We must celebrate the passage of the Sexual Offences Bill through the National Assembly this week. This vital piece of legislation is now on the home stretch after an extraordinary seven years in the making.
But it is also a deeply distressing piece of legislation, for it mirrors how our country is mired in a sex war. It rightly expands the definition of rape to include the rape of men and to widen the ranges of forced penetration that women, men and children are subjected to. But in this it is a shameful indictment of the levels of violence and power abuse in South Africa — equally despite a Constitution whose central aim is to promote harmony and remedy power imbalances. It throws into stark relief the sexual abuses that continue to haunt us after 13 years of constitutional democracy.
Rape and sexual abuse of strangers by strangers, of children by fathers, of husbands by wives (and sometimes vice versa) are all too regular stand-alone crimes. But sexual abuse has also become the by-product of other forms of criminality: women whose homes are broken into, or are mugged in a lonely location, also face the very real threat of rape.
The Sexual Offences Bill is a legislative endeavour to end the sex wars by expanding the definition of sexual crime and by putting in place much improved systems of follow-up and care for survivors. It must work, and the proof of the pudding will be in its implementation. It is, of course, in implementation that many laws with the right intention come asunder. We seem to lack the political will and talent to make legislation stick.
Effective implementation will depend on effective monitoring. The women and men in civil society who are in the front line of the war have contributed to the drafting of the Bill. But they continue to harbour concerns about it. For one, civil society is not part of the statutory monitoring team. There are also concerns about access to medical treatment and information. The draft law provides for access to anti-Aids drug treatment, but does not stipulate that a person who has been raped can demand a mandatory HIV test from the rapist.
Caveats aside, this is an important draft law that deserves support. Of course, the demon of sexual abuse cannot be slain by a criminal justice response alone. It can only be vanquished by transforming minds, by improving the material conditions of the masses and by entrenching the ideals of the Constitution among all South Africans. The draft law is the first step in a much longer journey.
Education still punishes the poor
Yet again, the country’s poorest pupils and their parents are the victims of education funding policies and practices that — with biting irony — are explicitly pro-poor in intention.
We report this week that some “no-fee” schools in Gauteng continue to demand fees from their pupils. This is shocking enough in itself, but two further details should give officialdom pause for serious thought.
One is the province’s admission to this newspaper that it has no monitoring mechanisms in place to ensure that schools adhere to the no-fee policy. The other is the astonishing ignorance of policy some principals who spoke to the Mail & Guardian revealed: one asserted that the “no-fee Act hasn’t been passed” (it has), another that no-fee schools this year are part of a pilot project (there is no such project).
But combine this week’s report with two others the M&G has carried in the past month and it becomes clear that our attempts to achieve quality education for all are facing serial crises. One report concerned no-fee schools that now find themselves with less income than they had when they collected fees, with devastating consequences for these schools’ bilities to sustain services such as security and maintenance or to hire extra, much-needed personnel.
The other story involved a number of schools that the government has clearly placed in the wrong poverty category, assessing them as wealthier than they actually are and so allocating to them far less per pupil than they need to maintain anything remotely approaching adequate education standards.
The oversight here is that, since 1994, pupil migration patterns have changed, so that schools in relatively well-off areas now often have far poorer pupil constituencies than before. Yet when these schools followed prescribed procedures for getting their poverty rankings reviewed, they hit a bureaucratic wall of indifference and inaction, and have, in desperation, now turned to legal measures.
Put all these cases together, and it is clear that a combination of shoddy implementation and policy flaws is still penalising the most vulnerable. A prominent example of the first problem is grossly ineffective communication from provincial education departments to schools: if principals themselves are ignorant of education laws, how can we expect parents and pupils to know their rights and insist on them?
And the major instance of policy that needs immediate review is the amount of state funding per pupil the government considers adequate. How it made its calculations remains obscure, but there is widespread agreement that the state has simply underestimated how much is really needed. Fix that key problem and there will no longer be any reason for cash-strapped no-fee schools to extract money from those who can least afford it.