Still many gaps in Southern Africa?s commitment to women?s rights

Key findings of a survey of twelve countries conducted by the Gender and Media Southern Africa (GEMSA) Network ahead of Human Rights Day on 10 December – also the climax of the Sixteen Days of Activism on Gender Violence.

While gender violence in now firmly on the political agenda in Southern Africa, laws, services and resources to address this scourge are patchy, and the link between gender violence and HIV/AIDS is not being adequately addressed. Attention to new threats like sex trafficking is growing, but is barely acknowledged in policies and laws.

These are the key findings of a survey of twelve countries conducted by the Gender and Media Southern Africa (GEMSA) Network ahead of Human Rights Day on 10 December – also the climax of the Sixteen Days of Activism on Gender Violence.

Members of the network, who include organisations and individuals committed to promoting gender equality in and through the media, conducted an audit of measures taken by governments in response to their regional obligations.

SADC addendum on violence against women and children

Southern African Development Community (SADC) Heads of State adopted the Declaration on Gender and Development in 1997, and added an Addendum on the Eradication of All Forms of Violence Against Women and Children after a conference in Durban in 1998.

The addendum, which includes a range of measures to be taken including passing laws, providing services for survivors of gender violence and mounting education and awareness campaigns, is supposed to be reviewed by member countries every two years. The last such review took place in Lesotho in November 2000.

As part of its Sixteen Day campaign, and as a civil society initiative to holding governments accountable to their pledges, GEMSA conducted an audit of measures taken that will be debated at a video conference on women’s rights in Southern Africa on Human Rights Day hosted by the British Council. Legal experts, NGOs and government officials from Mauritius, Botswana, Namibia, Mozambique and South Africa will take stock of how far the region has come and propose measures to be taken in the future. These will be forwarded to the SADC Secretariat in Botswana.

Gender violence on the political agenda

The audit highlights the fact the gender violence is now firmly on the political agenda, with leaders playing a more visible role in campaigns such as the Sixteen Days of Activism just ended. Laws introduced over the last eight years have sparked vigorous debates in the parliaments of the region, playing an important role in taking gender violence out of the private and into the public sphere. Eight out of the twelve countries have constitutions that explicitly outlaw discrimination based on sex

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Gaps

But the research points to inconsistencies and gaps. For example:
• AU Protocol on African and Women’s Rights: Only one SADC country, Namibia, has ratified the African Union (AU) Protocol on Women’s Rights. In a statement on African Human Rights Day (20 October) GEMSA pointed out that it is inconsistent that Southern African countries should all have ratified the United Nations Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) but fail to ratify this protocol.
• Rights in marriage under general law: Only six of the twelve Southern African countries have passed laws giving women and men equal rights in marriage. In other instances women remain minors as long as they are married in community of property (which is the most common arrangement in statutory marriages, unless an ante nuptial agreement is entered into).
• Rights in marriage under customary law: Ten out of the twelve Southern African countries (except Seychelles and Mauritius) have a dual legal system, with customary law governing the every day lives of the majority of women in the region. Only two countries (South Africa and Namibia) have made it clear in their Constitutions that where there is a conflict between the two legal systems, the Bill of Rights takes precedence. Only two countries (South Africa and Tanzania) have passed laws to provide for equal status between women and men in customary marriages.
• Domestic Violence Acts: Only four out of the twelve countries have passed specific Domestic Violence Acts (Mauritius, South Africa, Namibia and Seychelles). Important aspects of domestic violence legislation include: comprehensive and broader definitions of domestic violence to include physical, sexual, economic, emotional, verbal and psychological abuse. The legislation also includes the ability of the complainant to obtain a protection order that resembles an urgent interdict but is less expensive and easier to obtain. Three countries (Botswana, Malawi and Zimbabwe) have domestic violence laws pending. In the remaining countries there have been no moves to introduce specific legislation for addressing domestic violence. This means that in the majority of instances, domestic violence is covered under laws such as “common assault” that are inadequate for dealing with this complex violation of women’s rights that invariably takes place in “hidden” places like the home.
• Sexual Offences Acts: Only four countries (Lesotho, Namibia, Tanzania and Zimbabwe) have passed Sexual Offences Acts and a Sexual Offences Bill is being debated in South Africa. Key features of this kind of legislation include: redefining rape to include any form of non-consensual penetration, thus making the definition gender neutral; abolishing the cautionary rule that in many countries required the court to be cautious in handling rape cases because of the assumption that women do not tell the truth about the circumstances that lead to rape; minimum sentences and making it a deliberate offence to transmit HIV/AIDS.
• Recognition of rape in marriage: There is a close correlation between countries having sexual offences legislation and explicitly recognising rape is marriage. The five countries that have, or are debating sexual offences legislation, as well as Seychelles, have this statutory provision. Abolishing marriage as a defense for sexual offenses is an important barometer of the level of gender justice discourse in a country, and is a critical factor in the era of HIV/AIDS, where one of the largest categories of those newly infected is married women who are faithful in their relationships while their husbands are not. With the exception of South Africa, however, there are very few instances in the region in which this provision, where it exists, has been put to the test.
• Provision for the administration of Post Exposure Prophylaxis or PEP to survivors of sexual assault: Only four out of the twelve countries in the study (Mauritius, Namibia, South Africa and Zambia) have policies requiring that health facilities administer PEP, a course of anti-retroviral drugs that can help to reduce the likelihood of HIV infection, after a sexual assault. Two countries (Tanzania and Seychelles) said awareness of PEP in their countries only extends to other uses, like health care workers who might have been exposed to the possibility of infection in their work. In none of the countries is there a legal provision for PEP, although in South Africa this might be provided as part of the treatment clause in the Sexual Offences Bill that has been the cause of heated debate between the government and activists. The weak policy and legal provisions, lack of public education for survivors of sexual assault to seek this treatment, which has to be taken within 72 hours of the assault, is one of the most disturbing findings of the study, given the fact that Southern Africa has the highest rate of HIV/AIDS infection in the world. It is also disturbing that debates about this issue have been confined to policy and legal provisions, rather than to the human rights of women, and the Constitutional obligations of the state, in situations where women are exposed to the danger of the deadly virus as a result of coerced sex.
• Sexual harassment: Legal provisions for sexual harassment in all countries are weak, with four countries (Mozambique, South Africa, Namibia and Zimbabwe) reporting that this is covered as part of labour law, but Mozambique stating that this is a “brief mention” and has never been tested; and Zimbabwe expressing concern that the issue is inadequately covered under “unfair labour practices.” In other countries, sexual harassment could be read into other laws, like the 1889 Crimes Act in Swaziland that refers to “inappropriate sexual behaviour” but is more than a century old! Mauritius’ Sex Discrimination Act has the most direct and up-to-date provisions for sexual harassment, referred to as “any unwelcome or unbecoming gesture or act of one sex to the other.” However, researchers found that there are very few cases in court, and “victim of sexual harassment in Mauritius find it difficult to get another job” if they report such a case. South Africa has had two highly publicised land mark cases on sexual harassment over the last two years that have raised awareness and debate on the issue. But both have concerned white professional women, raising questions as to the thousands of other women who experience sexual harassment but do not have the means to take up their cases.
• Trafficking: No country in the region except Tanzania (in its Sexual Offences Bill) has specific provisions for sex trafficking, a phenomenon of globalisation that should be a major concern for vulnerable developing countries that are committed to the rights of girls and women and want to prevent this scourge from taking root. One of the reasons for the delay in the Sexual Offences Bill in South Africa is that a chapter on trafficking has been belatedly introduced. In other countries, provisions for trafficking could be read into child protection or general criminal laws, but these were not drafted with this specific provision in mind. In the survey, the country that showed the greatest awareness of trafficking is Mozambique: one of the poorest countries in the world, with a long sea board, history of war, displacement and migrant labour that makes it especially vulnerable to this new form of slavery. The Foundation for Community Development in Mozambique provides coordination for NGOs working in this area, including working with and training border police to identify trafficking. UNICEF in Mozambique has drawn up a fact sheet on trafficking that could be used to develop a legal framework. The Child and Law Foundation in Zimbabwe is conducting research in border towns to determine the extent of trafficking. The South African Law Reform Commission recently released an issue paper on trafficking and has started to examine how South Africa can address the issue.
• Child abuse: While most countries in the region are signatory to the UN Convention on the Rights of the Child, only four countries (Mauritius, Seychelles, South Africa and Zimbabwe) have specific laws for addressing child abuse and promoting the rights of children. Zimbabwe has an exemplary Protocol for the Multisectoral Management of Child Abuse, an ethical agreement between all officials and professionals that highlights the roles, responsibilities and procedures to be followed by personnel from the time of disclosure by a child or witness. Those bound include the department f social welfare, Zimbabwe Republic Police, Department of Public Prosecutions, Law Society of Zimbabwe, Members of the Judiciary, Ministry of Health and Child Welfare as well as NGOs who provide support and shelter for survivors of gender violence.
• Legal Aid: In five of the twelve countries (Botswana, Malawi, Swaziland and Tanzania) there is no government- supported legal aid. In all countries surveyed the bulk of legal aid for women and children is provided by NGOs often relying on foreign donors.
• Specialised facilities at police stations and in the courts: Seven of the twelve countries have introduced some form of specialised facilities at police stations and/or in the courts for addressing gender violence. These typically consist of separate rooms at police stations with trained staff called “victim support units” (Mauritius, Mozambique, Swaziland, South Africa, Zambia and Zimbabwe). Seychelles has a Family Tribunal that hears all gender violence related cases; South Africa is in the process of setting up special sexual offences courts and Zimbabwe has established “victim friendly courts.”
• State support for places of safety for survivors of gender violence: Only one country, Mauritius, reported having adequate places of safety that are partly funded by government. Three countries, Lesotho, Swaziland and Tanzania said they have no places of safety (other than police stations). All the others indicated that the places of safety that exist are all run by NGOs and these are stretched.
• Public education and awareness: Limited state funds are invested in public awareness on gender violence, a key factor in long-term solutions to the scourge, with almost all work in this area conducted by NGOs. All countries reported considerable improvement in media coverage of gender violence as a result of training and campaigns by NGOs, but this is still marred by sensational and insensitive headlines like “Sex crazed gang rape woman”. There have been very few opinion surveys in any of the countries to determine if attitudes towards gender violence are changing. One recent survey in South Africa showed that nearly half of the men surveyed believed that if a woman wears a short skirt she is “asking for trouble.”
• Budget allocations an integrated approaches: In all countries approaches towards addressing gender violence are fragmented, with Mozambique reporting that a strong cross sector network called “Todos Contra Violencia” (All Against Violence) collapsed for lack of funding. Only in South Africa have there been studies on budgetary allocations for combating gender violence. These have concluded that resource allocations are inadequate relative to the provisions in new laws.

FOR MORE INFORMATION CONTACT: Janine Moolman on +27 11 622 2877 or email janine@genderlinks.org.za

Contacts in the region:

Botswana: Keaybone Ntsabanye: Womens_ngo_coa@info.bw
Kenya: Rosemary Okello: awcin@kenyaonline.co.za
Lesotho: Fanyane Mathabang: mathabangfanyane@yahoo.co.uk
Mauritius: Loga Virahsawmy: gonaz@intnet.mu
Mozambique: Dorothy Brislin: dorothybrislin@yahoo.com.br 
Namibia: Sarry Xoagus-Eises: sxoaguseises@yahoo.com
Seychelles: Sharon Thelemaque: keraque@hotmail.com
South Africa: Mothibi Mohomane: mothibi@genderlinks.org.za
Swaziland: Ncane Maziya: smegwa2003@yahoo.com
Zambia: Chileshe Kalasa: Kchileshe2000@yahoo.co.uk
Zimbabwe: Loveness Jambaya: loveness@mmpz.org.zw