Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the Launch of the Pilot Project on Women in Conflict with the Law, The Ranch Protea Hotel, Limpopo
Distinguished guests and friends,
This month we are commemorating Women’s Month. Statistics SA’s Mid-Year Population Estimates for 2022, which were released on Thursday last week, tell us that in 2022 South Africa has an estimated total population of 60,6 million people.
Approximately 51,1% - that’s approximately 30,98 million - of the population are women.
Women are not only in the majority, but they are also generally estimated to live longer than men, with life expectancy at birth being 60 years for males and 65,6 years for females.
So if there are more women, and if they also tend to live longer than men, why does our legislation not adequately cater for their needs?
What can we do to be more focused on gender responsive legislation and gender responsive law-making?
What we need to ask ourselves, both as policy makers and criminal justice stakeholders, is how the criminal justice system treats women who are in conflict with the law?
And to what degree our criminal justice system is gender-responsive?
All over the world, women offenders tend to have unique pathways to crime, often making them unsuited for incarceration.
In our own country, gender-based violence and femicide has been called the second pandemic.
We must never underestimate the impact of GBV on women who find themselves in conflict with the law.
We tend to recognise women when they are victims of GBV, but then we neglect them when they themselves become offenders because of the GBV perpetrated against them.
I want to share with you the story of a woman - we’ll call her Elizabeth - who shared her experiences in an article by the Wits Justice Project. Elizabeth said -
“He put a knife to my throat and said: I am going to kill you. When he put down the knife to strangle me, I grabbed it and stabbed him. Our two year old was sitting in the corner, observing everything. He started to cry. I took my child and fled the house.
Outside, I phoned the police, who came to the house and arrested me. … The magistrate sentenced me to eight years in prison. My lawyer claimed I killed my husband in self-defence, but the judge just said: ‘too many women kill their husbands.’ He said that he had to make an example of me for the other women who are thinking of killing their partners.
I have three children, aged 3, 10 and 12 years. They are really suffering at the moment, as they have no parents. I am also suffering and I haven’t seen them since I was sentenced. I don’t know what will happen to them and that keeps me up at night.”
There are many women like Elizabeth in our country.
In January this year, President Ramaphosa signed into law new legislation aimed at strengthening efforts to end Gender-Based Violence, with a victim-centred focus on combating this pandemic.
The President has assented to the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the Criminal and Related Matters Amendment Act, and the Domestic Violence Amendment Act.
The enactment of legislation that protects victims of abuse and makes it more difficult for perpetrators to escape justice is a major step forward in our efforts against this scourge.
It can help women who are the victims of GBV before they become women in conflict with the law.
The UNODC has stated that available evidence indicates that, while few women commit violent crimes, a significant number of those convicted of murder of a male partner or male family member have themselves experienced a history of domestic violence.
A 2016 study by Penal Reform International found that, with few exceptions, criminal justice systems are failing these women by ignoring their trauma and the realities of domestic violence.
In almost all jurisdictions covered, there was no separate basis in law for a history of abuse to be considered and, generally, women have had to rely on existing legal defences, such as self-defence and provocation. These defences tend to be ill-adapted to women who have experienced prolonged abuse.
We know, in our country, that we need to consider possible amendments to our Criminal Procedure Act to include, for example, formal diversion processes for adult offenders – similar to what we have for children in the Child Justice Act – as we currently have no formal diversion, only informal alternative dispute resolution as when proposed by prosecutors in a particular case.
In addition, when it comes to women in conflict with the law, we know that sentencing falls within the discretion of the courts, but there are arguments in favour of the legislature putting sentencing guidelines in legislation to specifically direct trial courts to consider more nuanced sentencing approaches in the context of the Tokyo Rules and the Bangkok Rules.
In addition, on-going training for all criminal justice role-players – whether it be SAPS, prosecutors or presiding officers – would go a long way to enhance an understanding and awareness of these Rules. Furthermore, a review of all policies, procedures and legislation to ensure compliance with these Rules is required.
We need to be looking more closely at the laws before they are enacted. In other words, at the law-making process itself, and ask whether that process is a gender-responsive and gender inclusive one?
Last year, UN Women published its Handbook on Gender-responsive Law-making. It y states that many countries around the world still have laws that actively discriminate against women.
This, they argue, is because laws have traditionally been made by men, without consideration of the voices, perspectives and priorities of women and girls in their design and implementation.
At the same time there remain gaps in the law that could be filled by reforms that actively promote equal rights for all.
Women and girls left behind by discriminatory laws are often permanently excluded from the benefits of development.
Conversely, says the UN, the implementation of good laws that conform to the human rights principles of equality and non-discrimination can help sustain efforts to move towards just, peaceful and inclusive societies; environmental and climate justice; equal participation in decision-making at all levels; universal access to essential public services; and economic prosperity for all.
So where do we start?
A gender-responsive law-making process starts with careful consideration of the specific needs, perspectives and experiences of women and girls. The process must therefore be consultative and inclusive, and informed by the differential impact of the law on women and girls, men and boys.
There are certain defined steps to follow in order to achieve this -
- Firstly, there is need for promoting public participation in law-making. Before adoption, every law with a far-reaching impact should be subject to broad consultation with all potentially affected groups. These consultations should take place at every stage of the legislative process – not just when there is already a fully drafted legislative text.
- Secondly, it is important to identify which laws need to be amended or enacted. Before embarking on any process of legislative reform to promote gender equality and tackle any discrimination in law, it is first necessary to assess the existing state of the law in order to more systematically identify priority areas for law reform.
- Thirdly, it comes down to the actual drafting of legislation. Once the executive and/or parliamentarians have decided to engage in some form of gender-responsive law reform, the next step is to determine which reforms are to be progressed and according to what timeline. A comprehensive legal assessment could inform such an analysis.
- Fourthly, the enactment of the legislation itself. Once the drafting of a bill is finalized, it is formally submitted to or tabled in Parliament for consideration, debate, and approval or rejection. Here in South Africa, we know that public participation in the form of, e.g. public hearings and visits to provinces, enhance submissions and inputs on bills.
- Fifthly, is the aspect of budgeting for gender-responsive laws. This includes reviewing expenditure and implementation to assess whether laws are achieving their intended gender-equality outcomes and ensuring that the budget properly supports gender-equality priorities.
- Finally, there is the overseeing the implementation of laws. In addition to passing laws, one of Parliament’s key functions is to scrutinize the implementation of Government’s gender-equality agenda. In South Africa we do this by way of parliamentary oversight.
It is also important to point out that South Africa has a Multi-Party Women’s Caucus. The Multiparty Women's Caucus consists of all women members of the National Assembly and women permanent delegates of the National Council of Provinces – in other words, across party lines.
The MWC acts as an advisory, influencing and consultative body promoting the discussion of women’s issues in Parliament.
The MWC also makes submissions to the relevant portfolio committee, either at request of that committee or at its own initiative and engages on developmental and empowerment issues with women in political structures outside Parliament and women members of parliaments internationally.
In conclusion, when it comes to gender-responsive legislation, every single stakeholder has a role to play – whether it is within the criminal justice system or outside of it.
The executive, the judiciary, members of the legislature, civil society, public servants across various departments, community activists, the media - all have a role to play.
Raising awareness of the need for gender-responsive laws is always a good place to start and that is why events, like the one we are having here today, is so important.
I thank you