International Law & Gender Analysis: workshop

Meeting report

JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN
3 April 2000
WORKSHOP ON INTERNATIONAL LAW AND GENDER ANALYSIS

Documents handed out:
Address by Deputy Chairperson, Mrs P Themba (Appendix 1)
Presentation by Parliamentary Law Adviser, Adv Meyer (Appendix 2)
Presentation by Parliamentary Law Adviser, Adv Z Adhikari (Appendix 3)

SUMMARY
Both internationally and in SA advances have been made since the Beijing conference. However, the obstacles to implementation of these and other treaties are considerable. Neither the UN nor its member States are allocating significant resources toward the achievement of the lofty objectives in conference documents. The period since Beijing coincided with South Africa's first 5 years of democratic government characterised largely by policy and legislative reform. This influenced the ability of government to achieve many of the objectives agreed upon at Beijing. The deputy chairperson of the committee based an assessment of the progress made since the Beijing conference on a report by the National Women's Coalition.

The role of the Office on the Status of Women and the Commission on Gender Equality is to lobby women’s issues and seek out new programmes of action. South Africa's shortcomings in implementing the Beijing conference documents were made clear by the speakers.

In the afternoon, there was a workshop on Gender Analysis whereby members were encouraged to become more gender sensitive when discussing legislation.

MINUTES
Morning session
The Deputy Chairperson read out her presentation to the committee (see Appendix 1).

Mr Anton Meyer, a Parliamentary Law Adviser, briefed the committee on Chapter 14 of the Constitution dealing with international agreements (see Appendix 2).

Ms Zuraya Adhikari, a Parliamentary Law Adviser, gave a presentation on the committee's role in implementing the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and the Beijing Programme of Action (see Appendix 3), which was followed by questions from the members.

Discussion
Ms Botha (ANC) asked what the position of the Vienna Declaration was, especially in relation to CEDAW and the Beijing Convention.

Ms Adhikari said that, in technical terms, a declaration is subordinate to a convention. In practice, the Vienna Declaration is incorporated in CEDAW.

Ms Magazi (ANC) asked what criteria are used in respect of agreements sent to Parliament when deciding whether or not to accede to an agreement. Was S231(3) of the Constitution used?

Mr Meyer, Parliamentary Law Adviser, replied that the decision whether or nor to ratify a Convention was a matter of policy. The answers are not necessarily in S231(3) which does not spell out any criteria. He added that there also seemed to be some confusion whether or not the agreements referred to in S231(3) are self executing or not. The test was not whether it was a technical or administrative agreement. An example of a criterion set out in the case law was that it must be a stand-alone agreement without the aid of implementing legislation.

Ms De Vos (IFP), referring to the Maintenance Act, said the preamble stated that the Republic did not appear to be meeting international standards. Where is the follow through on reporting?

Adv Meyer said that it was important to comply with duties imposed by International Conventions but what would the response be of a State not complying with the Convention. What dispute resolution mechanisms did the Conventions establish? For instance, CEDAW established a Committee to which signatories can make representations. It was one of the weak links in the Convention that there was no proper mechanism by which the agreement can be imposed. Ms De Vos asked whether this weak link was why South Africa could sign these agreements without reservations. Was it because they were not held accountable for failures? Adv Meyer acknowledged that this was indeed a problem.

Ms Mutsila (ANC) asked what powers did the Committee have in respect of these agreements? Ms Adhikari said that in terms of Joint Rule 131 the Committee’s role was to monitor and evaluate progress on the improvement of the status of women. The Committee has extensive powers to gather information for this task and reports to the House on progress made or otherwise it makes recommendations.

Ms Mutsila (ANC) asked what mechanism is in place to transform the system so that traditional courts are in line with the rest of the judiciary? Did the equality clause have an impact on traditional laws? Adv Meyer said that although two new laws were introduced last year, dealing with inter alia multiple marriages, it had not yet been passed and therefore the old position of customary law is still applicable in Courts.

In response to an earlier comment on public involvement, Adv Meyer responded that the Constitution says that Parliament must engage with the public and accept public comment. The South African Law Commission had also published a report on how the public could become involved. The law making process starts with the executive, however why not send out Committees to provinces before legislation is introduced? Once it has been introduced the only way the National Council of Provinces could have an impact was through exercising their vote. He added that although it was not a constitutional requirement there had to be sufficient time for Provincial legislatures to engage with the public.

Presentation by the Office on Status of Women
Dr Ellen Kornegay presented a review of the work done by the Office. It is three years old and this year there will be a review of its activities and mandates. Because of the work they do, a common understanding of their functions would be helpful.

Who does the Office monitor?
The Office on the Status of Women (OSW) is a co-ordinating unit which is part of the national machinery, crafted by the national women’s movement. It was decided on as an alternative to a Ministry of Women’s Affairs. The Office had to decide on whether to adopt a project or a general mainstreaming approach. The latter was decided on. The mainstreaming approach looks at systems. In 1997 there was no system or infrastructure in place. The Office also had no real clarity as to their functions. The Commission on Gender Equality began their work at the same time. The Office then took the view that their mandate was to engender the processes of the executive branch of government. Their mandate included internal processes (the day to day activities of government) and external processes (services delivered to the electorate).

What are the Office’s goals?
The immediate goal of the group was programme development. To this end they have identified certain gender focal points such as general mainstreaming, co-ordination, networking and liaisons and capacity building. The Office is responsible for reporting to external bodies on Convention implementation. There had to be co-ordination between Ministers, Committees and so forth. A co-ordinated approach will ensure that there is information from all levels. The Offices themselves have greater contact with local government.

How does the Office’s mandate relate to Parliament?
At provincial level there are various degrees of co-operation between women’s caucuses and the Office. There was a need to maintain contact with these caucuses. The challenge was in the area of reporting. The Office must report to their senior management and to the legislature. A problem arises when the OSW must report to both the Premier and to the legislature. Certain projects will never be accepted by both.

What plans are being made in respect of co-ordination?
A national gender action plan was being proposed. The framework was the twelve critical areas of the Beijing Platform of Action, the national platform of government and CEDAW. Certain assumptions were made, for instance that the objective for South Africa was gender equality. What are the areas of commonality? The Office has come up with a ‘host’ plan. For instance, the Department of Health would be hosting the ‘women and health’ component. Another assumption was made; that everyone in the Department did all the work. Therefore every effort had to be made to ensure co-operation and Directors-General could undergo training on gender sensitivity. The Department of Justice would host violence against women. Women and the economy would be hosted by a variety of Departments working together.

Discussion
A member commented that she was disappointed with the G77 countries. She also asked which Departments were causing problems or not co-operating with the process? Dr Kornegay said that the relationship with the G77 countries worked very well from the point of view of economic welfare but in terms of gender equality there was less success. She said that it was difficult to say which Departments were not responsive but it might be easier once the co-ordinating programme was in place.

Ms Ndzanga (ANC, Gauteng) asked what recourse there was when gender offices are abandoned. What is the role of the women’s caucus and the OSW in ensuring that provinces are back on track? Dr Kornegay said that members should be empowered to ask why offices have been abandoned. It was necessary to have that level of co-ordination between the Office and provinces so that they may, where necessary, be able to request more money for certain projects.

Dr Kornegay added that the OSW prepares a report and focuses on the achievement and challenges of government; they do not request a report from the legislature. She concluded by saying that OSW can only be successful once they have received support from all spheres of government and other NGOs.

Presentation by the Commission on Gender Equality
Ms E Delport outlined the functions of the Commission as follows: to monitor practices in the private sector, education programmes and to evaluate any Act of Parliament and recommend that existing legislation be amended or that supplementary legislation be put in place. To this end they needed to maintain a working relationship with NGOs and bodies doing similar work. They had to prepare and submit reports to Parliament and to conduct research.

The starting point of their work was CEDAW which marries law and policy. It was one of the first international instruments highlighting reproductive rights and barring government from sustaining stereotypical practices.
Besides CEDAW and the Beijing Platform of Action, South Africa also had to have regard to comparative jurisdictions as practical solutions. Because the work done by the Commission is of such a wide scope it had to choose on what to report to Parliament. It chose rural women, in particular women on farms. CEDAW hardly features anything on this issue. Education and information were two crucial focal points. Given that farm workers are such a large part of the employment sector, all national machinery needs to work together more effectively to empower these women.

Presentation by Ms Susan Halliday - a Federal Sexist Commissioner in Australia
Ms Halliday’s visit to South Africa is part of the technical co-operation programme being run with the Commission on Gender Equality. Other projects included looking at some of the national enquiries held recently in Australia (for instance the stolen generation programme and the discrimination against pregnant women in the workplace enquiry), test case litigation in Australia and complaint processes.

In Australia 25% of politicians are female (compared to SA’s 30%). They have a conservative government which tends to sideline gender issues at times. Ms Halliday undertook an occupational health and safety study on the risks in the workplace for pregnant women. Forty six recommendations were made, eleven of which were to strengthen existing laws. After ten months there has been no response by government although the media is trying to put pressure on them to answer these recommendations. Other programmes which are up and running include a training video for youths on issues of race, harassment and so forth. It is being circulated in mining towns and remote indigenous communities.

Discussion
Ms Halliday was asked what percentage of the 25% of women in Parliament were indigenous? Her response was that there are none. She added that the indigenous population in Australia only amounted to 3% and many of the women choose to work on the land. There was one indigenous Senator with the Democrats. An organisation known as Emily’s List had recently been founded to help finance women candidates in politics. Indigenous women are being encouraged to sit on local governing bodies and tribunals.

Dr Kornekay responded to Ms Halliday’s presentation by saying that although South Africa continues to be active among the G77 countries the regressive trends in some countries made it difficult to put gender equality on the agenda. Ms Halliday empathised with the Office of the Status of Women on this point but said their presence there was very important.

Afternoon session: Gender Analysis Workshop

Document handed out:
Introduction to gender analysis of policy and legislative documents and processes.

Ms Ilze Olckers started by asking members to do a "flower power" exercise. The demonstration was to show that the inside petals symbolize the historically advantaged few, whilst the outer petals relate to the historically disadvantaged diverse group. From this it could also be concluded that even with women one could not just refer to them as one homogenous grouping. Although women are unequal to men there are those women who are more unequal than the others. Ms Olkers emphasized the need for members to question the judgements they make on first impressions. Especially when it comes to pieces of legislation, it is important for members to not just glance at it and be satisfied that it is what it purports to be.

In defining "gender" she alluded to three levels, namely:
- Sexual biological difference;
- Gender differentiation based on historical and cultural role definitions and
- Constructed physical and psychological attributes of women and men;
Masculine and feminine principles extracted from the basic duality operating in the universe.

Ms Olckers pointed out that members have to be careful of overly relying on technical legal definitions to tackle gender issues. Members should look at whether the acts of Parliament address women’s practical needs; whether the legislation is going to help women in their three predominant roles, namely, reproductive, productive, and community management roles.

Questions that members need to ask in relation to policy, legislation or processes they are dealing with are the following:
Where women/men are;
What they are doing (different roles and experiences);
What their practical gender needs are;
How to strategically respond to these needs;
Whether members are impacting on the web of institutionalizing gender.

Mrs Olckers recommended that members read books on Woman’s budget by IDASA to get an idea of what to look for in analyzing budgets.

Appendix 1:
ADDRESS BY Mrs P THEMBA (Deputy Chairperson)
The first United Nations World Conference on Women, held in 1975 Mexico City, marked the beginning of the International Decade of the Women.

Since then, World Conferences on Women have been held in Copenhagen in 1980, and in Nairobi in 1985, and the Fourth World Conference on Women that took place in Beijing in1995.

These conferences have grown dramatically in size from 7000 participants in Mexico City in 1975 to almost 36 000 in Beijing - indicating the increased strength of the international women's movement.

Each conference produced a Platform for Action that recommended to government’s strategies to raise the status of women.

These platforms were the results of years of negotiating, lobbying, consulting and consensus-building among government representatives and non-governmental organisations.

The Beijing Conference in particular provided women of all ages and backgrounds with the opportunity to contribute to local, national and international decision making.

Building on the prior United Nations conferences on women, the current Platform for Action is potentially the most far-reaching international document addressing the status of women world wide. It builds on the momentum women gained during previous United Nations world conferences.

The year 2000 brings many opportunities for reflection and evaluation of what has been achieved by the women's human rights movement both locally and globally. It provides us with the opportunity to assess the extent to which our own government has implemented the decisions taken at the Beijing Conference.

In the face of threats to women from economic, political and cultural forces, it is important for women to work towards the implementation of the promises made for women in human rights treaties and world conferences.

The Beijing Platform in particular outlines many of the steps necessary to achieve women's human rights and empowerment.

But these will only be meaningful if women use them to further their efforts to influence policy and action for this new country locally and internationally.

The challenge is to continue building on the momentum of women gained during the United National World Conferences and to bring it into on-going governmental policy making and human rights institutions.

The task of implementing these promises and working to realise the protections that various human rights treaties should provide to women involves both pressurising national government for domestic actions on the agreements it has signed and global networking so that government know that it is being watched world wide.

Both internationally and in SA important advances have been made since Beijing. However, the obstacles to implementation of these and other treaties are considerable.

Neither the UN nor its member States are allocating significant resources toward the achievement of the lofty objective spelled out in these world conference documents.

Further, while there is rhetorical acceptance of women's rights as human rights, there is often little political will to implement and sometimes little understanding of what is necessary to fully integrate gender perspective into human rights theory and practice.

We need to look at the implementation of the Beijing Platform in the context of our transition. Beijing coincided with our first 5 years of democratic government.

This period was characterised largely by policy and legislative reform and the creation of and institutional framework within which effective governance and service delivery could take place.

Another important factor which influence the ability of government to achieve many of the objective agreed upon at Beijing, was the macroeconomic environment including the rate of growth of our national economy and the fact that a large portion of national revenue is used to service our foreign debts.

Notwithstanding these obstacles measurers has been taken to implement the Commitments made by government with regard to the 12 critical areas of concern as identified in Beijing.

The progress which I wish to outline is based compiled by the National Women's Coalition. The report critically assesses the progress we have made years since the Beijing conference.

WOMEN AND POVERTY
Although our government has implemented many successful policies, programs and projects to alleviate poverty among women, the obstacles encountered are:
· Lack of employment
· Low levels of education
· Lack of infrastructure
· Lack of expertise and capacity to implement poverty reduction programs at local level
· Land bank not accessible

Recent research undertaken on behalf of Government has shown that the above obstacles are especially true in the rural areas.

EDUCATION AND TRAINING
Although gender equity is the stated policy of the Department of Education there are many examples of obstacles encountered in promoting gender equality in our education system.

Some of these relate to inadequate infrastructure provision, inadequately trained educators, racism in some schools, gender stereotyping in curriculum and career advice etc.

WOMEN AND HEALTH
Legislation has been reviewed or formulated to benefit women Some examples are the choice of termination of pregnancy act

1997
· Notification of maternal mortality
· Free pre-screening for cervical cancer for women 40+ years
· Sterilisation Act in 1998 for anyone over 18 years without requiring partners consent
· Schools Health Promotion Programmed department helps disabled people to access wheel chairs

Some of the obstacles encountered is a lack of adequate public education, inadequate pre and post counselling services for determination of pregnancy.

VIOLENCE AGAINST WOMEN
A Network on Violence against Women was established between government and non-governmental organisations.

This National Network has been on the forefront of:
· One stop centres at police stations
· Information centres
· The establishment of Victim Empowerment Programmes even in
Schools
· Legal Literacy on Domestic Violence Act, Sexual Offences Act
· Training of Police and Magistrates on family violence

Somehow the obstacles encountered is that domestic Violence is not acknowledged as a Public Health issue.

There is a lack of desegregated statistics e.g. domestic violence still classified as crime and femicide as murder. Government has not done enough to curb witch burning (in some provinces). This practice targets mostly women. There is no budget for prevention of family violence. Inadequate provision of shelter for abuse women.

WOMEN IN POWER AND DECISION MAKING
Greater equality in the numbers of women holding political office is important because it may give women more of a voice in determining laws and policies which regulate women's progress in all areas of life.

The target of women holding at least 30% of political position has been reiterated at the Beijing Conference.

South Africa is among 8 countries who have met this target.

The desired political representation of women on provincial and local government has however not been met.

Appendix 2:
INTERNATIONAL LAW AND AGREEMENTS AND CONVENTIONS SIGNED BY SOUTH AFRICA (Adv Anton Meyer, Chief Parliamentary Law Advisor)

DEFINITION
· Written agreement
· Between states
· Between a state and an international organisation
· Governed by international law

Designations
International agreement, treaty, convention, protocol, covenant, charter, statute, act, declaration, concord, exchange of notes, agreed minutes, memorandum of agreement, modus vivendi

CONSTITUTION (Section 231)
National executive: negotiate and sign international agreements
Republic bound if approved by both Houses
Parliament's approval not required where:
· Nature of Agreement
· technical
· administrative
· executive
· Agreement does not require ratification or accession

Becomes law in Republic:
· when enacted into law
· self executing provision, when agreement approved by Parliament

INTERNATIONAL AGREEMENTS

FIVE TYPES OF INTERNATIONAL AGREEMENTS UNDER
SECTION 231
1. Technical - Executive concludes
2. Administrative - Tabled in both houses
3. Executive - Parliament's approval not required
4. Agreement that does not require ratification or accession
5. Agreement that requires parliamentary approval. (in addition to Executive approval)

INCORPORATION OF INTERNATIONAL AGREEMENT INTO DOMESTIC LAW
1. International legal duty on country to fulfil treaty obligations

2. Must change laws when necessary to meet treaty

3. Section 231(4) of Constitution
· Enactment into law by national legislation
· Exceptions

4. Three main methods for enabling legislation:
· enact terms: mere reference to agreement
· enact agreement: quote agreement in schedule
· transcribe agreement: with or without changed wording

Appendix 3:
THE COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND
STATUS OF WOMEN (Ms Zuraya Adhikari, Parliamentary Law Advisor)

ESTABLISHED IN 1996 (Rule 128)
INITIAL TERMS OF REFERENCE - NOW INCORPORATED INTO THE
RULES AS ITS FUNCTIONS.

RULE 131
The Joint Committee must:
a) Monitor and evaluate progress with regard to the improvement of the quality of life and status of women in South Africa with specific reference to the governments commitments -
i) to the BEIJING PLATFORM OF ACTION; and
ii) with regard to the implementation of the CONVENTION ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN (CEDAW); and
iii) any other applicable international instruments;

b) may make recommendations to both or either of the Houses or Joint House or any committee on any matter arising from (a).

STATUS OF CEDAW
· CEDAW – International Convention on the Elimination of all forms Of Discrimination Against women.

· CEDAW results from a commitment to affirm Universal Declaration Of Human Rights.

· CEDAW Is "A statement of minimum standards that governments must meet to end gender discrimination and promote gender equality".

· Eliminating discrimination against women in the enjoyment of equal rights ( all categories - both direct and indirect).

· Legally binding on Party States. Reports 1^st year, and every 4.

· Ratified by SA in 1995.

· No sanction for non compliance.

· The International Bill of Human Rights - comprehensive set of rights - all persons entitled.

· Additional means for protecting women required.

· Not merely prohibition of discrimination of women or the enactment of gender neutral laws, but proactive measures to ensure access FOR WOMEN to enjoy the rights to which they are entitled.

· Constitution incorporates Equality Clause (5 9) and sets out the Functions for Gender Commission. (s187).

· The Promotion of Equality and Prevention of Unfair Discrimination Act (2000) (The Equality Act) example of S A's direct implementation.

· For example, s 8 sets out all the grounds of discrimination based on gender - Basic Human Rights as well as socio-economic.

· s 13-"Burden of proof", onus on respondent to prove no discrimination if prima facie case.

Obligations of Party States
Article 2 sets out the undertakings of party States.
a) To embody the principle of equality in National Constitutions and legislation . To ensure through law and other means practical realisation of the principle;

b) To adopt appropriate legislation and other measures such as sanctions to prohibit all discrimination against women;

c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions conform to this obligation;

e) To take all appropriate measures to eliminate discrimination against women by any organisation, person or enterprise;

f) To take all appropriate measures including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

g) To repeal all National penal provisions which constitute discrimination against women.

h) Opportunities for recourse and protection discrimination. Legislative changes not sufficient.

Article 3
· Demonstrates the indivisibility of and interdependence of the rights guaranteed by the convention and other Human Rights.

· Recognises that, unless States take active steps to promote the advancement and development of women, they will not be able to enjoy fully the Basic Human Rights guaranteed in the other instruments.

· The rest of the Convention deals with the specific rights in more detail.

IMPLEMENTING THE CONVENTION
IN TERMS OF ARTICLE 17,

· Committee established to oversee implementation of provisions - Monitoring function - mainly by examining the reports.
Reports annually to General Assembly. (article 21).
May make suggestions and recommendations.

ROLE OF THE PARLIAMENTARY COMMITTEE
To achieve its functions set out in Rule 131;

Pivotal role in -
1. evaluating progress in the implementation of CEDAW and the various platforms for action (specifically the Beijing) by assessing reports it receives from various departments and assessing to what extent departments are prioritising improving the position of women.

2. identifying the gaps with legislation and proposing policy and legislative intervention to ensure the improvement of the quality of life and status of women.

· Ongoing need to examine old and new legislation and to liaise with women and interest groups.

· Beijing platform for action (BPFA) - Generally Programs/plans or Platforms for Action to link strategic objectives to actions which needs to be taken by the government, the private sector, NGO’s, and international bodies.

· The Beijing program (and so too the Vienna Declaration and Program of Action) aims to enhance the social, economic and political empowerment of women.

· Premised on the need to share power and responsibility in the home, workplace and community.

· Aims at integrating gender perspectives in all policies and programs. Focuses on practical measures to achieve areas such as economic activity, human rights, peace, violence, health etc.

· Adopted unanimously at 4th world conference in 1995.

· Reaffirms commitment of Governments to eradicate discrimination against women and to intensify efforts to remove all obstacles to equality.

· Explicitly recognises women's Rights as a special category of Human Rights deserving of specially designed policies.

· Reaffirms the Vienna Declaration and Program of Action [2] (adopted by the world conference on Human Rights), that Rights Of the girl - child are an inalienable, integral, indivisible part of universal human rights.

· Important agenda item for action the Platform seeks to promote and protect the full enjoyment of all Human Rights and the Fundamental Freedoms of women throughout their life cycle.