REPORT OF THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT ON THE PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA, DATED 27 OCTOBER 2004


The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, referred to it, and having noted that-

1. unless the said Protocol is enacted into South African law by national legislation in terms of section 231(4) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) (hereinafter referred to as "the Constitution"), it 'will not be applicable in South African domestic law. In the absence of such incorporation into South African domestic law, the Protocol will only have legal effect in the public international law relationship between South Africa as a State Party and other States Parties to the Protocol;

2. the African Charter on Human and Peoples' Rights (hereinafter referred to as "the African Charter") together with the African Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights and the OAU Convention governing the Specific Aspects of Refugee Problems in Africa form the basis of a unitary system for the protection of human rights on the continent. This body of international law exists in a complementary relationship to our domestic body of human rights law. This means that in developing jurisprudence, the South African courts and the African Court on Human and Peoples' Rights will mutually reinforce and influence each others' decisions and therefore contribute to the further development of human rights jurisprudence on the continent and internationally;

3. in terms of Article 56(5) of the African Charter and Article 6 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights)any complaint relating to the protection of human rights must first be adjudicated through the South African court system in terms of South African law and the Constitution until all local remedies have been exhausted before it can be considered for admissibility to the African Commission on Human and People's Rights or the African Court on Human and Peoples' Rights or indeed the Court of Justice of the African Union;

4. Article 31 of the Protocol provides that none of the provisions of the Protocol shall apply to "more favourable" provisions for the realisation of the rights of women contained in the national legislation of States Parties;

5. limitations of rights are inherent in all systems of human rights jurisprudence and most modern Bills of Rights provide expressly for the limitations of rights and that where no express provision is made in this regard, foreign courts as well as international courts have developed criteria for the limitation of rights;

6. the South African Bill of Rights encapsulated in the Constitution, contains an inherent system of potential limitations to rights, and should not be interpreted to equate to a less favourable rights regime as contemplated in Article 31. The South African Bill of Rights is a product of an historic struggle against apartheid for equality. The South African Constitutional Court has since its establishment given and continues to give expression to the right to equality, which includes the concept of "unfair discrimination" in order to promote full societal equality with specific reference to measures designed to protect or advance persons or categories of persons previously disadvantaged;

7. with regard to the acknowledgement of the existence of the death penalty in certain countries that is contained in Article 4(j) of the Protocol, that the death penalty has been found to be unconstitutional by the Constitutional Court. Bearing in mind the injunction contained in section 2 of the Constitution, namely that the Constitution Is the supreme law of the Republic and that law or conduct inconsistent with it is invalid, it is imperative that conduct in the field of international relations should also adhere to the letter and spirit of the Constitution, the Committee requires a reservation to be made on Article 4(j) upon the depositing of the instrument of ratification, stating unequivocally that the death penalty is unconstitutional in South Africa and that it is not applied, that it is not consistent with human rights, that South Africa is in principle opposed to it and that no legal consequences may be visited on the Republic pertaining to its ratification of the Protocol,

8. the other verbal reservations made by South African delegations during the negotiating process must be formalised in writing upon the depositing of the instrument of ratification,

9. any conflicts that may exist between the provisions of the Protocol and South African domestic law may be reconciled through future amendments to South African legislation,

10. it is reiterated that if the Executive at any stage makes a declaration in terms of Article 34(6) of the Protocol on the Establishment of an African Court on Human and People's Rights accepting the competence of the Court to receive cases under Article 5(3) of that Protocol, entitling relevant Non Governmental Organisations with observer status before it and individuals to directly institute cases before it, such a declaration shall first be tabled in Parliament for approval:

recommends that-

the House, in terms of section 231(2) of the Constitution and subject to the following reservations and interpretative declarations. approve the said Protocol.

Reservations.

Article 4(j):

with regard to the acknowledgement of the existence of the death penalty in certain countries, it is confirmed that the death penalty is unconstitutional in the Republic of South Africa and that it is not applied, that it is not consistent with human rights, that South Africa is in principle opposed to it and that no legal consequences in this regard may be visited on the Republic pertaining to its ratification of the Protocol;

Article 6(d):

A reservation is made with regard to and South Africa will consequently not consider itself bound to the requirement contained in Article 6(d) that a marriage shall be recorded in writing and registered in accordance with national laws in order to be legally recognised. This reservation is made in view of the provision in Section 4(9) of the Recognition of Customary Marriages Act (Act No.120 of 1998) which stipulates that failure to register a customary marriage does not affect the validity of that marriage. No legal consequences in this regard may be visited on the Republic pertaining to its ratification of the Protocol;

Article 6(h):

A reservation is made to the provision in Article 6(h) which subjects the equal rights of men and women with respect to their children to national legislation and national security interests, on the basis that it is unacceptable in principle to the Republic of South Africa. No legal consequences in this regard may be visited on the Republic

Interpretative Declarations:

Article 1(f):

[Option 1] It is understood that the definition of 'discrimination against women’ has the same meaning and scope as is provided for in Section 9 of the South African Constitution (Constitution of the Republic of South Africa, 1996 (Act No. 108of1996));

[Option 2] With regard to any potential conflict that may exist between the definition of discrimination as provided for and applied in South African law and the definition of discrimination contained in the Protocol, an interpretative declaration should be made that South Africa understands the definition to
have the same meaning and scope as provided for in section 9 of the Constitution;

Article 31

[Option 1] It is understood that the provisions contained in Article 31 may result in an interpretation that the South African system of human rights protection is less favourable than the level of protection offered by the Protocol in view thereof that the Protocol has no provision on the limitation of the rights contained therein while the South African Constitution (Constitution of the Republic of South Africa 1996 (Act No. 108 of 1996)) does provide for the limitation of rights under certain circumstances. A system providing expressly for the limitation of rights under certain circumstances should not be considered less favourable for the protection of human rights than a system which expressly provides for such limitations.

[Option 2] Potential limitations of rights inherent in the Constitution should therefore not be interpreted as less favourable measures for the protection of human rights as envisaged in and for the purposes of Article 31 of the Protocol.