SADC Draft Protocol On Gender Development: Minister’s Address

Meeting Summary

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Meeting report


23 October 2007

Chairperson: Ms M Morutoa (ANC)

Documents handed out:
Briefing notes on the draft SADC Protocol on Gender and Development, and the draft SADC Gender Policy
Progress Report on Implementation of the SADC Declaration on Gender and Development
Record of the meeting of SADC Ministers Responsible for Gender and Women Affairs

Audio recording of meeting

Minister Essop Pahad, Minister in the Office of the Presidency, gave a brief overview on the Draft Southern African Development Community Protocol on Gender and Development, which was an extensive document covering all issues pertaining to the empowerment of women. It had been produced following concerns that despite the commitment of the SADC states to address gender disparity, implementation of existing policies and legislation was slow and inconsistent. The Draft was extensive and covered a number of policy areas, including empowerment of women, which he saw as crucial.  Botswana, Zambia, Zimbabwe and Namibia had objected to three issues within the Draft Protocol, and the Draft had therefore not been signed but referred back for further consultation. The areas of dissent concerned marriageable age for women, equality on the basis of sexual orientation and same sex marriages, and the small amount of paternity leave. There were some problems in reconciling the constitutions of objecting member states with the Draft Protocol. The Minister was confident that these issues could be resolved.  He went on to describe South Africa’s performance in gender issues, noting that although this was good in Parliament, the performance of government departments and the private sector, particularly at the upper levels of management, was not sufficient. Challenges were listed as lack of authority within the gender machinery at some member states, insufficient funding, and the use of culture and tradition by some states to constrain implementation of gender instruments. Committee Members raised concerns about domestic violence, human trafficking, unpaid labour for women and the sharing of estates especially in polygamous marriages. The Minister understood that it was imperative that these issues be addressed. The implementation of the Draft Protocol would ensure that the entire region would be unified in empowering women.

Draft Southern African Development Community Protocol on Gender and Development: Minister’s address on developments
Minister Essop Pahad, Minister in the Presidency, addressed the Committee on the Draft Southern African Development Community (SADC) Protocol on Gender and Development (the Draft Protocol) and the Draft SADC Gender Policy (Draft Policy). 

Minister Pahad noted that the SADC commitment to gender equality was demonstrated through accession to a number of frameworks and declarations to promote women’s human rights. There was a target of 50% representation of women. Although there had been progress in implementation, it still fell short of the stated commitments. Therefore the Draft Protocol was developed and endorsed by the August 2005 summit of Heads of State. It aimed to address slow and inconsistent progress by SADC member states in addressing gender disparities, despite the legal and policy instruments already in place. New gender-related challenges including HIV and AIDS, globalisation, and trafficking in women and children needed to be reflected in the protocol. The Draft Protocol was reviewed in November 2006, and national consultations with civil society organisations were held in March 2007, followed by regional consultations in Botswana in April 2007, with representation from government, civil society, international cooperating partners and the media. South Africa had participated extensively in the development of the Draft Protocol and was looked to by other States as an example of progression on the implementation of the SADC Declaration on Gender and Development of 1997.

The Minister noted that the priority areas of the Draft SADC Protocol were policy development and harmonisation, gender mainstreaming, institutional strengthening and capacity building, women’s empowerment programmes, communication, information sharing and networking, and monitoring and evaluation.

The Draft Protocol was referred to the summit of the Heads of State in Lusaka in August 2007 for signature, but this did not take place as there were objections to some of the clauses and Botswana, Zambia, Zimbabwe and Namibia asked for time to further consult on the latest draft. 

There were three main issues that the Botswana, Zambia, Zimbabwe and Namibia raised. The Protocol stipulated eighteen years old as the acceptable age of marriage for women. However, the Constitutions of the objecting countries permitted marriage for women at sixteen years old. Secondly, the issue of equality on the basis of sexual orientation and legalising of same sex marriages was not supported by some member states’ constitutions. There were suggestions to exclude this clause completely. Finally, the objecting member states permitted polygamy but objected to the clause that allowed for three days paternity leave, as it was deemed too small a duration. The Minister thought that these issues could be resolved.

The Minister noted that South Africa was continuing to implement components of the Draft Protocol, as these were already enshrined in the South African Constitution. A few of these targets had already been achieved in Parliament and the Executive. However, there still remained some serious challenges. South Africa’s progress on representation was good in comparison to other countries, but representation remained mainly poor in the public sector. Cabinet (where representation of women was presently at 43.3%) had adopted the position that by 2009/10 there should be 50% representation of women across all government spheres, and should be particularly applicable to senior management positions. South Africa had full commitment to empowerment of women, but despite good policies, implementation always seemed to be problematic. In the Senior Management Services in May 2006 the representation of women was 30%, and although the figure had risen, it still fell short. The Office of the Presidency, the Office on the Status of Women (OSW) and the Minister of the Public Service and Administration should be jointly monitoring and evaluating all three spheres of government.

Challenges in implementation of the Draft Protocol were briefly listed as including lack of authority within the gender machinery at some member states, insufficient funding, and the use of culture and tradition by some states to constrain implementation of gender instruments. It was noted that Mauritius had registered a reservation on the clause requiring member states to enshrine gender equality in their constitutions by 2015. Mauritius wished to safeguard the religious rights of its large Muslim population.

Ms S Camerer (DA) sought assurance that the principles within the Constitution of South Africa would not be comprised by the Draft Protocol.  She wanted to know how the issues on same sex marriage and age of eligibility for marriage would be resolved.

Ms B Ntuli (ANC) asked whether objecting member states would be bound by the Protocol even though their Constitutions differed.

Minister Pahad replied that the clear objective was to ensure that the Heads of States at the next meeting adopted the Protocol. All the issues would be thoroughly discussed and would not be avoided. South Africa could not adopt any Protocol or treaty that was not aligned with its Constitution. There was the option for member states to insert reservations that allowed them to be exempted from certain clauses, and an approach must be found that did not infringe on the constitutions of other member states. The proposals made by other member states would have to be given serious consideration. His personal view was that the critical issue was the empowerment of women.

Ms Camerer asked if there were any reservations being negotiated within the Protocol. 

Minister Pahad replied that the position of the member states would have to be stated. However the SADC would not want reservations to impact on the legitimacy of the Protocol.  

The Chairperson noted that some SADC countries could not agree on the issue of the acceptable age for marriage for women. She suggested that examples such as DRC, where girls as young as twelve years old were being married, should be used as persuasive examples.

Minister Pahad replied that from an ethical point of view it was unacceptable to marry girls at the age of twelve, however the individual laws of one state could not be imposed on other states. Those states could well be influenced through interactions with countries whose laws had changed. Conflict situations were especially problematic, where because of the lack of stability, underage marriages and human trafficking were prevalent.

Ms B Ngcobo (ANC) asked for the SADC’s position on human trafficking.

Minister Pahad responded that a conference was held by the Anglican Archbishop Njongonkulu Ndungane with the United Nations (UN) on the issue of human trafficking and it was noted that the UN agents involved were taking a more active role. There were UN Protocols with regard to human trafficking, and the UN was pleased with South Africa’s position on the issue. Human trafficking had to be understood as a criminal act because it was treating women as commodities.

The Chairperson referred to unpaid labour, specifically aimed at women. She asked what was being done to resolve this issue. She added that this was contributing to women being at the bottom of the economy.

Minister Pahad replied that he was uncertain how unpaid labour should be measured, and this would be especially difficult where there were high rates of unemployment. It was a complicated issue to resolve and the social security system was trying to alleviate the problem. He added that there were more complex reason why women were at the bottom of the economy ladder, and that these issues would be addressed by empowering of women.

Ms C Zikalala (IFP) referred to same sex marriages and asked for an indication of other countries’ view on the subject, and whether the draft Protocol would influence their standpoint. 

Ms Zikalala commented that domestic violence was becoming more prevalent and more violent.

Minister Pahad agreed that domestic violence was a serious issue that was well hidden in South Africa. It was the social consciousness that needed to change.  The belief that corporal punishment in the home was acceptable should change. The continuous need to raise these crucial issues had resulted in a 365-day campaign of no violence against women and children. Everyone had to be involved as women issues affected everyone.

Ms Zikalala asked for clarification with regard to the sharing of an estate in a polygamous marriage.

Minister Pahad replied that unless the issue was contested in court it would be difficult say what would happen. He made the assumption that courts would have to seriously consider the Equality Act.

Ms Zikalala found that there were instances where the senior wife could not provide documentation as proof of her marriage, whereas the second wife had such documentation.

Minister Pahad replied that the courts would recognise a legitimate relationship if other types of proof could be provided.

Ms Ntuli referred to Article 8 of the Draft Protocol that stated all marriages would be treated equally. 

Ms Ntuli asked about the possibility of free movement of people throughout the African continent, and asked about the challenges that such a degree of movement could cause.

Minister Pahad replied that, as the SADC had not reached that stage yet he was not sure of all the consequences. The one issue that should be avoided was xenophobia.

The Chairperson thanked the Minister for the briefing on issues that were vital to all.

The meeting was adjourned.


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