oversight in the provinces. This should be a priority for when Parliament returned from recess in August. In previous years, GCIS and Parliament conducted imbizos which would gather large crowds.
Ms Robinson was of the view that “oversight” was not the correct term as it implied the Committee was checking up on those with responsibility. Members were actually conducting a public inquiry to elicit the support, petitions and opinions of people on the ground– another term for this should be used instead of “oversight”.
Ms Semenya agreed with the use of the term “imbizo” or “fact-finding mission”. Members should also be guided by the models of other countries.
Ms Khunou agreed – Members needed to see firsthand how countries were managing decriminalising of sex work. This could be used to inform legislation and write a proper report.
Ms G Tseke (ANC) noted that Members of the NCOP did visit other countries on the matter of decriminalising of sex work. The MPWC has not exhausted all avenues of public consultations – looking at how countries were dealing with the matter should be encouraged.
The Chairperson said NCOP Members were also Members of the Caucus.
Ms T Memela (ANC) urged Members to take more interest in curbing the trafficking of little girls to replace older women in the brothels – this also included little boys. This was killing – 14 year olds were being trafficked. This should not be forgotten.
The Chairperson noted that during the Summit, many people spoke of trafficking – perhaps some of this should have been captured. When this was discussed even ten years ago, it was said SA was being used for transit. The Caucus should note and deal with the issue of trafficking as it was happening and escalating.
Ms Semenya said the Caucus did previously endeavour to deal with the trafficking of women. It was said the Department of Public Works and Home Affairs should be engaged on the ports of entry. This should be included in the programme. This programme should in fact be finalised. The legacy of the MPWC should be a solid programme for the Sixth Parliament. There should be a strategic session to develop a programme to be handed for the next Parliament to take up. Priorities should be finalised for the remainder of the current programme.
The Chairperson agreed that some of these matters should really be taken up and dealt with. There must be prioritisation.
Independent Electoral Commission
The Chairperson noted that the Independent Electoral Commission (IEC) was invited to brief Members on initiatives to implement gender quotas in view of upcoming elections. The Chairperson received a call this morning from Ms Janet Love, IEC Commissioner, apologising for the fact that the IEC would not be able to attend as it was invited to meet with the President. The President was then engaged in another matter but the IEC was already in Pretoria.
In a previous engagement, the Caucus was disappointed by the IEC CEO because he simply pushed issues raised by Members aside.
The Committee Secretary noted that, in terms of the previous engagement with the IEC, the Committee invite was clear that in terms of section 5 of the Electoral Act, the IEC was expected to initiate legislation which seeks to promote the electoral process. In the last meeting, the IEC indicated many political parties were against legislating gender quotas. It was also said that it was the responsibility of individual Members of the Caucus to interact with their respective political parties and it was agreed Members should then interact with their parties to engage on legislating gender quotas. In terms of the enabling legislation, it was pointed out the IEC was responsible for initiating such. The IEC was invited to engage with the Caucus and Members would then make their input on expectations from the IEC.
The Chairperson said people were making it sound as if the 50/50 policy was only an ANC matter but it was actually mandated by the United Nations (UN) and passed in the Commission on the Status of Women (CSW). SA was once in the forefront in this regard but now it was at the tail end.
Ms Khunou agreed. The IEC should be asked, if it was saying Members should engage their political parties, who would talk to the FF+ because it was a political party only of men. Parties often started off with 5/50 representation but after a year, parties were allowed to change members and then women were not replaced with women. The mandate of the Multiparty Women’s Caucus was to advocate for women. The IEC could not tell politicians what to do. Instead of improving the representation of women, SA was declining badly. The IEC should be called with the Portfolio Committee on Home Affairs to ensure there was legislation that advocates for representation of women before Parliament before the end of the year.
Ms Tseke said this matter has been on the table for a long time. The Portfolio Committee on Women had even requested the assistance of the Commission for Gender Equality (CGE) on legislation. There was no law compelling political parties to have 50/50 representation. Members of Parliament can initiate legislation. There was a responsibility on the Portfolio Committee on Women and MPWC to introduce such legislation. In the Fourth Parliament there was the Women Empowerment and Gender Equality (WEGE) Bill which spoke directly to this matter but it unfortunately lapsed. The Fifth Parliament failed to reintroduce the Bill. Members must move forward with this legislation and engage the public on the matter.
Ms Semenya added that the issue was also raised in the Women’s Roundtable discussion. She agreed the MPWC should reintroduce the legislation and proceed with it. Members and Committees can introduce their own legislation.
The Chairperson agreed that this was something for the Portfolio Committee on Women to do as the relevant Committee. The Bill could be revived. This should be hastened as Committees would not have time at the end of the year.
Ms Tseke noted that next week the Portfolio Committee on Women was meeting and an invitation was extended to the Steering Committee of the MPWC. The agenda of the meeting would be a briefing by the Office of the Institutes Supporting Democracy regarding the amalgamation of Chapter Nine Institutions with special reference to the CGE.
Ms Robinson added there were quiet talks of amalgamating the SA Human Rights Commission and the CGE. The Portfolio Committee on Women was very much against this, against the fact that it was not involved and that the process was being run by a small group of high-ranking parliamentary officials. The Portfolio Committee on Women felt the CGE should be expanded rather than reduced or play a minor role. This should be made a public issue and should be taken up as issue for gender activists by Members.
The Chairperson said Ms Watson could isolate issues identified to create speaking notes. The Kader Asmal report was not new.
The meeting was adjourned.
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