Gender equality legislation under review

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On 19 April, the Ministry for Women, Children and People with Disabilities convened a consultative meeting with representatives from the national gender machinery – the Commission for Gender Equality, government departments, municipalities, and civil society organizations – to deliberate on the much anticipated Gender Equality Bill.  The Ministry had previously announced in Parliament that such legislation is on the cards, and a green paper discussion document to this effect has now been finalized, for consultative meetings in all of the provinces, and tabling at a national women’s conference set for mid-year.

The green paper refers to the progress attained in South Africa in establishing a legislative and policy framework for advancing gender equality and women’s empowerment.  This includes key legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act, legislation addressing domestic violence and sexual offences, and the National Policy Framework for Women’s Empowerment and Gender Equality, which establishes the national gender machinery, and provides for gender mainstreaming to be undertaken by all government entities.

Despite these policy gains, however, critical voices within government and the women’s movement have noted the many challenges experienced by women in achieving substantive equality – in light of the very real discrimination experienced by women in the personal and public domains, and the sense that women are still denied their Constitutional guarantees of equality at significant levels.  The green paper acknowledges these challenges, which range from information, knowledge and skills required by women to assert and claim their rights, inadequate resourcing and implementation of gender equality measures by the state, the lack of legally binding gender equality obligations on public and private sectors, and the lack of coordination between stakeholders in this sector.

The green paper further details instances of persistent inequality and discrimination against women, including the black economic empowerment terrain, hate crimes against lesbians, patriarchal attitudes and customary practices, gender-based violence, and discrimination in the workplace.  The green paper states that the overarching purpose of the Bill will be to ensure equal treatment of women, promote gender equality for men and women, and provide clear prohibitions on discrimination based on sex, in the private and public sectors.  This latter point would ensure South Africa’s compliance with requirements of the United Nations’ CEDAW committee, in developing a legal definition of discrimination compatible with this Convention.

Amongst the objectives of the Gender Equality Bill is the intention to address gaps, challenges and inconsistencies in current policy and legislation, which will require a review of this framework.  The Bill will further ensure the legal and binding status of equality and non-discrimination measures, and put in place timeframes and penalties for non-compliance.  The Ministry also intends enforcing the application of gender mainstreaming across all spheres of government – a project which has largely been viewed as a failure, with departments and municipalities routinely demonstrating a failure to adequate conceptualise and implement gender mainstreaming measures – the engendering of all policies,

programmes and budgets to ensure these meet the different needs of men and women – as opposed to merely putting in place “women’s empowerment” programmes with negligible impact.

The Bill further seeks to entrench in law gains made in the courts in challenging the customary law principles of primogeniture, male ownership of land, and certain harmful practices such as ukuthwala (abduction of women for forced marriage), and ukungena (substitution of a male family member upon the death of a husband).  The Bill will also anchor conditions of employment in the form of equal pay for work of equal value, maternity benefits for all categories of working women, and paternity leave.  A further key component is that of 50/50 – the notion of gender parity in leadership – with the Bill seeking to identify mechanisms and accountability to ensure women’s equal representation in positions of leadership.  The private sector, which has recently been castigated by the CGE, the Employment Equity Commission and the Businesswomen’s Association of South Africa for the slow pace of gender transformation, will be legally obliged to promote equality between men and women in the workplace.

In the main, this Bill is sure to be welcomed by gender activists, who have expressed concern at the lack of legally binding measures to ensure the objectives of the National Policy Framework for Women’s Empowerment and Gender Equality are implemented.  Likewise, the proposed measure will go a long way towards responding to long-standing critique at the lack of accountability for failure to implement gender equality obligations at the level of government and business, and religious and customary institutions.  By putting in place a coherent, enforceable policy framework, we can hope to see constitutional guarantees of equality and non-discrimination, and state commitments to ensure the attainment of rights, translated into a significant, practical transformation in the lives of women.

There will be concerns, however, that the Bill cannot seek to address all the challenges impacting on women, from their personal lives at home, to perceptions and practices within their communities, and discrimination encountered on a daily basis.  In addition, South Africa has already put in place legislative measures to address sexual offences and domestic violence against women, as well as ensure equality in the workplace.  Persistent systemic weaknesses however undermine these legislated gains, and there is skepticism that an additional gender equality measure, albeit legislated, cannot correct this.  This includes failure on the part of the state to ensure compliance with existing legislation, inadequate budgeting for the implementation of legislated interventions, the lack of capacity within state institutions to implement and monitor such measures, and the inadequate resourcing of gender equality institutions, such as the CGE and the Women’s Ministry.  Whether gender equality legislation can fix these inherent deficiencies remains to be seen, as these require political will, accountability at Ministerial level, and substantive reform of state institutions.  It cannot be disputed, however, that gender activists will welcome this pro-active intervention by the Women’s Ministry, which has been criticized since its inception for being invisible at best and dysfunctional at worst. 

Janine Hicks, Commissioner with the Commission for Gender Equality