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CONSTITUTIONAL MANDATE

Are we there yet? MEASURING SOUTH AFRICA’S PROGRESS IN THE IMPLEMENTATION OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN CEDAW Presentation to the PC Committee on Women in the Presidency 3 March 2015. CONSTITUTIONAL MANDATE.

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CONSTITUTIONAL MANDATE

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  1. Are we there yet?MEASURING SOUTH AFRICA’S PROGRESS IN THE IMPLEMENTATION OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMENCEDAW Presentation to the PC Committee on Women in the Presidency3 March 2015

  2. CONSTITUTIONAL MANDATE • The Constitution of SA created an independent Commission for Gender Equality to deal specifically with promotion of gender equality and to advise and make recommendations relating to gender equality and status of women. • Section 181 read with section 187 of the Constitution establishes the Commission for Gender Equality. • In terms of section 187 CGE must promote respect for gender equality and the protection, development and attainment of gender equality

  3. FUNCTIONS PRESCRIBED BY NATIONAL LEGISLATION Commission for Gender Equality Act 39 of 1996 Monitor Investigate Research Educate Lobby Section 11 (h) of the CGE Act mandates the Commission to monitor and evaluate the implementation of international and regional conventions acceded to by South Africa, that impact on gender equality.

  4. VISION and MISSION Vision • A society free from all forms of gender oppression and inequality Mission • Monitor, evaluate and make recommendations on policies of the public and private sector • Information and educational programmes • Evaluate and make recommendations on legislation affecting the status of women • Investigate, resolve and rectify gender issues • Collaborate with government and civil society • Monitor and report on international conventions

  5. BRIEF BACKGROUND ON CEDAW REPORT • This is a baseline report on the implementation of the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW). • The Commission produced a report in 2010 and shared the report with the then Department for Women, Children and People living with Disabilities and the CEDAW Committee. • As a result of the engagement the Commission felt that it was prudent to assist the Ministry in preparing for the CEDAW session that was held in January 2011 in Geneva • A CEDAW Mock session was held in December 2010 to assist the Committee in preparation for the January session • A report on the Mock session was shared with parliament in the previous PC committee

  6. BRIEF BACKGROUND ON CEDAW • The Convention on the Elimination of all forms of Discrimination Against Women was adopted by the United Nations General Assembly in 1979 • South Africa became a signatory and ratified (endorsed) the Convention in 1995 • CEDAW compels state parties take steps to achieve specified results to eliminate discrimination • CEDAW can be used as a tool for advancing women’s rights at local and national level through implementing its substantive provisions; monitoring its implementation and using it as a platform for advocating for women’s rights

  7. BRIEF BACKGROUND ON CEDAW • CEDAW is described as the Bill of Rights for women. It ensures equal access to and equal opportunities in both political and public life • It defines discrimination against women and sets a framework for national action to end discrimination • The Convention provides the basis for realising equality between men and women through ensuring women’s equal access to and equal opportunities in political and public life • It also draws attention to economic, social and cultural dimension of discrimination against women • It focuses on discrimination against women, emphasising that women have suffered and continue to suffer from various forms of discrimination because they are women.

  8. CEDAW PRINCIPLES CEDAW is based on three core interrelated principles: Principle of substantive equality • Equality of opportunity in terms of access to resources which needs to be secured by a framework of laws and policies and supported by institutions and mechanisms for their operations • Equality of results upon access and opportunity towards achieving real change for women Principle of non-discrimination • Based on the understanding that discrimination is socially constructed • CEDAW recognises that despite legal rights being granted to women, discrimination persists and women’s access to legal rights are curtailed by the denial of women’s rights to economic and social development

  9. CEDAW PRINCIPLES Principle of State Obligation • States have a legal obligation to respect, protect, promote and fulfil the right to non-discrimination for women and to ensure their advancement and their development. • South Africa submitted the initial report in 1998, which was two years after the ratification and submitted a combined second, third and fourth periodic reports in 2011.

  10. OPTIONAL PROTOCOL TO CEDAW • Constitutes a separate treaty and must be independently ratified or acceded to by government that is a state party to the Convention • Creates access to justice for women at international level. It allows women whom have been denied access to their rights as enshrined in the CEDAW Convention at national level to have their claims reviewed by a committee of independent experts that monitors compliance with the Convention • It creates procedures fro addressing and redressing violations of rights established in the CEDAW convention. These procedures are: • A communications procedure through which the CEDAW Committee can review complaints to decide if rights guaranteed by CEDAW Convention have been violated and identify remedies for victims • An Inquiry procedure through which the CEDAW Committee can launch an inquiry into grave or systematic violations on its own initiative.

  11. REPORTING PROCESS

  12. SUMMARY OF SOUTH AFRICA’S REPORTING HISTORY

  13. OBJECTIVE OF THE COMMISSION’S REPORT • To provide additional information indicating the implementation of the recommendation of the CEDAW Committee at the last reporting session(1998) • To assess the South African government’s compliance with and implementation of CEDAW • To highlight some of the shortcomings of the SA government report that was presented at the CEDAW Committee sitting held in January 2011

  14. THE APPLICATION OF ARTICLES 1-5 OF THE CONVENTION NOTE: Articles 1-5 of CEDAW form the general interpretative framework for all of the Convention’s substantive articles. This means, that when implementing Articles 6-16, one has to apply articles 1-5 Article 1: defines discrimination against women Article 2: pursues policy of eliminating discrimination against women and to embody the principle of equality of men and women in the national Constitution and other appropriate legislation. Article 3: ensure full development and advancement of women within political, social, economic and cultural fields guaranteeing the enjoyment of human rights and fundamental freedoms on a basis of equality with men

  15. THE APPLICATION OF ARTICLES 1-5 OF THE CONVENTION Article 4: Acceleration of defacto equality between men and women. Adoption of measures aimed at protecting maternity benefits Article 5: Modification of social and cultural patterns of conduct of men and women with the view of achieving the elimination of prejudices and customary practices based on the idea of inferiority and superiority of either of the sexes.

  16. SOUTH AFRICA’S COMPLIANCE WITH THE CEDAW ARTICLES

  17. ARTICLE 6: SUPPRESSION AND EXPLOTATION OF WOMEN State parties shall take all appropriate measures, including legislation, to suppress all forms of trafficking in women and exploitation of sex work of women. • About 80% persons trafficked are women and girls and 50% are minors under 18 years of age • They are trafficked for many purposes such as; sexual exploitation, unpaid and exploited forced labour in Agriculture, Manufacturing and Construction industries as well as domestic services and organ harvesting • Globalisation of commercial sex has greatly expanded and become integrated with other aspects of modernisation hence commercial sex work requires a constant supply of women and children.

  18. ARTICLE 6: SUPPRESSION ANDEXPLOITATION OF WOMEN • The Prevention and Combating of Trafficking in Persons Act No.7 of 2013 responds to this article as it addresses this form of modern slavery. • The CGE released its position paper and its policy brief advocating for decriminalisation of sex work. The challenge is to get political will in addressing this matter. Recommendation: • Ratification of the Convention on the Rights of Migrant workers and their families to ensure that Migrant workers are protected • The country should develop interventions focusing on providing protection for victims of trafficking and targeting criminals and perpertrators • The Department of Justice is encouraged to speed up the development of a costed National Action Plan on the implementation of Trafficking Act.

  19. ARTICLE 7: POLITICAL AND PUBLIC LIFE State parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men. • The democratic and constitutional dispensation has enabled women to be elevated to central political and public positions. • South Africa must be commended for ensuring that men and women are able to vote in all elections and be eligible for elections in all publicly elected bodies • The CGE commends on the development of the WEGE Bill which heeds to the 50/50 quota system • South Africa has also been commended internationally for the number of female parliamentarians and currently ranked fourth in the world and second in Africa after Rwanda • The CGE found that women’s representation and participation at the level of policy development is still lacking across the board

  20. ARTICLE 7: POLITICAL AND PUBLIC LIFE RECOMMENDATIONS: • Government and private institutions must introduce supportive structures and mentorship programmes focusing on empowering women to ensure their full participation in policy development • The state to fill in vacancies within the judiciary with more female judges

  21. ARTICLE 8: INTERNATIONAL REPRESENTATION AND PARTICIPATION State parties shall take appropriate measures to ensure women, on equal terms with men and, without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organisations • South African Constitution informs its foreign policy and National Gender Policy that gender mainstreaming is an integrated component in all aspects of government work including peace mission abroad. • DIRCO has reported that there is a total number of 2453 employees serving in missions internationally. Women constitute 53% and males 47% • South Africa has very few women in the most senior positions both at the United Nations and the African Union Commission • There is compliance in terms of gender parity principle (302 women and 303 men). At senior level of Head Missions (84 male and 34 Female)

  22. ARTICLE 8: INTERNATIONAL REPRESENTATION AND PARTICIPATION RECOMMENDATIONS: • South Africa should deploy women in the most senior positions both at the United Nations and the African Union Commission

  23. ARTICLE 9: NATIONALITY State parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. State parties shall grant women equal rights with men with respect to nationality of their children. • The South African citizenship as provided by the South African citizenship Act of 1995 can be acquired by birth, descent, and naturalisation • The CGE raises concern regarding the Department of Home Affairs’ practice of denying women who are getting married the right to choose either to retain their maiden surname of to acquire their spouse’s surname. The system automatically changes the women’s surname to that of her spouse (without consultation)

  24. ARTICLE 9: NATIONALITY RECOMMENATION: • CGE recommends that the Department of Home Affairs should afford women the choice in deciding which surname they would like to use as their ultimate identity. CGE recommends that the Department of Home Affairs should afford people who want to change their gender on their identity the right to do so.

  25. ARTICLE 10: EDUCATION State parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education • Education is both a human right in itself and a means of realising other human rights. • Education exhibits the following interrelated and essential features • Availability (education and institutions and programmes have to be available) • Acceptability (substance of education including curricula, teaching methods have to be acceptable) • Adaptability (education has to be flexible and be able to adapt to the needs of changing societies) • Accessibility (education institutions and programmes have to be accessible to everyone)

  26. ARTICLE 10: EDUCATION • The CEDAW Committee during the previous reporting period (2011), commended measures put in place by South Africa such as; the National Infrastructure Management System, the National School Nutrition Programme, Girls Education Movement (GEM), the development of the Guidelines for the prevention and management of sexual violence and harassment in public schools • The CGE is concerned that school governing bodies have been allowed to draft and implement school policies or codes of conduct which at times discriminate against female learners • Teenage pregnancy is most common reason why girl children leave school • There is lack of information on re- enrolment rate after giving birth • Sexual abuse and harassment by both teachers and classmates,

  27. ARTICLE 10: EDUCATION RECOMMENDATIONS: • Strengthen the implementation of re- entry policies enabling young women to return to school after pregnancy across the country • Provide safe educational environments free from discrimination and violence ( safe transportation to/from schools, closely monitor the implementation of the safe schools programme) • Create awareness across the board in schools to ensure that perpertrators of sexual abuse and harassment are prosecuted • Widely disseminate the Guidelines for the Prevention and Management of Sexual Violence and Harassment in public schools • Allocation of necessary budget for the implementation of the various projects and programmes

  28. ARTICLE 11: EMPLOYMENT State parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights • The right to work is a fundamental right and essential for realising other human rights. It contributes to the survival of the individual and to that of his or her family. • Work must be descent as defined by ILO and acknowledged by the UN General Assembly resolution 63/199 March 2009 • The ILO descent work agenda has four key elements: • Creating jobs (generating opportunities for investment, entrepreneurship and skills development) • Guaranteeing rights at work (obtain recognition and respect for the rights of workers) • Extending social protection (promote both inclusion and productivity by ensuring women and men enjoy working conditions that are safe) • Promoting social dialogue (involving strong and independent workers and employers, organisation in order to increase productivity)

  29. ARTICLE 11: EMPLOYMENT • South Africa is commended for implementation of the Employment Equity Act and the establishment of the Employment Conditions Commission to ensure the right to equal remuneration for men and women • The Committee raised the following concerns: • The persistence of discrimination against women in the labour market, in particular the high rate of unemployment affecting women (30%), the wide gender wage gap and occupational segregation • The Committee also regrets that even though the EEA, and EA prohibits discrimination on the grounds of pregnancy, and the BCEA protects maternity leave, there is no provision in domestic legislation for remunerated maternity leave

  30. ARTICLE 11:EMPLOYMENT RECOMMEDATIONS • Ensure equal opportunities for women in the labour market, in accordance with article 11 of the Convention • To adopt effective measures in the formal labour market to eliminate both horizontal and vertical occupational segregation • To review in particular the EEA and the BCEA with a view to ensuring in accordance with international standards

  31. ARTICLE 12: EQUALITY IN ACCESS TO HEALTH CARE State Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on the basis of equality of men and women, access to health care services, including those related to family planning as well as ensuring appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation. • Health care is a human right and it is a widely accepted international principle. • The International Covenant on Economic, Social and Cultural rights emphasises that the State Parties should ensure availability, accessibility, acceptability as well as appropriate and good quality health services for everybody

  32. ARTICLE 12: EQUALITY IN ACCESS TO HEALTH CARE • The DOH complied with the Recommendation 15 on CEDAW by putting in place measures that ensure prevention of HIV/AIDS and other sexually transmitted diseases of women and adolescent girls (GR 15 (b) • The high levels of maternal mortality rates (65/100 000 live births) • That the State continues to face a serious epidemic, and that women and girls are disproportionately affected by HIV/AIDS, as the prevalence among women is higher (13.6 per cent) than among men (7.9 per cent).

  33. ARTICLE 12: EQUALITY IN ACCESS TO HEALTHCARE • The discrepancies among the provinces in the percentage of HIV-positive pregnant women that have access to antiretroviral treatment. • The lack of information on specific measures addressing the intersection between violence and HIV/AIDS risks, given the high levels of sexual violence against women. • The prevalence of HIV-related stigma which places women living with HIV at risk of being subjected to violence and discrimination. RECOMMENDATIONS: • The CGE is concerned about information coming from media articles regarding the existence of FGM in South Africa. We recommend that the DoH and DSD investigate this further and take measures to address these problems. • There is a need of facilitation of the implementation of the National Health insurance NHI for increased access to health care facilities far all South Africans.

  34. ARTICLE 13: SOCIAL AND ECONOMIC BENEFITS State Parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights. • The right to basic social and economic benefits have been firmly established in the human rights discourse as at least as important as other basic rights for many years. • The notion of social security has been so often characterised the push for fundamental socio-economic and political change and the right to basic means for a decent existence • Social security covers a wide range of public an d private measures. Social security is entrenched in the Constitution of South Africa. • This is to ensure the provision of cash or other benefits for persons who are unable to provide for themselves and their dependents.

  35. ARTICLE 13: SOCIAL AND ECONOMIC BENEFITS • Some of such grants which have clear impact on the rights of women and children include: -Older Persons Grant -Disability Grant -Care Dependency Grant -Foster Care Grant -Child Support Grant -Social Relief of Distress Grant • South Africa has also put in place measures within the public and private sector to empower women to participate into the economic sector.

  36. ARTICLE 13: SOCIAL AND ECONOMIC BENEFITS Noting: • Despite the commitment by the Department of Sport and Recreation regarding addressing matters of gender equality, youth development and people with disabilities, the CGE was unable to locate statistical data by the Department which are disaggregated in terms gender and disability. Therefore, it was very difficult to assess the impact of the programmes above without having gender disaggregated data which could clearly exhibit development of gender and disability in South African sport.

  37. ARTICLE 14: SPECIAL HELP FOR RURAL WOMEN State Parties shall take appropriate measures to eliminate discrimination against women in rural areas in order to ensure on the basis of equality of men and women that they participate in and benefit from rural development. • The 2011 census indicate that women constitute the majority population by 51.4% in the country and that the majority of them reside in the rural areas. • 53.5% female headed households are in the traditional areas which is predominantly rural. • The census findings also indicate that men dominate the work sector by 75.7% while women within the work sector constitute only 62.8%. Most of the female headed households are in rural areas are sustained by the income from; grants, social insurance and remittances from the family members migrated to the cities.

  38. ARTICLE 14: SPECIAL HELP FOR RURAL WOMEN • South Africa should be commended for putting in place the measures to empower rural women. • The Department of Rural Development and Land Reform has an objective to have at least one job for every rural household. • The establishment of programmes such as National Rural Youth Service Corporation which is geared towards relieving the situation of rural poverty by providing rural youth with opportunities that will enable them to be employable through skills development. • Organisations such as Humans Science Research Council train young people to run their own enterprises in order to create sustainable jobs within their communities.

  39. ARTICLE 14: SPECIAL HELP FOR RURAL WOMEN • A challenge that is still eminent that affects rural women is long distance to clinics and unaffordable transport costs. • There are also programmes such as Rural Enterprise and Development (REID) Programme that ensures that poor women are included in all the development projects. • Comprehensive Rural Development Programme (CRDP) • Pertinent issues affecting Rural Women entail: • Access to Health Care Facilities • The Right to Social Security • Housing, Sanitation Water, Transport and Communication • Accessibility of Land for Women

  40. ARTICLE 14: SPECIAL HELP FOR RURAL WOMEN RECOMMENDATION: The state, • needs take necessary measures to increase and strengthen the participation of women in designing and implementing local and development plans, and to pay special attention to the needs of rural women, in particular women headed- households by ensuring that they participate in decision making processes and have improved access to health, education, clean water and sanitation services, fertile land and income generation projects • Eliminate all forms of discrimination with respect to ownership, co-sharing and inheritance of land • Address negative customs and traditional practices, especially in rural areas, which affect full enjoyment of the right property by women

  41. ARTICLE 15: EQUALITY BEFORE THE LAW & CIVIL MATTERS State parties shall accord to women equality with men before the law. State parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals State parties shall accord to men and women the same rights with regards to the law relating to the movement of persons and the freedom to choose their residence and domicile • One of the issues that came up under this article was the restriction on women’s contractual capacity, access to credit and capacity with respect to property, limiting women’s ability to provide for themselves and their dependants.

  42. ARTICLE 15: EQUALITY BEFORE THE LAW & CIVIL MATTERS • CEDAW Committee during the last periodic reporting expressed that a number of state parties, South Africa being one of them did not conform to the provisions of the Convention especially on issues that are dealing with family, equality of women in marriage and family relations. • The Committee acknowledged the fact that South Africa is currently undergoing a reform to ensure women’s access to justice and to improve prosecution and conviction of cases related to violence against women in the country. • There was also a concern about the Traditional Courts Bill, which might jeopardize women’s access to justice and equality of treatment before the law.

  43. ARTICLE 15: EQUALITY BEFORE THE LAW & CIVIL MATTERS RECOMMENDATIONS: • Strengthening the Judicial system to ensure that women have effective access to justice e.g. providing free legal aid to women without means. • Discuss on the reviewing of the Traditional Courts Bill and harmonising it with the Constitutional principles relating to non-discrimination and equality between women and men. • Provision of training for judges, lawyers, labour inspectors, NGOs and employers on the application of legislation prohibiting discrimination.

  44. ARTICLE 16: EQUALITY IN MARRIAGE AND FAMILY LAW State parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on the basis of equality of men and women • Some communities still regard the payment of lobola as a requirement for a valid marriage despite the Recognition of Customary Marriages Act (RCMA) RECOMMENDATIONS • DOJ &CD to raise more awareness around RCMA & infrastructure to register these marriages. • CGE should approach parliament around the judgment in the Gumede case, particularly the issue around polygamous marriages. There are no mechanisms in place to track referrals / judgements from the Constitutional Court to Parliament, where the latter has been tasked with addressing emerging issues.

  45. GENERAL RECOMMENDATION 19: VIOLENCE AGAINST WOMEN States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act • CEDAW General Recommendation 19 on Violence against Women views gender-based violence as a form of discrimination that constitutes a serious obstacle in the enjoyment of human rights and fundamental freedoms by women. • The CGE has embarked on an investigation to collect information from various government departments in KwaZulu-Natal (KZN) in an endeavour to ascertain the extent of interventions and policy responses implemented by the provincial government to eradicate the practice and address the violation of rights.

  46. GENERAL RECOMMENDATION 19: VIOLENCE AGAINST WOMEN The CGE was: • concerned that the abduction of girls by men, as well as the associated instances of sexual assault, underage lobola and pregnancy, and resulting drop-out from schooling, constitute a direct violation of girls’ constitutional rights, with a devastating impact on their health, education and future prospects of development. • concerned that while such instances constitute outright criminal acts, in conflict with the South African Constitution, international obligations and domestic legislation, these are being condoned by some stakeholders within the traditional community as a quaint, cultural practice.

  47. GENERAL RECOMMENDATION 19: VIOLENCE AGAINST WOMEN • The predominant cases • Ukuthwala • Witchcraft Incited Rapes and Murders • Femicide • Sexual Violence • Hate Crimes The CGE notes with concern: • That there were no recorded statistics made available from the DOJ & CD and SAPS on GBV broadly. • That GBV is not categorized as a criminal offence. • That there is no costed Action Plan to assist in the implementation of the DVA.

  48. GENERAL RECOMMENDATION 19 ON VAW Recommendations: • Give priority attention to the results of the report of the study, commissioned by the Government and conducted by the Centre for the Study of Violence and Reconciliation, which addresses the prevalence, nature and causes of sexual violence in South Africa (released in November 2010), in order to review the State party’s multi-sectoral action plan to combat violence against women, and expeditiously adopt comprehensive measures to better address such violence, in accordance with the Committee’s General recommendation No. 19; • Raise public awareness, through the media and education programmes, on the fact that all forms of violence against women are a form of discrimination under the Convention, and therefore a violation of women’s rights;

  49. GENERAL RECOMMENDATION 19 ON VAW • Put in place mechanisms of accountability to ensure the implementation of the provisions contained within policies and legislation, such as the Domestic Violence Act and the Sexual Offences Act, to combat violence against women; • Ensure the necessary budgetary allocations for the implementation of the various projects and programmes, including social support services for victims; • Provide detailed information on the causes, scope and extent of all forms of violence against women, disaggregated by age, and urban and rural areas, and on the impact of measures taken to prevent such violence, in its next periodic report. Furthermore, the State should investigate occurrences, prosecute and punish perpetrators, and provide protection, relief and remedies, including appropriate compensation, to victims and their families.

  50. Thank you HAVE A GENDER RELATED COMPLAINT ???? REPORT IT TO 0800 007 709 TwitterHandle @CGEinfo

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