Women’s substantive equality:
A case for 50/50 legislation
Commission for Gender Equality
Submission to Parliament on Electoral Amendment Bill [B22-2013]
10 September 2014
CGE MANDATE AND VISION
•
•
•
•
•
Section 187 of Constitution requires the CGE to promote respect for, and the
protection, development and attainment of gender equality
CGE Act No. 39 of 1996 mandates the CGE to monitor and evaluate legislation,
policies and practices of the state, statutory bodies, and the private sector, as well as
indigenous, customary and religious laws and practices
The CGE is empowered to research and make recommendations to Parliament;
receive and investigate complaints of gender discrimination; and conduct public
outreach and education on gender equality. The CGE has powers of subpoena and
litigation to further its mandate.
PEPUDA Act 4 of 2000 obliges the CGE to institute proceedings in equality courts in
instances of discrimination on the basis of gender
CGE vision is a society free from gender oppression and all forms of inequality.
INTRODUCTION
•
•
•
•
Constitution and PEPUDA call for positive action to promote gender equality
International obligations call for measures to promote women’s equality
Women’s substantive equality must be attained in political decision-making
structures – most expedient way to achieve 50/50 through amendment of electoral
legislation
CGE submission to Parliament argues Constitutional and legislative framework
permit legislation on 50/50, and proposes amendments to Electoral Amendment Bill
accordingly
LEGAL FRAMEWORK: CONSTITUTIONAL PROVISIONS
•
•
•
•
Equality as Constitutional value and section 9 guarantee
S9(2) permits “fair discrimination”, and envisages legislative and other measures
designed to protect or advance persons/categories of persons disadvantaged by
unfair discrimination, to promote the achievement of equality
Test for fair discrimination, ex Harksen vs Lane, if differentiation bears rational
connection to legitimate government purpose, and considering position of
complainants in society and whether they have suffered from past discrimination
Legislation mandating women’s equal representation in decision-making structures
would be Constitutional, as affirmative action and other remedial remedies are a
means of promoting and achieving equality, ie constitute fair discrimination, as it is
designed to protect and advance women, historically disadvantaged by unfair
discrimination, and seeks to promote equality as mandated by S9 of the Constitution.
LEGAL FRAMEWORK: PEPUDA
•
•
•
•
•
•
PEPUDA as a legislative tool that demands implementation of 50/50 legislation –
calls for positive action to eradicate social and economic inequalities.
PEPUDA seeks to prohibit unfair discrimination, provide remedies for victims of
unfair discrimination, and s(3), by promoting the achievement of substantive equality
Places obligations on state and non-state actors to promote equality, through action
plans, equality legislation, codes of practice, guidelines etc. Regulations may be
developed to require corporations, clubs, associations etc to prepare equality plans
or abide by codes of practice. Requires special measures to promote equality viz
race, gender and disability
Provides a right to affirmative action for certain groups entitled to preferential
treatment
Requires state to pass legislation and other measures to address unfair practices
Supports the passing of legislation on 50/50 representation
LEGAL FRAMEWORK: INTERNATIONAL LAW
•
•
•
•
CEDAW: Envisages equal participation of women in public life. State bound to
take steps to promote women’s participation in decision-making and leadership
positions. Art 7 requires signatories to enact measures to promote political
equality and eliminate discrimination against women in the political sphere.
BPA: Quotas considered key remedy for electoral gender inequality, by
empowering women in political systems. S190 calls on states to set targets to
increase the number of women to achieve equal representation, if necessary
positive action, and take measures in electoral systems that encourage political
parties to integrate women in elective and non-elective public positions, in the
same proportion and at the same levels as men.
AU WOMEN’S PROTOCOL: Art 9 on Right to participation in political and
decision-making processes, sets targets for achieving gender equality in the
electoral process and to participate in politics without discrimination
SADC GAD PROTOCOL: State parties shall endeavour that by 2015 50% of
decision-making positions in public and private sectors are held by women,
including the use of affirmative action measures viz Art 5
ELECTORAL REFORM
•
•
•
•
•
Will require amendment of Electoral Act as a starting point
Will establish quota system
Will provide mechanisms for non-compliance by political parties
Aim of legislation will be: To provide for 50% representation of women at national
and provincial legislatures, to amend the Electoral Act 1998, accordingly, and to
provide for matters connected therewith\
This should be followed by further amendments to the Local Government:
Municipal Structures Act 1998, and the Local Government Municipal Electoral Act
2000, to embed the principal of 50/50 in our local government framework. The
CGE will engage Parliament on this later.
AMENDMENTS TO ELECTORAL ACT 73 OF 1998
•
•
•
•
Propose that numbers of women and men on party list may not differ by more than
one; and that names of women and men on each party list shall alternate – CGE
submission details proposed wording for subsection be inserted as Section 27(1)(A)
in the Electoral Act.
Sanctions for non-compliance could include: political seats remain vacant; parties are
penalised viz funding; or parties are required to pay fines.
CGE proposes however that quota system be included as requirement in party
candidate list compilation and submission process. Should a party not comply, IEC
provides the party the opportunity to correct their list accordingly, failing which it
would be disqualified from participating in the election. CGE submission details
proposed wording for subsection to be inserted as Section 28 (4) of the Electoral Act.
In addition, envisaged complaints procedure for non-compliance – members of
general public/Chief Electoral Officer object to compilation of party list on rounds of
non-compliance, to be lodged with the IEC and served on party concerned. CGE
submission proposes insertion as Section 30 (1)(A) and 30(2) of the Electoral Act.
CONCLUSION
•
•
•
•
The CGE is of the opinion that Parliament is obliged and empowered to make
legislative provision for the attainment of 50/50, and that the current vehicle of the
Electoral Amendment Bill provides such an opportunity.
The CGE will further engage with Parliament with regard to proposed amendments to
the Local Government: Municipal Structures Act, 1998 and the Local Government
Municipal Electoral Act, 2000, to embed the quota system seamlessly within the
South African electoral legislative framework.
50/50 representation for some leadership positions cannot be achieved through the
suggested legislation – speaker, deputy speaker, chairpersons, deputy chairs,
members of Cabinet – requires further deliberation
Quota system will require training and skills development support for women in
politics, and requires political parties to put measures in place to address social
barriers to women’s equal participation in political life – access to child care,
maternity leave, campaign finances etc