REPORT ON THE AUDIT OF THE SADC DECLARATION ON GENDER AND

DEVELOPMENT ON WOMEN’S RIGHTS

PRESENTED AT THE CIVIL SOCIETY FORUM, 14 AUGUST 2005, GABORONE, BOTSWANA

FOCUS Clauses in the SADC Declaration On Gender And Development

H(iv) Repealing and reforming all laws, amending constitutions and changing social practices which will still subject women to discrimination, and enacting empowering gender sensitive laws

H(vii) Protecting and Promoting the human rights of women and children

H(viii)Recognising, protecting and promoting the reproductive rights and sexual rights of women and the girl child

Specific Provisions

Amendments of Constitution Repeal of LawsChange social practice, custom and tradition

Enacting empowering gender sensitive laws Enacting/amending marriage and family laws Enacting laws on gender based violence Protecting the right to life integrity and

security of the person-human rights of women Amending penal laws with regards to HIV/AIDS

and enacting specific legislation on HIV/AIDS

Specific Provisions (continues) Amending citizenship laws Amending, Repeal and Enacting

inheritance laws Providing gender friendly

Courts/environment and gender friendly police units

Enabling legislation to accessing justice Amending/Enacting education laws

taking into account policies-legal literacy Enacting sexual offences laws and

Domestic Violence Acts Enacting gender sensitive electoral Laws

Amend Constitutions/Repeal Of Laws/ Enact Gender Empowering Laws

SADCGD-Clause H(iv) … to repeal and reform all laws, amend constitutions and change social practices which still subject women to discrimination, and enact empowering gender sensitive laws

African Protocol-Article 2.1-through constitutions and legislative measures will ensure principle of equality between men and women and ensure application.-Legislative measures to prohibit curb discriminating and harmful practices endangering well being of women-Gender mainstreaming in their policy decisions, legislative and development plans

BPFA-Strategic objective 1.2-Ensure equality and non-discrimination under the law and in practice. Para. 230 (g) implement the convention by reviewing all national laws, policies, practices and procedures to ensure they meet international human rights standards. Para.232 being general covering different aspects

CEDAW- Article 2 … to abolish existing laws, regulations, customs and practices that constitute discrimination against women. Article 2 (a) to embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure through law and other appropriate means, the practical realization of this principle.

MDG’s-Goal 3 Promote Gender equality and the empowerment of women

Change social practices, customs and traditions

SDGD-H (vi)

African Protocol-2.1.(b) enact and effectively implement legislative and regulatory measures, including those prohibiting and curbing all forms of discrimination, particularly those harmful practices which endanger the health and well-being of women

BPFA-Strategic objective I.2, Para 232 (d) Review national laws, including customary laws and legal practices. Para 108 (b)

CEDAW-Article 5 (a)-…. to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or superiority of either of the sexes on stereotyped roles for men and women

Enacting / amending Family / Marriage laws

Covered extensively in the African Protocol Art 6 and CEDAW art 16. Rights. Protocol in Art 6- States Parties shall ensure that women and men enjoy rights and are regarded as equal partners in marriage. Both instruments calls for protection in marriage with regard to right to free and full consent to enter into marriage, set marriageable age for both at 18, equal proprietary rights during and after marriage, right to acquire and administer property in her own name, equal rights over children and family planning

Protecting the right to life integrity and security of the person-Human rights of women Human Rights

African Protocol-Art 4 (1) Every woman shall be entitled to respect for her life and the integrity and security of her person. 8 (f) amend practices, Art 3. 1-4 right to dignity inherent in a human being, Art 20 –rights of widows and children. Art 23 rights for Women with Disabilities. Article 24 Special Protection of Women in DistressBPFA-H. Strategic Objective 1.1-Promote and protect the human rights of women through the full implementation of all human rights instruments, especially CEDAW.CEDAW-Article 3, Guarantees women the exercise and enjoyment of fundamental human rights on the same basis as men. Art 6 women trafficking and prostitution.

Enacting sexual offences laws and Domestic Violence Acts/ Reproductive rights/Amending penal laws with regards to HIVAIDS and enacting specific legislation on HIV/AIDS/ Enacting laws on gender based violence

SDGD-Hvi) Hviii), Hix)African Protocol-Article 14.2 take appropriate measures to : (c) protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest and where continued pregnancy endangers the mental and physical health of the mother or the life of the mother and foetus.BPFA- strategic objective C3 , Para 108(b)Review and amend laws and combat practices, as appropriate, that may contribute to women’s susceptibility to HIV infection and other sexually transmitted diseases, including enacting legislation against those socio-cultural practices that contribute t it, and implement legislation, policies, and practices to protect women, adolescents and young girls form discrimination related to HIV/AIDSCEDAW-Article 12-access to health care services, including family planning services, rights in pregnancy,confinement and post natal period, rights in child bearing

Amending citizenship laws

African Protocol-6(g) A woman shall have the right to retain her nationality or to acquire the nationality of her husband

CEDAW-Article 9 (1&2) States Parties shall grant women equal rights with men to acquire, change or retain their nationality.

States Parties shall grant women equal rights with men with respect to the nationality of their children

Amending, Repeal and Enacting inheritance laws

African protocol-Article 21 (1) States Parties shall ensure that a widow shall have the right to an equitable share in the inheritance of the property of her husband. A widow shall have the right to continue to live in the matrimonial house. In case of remarriage, she shall retain this right if the house belongs to her husband or she has inherited it.

Enabling Legislation To Accessing Justice

African protocol-Article 8. Access to Justice and Equal Protection before the Law. Article 25 Remedies. States parties shall undertake to ensure that remedies are determined by competent judicial, administrative or legislative authorities or by any other competent authority provided law.

Amending/Enacting education laws taking into account policies-legal literacy

African protocol -Strategic objective 1.3 a) –i) Achieve legal literacy: Para 233 ) translate into

local and indigenous languages, alternative formats for people with disabilities, people a lower levels of literacy, publicise and disseminate human rights laws

Disseminate info on national legislation and its impact on women legal training programmes for institutions such as police, military and other law enforcement agencies, include human rights of women and its impact school curricula .

Education campaigns on rights of refugee and displaced women, migrant women, and make resource available to them,

ANALYSIS

Most countries have done the following:

Introduced policy on reduction of the direct and indirect costs for girl child education

Revision of national education policies to allow re-entry for school drop-out due to pregnancy

Free primary education for girls and boys Removing gender stereotypes in careers, school text books Establishment of bursaries for girls Policy of girls who get pregnant to go back to school after delivery 50/50 enrolment policy at primary school level, at tertiary level Passing of HIV/AIDS policies Putting in place a Gender Machinery Enactment of the prevention of Domestic Violence Act ( with an

exception of a few countries).

Analysis

A majority of countries have: Have not domesticated CEDAW Have not ratified the African Protocol,

and some have not even signed

Analysis

NamibiaElectoral laws provide that each party

should have at least 30 % women candidates

Developed and passed HIV/AIDS Human rights Charter

Analysis

MozambiquePassed the family law Code which

allows either a man or a woman to be a head of the family, non-recognition of polygamy

Have not domesticated CEDAWIn the process of ratification of the

African protocol

Analysis

Botswana Abolished the marital power and that led to

amendment of Deeds Registry Act which allows women to now regsiter property in their own name, consent in marriage for both parties and sharing of property for couples who ate cohabiting

Enactment of the domestic violence act Not domesticated CEDAW Signed the African protocol Adopted a Constitution

Analysis

Zimbabwe Passed sexual offences Act which

criminalises marital rape and willful transmission of HIV/Aids

Enactments of domestic violence Act Have not domesticated CEDAW Have signed the African protocol

Analysis

Lesotho Passed sexual offences Act which criminalises

marital rape and willful transmission of HIV/Aids Section 26(1) of the Local Government Act

stipulates that third electoral division of the 1272 seats should be reserved for women candidates

Putting in place a human rights commission Enactment of domestic violence Act Have not domesticated CEDAW Have signed the African protocol

Analysis

Tanzania Constitution reserves 20% of

parliamentary seats for women distributed on a proportional representation basis

Analysis

Zambia A bill to sent to prison men who impregnate or marry female

pupils and students without an option of a fine Constitutional reforms (draft Bill): have been declared void

all laws even customary that have an effect of discriminating against women; defined discrimination against women

Equality in marriage Protection of women against all forms inhuman and

degrading treatment Right of women to change their nationality and that of their

children Inclusion economic social and cultural rights and made them

justiciable

Analysis

Malawi Putting in place human rights

commission Have not domesticated CEDAW Have not signed the African Protocol

Analysis

Swaziland have not domesticated CEDAW Have signed African Protocol Have adopted a Constitution (July 2005)

but not come into effect yet-- Equality clause- Right of women to be forced to perform any

cultural practice- Bill of Rights- But right citizenship for women not granted

Analysis

South Africa Recognition of Customary Law

Marriages Joint administration of property in

marriage

Concluding observations

More commitments on paper than actionSADC DGD in paragraph H(i)-(x) list commitments ; key ones being constitutional and legislative reforms; looking at recent Constitutions they do not mirror the commitments set or they are still wanting. E.g Swaziland new Constitution still does not allow women to pass citizenship to their children born from foreign men, yet tge same Constitution talks of equality before the law and non-discrimination on basis of sex, gender, etcCEDAW is regarded as the Bill of rights for women since it comprehensively covers women’s rights, however it has not been domesticated to become enforceable.African Protocol is an African brewed CEDAW, however not all African state members have signed the instrumentBPFA- The strategic objectives covered in particular in I1-3 are extensive enough to bring about significant results in the area of women’s rights, however little has been done.MDG’s- remain a challenge if the above instruments have not been implemented

Recommendations

Allocation of budgets to ministries focusing on women’s rights. Having Gender desks is not enough.

Setting up of human rights institution such as Gender Commission in South Africa to monitor implementations of the instruments

Civil Society have consented efforts