Progress made on SADC Protocol on Gender and Development and amending Article 20(1) of the CEDAW: DWYPD & DIRCO Input

Meeting report

Briefing by the Department of Women, Youth and Persons with Disabilities on its responses to the SADC Protocol on Gender and Development

Ms Mikateko Maluleke, Director-General (DG), Department of Women, Youth and Persons with Disabilities (DWYPD), took the Committee through its presentation.

Article 8 sub-paragraph (a) of the Southern African Development Community (SADC) Protocol on Gender Development has been amended to provide for the outright prohibition of underage marriages. The new text read as follows: “No persons under the age of 18 shall marry”. South African marriage law and policy currently permit persons under the age of 18 to get married. The implications of the amendment for South Africa was that South African domestic law would need to be amended to make it consistent with the amended Protocol. In June 2022 in Malawi, the SADC Meeting of Ministers of Gender and Women’s Affairs noted that South Africa and Mauritius were the only SADC member states that had not signed the agreement amending the Protocol. It was however mentioned that Mauritius had already amended its legislation and was ready to sign and ratify the SADC Protocol on Gender and Development. South Africa had requested a number of extensions on past deadlines for signing the agreement. Only the National Council of Provinces (NCOP) has been able to approve the amendment so far.

The Department requested that the Committee support the adoption of the report for signing the agreement amending the Protocol and expediting the process of obtaining the resolution of the National Assembly to sign the agreement, in line with Section 231 of the Constitution. It was anticipated that, subject to parliamentary approval, South Africa would sign the agreement by no later than August 2023.

(please see presentation for further details)

Briefing by the Department of International Relations and Cooperation on its responses to the SADC Protocol on Gender and Development

Mr Zane Dangor, DG, Department of International Relations and Cooperation (DIRCO), said that DIRCO had changed its legal position concerning the amendment to Article 8. DIRCO supported the amendment, and it was imperative that South African domestic law be brought into line with the Protocol and the South African Constitution.

Adv Andre Stemmet, State Law Advisor: International Law, recalled that according to a previous legal opinion, becoming party to the agreement to amend Article 8 would create a conflict between domestic law and South Africa’s obligation under international law to outrightly prohibit marriage by persons under 18. In light of policy considerations, a further legal opinion has been requested. According to the later opinion, the amended Article would not automatically become part of South African domestic law, as it would still need to be enacted. The agreement to amend the Protocol would still be binding on South Africa however, and there was thus an urgent need to amend the relevant domestic legislation.

(please see presentation for further details)

Discussion

Ms F Masiko (ANC) observed that this matter had been before the Committee for a while. All the other departments that had presented on the SADC Protocol were in agreement. The only thing preventing adoption of the report had been DIRCO’s concerns. DIRCO had now given the Committee the green light. She moved for the adoption of the report.

Ms M Hlengwa (IFP) seconded the motion to adopt the report.

Ms B Marekwa (ANC) said that it would be a great idea for Africa as a whole to have agreed to these instruments and signed them. It should ensure that young women did not find themselves in abusive marriages, and curb the trafficking of young women across the continent. She reiterated that these instruments should be enforced together as an African continent.

Briefing by the DWYPD on amending Article 20(1) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Ms Maluleke took the Committee through its presentation.

Article 20(1) of CEDAW currently limits meetings of the CEDAW Committee, a body of experts on women’s rights from around the world, to a period of not more than two weeks annually, despite the increased workload of the Committee due to the increasing number of the states ratifying the Convention. The proposed amendment sought to introduce a procedure that would allow for a more flexible time allocation for the meetings of the Committee. The proposed amendment replaced the words “not more than two weeks annually” with: “The Committee shall normally meet annually to consider the reports submitted in accordance with article 18 of the present Convention. The duration of the meetings of the Committee shall be determined by a meeting of States parties to the present Convention, subject to the approval of the General Assembly.” The Department requested Cabinet’s approval to table the proposed amendment to Article 20 (1) of the Convention on the Elimination of All Forms of Discrimination against Women in Parliament in terms of section 231(2) of the Constitution.

(please see presentation for further details)

Briefing by the Department of International Relations and Cooperation on amending Article 20(1) of the Committee on the Elimination of Discrimination against Women (CEDAW)

Mr Dangor said that it would not be necessary for DIRCO to go through its presentation as DWYPD’s presentation had covered its contents. The amendment was of a technical nature. He added that DIRCO agreed with the process that DWYPD had outlined.

(please see presentation for further details)

Discussion

The Chairperson had connectivity issues and Ms Masiko took over as Acting Chairperson.

Ms Marekwa noted in the process map that by November 2021, only 20 State Parties had accepted the amendment, whereas 126 State Parties were required to accept the amendment to bring it into force. Has there been any change since then?

Ms Maluleke replied that this information had come from the Committee itself. DWYPD had not checked whether it had changed or not. Perhaps DIRCO had more recent information. She pointed out that South Africa’s acceptance of the amendment depended on how many other countries had accepted it.

Mr Dangor said that DIRCO would update the Committee on the matter. He said South Africa must also sign because it would increase the number and bring it closer to the threshold. The amendment had been in the office since 1995 and there was some increased pressure to ensure that it is passed.

Ms T Masondo (ANC) moved for the adoption of the report.

Ms Hlengwa seconded the motion.

Ms Masiko asked whether the Departments had engaged with parliamentary legal services on the next stage of the procedure.

Mr Dangor said that there had been but these should be increased.

Ms Maluleke said there had been engagements with parliamentary legal services when opinions differed, but there has not been an engagement with DWYPD regarding the CEDAW in particular. She encouraged DIRCO to have such engagements.

Ms Masiko said there should be these kinds of engagements with the parliamentary legal services.

Ms Nthabiseng Malefane, Director: Director: Vulnerable Groups, DIRCO, said there had been engagements with parliamentary legal services in the past. Normally, there were arrangements to hold briefings on the implications of international conventions. In the past, there had been engagements on the Convention on the Right of the Child.

The Chairperson returned and thanked both Departments for their presentations.

The meeting was adjourned.