Submission to the Portfolio Committee on Provincial and Local Affairs
regarding the Local Government: Municipal Systems Bill, 2000

The Gender Advocacy Programme (GAP) has eagerly awaited the publication of the Local Government: Municipal Systems Bill. The Bill constitutes a crucial step in the local government transformation process as it elaborates on the core elements of developmental local government. As such, it could potentially contribute to the eradication of poverty and social inequalities in local communities.

GAP seeks to contribute to gender sensitive policy and legislation on local government to ensure that ultimately the local government sphere contributes to gender equity. From this perspective, GAP has noted certain omissions and implicit biases in the Municipal Systems Bill. It is hoped that this submission will assist in improving the Bill to become more inclusive and to adequately address gender imbalances in the community.

Absence of a gender-inclusive framework

The intent of the White Paper on Local Government to lay the foundation for developmental local government is not followed through consistently in the Bill. As a consequence, the Bill makes no reference whatsoever to the principle of gender equity, nor does it reflect an understanding of gender imbalances and unequal gender relations in the community, in the home and in local public administration as a workplace. Generalistic in nature, it tends to be fairly vague and seems to assume that community participation, municipal planning and service delivery, performance management and organisational change are objective processes affecting all residents, community groups and municipal employees equally. However, in reality these processes have differential impact on people, based on their gender, racial background and other social factors.

Citizenship as the required starting point

A glaring omission in the Bill is the concept of >citizenship. Nowhere does the Bill refer to citizens, a notion which assumes certain entitlements and responsibilities in line with the Constitution. Citizenship is generally understood to have four components: civil, political, social and economic citizenship. Whereas the Constitution associates citizenship with equality (Section 3, 2), in reality different social groups obtain different degrees of citizenship at different times. In the South African context, race, gender and class are important factors mediating access to civil, political, social and economic citizenship. For example:

To address this omission, GAP recommends the following:

  1. The absence of the notion of citizenship, and the recognition that it is a highly gendered and racialised notion, needs to be rectified in the Bill. A definition of citizenship/citizens should be included in Chapter 1: Interpretation and throughout the Bill, the formulation Acommunity, residents and ratepayers@ needs to be revisited.
  2. Clauses promoting a service-oriented and people-oriented local public administration in section 56(2) in the Gazetted version of the Bill that have been excluded from the current draft should be reintroduced in section 47(2).

Mandatory versus Enabling Approach

The Bill seeks to balance a mandatory approach with an enabling approach. The compelling argument for a strong enabling approach is that it will allow for more discretion at local level. Such an approach assumes that there is sufficient capacity and commitment in municipalities to achieve the developmental outcomes as reflected in the White Paper on Local Government. However, the nature of the challenges facing local government, the limited capacity and resources and the history of top-down decision-making regarding local government necessitate that sufficient guidance and leadership is given to municipalities to facilitate the transformation process. Only when there is demonstrated local commitment and capacity can the legislative approach be enabling. A gender analysis of local government demonstrates the need to regulate gender equity as a principle and outcome, rather than allowing for local discretion in this regard. As yet, there is little evidence that in general municipalities: I) regard the promotion of gender equity as a priority, or even a responsibility of local government; ii) understand that local governance, service delivery, performance management and organisational transformation are gendered processes, which have a differential impact on women and men; and, iii) have the expertise and ability to define appropriate strategies to overcome gender imbalances. This demonstrated lack of commitment and/or ability to promote gender equity stems largely from the fact that historically, local government is a male-dominated institution and as a consequence, it reflects a predominantly male bias. The legislative framework needs to include gender equity as a principle guiding municipal decision-making and implementation strategies. This will be further elaborated on below.

Role of the Portfolio Committee

In deciding on the appropriate balance between an enabling and mandatory approach, it will be important to reflect on the role of the Portfolio Committee with respect to monitoring the implementation of the legislative framework. Such a role will allow the Portfolio Committee to assess over time whether the local government sphere has sufficient embedded commitment and capacity to achieve the developmental outcomes of local government and to recommend a shift in the legislative framework accordingly.

Another reason for carefully reflecting on the role of the Portfolio Committee stems from the fact that the most recent draft of the Municipal Systems Bill has discarded a number of provisions which were included in the gazetted version of the Bill (August 1999). The discretion to develop guidelines or regulations regarding these provisions have been located with the Minister. As a consequence, decision-making regarding these provisions has been removed from the sphere of influence of the Legislature (Portfolio Committee). Moreover, Section 112 (6) states that these guidelines are not binding on municipalities. It will be imperative for the Portfolio Committee to reflect on the implications of this in relation to the expected impact on local government transformation in general and the Committee's role in particular.

Towards Gender Equity

This submission is based on the premise that local government has a duty to promote gender equity. Gender equity is defined as: the state of affairs where systematic inequality on the basis of a person's sex is eradicated and where each person experiences the same entitlements, benefits and treatment, regardless of her/his sex.

The following elements are critical for the attainment of gender equity in a municipality:

  1. Expressed political commitment to the principle of gender equity and the progressive eradication of gender imbalances, including prevention of exclusion on the basis of gender;

  1. Equal and effective representation of women from all backgrounds on formal structures;
  2. Equal and effective participation of women from all backgrounds in local decision-making processes;
  3. Analytical and technical skills and capacity to develop appropriate and inclusive strategies.

These elements are complementary and should not be seen in isolation from one another. In other words, unless all four elements are in place simultaneously, gender equity will not be attained. Many debates have focussed on the effectiveness of increasing the number of women on political and administrative structures as a means to achieve gender equity. It is important to remember that whereas womens formal representation on decision-making structures may increase the probability that the gender interests of women in the community are represented, it should not be conflated with it. The principle of democracy itself dictates the need to ensure the equal representation of women on decision-making structures, not merely as a means to represent the interests of women as a social group. Similarly, since the objective is to eradicate gender imbalances, it may be justified to adopt strategies or mechanisms that will advantage the most disadvantaged sex (women) to ensure that they do not only enjoy the same rights, but also the same benefits, outcomes and levels of empowerment.

GAP has scrutinised the Municipal Systems Bill to evaluate the extent to which it incorporates the above-mentioned elements of gender transformation. The remainder of this submission will elaborate on how the Bill can be improved to adequately capture the four elements of gender transformation. It concludes with some general comments.

1. Expressed political commitment to the principle of gender equity and the progressive eradication of gender imbalances, including prevention of exclusion on the basis of gender.

At no point does the Bill explicitly state the Constitutional responsibility of municipalities to promote gender equity. In fact, the Bill omits to refer to the fundamental principle of equality. In recognition of the fact that the rights of citizenship are not fully and equally enjoyed by everyone, it will be important for the Bill to include equal (involvement, access to services, etc.) in numerous sections, where appropriate. Unfortunately, section 47(2)b no longer includes the word equal, although it was included in the earlier draft of the Bill. The inclusion of the word equal will serve to highlight the responsibility of municipal governing bodies to promote equality, rather than take this responsibility for granted.

In addition, it is crucial to spell out that the execution of the municipality's executive and legislative authority should be guided by, amongst others, the principle of gender equity. Chapter 2, section 4(2) highlights the duties of a municipality, but omits to refer to the promotion of gender equity. This section should therefore include a clause explicitly referring to this Constitutional responsibility.

Chapter 8 makes provision for the role of a municipality as a service authority. As the Memorandum on the Objects of the Local Government: Municipal Systems Bill clarifies, in their capacity as service authorities, municipalities remain responsible for the delivery of a particular service and provide the policy and regulatory framework. This implies that the principles guiding service provision by the municipality should also apply to service providers subcontracted by the municipality. More specifically, the municipality needs to ensure that gender equity is one of the explicit principles service providers have to adhere to.

To address these concerns, GAP recommends the following:

3. Where appropriate, the word equal is included throughout the Bill to emphasise the responsibility of the municipality to promote equality in the community.

4. Section 4(2) includes a clause regarding the municipality's Constitutional responsibility to promote gender equity.

5. Section 72(a) includes a clause reflecting the responsibility of the municipality to assess the different service delivery options, taking into account - the expected effect of any service delivery mechanism on gender equity.

2. Equal and effective representation of women from all backgrounds on formal structures.

The current policy and legislative framework for local government recognises that the low level of representation of women on political and administrative structures is an indication of gender inequality and that it is within the scope of the legislative framework to address this imbalance. The Municipal Systems Bill suggests the establishment of various advisory committees (see sections 8(4) and 79(e)) or governing bodies (section 81(e)). However, the Bill does not make any reference to the need for these structures to be representative in terms of gender. The Local Government: Municipal Structures Act, 1998, includes a provision in the context of the establishment of ward committees, which encourages municipal Council to consider the representation of women on these committees. It is our view that this is an important inclusion, and there is sufficient grounds to include a similar provision in the relevant sections in the Municipal Systems Bill.

Chapter 7 includes provisions related to local public administration and human resources. It is surprising that this chapter does not refer to the legal requirement to promote employment equity in accordance with the Employment Equity Act. Given the fact that women only constitute between 15-20% of all municipal employees, and that the majority of women are employed in gender-stereotypical positions (such as secretaries, nurses, cleaning staff), local public administration still has a long way to go before it can be considered representative. It is therefore important to cross-reference the Employment Equity Act and explicitly state the significance of a representative local public administration. Relevant sections where this should occur include 47(1) and 61(a).

As indicated above, the mere presence of women in local government, as employees or Councillors, is not sufficient to change the institutional context. One issue of particular concern is sexual harassment. Although statistics reflecting the incidence of sexual harassment at municipal level are not available, recent studies have shown that between 67% and 76% of women experience sexual harassment at the workplace. Sexual harassment disproportionally affects women. It is a clear expression of perceived male superiority and is an extremely humiliating and disempowering experience for women affected. Given the nature of sexual harassment, it is commonly accepted that normal grievance procedures are not appropriate to adequately respond to sexual harassment complaints. In recognition of this, the White Paper on Local Government includes a provision concerning the need for municipalities to adopt a sexual harassment policy, with a specified investigative and disciplinary procedure. It is therefore disappointing that the Bill does not include a similar provision in section 62(1), which specifies the basic human resource systems and procedures each municipality should adopt. The NEDLAC Code of Good Practice on the Handling of Sexual Harassment Cases can serve as a useful reference to develop a similar Code of Good Practice by municipalities. An important element of the NEDLAC Code of Good Practice concerns the communication of the contents and implications of the Code to employees and clients.

To address these concerns, GAP recommends the following:

6. In the appropriate sections, the Bill includes a provision similar to the Municipal Structures Act, which reads in section 73(3)(a)(I): taking into account the need for women to be equitably represented.

7. Sections 47(1) and 61(a) include a reference to the principle of employment equity and the need for a representative staff establishment, in accordance with relevant legislation.

8. Section 62 (1) should include a clause referring to the need to develop a sexual harassment policy, with specified investigation and disciplinary procedures.

3. Equal and effective participation of women from all backgrounds in local decision-making processes.

According to the Memorandum on the Objects of the Local Government: Municipal Systems Bill, participatory governance is a core process in realising developmental local government. The Bill therefore includes a chapter defining Public Participation and suggesting mechanisms and processes to facilitate public participation. GAP's concerns with the understanding of and approach to participatory governance are four-fold.

Firstly, the Bill presents quite a narrow interpretation of public participation by defining it as public accounting, consultation and the establishment of a complaints mechanism. It does not conceptualise a role for residents and other stakeholders in implementation nor in the process of reviewing strategies, indicators or implementation mechanisms.

Secondly, the intent of Chapter 3 is not consistently and coherently followed through in other chapters, most notable those dealing with the IDP (Chapter 5) and Performance Management (Chapter 6). For example, section 25(b) refers to community participation in the context of the IDP process and as such distinguishes between consultation regarding the needs and priorities and community participation in the process of drafting and reviewing the IDP. However, section 7(b)(I) also specifies a role for the community in the implementation of the IDP. Similarly, section 7(b)(ii) refers to the role of the community in monitoring and review of the performance of the municipality. Again, this is not captured in Chapter 6, which only includes provisions regarding external reporting (sections 38(e)(ii) and 43) and informing the public of KPIs and targets (section 40).

Thirdly, there is a strong bias towards literacy in terms of public reporting and for the public to use the complaints mechanism. Although the Bill recognises that illiteracy can be a barrier and recommends that municipalities set up appropriate mechanisms, this is not sufficient. The strong emphasis on the written medium does not only disadvantage people with lower levels of literacy (the majority of which are women), but also people living in poor conditions, who are unlikely to buy newspapers and may not have or be able to afford electricity (the majority of which are women), and women in general who are likely to have less time to read, because of their gendered responsibilities. There are multiple opportunities in the Bill to suggest a more inclusive approach to overcome this bias, without necessarily having major financial implications. For example, section 5(1)(b) could be expanded to allow residents to present their complaints verbally, either to a Councillor, an official or at a meeting of local government functionaries. Similarly, section 102 could include a reference to notification on local radio stations, where applicable. In light of this, it is quite disappointing that section 7(2) in the Gazetted version of the Bill, which highlighted the responsibility of a municipal council to ensure that its business is comprehensible, accessible and understood by the public, has been taken out of the current draft.

Last, but not least, there is no recognition of the fact that mechanisms and processes to facilitate participation are, amongst others, gendered, which means that certain mechanisms are more likely to disadvantage women in participatory processes than others. Section 8(1)(b) specifies public meetings and hearings as the acceptable minimum mechanisms to facilitate public participation. However, these mechanisms are likely to disadvantage women, who experience specific gender barriers such as: I) lack of time to attend these events because of domestic responsibilities; ii) lack of mobility and fear for personal safety; iii) lack of confidence to address a public gathering; and iv) social values and prejudices, which may hold that women should not speak when men are in the audience, or may simply result in ignoring the contributions made by women. Although sections 78 and 8(2) leave room for municipalities to develop Aother appropriate mechanisms to facilitate public participation, the legal requirements obviously serve to inform municipalities of what is considered >acceptable and sufficient in this regard. It is unfortunate, that section 8(2) does not include women as a social group that may need additional mechanisms.

To address these concerns, GAP recommends the following:

9. The Portfolio Committee needs to review the understanding of participatory governance as reflected in the Bill and ensure it reflects a coherent and consistent approach.

10. In the appropriate sections, the Bill needs to specify the imperative to facilitate inclusive public participation and suggests additional methods to public meetings and hearings and the written form for information dissemination (e.g. sections 5(1)(b), 8(1)(c), 9, 10, 40, 74(2), 78(3), 87(b) + (c), 102).

11. Section 7(2) from the Gazetted version of the Bill is re-inserted in the Bill.

12. Section 8(2) introduces women as a social group that may require additional mechanisms to participate equally in local governance.

4. Analytical and technical skills and capacity to develop appropriate and inclusive strategies.

Given the absence of a conceptual framework that promotes inclusivity and gender equity, it is not surprising that the Bill does not recognise the need for skills and capacity to develop appropriate and inclusive strategies. The need to apply gender analysis and consequently develop appropriate strategies to overcome gender imbalances is relevant to every element of developmental local government as discussed in the Bill.

Previous sections have presented some observations regarding the chapters dealing with public participation and local public administration in particular. These comments and recommendations will not be repeated here. This section will focus particularly on Chapter 5: the IDP and Chapter 6: Performance Management.

According to section 23(b), the purpose of the IDP is to promote development and equality through the realignment of resources and services. However, the question is how inequality in the community is perceived. In GAPs experience, the main purpose of the IDP as understood by Councillors and officials is to redress spatial (which tends to largely coincide with racial) imbalances, whereas the intra-community or intra-settlement inequalities remain hidden. The Bill underscores this interpretation by referring to communities which do not have access to basic municipal services (section 23(1)(b)), rather than social groups or sections of the community. When intra-settlement inequalities are not acknowledged, it means that gender imbalances are overlooked. In reality, this is likely to imply the following:

a) in prioritising services and infrastructure development, the voices of poor women are most likely not explicitly sought or heard, despite their role in service provision and service maintenance in the home and community;

b) as a consequence, the services or infrastructure provided may not benefit women as much as they benefit men, or the development will most likely miss out on an opportunity for greater empowerment and emancipation of women;

c) certain services or infrastructure may not be prioritised, because the need for these services may not be obvious to municipal decision-makers (e.g. child care or other services women are providing in the community) or because it may be felt that the interests expressed by women are beyond the capacity and responsibility of the municipality (e.g. when women suggest a different design of houses to enable them to take up economic activities).

A crucial starting point for municipalities to develop appropriate interventions is a database with disaggregated demographic data on the basis of race, gender and other relevant factors. Unless municipalities engage in such a reality check, they will not be able to recognise the differential levels of inequality in the community. Similarly, performance indicators and targets need to be disaggregated on the basis of race, gender and other relevant factors to measure the differential impact of development interventions on various groups and residents in the community.

To address these concerns, GAP recommends the following:

13. Chapter 5 needs to include a provision requiring a municipality to ensure its IDP is informed by demographic data, which is disaggregated on the basis of race, gender and other relevant factors to enable the municipality to develop targeted interventions to achieve the various levels of development required.

14. Chapter 6 needs to include a provision requiring a municipality to ensure that performance indicators and performance targets are disaggregated on the basis of race, gender and other relevant factors to enable the municipality to measure the differential impact of development interventions on various groups and residents in the community.

General Comments

Chapter 6: Performance Management

According to section 35, Performance Management is intended to ensure that municipalities administer their affairs >in an economical, effective, efficient and accountable manner. It is surprising that adjectives such as >just or >developmental are absent from this description. As such, the envisaged link with the Integrated Development Plan and participatory governance is lacking. The same concern applies to section 51(a).

To address these concerns, GAP recommends the following:

15. That the purpose of performance management is not only defined in neo-liberal terms, but that sections 35 and 51(a) also include notions of justice, development and equity.

Chapter 8: Municipal Services

72(a)(I) presents the criteria for deciding on mechanisms to provide municipal services. Section 96(I) of the Gazetted version of the Bill included a reference to the objects of local government in the Constitution. This should be re-inserted, with additional reference to Constitutional principles such as gender equity.

To address this concern, GAP recommends the following:

16. That section 96(1)(iii) in the Gazetted version of the Bill is reinserted and that an additional reference is made to the principles captured in the Constitution, including the principle of gender equity.

Code of Conduct & Other Staff Policies

According to Chapter 3, a complaints mechanism is considered a core element of public participation. For this purpose, it is important that residents and other stakeholders are informed of the Code of Conduct of officials and other relevant staff policies, for example a sexual harassment policy.

To address this concern, GAP recommends the following inclusion:

17. The municipality needs to ensure that residents and other stakeholders are informed of the Code of Conduct for officials and other relevant staff policies.