Cape Town 4 May 2000
Welcome,
We live on a continent brutalised and violated by conquest. We live in a country where colonial invasion, occupation and apartheid greed have entrenched - and even institutionalised - injustice. We live in a society where the patriarchal nature of our culture is still reflected in almost every walk of life.
The specific historical and socio-political context of our past has and will continue to inform the discourse around new policy initiatives. Our distinct experience has and will continue to influence us in the development of our envisaged new social framework. And our strategic policy choices continue to bear testimony to the terrible legacy of apartheid that left children, women and men dehumanised by exploitation and discrimination.
South African women, in particular, have been at the receiving end of marked and disturbing manifestations of violence. The litany of gross abuse includes rape, sexual extortion, battering, spousal rape and many other forms of overt sexual violence where Black women, especially, have had to shoulder a prolonged tyranny of racist-inspired violence.
These features of our inglorious socio-political record have imposed and continue to exact real limitations on the ability of women to transcend the cumulative burden of injustices based on discrimination inspired by race, class, gender, disability and sexual orientation. If we want to level the playing field for all South Africans, we need to work against those forces that deprive women of substantive equality. Women continue to run the gauntlet of discriminatory practice and prejudices, precipitated by their marital status, pregnancy, child care- and family responsibilities. It is our collective task to reverse the exploitation, discrimination and culture of violence that was systematically cultivated under minority rule.
It flies in the face of justice and our new democratic order, for a judicial officer to condone discriminatory practices against pregnant women and mothers. As long as such blatant prejudices are condoned in the work place and in our justice system, women will remain profoundly unfree to escape social and economic marginalisation.
Levelling the playing field
Constructive policy reform is always a challenge. There are no quick fixes. Law reform choices must be carefully considered and should, at all times, be implementable, manageable and affordable. The violations and injustices of the past must be addressed in a planned and systematic manner while we mould a social agenda suited to the 21st century.
We have no firmly established tradition of equity and justice in South Africa. We celebrated only our sixth year of democratic rule this past week. Our democracy is young, fragile and under tremendous pressure. The harsh reality is that we, as individuals and as a national community, face incredible challenges: We have to deal with the deep social and racial divisions of the past; we have to address deeply entrenched economic inequalities; we have to find solutions to the low level of economic self-reliance; and we have to remedy our low skills base and high unemployment rate.
The legacy of an unjust past has left the majority of South Africans marginalized and vulnerable to the vagaries of an increasingly globalised and impersonal new world. The majority of South Africans, and women in particular, have been forced out of the mainstream of our economy. Discriminated against, uneducated and unskilled, they toil away in the so-called informal sector, clinging to a subsistence existence and with little hope of breaking out of the cycle of poverty that engulfs them. Their innovation and enterprise under these conditions is a celebration of the human spirit.
Our challenge as a government and the duty of every privileged South African is to work towards a levelled playing field where all South Africans can make life choices, not based on necessity, but based on an unencumbered freedom of choice.
We all want to be at liberty to develop our own tastes, evolve our views and test our talents. To enjoy this liberty we need to enjoy equality before the law, but we also require the capacity - the material and cultural resources - to pursue our chosen courses of action.
I am confident that we are on the road. We have a Constitution that has created a rich democratic framework. We live our lives according to a Bill of Rights that is the envy of the world. The legitimacy of our fledgling modern state is deeply rooted in the construction of a strong government and our commitment to the pursuit of appropriate legislative procedure. Sustainable development is the benchmark against which we will continue to evolve our socio-economic policies.
Progress
Since 1994, South Africa has signed, ratified and acceded to the most important international and regional human rights instruments, documents and treaties. We continue to make a determined effort to accede to and ratify a number of human rights declarations, both at an international and regional level. As government we are seized with addressing and giving effect to the challenges posed by these international and regional human rights instruments.
We are particularly mindful of human rights instruments, documents and treaties that seek to advance the rights of disadvantaged and vulnerable groups such as children, women, people with disabilities, people with HIV or Aids and the economically marginalised. In many of these areas we are leading the field with innovative policies and progressive social agendas.
Notwithstanding our dedicated law reform process, race-based discrimination and violent acts motivated by racism continue to blemish our human rights achievements. Despite extensive corrective and affirmative statutory tools, gender discrimination remains the norm. Legislation alone can't save us. We have to sustain our delivery successes with sound administration and well-resourced enforcement mechanisms. We also can't do without the commitment of civil society, communities and individuals who embrace these progressive programs of action.
Law reform
Notable beacons of law reform map our progress. The Employment Equity Act of 1998 was a breakthrough for women employed in the formal sector. It outlawed unfair discrimination in the workplace and introduced affirmative action measures for black people, women and people with disabilities.
The establishment of Family Courts and the implementation of the Maintenance Act have given women far greater social security, by improving their access to justice through having issues related to divorce, maintenance, family violence and children removed from the traditional adversarial court scenario and placed within a holistic people-centred environment founded on principles of counselling, investigation and mediation. We are committed to the extension of these family court centres and we are determined to spread the benefit to more women throughout the country.
The Department of Justice and Constitutional Development will continue to develop a holistic transformation policy for the country's court system. In this, we plan to secure and establish more specialist courts, consolidate on initiatives to transform the judiciary, promote the use of alternate dispute resolution, and to cater to the specific needs of vulnerable groups, especially victims or survivors of violent crime.
The trilogy of equity legislation enacted earlier this year provides strong mechanisms to ensure equality before the law. The Promotion of Administrative Justice, the Promotion of Access to Information, and the Promotion of Equality and Prevention of Unfair Discrimination Act compel us to focus on reconstruction and development programs and actions that benefit the victims of unfair discrimination. The Promotion of Equality and Prevention of Unfair Discrimination Act, in particular, is a call to action on all fronts.
In addressing modern dilemmas legislative action has been taken to eliminate the commercial sexual exploitation of women and children, by outlawing child pornography and trafficking in women.
Breaking the silence
At times our campaign of pro-active, restorative legislation swamps our administrative capacity. The need is often simply greater than the resources at hand. Our most recent experience in this regard has been the Domestic Violence Act that has thrown a much-needed lifeline to abused women. Regrettably, demand has overwhelmed service providers along the entire assistance chain.
In some areas in the Western Cape, the police are faced with between seven and ten reported cases of domestic violence a day as observed in a recent newspaper report (The Argus, Wednesday 26 April). Insufficient training and severe shortages of places of safety, prevent victims from realising the full benefit of the legal remedy that has been provided. The Mitchell's Plain, Wynberg and Cape Town magistrate's courts have issued nearly 4 500 protection orders since the implementation of the Act on December 15 last year.
By law, police are required to help victims make arrangements for suitable shelter and medical treatment, yet in most areas , such sanctuaries simply do not exist. Social workers are unavailable after hours and over weekends, and police have to rely on volunteers. The collective effort to expand the existing service network is a matter that is receiving ongoing attention at the highest level.
The overwhelming response to the legal remedy is not a negative sign per se. The increase in reported cases can also be attributed to the mounting social awareness of our new rights-based care networks and to the intensified public education campaigns that have been launched by all the participating departments. The veil of silence that shrouded domestic violence is finally being lifted.
The upsurge in reported cases is also a sign of the greater sensitivity displayed by law enforcers and judicial officers who administer the law. It is not sufficient for police and judicial officials to know and understand the law; we need them to appreciate and apply our legal rights throughout the full range of their law enforcement activities. In any criminal prosecution, the state must prove all the elements of the offence. If there is a failure to collect evidence or statements we sabotage our own chances of making the criminal justice system work. It has to be a team effort. If we adopt this approach to service provision, we will all come to earn the trust, respect and appreciation of the society we have been tasked to serve.
Action Plans
Our National Crime Prevention Strategy (NCPS) established a comprehensive policy framework which has empowered the justice sector to address crime in a coordinated and focused way while drawing on the resources of all government agencies as well as civil society. In the process we need to promote a shared understanding and common vision of how we will tackle crime and violence.
The plight of victims of violence and victims of sexual offences are of particular concern.
Wide-ranging consultation is in progress and various administrative steps have been taken in the development of victim-based remedies. Inter-sectoral policy guidelines for handling victims or survivors of sexual offences are being implemented. Public awareness campaigns on human rights issues continue to be developed and rolled-out. Various government departments have introduced support services for victims and survivors of crime. In the courts, the introduction of one-way mirrors and closed circuit television has helped to address the particular circumstances experienced by women and children who are so vulnerable to secondary victimisation .
As a government we have not shied away from controversial choices to protect vulnerable groups. National legislation has been passed to give effect to the decision of the Constitutional Court to abolish the death penalty. We have introduced minimum sentences for serious crimes. We have legalised abortion to give women the right to terminate, upon request, pregnancy up to 12 weeks. We have abolished the criminalisation of sodomy between consenting adults and the courts have abolished the cautionary rule that weighted women's evidence in rape cases against them.
The Law Commission is currently investigating sexually related offences, like rape, child abuse, trafficking in women and children and the protection of adult sex workers from abuse. Your conference will feed into that law reform process.
To a large extent, our Constitutional framework provides excellent guidelines for preventing any form of exploitation. Instinct, however, tells me that whatever legislative framework we decide upon should somehow free sex work from its all too frequent association with syndicated crime or drug abuse. This surely would immediately make the environment safer for sex workers. The new law must also afford protection to sex workers against violence, exploitation and a variety of health risks. In short, it should provide this group of women and men with some sort of legal refuge that guarantees their rights as described in our Bill of Rights.
At this point I would like to quote from our Department's Gender Policy: "Our international obligations in terms of CEDAW and the Beijing Platform For Action require us to adopt measures to protect women involved in prostitution from abuse and exploitation. Violent abuse is the main concern in this regard. The Beijing Platform For Action and our policy commitments under it, impose an obligation on us as a government service agency, to intervene to protect those who are involved. We are also required to intervene, with a view to eradicating trafficking in women and child prostitution."
We are not groping around in the dark. We have a National Action Plan for the Promotion and Protection of Human Rights. The National Action Plan was officially launched on International Human Rights Day on 10 December 1998. A few weeks ago, at the celebration of our own national human rights day we recommitted ourselves to the action plan to protect and promote human rights by launching the National Consultative Forum on Human Rights. Our performance can now be checked on our interactive Internet portal site on a rights-by-rights basis or per Department.
The effective promotion of human rights demands an integrated approach. Our National Action Plan is therefore premised on the belief that all human rights are universal, indivisible and interdependent. Whether in pursuit of civil and political rights, whether in pursuit of economic, social and cultural rights or whether in pursuit of the rights to development, a protected environment or self-determination, our compass remains our own constitutionally entrenched rights network, our own body of law and the provisions contained in international and regional human rights instruments.
Change is an incremental process and its effects are measured at a local or implementation level. Legislation helps, but law reform alone does not bring about the desired impact. The prospects for a successful law reform process depend on various factors. The capacity of the state to give effect to a particular policy must be carefully assessed. At the same time the impact and consequences of policy initiatives need to be anticipated as accurately as possible. The wider social context must always be taken into account.
A law reform process is, therefore, never an "open sesame". Change management is often impeded by a variety of very real limitations with opposing actors and role-players competing for resources within a limited resource envelope. The need for stakeholders to form coalitions, to lobby, to network and inter-connect is essential to managing a successful outcome.
I wish all participants a fruitful and successful conference.
Thank you