Agreement amending SADC Protocol on Gender and Development: DWYPD briefing

Meeting report

The Chairperson convened the virtual meeting and welcomed Members attending the meeting during their constituency period. She also welcomed the delegation in attendance from the Department of Women, Youth, and Persons with Disabilities (DWYPD). The apology from the Minister of Women, Youth, and Persons with Disabilities, Ms Maite Nkoana-Mashabane, was noted by the Committee. A moment of silence was observed to express the Committee’s condolences for the passing of the Deputy Minister of Women, Youth, and Persons with Disabilities, Prof Hlengiwe Mkhize.

The purpose of the meeting was for the Committee to be briefed by the Department on the Agreement amending the Southern Africa Developmental Community (SADC) Protocol on Gender and Development. The second item on the agenda was for the Committee to consider and adopt its Report on the Agreement amending the SADC Protocol on Gender and Development.

The delegation from the Department consisted of Ms Ranji Reddy (Chief Director: Policy and Research), Ms Nondumiso Ngqulunga (Director: Legal Services), and Ms Shoki Tshabalala (Deputy Director-General: Social Transformation).

Ms Tshabalala noted that the Minister was tied up in a meeting regarding the tabling of a Bill that seeks to establish the National Council on Gender-Based Violence and Femicide. She introduced the delegation that was in attendance from the Department of Women, Youth, and Persons with Disabilities.

Briefing by the Department of Women, Youth, and Persons with Disabilities on the SADC Agreement
Ms Reddy presented the briefing to the Committee.

Background

According to section 231(2) of the Constitution, an international agreement is binding on South Africa only after it has been approved by resolution in both the National Assembly and the National Council of Provinces. South Africa signed the SADC Protocol on Gender and Development on 17 August 2008, and it was subsequently ratified on 29 October 2012. It entered into force on 22 February 2013. South Africa thus has an obligation to comply with its international commitments under the SADC Protocol on Gender and Development.

In July 2018, the SADC Ministers responsible for Gender and Women’s Affairs met in Gaborone. In that meeting, it was indicated that only ten member states had signed the Agreement amending the SADC Protocol, namely Angola, Botswana, the Democratic Republic of the Congo, Lesotho, Madagascar, Mozambique, Swaziland, Tanzania, and Zimbabwe. At the Ministers’ meeting that took place in Johannesburg, the Minister responsible for the Women, Youth, and Persons with Disabilities indicated the intention of South Africa to sign the Agreement. The Agreement was then submitted to the State Law Advisors at the Department of Justice and Constitutional Development and the Department of International Relations and Cooperation for certification.

Certification of the SADC Agreement

On 07 August 2018, the DWYPD received the certification from the Department of Justice and Constitutional Development, Office of the Chief State Law Adviser, stating that the Agreement is in order and compatible with the domestic laws of South Africa. DWYPD then submitted the Agreement to the Department of International Relations and Cooperation for certification on whether it is consistent with international law and South Africa’s obligations.

On 06 September 2018, the DWYPD received the legal opinion from the Department of International Relations and Cooperation and the Office of the Chief State Law Adviser indicating that the Agreement will impact domestic legislation, therefore the matter falls under the ambit of section 231(2) of the Constitution. The DWYPD was advised to submit the Agreement to Parliament for approval before the country could sign the amendments to the SADC Protocol. The DWYPD presented to the Portfolio Committee on Women, Youth and Persons with Disabilities during August 2019 for deliberation by the Committee. The Committee had indicated that it would take the matter under consideration.

Proposed amendments

The following amendments are made to the SADC Protocol on Gender and Development:
-Article 4 is amended by inserting immediately after paragraph 1 the following paragraph two: “State parties shall develop and strengthen specific laws, policies and programmes to achieve gender equality.”
-Article 5 is amended by deleting “affirmative action” and replacing it with “special measures”.
-Article 8’s sub-paragraph 2(a) is amended to read as follows: “no person under the age of 18 shall marry.”
-Article 10 is amended to read as “Widows’ and widowers’ rights” and includes that state parties shall enact and enforce legislation to ensure that widows and widowers are not subjected to inhuman, humiliating or degrading treatment, automatically become guardians and custodians of their children when their husband/wife dies, unless otherwise determined by a competent court of law, have the right to an equitable share in the inheritance of the property of their spouses, have the right to remarry any person of their choice, and have protection against all forms of violence and discrimination.
-Article 11 is amended to read that all state parties shall adopt laws, policies and programmes to ensure the development and protection of the girl and boy child by eliminating all forms of discrimination against them in the family, community, institutions and at state level, ensuring that they have equal access to education and health care, and are not subjected to any treatment which causes them to develop a negative self-image, ensuring that they enjoy the same rights and are protected from harmful cultural attitudes and practices; in accordance with the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, protecting them from economic exploitation, trafficking and all forms of violence including sexual abuse, and ensuring that they have equal access to information, education, services and facilities on sexual and reproductive health and rights. In addition, state parties shall develop concrete measures to prevent and eliminate violence, harmful practices, child marriages, forced marriages, teenage pregnancies, genital mutilation, and child labour as well as mitigate their impacts on girls’ and boys’ health, wellbeing, education, future opportunities, and earnings.
- Article 12 is amended to read: “State parties shall endeavour to ensure equal and effective representation of women in decision making positions in the political, public and private sectors including through the use of special measures as provided for in Article 5.”
-Article 14 is amended to read that state parties shall enact laws that promote equal access to retention and completion in early childhood education, primary, secondary, tertiary, vocational and non-formal education including adult literacy in accordance with the Protocol on Education and Training and the Sustainable Development Goals. In addition, state parties shall take special measures to increase the number of girls taking up Science, Technology, Engineering and Mathematics (STEM) subjects and Information Communication Technology at the primary, secondary, tertiary, and higher levels. State parties shall adopt and implement gender sensitive educational curricula, policies and programmes.
-Article 16 is amended to read that state parties shall conduct time use studies and adopt policy measures to promote shared responsibility between men and women within the household and family to ease the burden of the multiple roles played by women. In addition, state parties must recognise unpaid care and domestic work through the provision of public services, infrastructure, and social protection policies.
-Article 17 is amended to read that state parties shall undertake reforms to give men and women equal rights and opportunity to economic resources, and improved access to control and ownership over productive resources, land and other forms of property, financial services, inheritance, and natural resources. In addition, state parties shall review their national trade and entrepreneurship policies, to make them gender responsive. State parties shall, in accordance with the provisions of special measures in Article 5, develop strategies to ensure that women benefit equally from economic opportunities, including those created through public procurement.
-Article 19 is amended to read that state parties shall review, amend, and enact laws and develop policies that ensure women and men have equal access to wage employment, to achieve full and productive employment, decent work including social protection and equal pay for work of equal value for all women and men in all sectors in line with the SADC Protocol on Employment and Labour.
-Article 20 was amended to read that state parties shall enact and enforce legislation prohibiting all forms of gender-based violence and shall develop strategies to prevent and eliminate all harmful social and cultural practices, such as child marriage, forced marriage, teenage marriage, teenage pregnancies, slavery, and female genital mutilation. In addition, state parties should ensure that perpetrators of gender-based violence, including domestic violence, rape, femicide, sexual harassment, female genital mutilation, and all other forms of gender-based violence are tried by a court of competent jurisdiction.
-Article 25 is amended to read that state parties shall adopt integrated approaches, including institutional cross sector structures, with the aim of eliminating gender-based violence.
-Article 26 is amended to read that state parties shall, in line with the SADC Protocol on Health and other regional and international commitments by member states on issues relating to health, adopt and implement legislative frameworks, policies, programmes and services to enhance gender sensitive, appropriate and affordable health care by eliminating maternal mortality, by developing and implementing policies and programmes to address the mental, sexual and reproductive health needs of women and men in accordance with the Programme of Action of the International Conference on Population Development (ICPD) and the Beijing Platform of Action, and to ensure the provision of hygiene and sanitary facilities and nutritional needs of women, including women in prison.

-Article 27 is amended to read that state parties shall take every step necessary to adopt and implement gender sensitive policies and programmes, and enact legislation that will address prevention, treatment, care, and support in accordance with, but not limited to, the Maseru Declaration on HIV AIDS and the SADC Sponsored United Nations Commission on the Status of Women, the Girl Child and HIV and AIDS and the Political Declaration on HIV and AIDS. State parties shall ensure that the policies and programmes referred to in sub-article 1 take account of the unequal status of women, the particular vulnerability of the girl child as well as harmful practices and the biological factors that result in women constituting the majority of those infected and affected by HIV and AIDS. In addition, state parties shall develop gender sensitive strategies to prevent new infections, ensure universal access to HIV and AIDS treatment for infected women, men, girls and boys, and develop and implement policies and programmes to ensure appropriate recognition of work carried out by care givers, the majority of whom are women, the allocation of resources and the psychological support for caregivers as well as promote the involvement of men in the care and support of people living with HIV and AIDS.
-Article 28 is amended to read that state parties shall enact legislation and develop national policies and strategies including professional guidelines and codes of conduct to prevent and address gender discrimination in the media. In addition, state parties shall take measures to promote the equal representation of men and women in the ownership of, and decision-making structures of the media.
-Part ten was inserted into the SADC Protocol after Article 30. It reads that state parties shall, in accordance with multilateral, continental and regional agreements on the environment, sustainable development and climate change, adopt measures to address the impact of climate change and environmental degradation on gender, promote active participation, by men, women, boys and girls, in the protection of the environment, mitigation of climate change and promotion of sustainable exploitation and use of natural resources, develop policies, strategies, and programmes to address the gender issues with respect to the environment, climate change and sustainable development, and conduct research to assess the differential gendered impacts of climate change and put in place effective measures.
-Article 33 is amended to read that state parties shall ensure gender sensitive and responsive budgets and planning, including designating the necessary resources towards initiatives aimed at empowering women.
-Article 35 is amended to read that state parties shall ensure the implementation of this Protocol at the national level in line with SADC Implementation Action Plans and SADC Monitoring, Evaluation and Reporting Framework. The Agreement shall enter into force on the date of its adoption by a decision of three quarters of the member states that are parties to the Protocol.

The guidelines on concluding international agreements are provided for in the 2006 Manual on Executive Acts of the President of South Africa. The process of concluding international agreements entails the certification on the consistency with domestic law from the Office of the State Legal Advisor at the Department of Justice and Constitutional Development, obtaining a legal opinion on the compliance and consistency with international law and South Africa’s international obligations from the Department of International Relations and Cooperation, and approval by Parliament in terms of section 231(2) of the Constitution. In addition, the relevant governmental department must prepare a President Minute for signing by the Minister and the President. The signed President Minute, a short explanatory memorandum, two legal opinions, and the copy of the Agreement must then be forwarded to the Department of International Relations and Cooperation for certification in a prescribed format before submission to the President for approval.

To date, it is only South Africa and one other member state who still have not signed the Agreement to amend the SADC Protocol. The SADC Secretariat has indicated that it needs to urgently publish the document in October and will do so with or without the last two member states signatures. The Department of Women, Youth, and Persons with Disabilities is approaching the National Assembly and the National Council of Provinces to assist by speeding up approval, since the matter has been unfinalised since August 2019.

Discussion

Mr E Nchabeleng (ANC, Limpopo) thanked the delegation for the briefing made to Members. It is a good sign that the Department has completed the necessary checks and balances towards getting the SADC Agreement signed as quickly as possible.

Ms D Christians (DA, Northern Cape) commented that the proposed amendments are especially important and that it will be interesting going forward to see the implementation of the amendments to the SADC Protocol. It will also be important for the Committee to monitor the implementation of the proposed amendments.

Consideration and adoption of the Committee’s Report on the SADC Agreement

The second item on the agenda was for the Committee to consider and adopt its Report on the Agreement amending the SADC Protocol on Gender and Development. The Committee’s Report recommends that the Agreement is approved. The Committee’s Report was duly adopted by Members.

The Chairperson thanked the delegation for the briefing made to the Committee. She also thanked Members for attending the meeting during the parliamentary recess and constituency period.

The meeting was adjourned.