South Africa's compliance with the Convention on the Elimination of all Forms of Discrimination against Women & 1995 Beijing Platform for Action reporting requirements: Commission on Gender Equality briefing

Meeting report

South African compliance with Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and 1995 Beijing Platform for Action (BPA):  Commission on Gender Equality (CGE) briefing
Mr Mfanozelwe Shozi, Acting Chairperson, Commission on Gender Equality, gave a brief description of the mandate of the Commission (CGE or the Commission), touching on its establishment as a Constitutional Chapter 9 institution, to promote the protection, development and attainment of gender equality. He also emphasised the CGE’s mandate, in terms of Section 11 of the CGE Act, to monitor the implementation of international conventions that impacted on gender equality. These included the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), and the 1995 Beijing Platform for Action (BPA). Furthermore, the CGE was required to prepare and submit reports to Parliament on compliance with any such conventions, covenants or charters. These reports had been compiled by the CGE personnel internally, without outsourcing, which was a route it intended to follow in future projects.

He noted that there were still some outstanding issues on which CGE had to report, but expressed regret that the reports were not ready. They would be e-mailed to the Committee by the end of the week.

CEDAW implementation
Adv Boogie Khutsoane, Commissioner responsible for CEDAW Project, CGE, commented that the CGE's Report to the CEDAW Committee addressed issues emanating from Government's report, which was submitted to the United Nations (UN) in 2009, and which would be presented before the CEDAW Committee in Geneva in January 2011.

CGE was concerned that the South African government had not adhered to the reporting guidelines of CEDAW, which prescribed that every signatory State should submit an initial report within a year of ratification, followed by periodic reports at least every four years, and whenever the CEDAW Committee requested. South Africa had ratified CEDAW in 1995. However, its first report was submitted only in 1998, covering the period from 1994 to1997. The second report, which it had submitted in 2009, covered the period from 1998 to 2000. It had submitted no updates covering implementation over the past ten years.

CGE was preparing a baseline report on South Africa's implementation of CEDAW, which would be ready in January 2011. This was in compliance with CEDAW’s recognition of the CGE as a national Human Rights institution, under General Assembly Resolution 48/134 of 20 December 1993. Such an institution may provide additional information, comments and suggestions on the State's report to the CEDAW Committee. The purpose of the CGE report was to provide additional information which would enable the CEDAW Committee to have a better understanding of how South Africa was implementing its obligations under the Convention and Optional Protocol (ratified by South Africa in October 2005). In particular, the CGE report would give information on the implementation of the recommendations of the CEDAW, assess compliance with CEDAW and highlight some of the shortcomings of the Government report to be presented in January 2011.

Adv Khutsoane stated that the present Government report was a combination of the second and third reports. CEDAW guidelines said that reports should not repeat information already submitted, but should concentrate on issues arising in the period between reports. They should also address concerns and recommendations that CEDAW raised in response to the previous report. Each new report should also focus on the progress made by the individual State on the implementation of CEDAW, and highlight any obstacles to its implementation. Reports should be as concise as possible, with the initial report limited to 100 pages and periodic reports thereafter to 70 pages.

Government’s present report, which was complied by the Office on the Status of Women (OSW), was 172 pages long, because it attempted to cover so much ground. It also did not address the concerns and recommendations of CEDAW to the first report, nor had reporting guidelines been followed. She stressed that the General Recommendations of the Convention were critical as they provided information on how the provisions of the Convention were to be interpreted, but these were neither considered nor applied in the report.

CGE also was concerned that Government’s report neglected to include statistical data disaggregated by sex, ethnicity, age, and by urban and rural areas, to make it easier to evaluate progress over time. Although Article 18.2 of CEDAW made provision for a statement of factors and circumstances affecting the State’s ability to meet obligations under the Convention. However, Government’s report failed to explain the nature of the circumstances. She suggested that this would include how the Recognition of Customary Marriages Act affected the rights and freedoms of women in these marriages. The report also failed to address the twelve Areas of Concern expressed in the Beijing Platform of Action pertaining to its implementation and action taken. There was also a lack of proper consultation with relevant stakeholders in drafting of the report, and no reference was made to the role played by civil society organisations as required by the CEDAW Committee. The focus of the OSW had been on government departments only.

Adv Khutsoane highlighted the concerns raised by CEDAW in its Concluding Comments to the Government report of 1998, which should have been addressed in the new Report. These included conflicts between the Constitution of South Africa and religious and customary Laws, where consistency with the Bill of Rights was the determining factor. It should also have addressed the issue of unequal inheritance rights, land rights and polygamy, which remained contentious issues. Whilst polygamy was permissible under South African law, it intense debate and there was opposition to this practice and calls for it to be abolished. Insufficient financial and human resource allocation was also a concern. The National Gender Machinery (NGM) was under-funded, which hindered the progression of gender mainstreaming, not only in the public service, but also in society in general. This under-funding was indicative of Government not taking gender issues seriously enough. Adv Khutsoane highlighted that even the CGE received minimal funding, which inhibited its own progress in achieving its objectives.

She continued that the high level of violence against women in South Africa was also a major concern. Other concerns were raised around the high level of unemployment of women and their lack of protection from exploitation, with the category of domestic workers being highlighted. There were also concerns around the uneven distribution of healthcare services and the practice of female genital mutilation, on which further research was needed to define and establish its extent in various cultures.

Positive achievements were noted in the Report, such as victim empowerment programmes, the Sexual Offences Unit established under the National Prosecuting Authority, and the sectoral determination made for domestic workers under the Basic Conditions of Employment Act.
Adv Khutsoane stated that the second aspect of the CGE report looked at the extent to which South Africa was in compliance with various Articles of CEDAW. She summarised the status in respect of some of those. In regard to Article 1, which was concerned with the definition of “discrimination against women” she noted that South Africa did not have such a definition. The Constitution made provision for guaranteeing equality rights, and the Bill of Rights to a large extent met the definition of defining discrimination. Article 2 of CEDAW dealt with the States’ obligations to eliminate discrimination. The UN's Gender Mapping Report on South Africa’s current status and gaps noted that the Constitutional mandate for attaining gender equality was clear and legislative reform had provided the building blocks for a gender equitable society, but that implementation, monitoring, evaluation and the provision of funds must be ensured. Article 4 of CEDAW set out the need for acceleration of equality between the sexes. She said that Government must embark on a rigorous gender mainstreaming strategy that included the necessary budget to ensure that employment equity targets were met.

In regard to CEDAW’s Article 5, dealing with stereotypes and sex roles, Adv Khutsoane said that in South Africa women were still discriminated against, on the grounds of religious and cultural beliefs. The widowhood study conducted by the CGE during 2007 revealed that there had been little shift from a fundamentally patriarchal system, in terms of such matters as women’s inheritance rights. The Equality Act prohibited gender discrimination, and landmark legal cases such as Bhe and Shilubane had served to outlaw the traditional practice of primogeniture. Article 6 of CEDAW dealt with exploitation of women, exploitation and prostitution of women and girl-children.  South Africa was a signatory to international instruments related to human trafficking, but the process of developing a draft Bill on human trafficking had been slow and there were few statistics on human trafficking cases that had been successfully prosecuted. Article 16 related to equality in marriage and the family. The Recognition of Customary Marriages Act of 1998 allowed for recognition of polygamous marriages, which was directly in contradiction to General Recommendation 21, Paragraph 14. This remained an issue for debate.

Adv Khutsoane outlined the process of conducting a mock trial, during October 2010, in conjunction with UNICEF, which would seek to prepare and assist the South African representatives who were to make the presentation to CEDAW in January 2011. She noted that the CEDAW Committee would submit the South African delegates to a rigorous interrogation, and they should be fully prepared. Representatives of the CGE would meet with CEDAW in August, in order to formulate the questions that were most likely to require answers by the South African representatives. She requested the support and involvement of the Portfolio Committee in this process and stated that the expertise of professionals in fields such as health should also be elicited.

South Africa's Compliance with the Beijing Declaration and Platform of Action
Adv Khutsoane then gave a second presentation dealing with an adjunct to the CGE Report, on South Africa's Compliance with the Beijing Declaration and Platform for Action. The “Beijing +15” title reflected the 15th anniversary of the Beijing Declaration. Here again, Government had failed to meet deadlines in the submission of reports and to adhere to the correct channels of reporting. The deadline for the submission of the Beijing+15 National Report to the UN Economic Commission was 31 March 2009, but South Africa’s report was submitted only in November 2009. There were various constraints that had prevented the National Gender Machinery from being effective. The mandates of the three major structures, being the CGE, the OSW and the Joint Monitoring Committee on the Status of Women (JMC) had overlapped. The OSW did not exercise the necessary authority during its tenure, partly because the National Policy Framework (NPF) was not legislated, and there was insufficient consultation and lack of coordination, which impacted negatively on the compilation of the country reports.

South Africa, in terms of its commitment to Continental level gender equality protocols, had signed the African Union (AU) Solemn Declaration on Gender Equality in Africa, in 2004. Three reports had been submitted to the AU Commission. However, she again cited a lack of proper consultation with relevant stakeholders when these reports were drafted.

South Africa had signed the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa in 2003, and had ratified it, with reservations, in 2005. The CGE believed that the reservations should be removed, since Article 31 already allowed member states to apply their own laws if these were better than those stipulated in the Charter. South Africa had never submitted a report on this Protocol.

Adv Khutsoane then turned to issues of budgeting. Government had not done much to ensure that gender budgeting was implemented. Gender-based violence statistics were still insufficient. In terms of the implementation and monitoring of the National Gender Policy, the concept of “gender mainstreaming” was not understood by most staff members, and there was little significant empowerment of women. Gender was still treated as an 'add on' and senior staff did not take the gender policies seriously.

Adv Khutsoane noted that the CGE Report highlighted areas of concern, significant achievements and the reallocation of public spending in favour of programmes and projects aimed at empowering women. However, Adv Khutsoane pointed out that poverty and economic inequality continued to reflect and entrench racial and gender inequalities. The 'feminisation' of poverty was significant, because poverty was experienced differently by women and men. Social grants were an effective mechanism of poverty alleviation, and she conceded that the larger percentage of social grant recipients were female. However, failure by government to come up with an exit strategy for the recipients of grants perpetuated dependency. Achievements in education and training were significant but challenges remained. Gender parity across total school enrolment had been achieved, and the adoption of a no-fee schools policy in 2007 was in alignment with the right to basic education. Several other concerns were mentioned in passing.

Discussion
Ms D Ramodibe (ANC) assumed the Chair temporarily, when Ms Thompson had to attend another meeting.

Ms H Malgas (ANC) commended the CGE on the reports, particularly given its own challenges.

Ms Malgas enquired if South Africa had observer status when it came to elections.

Ms Malgas expressed her concern about the process surrounding the submission of the report to the UN without the necessary consultation.

Ms Malgas noted that female genital mutilation was defined and prohibited in the Children's Act. She brought attention to the fact that the Family, Child and Sexual Offences Unit was back in operation, as of June 2010.

Ms D Robinson (DA) noted the comment by Ms Malgas but said that her recent experiences at the courts proved that the Family, Child and Sexual Offences Unit was not yet fully back in operation.

Ms Malgas felt that there should be further investigation into grants and social development, as there were a disproportionate number of people receiving grants, which, in her view, encouraged dependency. The government was no longer looking at providing subsistence but encouraging women to become economically viable.

Ms Robinson supported Ms Malgas’s idea of not creating dependency through perpetuating social grants, but wanted concrete suggestions for an exit strategy for grant recipients.

Ms Malgas said that the ratification of Protocols had to go through a Parliamentary process and get Parliamentary approval.

Adv Khutsoane responded that Parliament relied on the advice of legal advisors. She raised the instance that a protocol on Human Rights in Africa was ratified with reservations, which was ill-advised. When a State ratified protocols with reservations, it encouraged other States to do the same, to the detriment of the cause being promoted.

Ms M Matladi (UCDP) stated that there was a need to engage with the reports, but those who should be answering to them were not present to answer why they had failed to execute the requirements. She also questioned the delay in the completion of reports, and wanted the responsible persons to be held accountable.

Ms Robinson expressed her approval for the renewed energy of the CGE. She noted the criticisms made by the CGE and asked that it should be as honest and open when admitting to its own mistakes. She stressed that there should not be a glossing over of any issues at the UN to create a good impression. She said that the question must be asked how the CGE had complied with its mandate and evaluated what went wrong, in order to take corrective action and regain its credibility, showing that it was following a new dispensation.

Ms P Duncan (DA) added that she hoped the CGE realised how angry the Committee had been with the Disclaimer issued by the Auditor-General on the CGE’s financial statements for the past two years. It could have prevented the present situation if it had its priorities right.

Ms Ramodibe also was appreciative that Adv Khutsoane had mentioned many shortcomings with the previous dispensation and wanted to know what would be put in its place.

Adv Khutsoane firstly addressed the issue of compliance. She stated that the CGE was committed to taking full responsibility for compliance and the present baseline reports would expand into more comprehensive reports. The CGE would ensure that government implemented the recommendations that were adopted.

Mr Shozi added that the CGE had been one year old when the first report had been submitted to CEDAW and thus CGE had had not been involved in that process. He was committed to ensuring compliance by the GCE on all levels of its operations.
 
Ms P Duncan (DA) agreed with other Members that the relevant individuals should answer to the Committee. She emphasised that the report had been sent to the UN, yet the Committee had not seen it, and questioned if it had gone through Parliament. She would have liked to engage on it. She agreed with the concept of the mock trial, to prevent future mistakes.

Ms Ramodibe was encouraged by the fact that the Committee had been taken on board and would be part of the future delegations. She agreed with Ms Duncan that it would be interesting to find out more about the process.

Ms Matladi was unsatisfied on the matter of procedure and wanted to know why the role of the committee had been ignored. She reiterated that the report should have been brought to this Committee, who would have critiqued it and made amendments.

Adv Khutsoane responded that the report was taken to Cabinet in 2008, before the present Ministry had come into office. She said that it would be possible to arrange for engagement with the Committee by the Department. However, at the moment, she stressed that precedence should be given to the mock trial, to build the capacity of the team who would represent government at CEDAW.

Ms Crystal Levendale , Parliamentary Researcher, explained that a presentation on the CEDAW report had been made by the OSW to the then JMC on Women in 2008 and that an external consultant had been used to compile the report. Following this, the Speaker also made a call at Women's Parliament 2008 for the report to be brought for input by Parliament before being endorsed by Cabinet.

Ms Ramodibe asked who would fund the mock trial.

Adv Khutsoane responded that it would be funded by the CGE and UNICEF.

Ms Malgas agreed with holding the mock trial.

Ms Duncan wished to know who the delegation representing South Africa would be.

Adv Khutsoane responded that the Ministry would choose the delegation to go to Geneva in 2011 and it was vital to get the right people who would be elected before October when the mock trial would be conducted.

Ms Thompson, who had now returned, that it was probably an omission not to have had the Department present at the meeting to aid the Members’ understanding of the matters under discussion.

Ms Duncan recommended that all departments be requested to cost their programmes affecting women. Although South Africa had good legislation, implementation was problematic due to constraints on financial and human resources. The CGE had to hold government responsible for making the necessary budgetary allocations and to ensure that women's issues were reflected in the budgets.

Ms Malgas requested that all Committee Members should receive the publication dealing with widows that emanated from public hearings, and that the CGE make it a project to discuss this with the Committee.

Ms Thompson resumed the Chair

Committee activities: Mid-year progress report
Ms Kashiefa  Abrahams, Committee Researcher, presented a brief mid-year progress report on the Committee’s activities. The update included a review of the Committee programme, including the meetings held, their outcome and the reasons for any cancellations. Most meetings had been held. Some, relating to the Committee’s theme of  'Child survival and maternal health' had been postponed, and this theme would receive focus in the current term.

The outstanding reports were listed as the CEDAW Report, the Report on the Convention on the Rights of the Child (which was 12 years overdue) and the Disability Report.

She commented that although CGE had committed itself to submitting a monthly report, none had yet been submitted. Its outstanding matters on which it must still report included vacancies, legal matters pertaining to court cases, and the turnaround strategy.

The National Youth Development Agency must still report to the Committee on its strategic plan and budget, projects, recouping of funds, and setting up of provincial offices. Its Annual Report should by now have been tabled.

Oversight visits by the Committee were planned to the Mitchells Plain Court and various other locations.

The Chairperson noted that the Committee must prioritise the oversight meetings.

Members agreed to finalise the programme at the next meeting.

The meeting was adjourned.