The proposed equality legislation just duplicates functions from other laws, and offers nothing new, writes Lisa Vetten.
The Women Empowerment and Gender Equality Bill has quietly tiptoed into Parliament. But, given the insubstantial nature of its offerings, such reticence may be warranted.
As the memorandum to the Bill puts it: "The proposed legislation does not aim to create new anti-gender discrimination legislation, or additional mechanisms to enforce existing legislation and policies."
So what exactly is its purpose?
Some of the Bill’s key provisions include legislating a quota of 50% women in political parties, senior management positions in government and the private sector, as well as on boards, and imposing a legal duty on both the public and the private sectors to report regularly to the minister of women, children and people with disabilities on how they have mainstreamed gender into all policies, programmes and activities.
In addition, entities are required to submit to the minister a range of plans, strategies and reports detailing not only their intervention to advance women’s empowerment, but also their implementation of public education programmes to reduce and challenge gender discrimination, as well as their promotion of women’s access to health services and education and training programmes.
But as the memorandum has already hinted, none of this is new – the Bill duplicates functions and provisions in laws such as the Commission on Gender Equality Act (1996), the Skills Development Act (1998), the Employment Equity Act (1998) and the Promotion of Equality and Prevention of Unfair Discrimination Act (2000).
Indeed, chapter five of the last-mentioned Act would render most (perhaps all) of the Women Empowerment and Gender Equality Bill redundant –had it not been held in abeyance since 2003.
Although governments are free to proliferate duplicate legislation, it is undesirable to do so from a policy perspective, because of the challenges posed to the harmonisation of these various laws as well as the administrative and resource burdens imposed as a consequence.
The 2009 Gender Equality Strategic Framework for the Public Service, parts of which the Bill also duplicates, illustrates these concerns.
The framework, developed by the department of public service and administration to address the public service's dismal application of gender equality principles, also introduced a number of measures designed to encourage its implementation. These have been widely ignored, as the department of performance monitoring and evaluation has shown.
According to the department, 97% of departments did not meet its directives in 2012-2013, with 88% of departments unable to meet more than the requirements of Level 1, the lowest standard of performance.
These substandard ratings were the result of departments failing to submit to the department of public service and administration their two sets of implementation reports.
Significantly, the performance monitoring and evaluation department also noted that aspects of the department of public service and administration's framework duplicated functions and responsibilities mandated to the minister of labour in terms of the Employment Equity Act.
This led the department to conclude that the department of public service and administration's duplication of functions was potentially one factor contributing to departments' low levels of compliance with its policy prescripts.
Also complicating the picture is the capacity of the department of women, children and people with disabilities.
In 2012/13 the department of performance monitoring and evaluation's government-wide performance monitoring found it to be government's second-worst performing department, meeting just 14% of its targets and thus outdoing the department of military veterans by one percentage point.
This does not augur well for the implementation of the Bill.
But the real puzzle of the Bill is its reiteration of existing rights and protections to some women – as it simultaneously neglects the equality rights of other groups of women.
The South African Law Commission’s research around reforming the law applicable to adult prostitution, for example, has been in progress for over a decade now and has still to produce concrete recommendations for law reform.
In 2008, the department of home affairs issued a call for comments on the Domestic Partnerships Bill, which would grant some legal rights to women (and men) who cohabit, or live in other types of domestic partnerships. This has yet to see the light of parliamentary day, and the legal recognition of Muslim women’s marriages, first promised in 1994, has yet to materialise.
Rural women’s security of tenure on communal land also remains ambiguous. Their claims were not clarified by the 2004 Communal Land Rights Act, declared unconstitutional in 2010, and are again subject to the Interim Protection of Informal Land Rights Act.
And although some rural women are able to negotiate security of tenure, this is always within the context of patriarchal chiefly power, which in other localities is not open to negotiation.
Why, in the face of these neglected equality claims, is a mashup of existing law and policy, pasted together under a new name, being prioritised for enactment? What is the political rationale behind these choices?
These are the questions posed by a Bill that, on its own admission, offers nothing new and therefore, according to its memorandum, also requires no additional resourcing by government.
Lisa Vetten is a research associate at the Wits Institute for Social and Economic Research. This article was based on research conducted for the 2013 book Essays on the Evolution of the Post-Apartheid State published by the Mapungubwe Institute for Strategic Reflection and edited by Mcebisi Ndletyana and David Maimela.
