MEMORANDUM ON THE OBJECTS OF WOMEN EMPOWERMENT AND GENDER EQUALITY BILL, 2013

INTRODUCTION

The draft Women Empowerment and Gender Equality Bill, 2013 ("Bill"), was drafted by the Department of Women, Children and People with Disabilities (the "DWCPD"). to promote equality perspectives in relation to women and to identify and prevent discrimination against women on the basis of gender and race.

2. BACKGROUND

2.1 Under section 1 of the Constitution the founding values of the democratic state of the Republic of South Africa are human dignity the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism. Section 2 of the Constitution provides that obligations imposed by the Constitution as the supreme law of the Republic must be ful tilled.

2.2 Section 9 of the Constitution creates the basis for the obligation of the public sector, the private sector and civil society to eliminate and remedy gender and race inequalities. Section 9(2) of the Constitution guarantees the full and equal enjoyment of all rights and freedoms by people of all genders. Section 9(2) of the Constitution furthermore provides that legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination, may be taken to promote the achievement of equality.

2.3 Section 9(3) and (4) of the Constitution prohibit unfair discrimination by the state or another person against anyone on the ground of gender, race and other factors. Based on section 9(3) and (4) of the Constitution legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No.4 of 2000), the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997), the Employment Equity Act, 1998 (Act No. 55 of 1998), and the Preferential Procurement Policy Framework Act, 2000 (Act No. 4 of 2000), seek to prevent and prohibit unfair discrimination on the basis of, inter alia, race, class, gender and people with disabilities and to promote equality.

2.4 Based on section 9(2) of the Constitution, legislation such as the Employment Equity Act, 1998 (Act No. 55 of 1998), and the Broad Based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003), seek to provide for the implementation of affirmative action programmes aimed at advancing blacks, women and people with disabilities.

2.5 In 2000, Cabinet adopted the South African National Policy Framework for Women's Empowerment and Gender Equality. 2000 (Policy Framework), which provided for the establishment of the National Gender Machinery (NGM1 The NGM is a network of coordinated stmctures within and outside government which operate cooperatively in facilitating political, social, economic and other forms of transformation to dismantle systemic gender inequality and promote equality between women and men. Since the adoption of the NGM model, there have been a number of developments in the operations of government and societal behaviour. This has led to calls for a re-look at the model with emphasis on the highest executive coordination point hence the call for a dedicated women's ministry.

2.6 In view of continued inequalities and poverty faced by women and governance challenges in mainstreaming gender as well as the need to update the Policy Framework, the Islinistry initiated a review of the Policy Framework with the intention to develop a National Gender Policy. At consultations in the revision phase, women called for a binding legal framework that will ensure that all the entities to whom legislation on gender equality applies. comply with its requirements.

14 2.7 His Excellency, Mr GJ Zuma, President of the Republic of South Africa announced the Ministry of the Department of Women, Children and People with Disabilities (the "DWCPD"), on 10 May 2009, with subsequent proclamation on 7 July 2009 (Government Gazette No. 32387, Proclamation No. 48 of 2009).

2.8 At the National Women's Day celebrations on 9 August 2009, the President magnified the DWCPD's role, stating that the Ministry will "monitor other government departments to ensure the mainstreaming of gender, children's rights and disability considerations into all programmes of government and other sectors".

2.9 The President reiterated in his State of the Nation Address in February 2010, the need to integrate gender equity measures into government's programmes of action to ensure that women, children and people with disabilities can access developmental opportunities.

3. OBJECTS OF BILL

3.1 It is submitted that the proposed legislation does not aim to create new anti-gender discrimination legislation; however, its aim is to introduce measures and targets to strengthen existing legislation on the promotion of women empowerment and gender equality. The proposed legislation castes forward the constitutional vision of equality by requiring the development and implementation of plans and measures to redress gender imbalances and to submit those plans and measures to the Minister for consideration, evaluation and guidance.

3.2 Based on section 9 of the Constitution and with reference to sections 25(1c)(ü), and 28 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000) (the date of commencement which still needs to be proclaimed), read with section 2 of that Act, the Bill seeks to establish a legislative framework- (a) to provide the Minister of Women, Children and People with Disabilities (the "Minister"), with the necessary governance authority to monitor, review and oversee gender mainstreaming, the promotion of women empowerment and equal representation and meaningful participation of women in all decision-making positions and structures;

(b) for the protection and advancement of women and girl children, as envisaged by section 9(2) of the Constitution, through- (i) public education on prohibited practices that discriminate on the grounds of gender;

(ii) supporting and reinforcing the rights and remedies contained in applicable legislation, policies and mechanisms on the empowerment of women and the promotion of gender equality;

(iii) enhancing capacity for the implementation of applicable legislation through development of integrated strategies, frameworks, programmes, plans, activities and budgets which aim to eliminate structural and systemic inequalities and to enable women to gain power and control over decisions and resources that determine the quality of their lives in a sustainable manner;

(iv) advancing, developing, promoting and protecting the rights of women through capacity building and training, lobbying, advocacy, awareness raising, empowerment and monitoring of compliance by all entities;

(y) facilitating capacity building and the development of strategies for the implementation of gender mainstreaming and gender budgeting;

(vi) facilitating compliance, quality and timeous reporting on the country's commitments to international treaties; and (vii) the prohibition of all forms of practices with adverse effects on women.

15 4. EXPLANATORY NOTES

4.1 Preamble

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South Africa's commitments to the promotion of gender equality and prohibition of discrimination on the basis of gender.

4.2 Clause 1

Clause I provides for definitions.

4.3 Clause 2 (Application of Bill)

Cause 2 provides that unless otherwise indicated in the Act, the Bill applies to designated public bodies and designated private bodies.

4.4 Clause 3 (Objectives of the Bill)

Clause 3 provides for the following objectives:

• To give effect to sections 1 and 9 of the Constitution;
• to provide for compliance with international agreements;
• to align laws and implementation of laws with this Act, . to provide for the development and implementation of plans by designated public bodies and designated private bodies to promote women empower ment and gender equality; and . to provide for implementation of measures to facilitate the progressive realisation of a minimum of 5OŠ representation of women in decision making positions and structures 4.5 Clause 4 (Education and training)

Clause 4 provides that designated public bodies and designated private bodies must develop and implement plans and measures to ensure access to education for all, to address the continued discriminatory practices, and ensure that the education programmes equip women with the requisite knowledge, skills and values to enable women to participate in the economy and all structures.

4.6 Clause 5 (Access to health care, including reproductive health)

Clause S provides that designated public bodies and designated private bodies must develop and implement a model for delivering women's health, including reproductive health.

4.7 Clause 6 (Public education on prohibited practices, including gender based violence)

Cause 6 provides that designated public bodies and designated private bodies must develop and implement plans and measures to educate the public on practices that unfairly discriminate on the grounds of gender, including gender based violence, in compliance with the applicable legislation and internarional agreements.

Cause 6(2) provides that the Minister may establish mechanisms to undertake research. educational programmes and other measures to strengthen the efforts of designated public bodies and private bodies.

4.8 Clause 7 (Equal representation and participation)

Clause 7 provides that despite any other law, designated public bodies and designated private bodies must develop and implement measures in order to achieve the progressive realisation of at least 50 percent representation and meaningful participation of women in decision making structures.

Furthermore, clause 7(2) provides that despite any other law, all political panics must develop and implement measures in order to achieve the progressive realisation of at least 50 percent representation and meaningful participation of women in decision making structures.

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Extract:

Equal representation and participation

7. (1) Despite any other law, designated public bodies and designated private bodies must, within their ambit of responsibilities and available resources, develop and implement measures, in order to achieve the progressive realisation of a minimum of 50 per cent representation and meaningful participation of women in decision-making structures including Boards, which must include-

(a) building women's capacity to participate;

(b) enhancing the understanding and attitudes of communities to accept the capabilities and participation of women as their equals; and

(c) developing support mechanisms for women.

(2) Despite any other law, all political parties must develop and implement measures for the progressive realisation of a minimum of 50 per cent representation and meaningful participation of women in decision-making positions and structures.

(3) The Minister may develop guidelines to assist designated public bodies and designated private bodies to comply with subsection (1).

(4) Designated public bodies and designated private bodies must submit to the Minister their plans and measures in compliance with subsection (1) within one year of being designated, for consideration, review and guidance.

(5) The Minister may, at any time after the submission of the plan or measures contemplated in subsection (2), require a designated public body or a designated private body to submit to the Minister a report on its implementation of subsection (1), for consideration, review and guidance.

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4.9 Clause 8 (Gender Mainstreaming)

Clause S provides for implementation of gender mainstreaming and the submission of plans to the Minister by the designated public bodies and designated private bodies within a year of being designated.

4.10 Clause 9 (Measures to empower women and to eliminate discrimination)

Cause 9 provides that despite any other law, targets on women and men in all laws and policies on empowerment shall be at least 50% women;

It provides that all designated public bodies and designated private bodies must develop and implement plans and special measures to protect and advance women as a category which has been disadvantaged by unfair discrimination.

4.11 Clause 10 (Economic Empowerment)

Cause 10 provides that despite any other law, targets on women and men in all laws and policies on economic empowerment, shall be at least 50% women.

It further provides that designated public bodies and designated private bodies must develop and implement plans and strategies to align their laws and policies with subsection (1) within two years of being designated.

4.12 Clause 11 (Socio-economic empowerment of women in rural areas)

Clause 11 provides for special measures for the socio-economic development for women in rural areas.

4.13 Clause 12 (Socioeconomic empowerment of women with disabilities)

Clause 12 provides for special measures for the socio-economic development for women with disabilities.

4.14 Clause 13 (Powers of Minister)

Clause 13 provides for the role of the Minister to promote and coordinate the achievement of women empowerment and substantive gender equality.

4.15 Clause 14 (Guidance by Minister)

Cause 14 provides that the Minister may; in consultation with the relevant Minister, provide guidance to the designated public bodies and designated private bodies co promote women empowerment and gender equality.

4.16 Clause 15 (Gender Units and Accountability)

Clause 15 provides that every designated public body must within a period of three years from the commencement of this Act, establish a Gender Focal Point and appoint suitable personnel at an SMS level as prescribed and resource it appropriately;

It also provides that the Accounting Officers of the designated public bodies and designated private bodies are accountable for the mainstreaming of gender.

4.17 Clause 16 (Enforcement)

Clause 16 provides that subject to the Intergovernmental Relations Frame work Act, 2005 (Act No. 13 of 2005), the Minister, acting in the interests of women as a group or class of persons. may use any dispute resolution mechanisms to address non-compliance with this Act 4.18 Clause 17 (Code of good conduct)

Clause 17 provides that the Minister may; by notice in a Gazette, publish a code of good conduct on gender mainstreaming and women empowerment.

4.19 Clause 18 (Framework)

Cause 18 provides that the Minister may develop a framework on gender mainstreaming and women empowerment.

4.20 Clause 19 (Regulations)

Cause 19 provides that the Minister may develop regulations.

4.21 Clause 20 (Delegations)

Clause 20 provides that the Minister may delegate any power conferred, or assign any duty imposed upon the Minister in terms of this Act, except the powers and duties contemplated in sections 14, 17, 18 and 19.

4.22 Clause 21 (Short title)

Clause 21 contains the short title of the Bill.

Schedule 1: Applicable legislation.

5. BODIES CONSULTED

In August 2011, the DWCPD hosted the National Women's Conference at Birchwood in Johannesburg. After this Conference a number of consultative meetings and workshops were conducted with various organs of state and the private sector. Further, the Bill was published in the Government Gazette on the 29 August 2012 for public comments. Comments were received from organs of state, private sector and individuals respectively; which included- • government departments;

• the South African Law Reform Commission:
• the Office of the Premiers of Gauteng and Free State;
• the Commission for Gender Equality;
• the Progressive Women's Movement of South Africa;
• the Human Sciences Resource Council;
• the Women's Legal Centre;
• Price and Waterhouse Coopers;
• Telkom;
• the Gender Health and Justice Research Unit, University of Cape Town; and Nedlac.

6. FINANCIAL IMPLICATIONS FOR STATE

6.1 The approved organisational structure of the DWCPD provides for monitoring and evaluation of sub-programmes within the Programmes: Women Empowerment and Gender Equality, Children's Rights and Responsibilities and Rights of People with Disabilities. The strategic objectives of these sub-programmes are to monitor and evaluate progress on women empowerment and gender equality, the realisation of children's rights into government's policies and programmes and the progressive realisation of the rights of people with disabilities.

6.2 In terms of the Policy Framework of 2000, all government Departments have gender units even though at different levels. The financial implications of implementing the required structure are therefore already incorporated in the lv Tedium Term Strategic Framework budget processes of all departments.

Provinces had already incorporated the budget on the National Gender Machinery through the Provincial Offices on the Status of Women. Similarly; local governments have established gender units which should thus already be in the finance structures of the local governments.

6.3 In view of the fact that the proposed legislation does not aim to create new anti-gender discrimination legislation. or additional mechanisms to enforce existing legislation and policies, it is submitted that the Bill will not have significant direct financial implications as all the above mentioned structures are supposedly already in place and funded.

7. PARLIAMENTARY PROCEDURE

7.1 The State Law Advisers and the Department are of the opinion that the Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution, since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.

7.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 1 S(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.

The full text of the Bill can be found here.

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