Agenda and other concerned organisations have called on the Minister of Women, Children and Persons with Disabilities to focus attention of the implementation of existing gender inequality legislation before implementing new legislation to mainstream women’s empowerment and gender equality.

An Open Letter submission to the Minister on the Women Empowerment and Gender Equality Bill (WEGE) (2012), raises critical concerns regarding the flaws in the Bill which will make it not only impossible to implement but that could possibly undermine and impede progress towards the achievement of gender equality.

A decision was taken by organisations and gender activists at the Agenda Feminist Dialogue held on 12th April 2013 in Durban, to register the concerns relating to the Bill that were raised during open discussion in an Open Letter to the Minister. Civil society organisations and individuals have added their support to the Open Letter submission sent to the Minister.

The WEGE Bill aims to ensure the equal participation of women in social, political and economic structures of society by providing for women’s empowerment and gender mainstreaming in the public and private sectors and civil society, and eliminating detrimental cultural, economic, social and traditional practices against women. While welcoming the WEGE Bill’s important goals, the Open Letter registers  concern with the flaws in the Bill. The following concerns are highlighted:

 

  • The rights of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) persons, widows and disabled women are ignored, even though it is mentioned in the preamble and the Green Paper that preceded the Bill.
  • It fails to recognise the multi-levels of discrimination based on race, class, and sexual orientation that women face, and how these intersect to create embedded disadvantage for women.
  • The Bill’s good intentions will be defeated through the vague, overbroad and punitive formulation of provisions imposing obligations on ‘entities’ (affected bodies) to take measures to empower women. The Bill provides the Minister the power to penalise offenders of gender equality objectives and it will in effect need to create a super ministry to police offenders who could face a maximum prison sentence of five years. Criminal sanctions are not suited to all instances and it is not clear how it will assist in engendering gender mainstreaming in the long run. Ultimately, these sanctions are not likely to pass constitutional muster.
  • The role of the Ministry as set out in the Bill, duplicates that of other existing mechanisms such as the Commission for Gender Equality (CGE).
  • Further the law will overlap with the law already in place that address gender inequality eg the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), Act  No 4 of 2000, which our courts have used.  Commentators have questioned whether sufficient State capacity exists to monitor compliance with equality plans and progress reports in PEPUDA. Similarly, it is not clear how the Minister will have capacity to monitor compliance in the WEGE Bill, considering her current constraints with human and financial resources.
  • The vagueness of its measures to empower women through equal representation and participation. The provision dealing with quotas are unclear and vague, and although mandatory, the Bill does not provide for an offence for non-compliance. The equal participation and representation clause is based on a ‘progressive realisation’ standard, with no end-date specified.

 

The Minister is urged to rather assess the progress that has been made with the implementation of existing laws that are on the statute book that address gender inequalities.

The concerns raised in the Open Letter reiterate those raised by the Gender, Health & Justice Research Unit, University of Cape Town (GHJRU) in a submission made on the Bill to the Ministry to address gaps in the existing laws, in particular on termination of pregnancy, equality, labour, domestic violence, sexual offences, maintenance and customary marriages that are mostly due to problems with implementation, not a lack of a progressive framework of legislation. The Minister should, therefore, focus on providing active support measures to support these departments and institutions in addressing the gaps (i.e. resource constraints, inaccessible complaints mechanisms and lack of training) instead of needlessly duplicating efforts.

The Open Letter calls on “the Minister to withdraw the Bill in its present form and undertake the gender gap analysis proposed, where after the Minister should re-draft the Bill to address the shortcomings highlighted in our letter and in other submissions put to her.”

It concludes that “In the context of scarce resources and gaps in the implementation of existing gender equality legislation, the proposed WEGE Bill would do little to advance gender equality and would contribute toward the proliferation of ineffective laws.”

 

Agenda is a feminist media project based in Durban now in its 26th year.

 

For more information please contact:

Lou Haysom (Managing Editor of Agenda) 031 3047001

Willene Holness (School of Law, University of KwaZulu-Natal) 081 279 6529

Devina Perumal (School of Law, University of KwaZulu-Natal) 083 777 8416