SADC Protocol on Gender and Development: Parliamentary Legal Services, DWYPD, DHA & DoJ&CS

Meeting report

Upon officially opening the meeting, the acting Chairperson, Ms F Masiko (ANC), welcomed all the Members of the Committee.

Briefing by the Commission for Gender Equality (CGE)
Ms Jamela Robertson, Chief Executive Officer (CEO), CGE, indicated that although there was room for improvement, South Africa was responsive to hate crime concerns including issues concerning the LGBTQI community. The CEO highlighted that although efforts were made to respond to issues of child marriage, also known as ukuthwala, through legislation, there was still a gap in implementation. She emphasised the legal opinion from the Department of Justice about the scrutiny of the legislation’s wording concerning child marriage to ensure that it is clear about the protection of children’s rights per the Constitution of the Republic of South Africa.

Parliament briefing: SADC Protocol on Gender and Development Agreement Amendment
Dr Barbara Loots, Parliamentary Legal Advisor, provided the opinion from parliamentary legal services on whether the amended Protocol stood in conflict to SA’s domestic laws. She said that the amendments were generally not controversial, and her office had agreed with the August 2018 opinion of the Office of the Chief State Law Advisor, which was provided to the Committee, pointing out that most of the Articles were not going to change the substance of the SADC Protocol. However, she indicated that they also shared the concern that there were three articles where there is a shift in focus on how to approach the prohibition of child marriages.

Dr Loots outlined that Article 8 of the Protocol, which specified that no person under the age of eighteen years shall be married unless specified in law, was in alignment with South Africa’s domestic law. Further, she indicated that the amendment in Article 11 would obligate member states not only to prevent but to eliminate child marriages. This also included the amendment in Article 20 which will have the same obligatory provision for member states to develop strategies to eliminate, among other things, child marriage.  She highlighted that if these amendments were signed, they will conflict with domestic law; hence there should be a review of domestic law concerning child marriages with a report to the National Assembly which will express the Committee’s reservations relating to Articles 8, 11, and 20 which fall under the mandate of the Department of Home Affairs.

Discussion
The Chairperson requested advice on how the Committee should proceed with such a matter given the implications that are highlighted.

Dr Loots responded that the Committee should ensure that its reservations in the report to the National Assembly are noted to facilitate a cooperative approach.

Mr L Mphithi (DA) asked what the position of the Committee was with regards to the recommendation made by Legal Services.

The Chairperson responded by indicating that the Committee would adopt some of the amendments, but for the three Articles, which are out of the Committee’s scope, there will be reservations.

Department of Women, Youth and Persons with Disabilities (DWYPD) briefing on the Agreement amending the SADC Protocol on Gender and Development
Ms Ranji Reddy, Chief Director: Policy and Research, DWYPD, indicated that on 7 August 2018, the Department received certification from the Department of Justice’s Office of the Chief State Law Advisor who indicated that the agreement was compatible with South Africa’s domestic laws. The agreement was also submitted to the Department of International Relations and Cooperation (DIRCO) for certification to ensure its consistency with international law. However, DIRCO indicated that the legislation was going to impact South Africa’s domestic legislation; advising the DWYPD to submit the agreement to Parliament for approval before the President could sign the amendments.

Ms Reddy indicated that Article 4 was amended by inserting paragraph 2 outlining that state parties shall develop and strengthen specific law, policies, and programs to achieve gender equality and equity. 

• Article 5 was amended by replacing affirmative action with special measures;
• Article 8, which is under contention, was amended without any clauses that “no person under the age of 18 shall marry”;
• Article 10 was amended to include widows and widowers’ rights unlike the previous one which was focused only on women;
• Article 11 obligates States to adopt laws, policies and programs to ensure the development and protection of the girl and boy child by eliminating all forms of discrimination against them, ensuring that they have equal access to education and healthcare;
• Article 12, paragraph 1, was amended to outline that State parties endeavor in ensuring equal and effective representation of women in decision-making positions;
• Article 14 was amended to include that State parties shall enact laws that promote equal access to retention and completion in early childhood education;
• Article 16 was amended to read: “State parties shall adopt policy measures to promote shared responsibility between men and women within the household and family”;
• Article 17 was amended to include State parties’ responsibility to undertake reforms to give men and women equal rights and opportunity to economic resources;
• Article 19 was amended to outline that State parties shall review, amend, and make laws that ensure equal access to wage employment for women and men;
• Article 20, paragraphs 1 and 5, were amended to outlined that State parties shall enact and enforce legislation prohibiting all forms of gender violence;
• Article 25 was amended to outline that State parties shall adopt integrated approaches with the aim to eliminate gender-based violence. This included  the amendment of part 7 of the Protocol to  include sexual and reproductive health and rights;
• Article 26 was amended to indicate that State parties shall adopt and implement legislative frameworks, policies, programs, and services to ensure gender sensitive healthcare;
• Article 27 on HIV/AIDS was amended to ensure that State parties take necessary steps to adopt and implement gender sensitive policies and programs;
• Article 28 was amended to allow State parties to enact legislation and national policies and strategies to prevent and address gender discrimination in the media. Ms Reddy further indicated the insertion of part 10 into the Protocol obligated State parties to adopt measures to address the impact of climate change and environmental degradation.
• Article 33 (paragraph one) was amended outlining gender-sensitive and responsive budgets and planning to ensure that it included the empowerment of women and girls.

Ms Reddy recommended that it was not advisable to put reservations on an international instrument. The SADC Protocol and the amendment for the elimination of child marriages was a process that would likely be sorted out in terms of South Africa’s domestic legislation, thus placing a reservation on the Articles would paint an unpleasant diplomatic image.

Discussion
The Chairperson requested Ms Reddy to provide feedback on the outcomes of the consultations made with the relevant departments.

In response, she indicated that they had engaged with the Department of Home Affairs on the amendment of legislation which saw the Minister of Home Affairs’ release of a media statement about the possibility of bringing all the marriage acts together into a single marriage bill and the elimination of child marriages, including the subsequent development of the policy by the Department of Home Affairs through an Issue Paper by the South African Law Reform Commission.

Ms Nondumiso Ngqulunga, Director: Legal Services, DWYPD, and Ms Shoki Tshabalala, Deputy Director-General, DWYPD, further responded that the recommendations made for the amendment of the legislation that prohibits marriage for children under eighteen years was accepted by the Minister of Home Affairs.

Ms N Maseko-Jele (ANC) asked whether these amendments were not an opportunity to be clear about the issue of equality, thus making it a 50/50 requirement instead of aiming to broadly increase the number of women.

Ms Reddy responded that these texts were negotiated, and they were closed after the adoption of the amendments by the ministers responsible for women and gender affairs in the Member States. Thus, South Africa was unable to insert further clauses as this was a matter of agreement, compromise, and renegotiation. She further indicated that although South African domestic laws could still promote the 50% clause, other countries expressed their difficulties in working towards it.

Briefing by the Department of Justice and Constitutional Development (DoJ&CD)
Ms Tandeka Lujiza, Chief Director: International Legal Relations, DoJ&CD, highlighted the conflict between SA domestic law, which does not prohibit  marriages by people under 18 years of age outright, and the proposed Article 6(a) of the Amendment Agreement, which prohibits marriages by persons under the age of 18, is addressed by the Department of Home Affairs Green Paper on Marriages in SA. This brings SA legislation in line with the amended Protocol. The DoJ&CD proposed that the law advisors of the Department of International Relations and Cooperation (DIRCO) be approached for an opinion on (i) whether S.A can enter a reservation on the provisions in conflict with the current laws of the Republic. This can be done in two ways: Parliament’s approval must include such a reservation and it must be accepted by SADC (ii) whether S.A can sign the Agreement whilst the domestic conflict has not yet been finalised
Discussion
The Chairperson asked the DWYPD whether the proposal from the Department of Justice on the consultation of DIRCO’s State Law Advisors had taken place or not.

Ms Ngqulunga confirmed that there was a consultation with the Department of Justice, including a legal opinion from DIRCO which was submitted to Parliament.

Ms W Newhoudt-Druchen (ANC) asked if the State Law Advisors were present to clear up whether South Africa could sign the agreement while there were still domestic conflicts which have not been finalised. She also asked if there has been a case in the past where South Africa has adopted an international instrument with or without a reservation.

Mr L Mphithi (DA) agreed with the comments made; he asked about the procedure for the Protocol’s approval when it conflicts with domestic laws.

Ms Ngqulunga sought clarity on the use of the phrase “in conflict,” indicating that she did not believe it conflicted but was, rather, “inconsistent”.

Ms Lujiza commented that such terms could be used interchangeably as they implied the same meaning.

Ms P Sonti (EFF) suggested that the issue of child marriages required interventions to focus on parents because they are often the ones to consent to their children getting married due to various issues, such as poverty.

Briefing by the Department of Home Affairs: Draft White Paper on Marriages in SA
Mr Muzi Njoko, Director, DHA, provided an update on the proposed changes to the marriage policy and legislation with specific focus on child marriages. He looked at the provision for child marriages and stakeholders consulted in this regard.

Mr Njoko outlined that there was a dialogue between the Minister of Home Affairs and various stakeholders including religious and traditional leaders, and human and children’s rights activists, with a unanimous agreement that children under the age of eighteen should not be permitted to enter marriages irrespective of parental consent or the Minister’s approval. Therefore, the legal capacity to enter a marriage contract involves the person being at least eighteen years of age. 

Ms Newhoudt-Druchen asked whether the Marriages Act had not amended the age to consent from sixteen years to eighteen years for girls like the Children’s Act.

The Chairperson also asked for timeframes as to when the process could be concluded.

Ms N Sharif (DA) asked what the mitigating strategy put in place to prevent child marriages was. She further asked how the department’s White Paper considers traditional and customary marriage laws looking into different religions where underage marriage could be considered legitimate.

In response to the issue of not amending the Marriages Act in terms of the age of eighteen years, Mr Njoko reminded the Committee that originally, South Africa had several pieces of legislation governing marriages and most have been in conflict when it comes to the issue of child marriages, hence the proposal to have a single marriage policy.

The Chairperson asked what the Department of Home Affairs planned in terms of programmes that seek to educate communities on child marriages.

Mr Njoko indicated there were no programs as such, but the Department had consulted with different stakeholders as far as the marriage policy was concerned, with a shared opinion to increase the age acceptable for marriage to 18 years.

Ms Maseko-Jele expressed concern that Mr Njoko’s responses did not give assurance that the Department was serious about such issues.

Ms Sharif also indicated that there seemed to be no alignment of the Department’s presentation in terms of the prohibition of marriage for girls under eighteen and the legal opinion that was shared with the Committee stating that there was no outright prohibition of young children getting married under the age of eighteen.

She also asked how there could be a balance between our democracy and the traditional and religious sectors of South Africa.

Mr Njoko assured the Committee that the Department was responding to child marriages and gender-based violence in the country.

Ms T Masondo (ANC) wanted to know about the urgency required to approve the SADC Protocol on Gender and Development.

In response, Ms Reddy indicated that South Africa was already late, therefore stalling the signing of the Agreement by the SADC Heads of State – it was embarrassing. She recommended that the Committee should consider the timing as there is a small extension of time in terms of providing SADC with the response from the Parliament. SA had always been active in influencing the Protocol but was now stalling.

Ms Xolani Khumalo, DWYPD, pointed out that many countries ratified progressively without their domestic laws complying; and with South Africa, it was better because discussions on amending the legislation had already started. Therefore, she recommended that sending it back to DIRCO was pointless.

The Chairperson proposed that the agreement to the amendment be deferred. This was supported by the Committee, in order to allow the DHA to iron out the issues that had been raised. The opinion would be requested from the state legal attorney and the Committee would report to the National Assembly.

Adoption of Committee Minutes
Committee minutes dated 23 November 2021
The minutes were considered and adopted. 

The Chairperson adjourned the meeting.