I am pleased to be able to publish the Discussion Paper on Gender Policy Considerations for the Department of Justice. It has been developed by the Gender Unit over a number of months and has already benefited from consultation within the Department.
The document is intended to elicit ideas and comments from civil society, NGO's, research units and other governmental departments and structures and to establish a framework for policy formulation.
The Department is strongly committed to finalising and implementing a gender policy. It is critical that the policy truly reflects the needs and aspirations of our diverse community. Justice must be dispensed fairly, efficiently and in a manner which treats the people of this country with respect and dignity. A well informed gender policy is an essential ingredient in achieving this result.
We look forward to receiving and reviewing your submissions.
Dr M E Tshabalala-Msimang
Deputy Minister of Justice
Please forward written submissions by 25 July 1997 to:
Mrs Z Moletsane
Department of Justice
Private Bag X81
Enquiries or requests for further copies should be directed to:
Zelda Moletsane 012-323 9302 x 2113
Palesa Sedibe-Ncholo 012-315 1021
Zoe Rathus 012-315 1021
Fax 012-321 1178
2. PROPOSED NATIONAL WOMEN'S JUSTICE PROGRAMME
3. GUIDING PRINCIPLES OF THE GENDER POLICY
4. DEPARTMENT OF JUSTICE
4.3.2 Problems Identified Within the Department
4.3.4.A Affirmative Action Principles
4.3.4.B Consultation, Gender Forums and Networking
4.3.4.C Women's Leadership Development Programme
4.3.5 Establishment and Updating of Information Systems and Technology
4.4 External Issues - the Department and the Community
4.4.1 Develop Positive Relations with the Community
5. ACCESS TO JUSTICE
5.7 Coherent and Human Rights Based Legal System
6. CRIME, SAFETY AND SECURITY
7. COURTS AND OTHER STRUCTURES ADMINISTERING JUSTICE
9. THE LEGAL PROFESSION
10. ROLE AND STRUCTURE OF THE GENDER DIRECTORATE
1.1 Background to Discussion Paper
The Foreword to the Department of Justices Strategic Plan for the Transformation and Rationalisation of the Administration of Justice, Justice Vision 2000, describes the future shape of the Department as one which fully integrates the needs of all South Africans:
A system of justice which guarantees equal access to justice to all regardless of race, culture, gender, economic status or any other quality is one of the critical pillars for any emerging democracy... The Department [of Justice's] vision is to transform the administration of justice to create a system which is cheaper, simple, more effective, efficient and generally fair. The end result will be a system which is representative of and responsive to the needs of the entire South African community.
The Department recognises that to achieve this result the way in which the legal system deals with issues of particular relevance to women must be fully examined. For many years South African women who work within the legal system have voiced their concerns about the laws and the legal system. NGO's providing services to women have identified problems with the laws on domestic violence, rape, maintenance, inheritance and other matters which deeply affect women's lives.
The reality is that women have largely been rendered invisible in the legal system. They tend to require legal remedies for problems and violence which occur in their private world - with their husbands, partners, children, other relatives or friends. But the laws upon which they must rely have historically been formulated and applied by men and are not informed by the genuine needs of women. The practices and procedures of the legal system are also alienating for women, particularly those who are victims of violence.
It is essential that transformation of the legal system comprehensively integrates the issue of gender. Men and women have deferent requirements and this must be confronted and addressed at all levels. Reform of the laws, changes to the way courts operate and the attitudes of personnel are all part of the challenge ahead.
For this reason the Department of Justice has developed a draft gender policy for consideration within the Department, by NGO's, tertiary institutions and civil society. It has been formulated using the framework of the Justine Vision 2000 Draft Strategic Plan to allow it to be integrated directly into departmental planning. The Department seeks comments, suggestions and ideas on this draft policy so that the legal system can truly become representative of and responsive to the needs of the entire South African community.
This document has been written as a discussion paper. Throughout, specific questions are asked or comments sought. Please address these questions, but any other comments are also welcome. Replies are sought by 25 July 1997.
1.2 Historical Background
Many South African women experience triple oppression - gender, race and class - and all are vulnerable to forms of oppression and discrimination. For some women this has been manifested in a lack of education and consequential illiteracy, lack of employment and poverty. Women are subject to violence in their homes and communities, suffer sexual assault and harassment and face discrimination in their workplaces. Women lack participation in decision-making roles in society and the law and legal profession reflect this culture of the invisibility of women
The majority of South African women are African women living in rural areas. Whilst there have been far-reaching changes regarding human rights and women's rights, the new dispensation has not substantially penetrated the ordinary lives of women in rural communities. The new South Africa inherited a legacy of apartheid that has trapped rural African women in situations where there is little infrastructure in terms of basic necessities like water and electricity or services such as health clinics and schools. Women are also subject to a patriarchal culture, where land and housing rights and family decision-making responsibility ultimately belong to men. In the face of these essential needs and concerns, issues such as access to justice and employment seem distant ideals but they are vital to the establishment and maintenance of a fair society.
Laws which have been introduced to deal with the concerns of women are, in a number of respects, known to be ineffective in their practical operation. Many women are not covered by the Prevention of Family Violence Act part y because of its exclusion from certain geographic areas and the narrow range of relationships it encompasses. Those who are covered have often found that the attitudes of the police, sheriffs and magistrates diminish or negate the protection which should be offered. Maintenance orders are notoriously difficult to enforce. Rape laws contain procedural rules which allow complainants to be subjected to humiliating cross examination and many rape prosecutions lead to verdicts of not guilty despite sarong indications of guilt.
Against this background, the Department seeks to develop a strategy to open the legal system to women so that they can confidently and successfully pursue their rights.
Q1: Are there other historical issues which need to be included to set the scene for the gender policy?
1.3 Structure of this Document
As mentioned, the gender policy adopts the structure and approach of Justice Vision 2000 so that it can ultimately be integrated into the Department's Strategic Plan. The subject headings covered are:
The Department sees its role as two-fold; firstly, by empowering women within the Department itself, and secondly, facilitating the empowerment of women generally by ensuring practical access to justice. Hence the gender policy is composed of two parts:
A key proposal in the gender policy will be the establishment of a National Women's Justice Programme (NWJP) within the Gender Directorate of the Department of Justice. This will operate as a central focus for advancing women's access to justice and
ensuring that the legal system responds to women in an appropriate and affordable manner. It will seek to coordinate and build on existing services, expand their capacity to provide services and support new or pilot programmes.
Q2: Please provide comments on the idea of the establishment of the NWJP.
The gender policy relies on principles enshrined in the Constitution, other South African instruments and certain international documents which establish a framework for striving towards gender equality.
3.1 The Constitution
The Constitution proclaims that the Republic of South Africa is founded on certain values including non-racialism and non-sexism (section 1(b)). Section 9 deals specifically with equality and states (in part):
3.2 Other South African Instruments
As part of the process of transformation South Africa developed a number of charters on women's advancement including the Women's Charter for Effective Equality (1993) and the National Policy for Women's Empowerment which was prepared by the Women's Development Programme of the Reconstruction and Development Programme and released for public comment in July 1995. These documents both contain recommendations regarding reforms to the law and the legal system and emphasise the need for increased participation by women within legal structures and the legal profession.
3.3 Convention Elimination of All Forms of Discrimination Against Women
In December 1995, South Africa ratified, without qualification, the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which recites that:
discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries [and] hampers the growth of the prosperity of society and the family ...
A number of the articles of CEDAW specifically cover legal issues and will be referred to when applicable to this policy document.
All countries which are parties to CEDAW must submit reports to the United Nations in respect of their implementation of the Convention. This provides an in-built monitoring mechanism. South Africa is currently preparing its first report and all Departments are required to provide a Departmental report for incorporation into the whole document.
3.4 Beijing Platform for Action
South Africa also prepared for and participated in the Fourth United Nations Conference on Women in Beijing in September 1995. This Conference culminated in a Platform for Action which the Government has committed itself to implementing. The Department of Justice has made specific commitments regarding protecting women against violence, improving property and inheritance rights, recognition of customary and religious marriages and combatting discrimination and inequality.
3.5 National Gender Machinery
The process for taking these ideals forward will vest in the national and provincial machinery for the advancement of gender equality. The Of flee on the Status of Women and the Commission for Gender Equality will be central to the scheme and the Gender Directorate will need to establish close links wits, these entities. However, all levels of government, government departments, NGO's and civil society have a role to play.
An organogram showing the proposed structure is contained in annexure "A". Section 187 of the Constitution guarantees the establishment of the Commission for Gender Equality and defines its broad functions.
Concise information regarding the development of the framework discussed above is contained in two publications:
The Youth Commission will also play an integral role in national machinery and will obviously be a vital point of liaison for the Department on issues relevant to young women and girls.
Q3: Are there other instruments which should be referred to as the basis for this policy?
Section 9 of the Constitution entrenches equality as a right of all South Africans and the Department of Justice is committed to practical implementation of this right. The implications of this approach affect both the way in which the Department manages internal matters concerning its staff and the types of policies and programmes which are developed and delivered to service the community. This part of the gender policy document will identify problems, goals and strategies for both of these facets of the Department.
4.2 Mission Statement
It is essential that any mission statement for the Department articulates the specific needs of women by an expression such as:
The Department will ensure that the special needs of women are researched, acknowledged and addressed in the administration of justice so that genuine equality for men and women is realised.
Q4: Please provide comment on the proposed mission statement.
4.3 Internal Issues - Human Resource Development and Management
Article 11 of CEDAW deals with employment issues for women and states that all parties to CEDAW shall:
take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights.
It details the right to the same employment opportunities and the application of the same selection criteria and rights to a free choice of profession, promotion, job security, benefits and conditions of service, training, equal remuneration and equal treatment.
The goals of Justice Vision 2000 for the Department emphasise representativeness and the attached strategies focus on the recruitment and advancement of previously disadvantaged groups.
The Department has also developed a Policy on the Promotion of Representivity and Employment Equity (PPREE) which draws on the White Paper on the Transformation of the Public Service for its approach to representativeness. This policy addresses many of the concerns relevant to the development of a gender policy on employment and has been incorporated where appropriate.
4.3.2 Problems Identified Within the Department
As a result of past practices influenced by both apartheid and world wide discriminatory attitudes towards the employment of women the Department of Justice cannot presently be described as an equal opportunity employer. A number of problems have been clearly identified regarding the employment of women, especially Black women and, in particular, African women:
Q5: Are there other problems which should be included?
To address these problems, the gender policy proposes a number of goals:
Q6: Are these goals appropriate? Are there other goals which should be included?
To achieve these goals the following strategies are recommended:
4.3.4.A. Affirmative Action Principles
Paragraph 6 of PPREE sets out certain principles which should underpin affirmative action policies:
Apart from these identified principles, the Department must also develop strategies to assist women who have been affirmed. It is Uncial that such women receive appropriate levels of support and training to give them the best possible opportunity to succeed in their new post
4.3.4.B Consultation. Gender Forums and Networking
Further consultation with women within the Department is required before this part of the policy can be finalised. Particular difficulties experienced in certain posts should be examined. The approach to consultation must be both lateral and vertical. For example, the problems experienced by female prosecutors, civil attorneys, secretaries and cleaners will be very deferent and will be influenced by different factors.
The Department has already established a Gender Forum at which female staff can meet and strategise around issues relevant to them. This will provide the formal avenue for the Departments reporting requirements on CEDAW.
It may also be useful for the Department to actively facilitate informal networking amongst women staff. Affirmative action polices are only successful for women if women apply for new positions and promotions. Networking can provide skills and contacts which enhance self-confidence.
Q7: Are these strategies appropriate? Are there other strategies which should be included?
4.3.4.C Women's Leadership Development Programme
Human resource development and representivity are the keys to making the Department an equal opportunity employer. Capacity building and training are essential to achieve this outcome. A leadership development programme for women should be established to monitor and evaluate the progress of women in the Department.
Q8: Pease comment on the concept of a women's Cadetship development programme.
4.3.5 Establishment and Updating of Information Systems and Technology
It is recommended that a Women's Information Centre be established in the Department's Gender Directorate to strengthen women's access to information on justice and gender. This will require the development of systems to disaggregate Departmental data by gender.
NGO's, CBO's, researchers and the private sector will play a role in the collection and co-ordination of the information which will provide a comprehensive data base concerning women in the justice system in South Africa. The information will be vital to the Department's strategic planning and to NGO's and researchers working in this field.
The Law, Race and Gender Unit at the University of Cape Town has recently established Gender, Race and Law Exchanges (GRALE) to facilitate communication and information exchange on issues of race and gender. Research into all existing data collection projects needs to be conducted before this proposal could be implemented.
4.4 External Issues ~ the Apartment and the Community
4.4.1 Develop Positive Relations with the Community
The Department needs to develop positive relations with the community it serves, to cultivate a respect for human rights and engage in community education.
It should undertake an audit of non-governmental and community-based organisations working in the field of gender and justice to enhance communication between the role players and civil society. The information should be provided to the South African Communication Service so that a community resource can be prepared.
The Department, in partnership with NGO's, should also prepare a pamphlet detailing the work of the Department around gender issues.
Q10: Would these publications be of practice/ benefit? Please comment generally.
The Gender Directorate should, in conjunction with community legal centres, relevant NGO's, the Commission for Gender Equality and Office on the Status of Women, conduct seminars, prepare and publish easy to understand material on the law and undertake other educational activities. The use of community radio stations needs to be examined as a result of the high illiteracy rat* in South Africa.
Q11: Please comment on the envisaged community education function of the Gender Directorate. Are there liked to be practical problems if the Directorate has both a policy function and an executing or operational function?
Contemporary notions of access to justice encapsulate a broad understanding of the ways in which the law, courts, tribunals, other legal structures and law enforcement agencies can restrict ordinary persons recourse to justice. For example, laws which provide women with unenforceable maintenance orders have no actual value and do not provide access to justice.
Lack of information about the law and the legal system and lack of resources to actively pursue rights inhibit or prevent access to justice. Issues of race, class and rural isolation are compounding factors in obtaining access.
Drawing from Justice Vision 2000 the gender policy has identified a number of goals under this heading as follows:
5.3 Legal Information, Advice and Representation
A number of specific problems have been identified in respect of women's access to legal information, advice and representation as follows:
Q12: Are there other problems which should be included?
Strategies for addressing these problems include:
Q13: Pease comment on these strategies and/or suggest others.
5.4 Accessible Language
It is important to ensure that women have access to professional interpreters who are sensitive to issues such as domestic violence and sexual assault to enable the client to communicate traumatic and embarrassing information..
Q14: Are there other matters concerning accessible language that should be mentioned?
5.5 Alternative Dispute Resolution
Efforts made by women involved in peace keeping and alternative dispute mechanisms must be supported and recognised by the Department of Justice. This can be implemented by establishing dose links with the peace keepers through the envisaged citizens' advice desks in the courts (discussed in the Courts section) and the Gender Directorate.
Innovative alternative dispute resolution programmes need to be explored, particularly for use in family law and juvenile justice.
Q15: Please make comments regarding any ideas about alternative forms of dispute resolution.
5.6 Amendments to the Law for Vulnerable Groups
5.6.1 Violence Against Women
Violence against women creates issues of access to justice but, as it is vital to acknowledge that all forms of violence against women are crimes and should be treated as such, the major discussion on this issue is contained in the section on Crime, Safety and Security.
5.6.2 Family Law
5.6.2.A Obligations Under CEDAW
Article 2 of CEDAW requires parties:
to take all appropriate measures, including legislation, to modify or abolish existing laws, regulators, customs and practices which constitute discrimination against women ...
Article 16 of CEDAW deals with marriages generally and says (in part):
States Parses shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(c) the same rights and responsibilities during marriage and at its dissolution;
(d) the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; and
(h) the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property ...
Women experience significant problems in South Africa because the laws relating to family life, breakdown of relationships and inheritance tend to be patriarchal. Extensive consultation with agencies which work with women who have experienced relationship breakdown will be essential in finalising this part of the policy but some of the major issues are:
Q16: Are there other problems which should be included?
Some of the specific subjects falling under family law are already being scrutinised by the South African Law Commission (SALC) - in particular, the harmonisation of common and customary family law and the maintenance laws so detailed comment on these issues would be premature.
The following strategies are recommended for achieving
Q17: Please comment on these strategies and/or suggest others.
5.6.3 Sexual Offences
Consideration needs to be given to whether the criminalisation of prostitution serves any purpose. If so, what purpose? If not, should consideration be given to decriminalisation? It has been argued that retaining it in the criminal law renders prostitutes (referred to by many as sex workers) vulnerable to physical, economic and emotional violence.
Sexual crimes against women are discussed in the Crime, Safety and Security section.
Q18: Please indicate opposition to, support for, or any concerns about, the decriminalisation of prostitution.
5.7 Coherent and Human Rights Based Legal System
5.7.1 Harmonisation of Laws
The Black Administration Act should be repealed, although any beneficial elements contained therein should be incorporated into new legislation.
Q19: Please comment.
5.7.2 Anti-discrimination Legislation
Research should be undertaken regarding the development of anti-discrimination legislation. Issues such as gender, race, religion, culture, HIV/AIDS, disability, age, pregnancy and sexual orientation should all be covered.
Consideration should also be given to the creation of affirmative action legislation.
Q20: Please comment.
The legal system has historically dealt ineffectively with the issue of violence against women, particularly violence perpetrated in the home by male partners which has been considered "private. and not within the authority of the State to interfere. The SALC has recently published a Discussion Paper recommending wide-ranging changes to the Prevention of Family Violence Act.
National discourse about crime traditionally focuses on public crimes. For example, the NCPS initially prioritised crimes such as highjacking and vehicle related crime, taxi violence and narcotics despite the fact that almost half the women who died of unnatural causes in the Johannesburg district in 1994 were killed by their male partners. Recently violence against women has also been given priority under the NCPS.
Laws surrounding rape and other forms of sexual assault have also been criticised as inappropriate as they are shrouded in myths and stereotypical views about women and sexuality. The Department has recently established a task team to develop national uniform guidelines for dealing with sexual assault cases. The participants include the Departments of Health, Welfare, Correctional Services and Safety and Security, the South African Police Service, prosecutors, magistrates, judges and NGO's.
Women in prison have been totally marginalised within the justice system. Problems relating to refugee women and children and those displaced as a result of political violence is a growing concern in the justice system.
Q21: Please comment on these goals and/or suggest others.
Q22: Pease comment on these strategies and/or suggest others.
Historically courts have not had a service oriented approach to their operation. Ordinary persons find them intimidating and alienating and these feelings are exacerbated by the fact that most people are dealing with personally stressful situations when they attend court. In particular, women are often in courts as victims of violence or because they are seeking desperately needed financial support for their children.
When women attend court as survivors of domestic violence or sexual assault they are often forced to confront their abusers in the court area because there is a lack of facilities such as waiting rooms for women.
To improve the court procedures for dealing with family breakdown to ensure that the best interests of the child are paramount.
Q23: Please comment on these goals and/or suggest others.
7.3.1 Court Facilities
7.3.2 Violence Against Women
7.3.3 Family Law
Q24: Please comment on these strategies and / or suggest others.
In the South African legal system, people who have participated in the courts as litigants, lawyers, magistrates, prosecutors and judges have been drawn largely from a privileged minority. There is therefore a need to create an awareness of gender and race issues in order to change attitudes and perceptions. Justice Vision 2000 recommends the establishment of professional development programmes for judges and magistrates, training for Departmental management and other staff and the establishment of a representative network of competent trainers.
There are other significant role players in the justice system who impact on the administration of justice in this country. These include members of the private profession and law school teachers. Police also have a vital role in the operation of the legal system.
Q25: Please comment on these goals and/or suggest others.
The following strategies are recommended:
Q26: Pease comment on these strategies and/or suggest others.
The greatest challenge in respect of the legal profession is developing strategies which will ensure that the whole community is served responsively. This will require the profession, in all of its manifestations, to become truly representative of the South African community. The traditional structure of the legal system and the legal profession creates many gatekeepers who can restrict entry and advancement intentionally or simply as a result of the phenomenon of homoculturalisation (is. always preferring someone like yourself).
Some strategies proposed for improving the participation of women are as follows:
* The Gender Research Project at the Centre for Applied Legal Studies is currently researching the issue of barriers faced by women entering the legal profession.
Q27: please comment on these strategies and/or suggest others.
The gender policy places enormous responsibility on the Gender Directorate. It has been envisaged to have many roles including:
For the Directorate to undertake these tasks successfully it will require adequate staffing levels and other resources. A variety of skills will be required including research, policy formulation and implementation, human resource management, legal expertise, community liaison and media communication.
Q29: Is there a need to develop a stronger conceptual framework in which to locate this policy? If so, please provide suggestions of the themes to be covered?
Q30: Should a set of guiding principles, over and above those enunciated in the instruments described, be developed?