Introduction

The SADC Protocol on Gender and Development is a legally binding instrument that was adopted by the Southern African Development Community (SADC) in 2008. The Protocol aims to provide for the empowerment of women, as well as to eliminate discrimination and achieve gender equality and equity through the development and implementation of gender responsive legislation, policies, programmes and projects in the SADC region.[1] The Protocol is based on the principles of equality, non-discrimination, participation, empowerment, and accountability. It sets out a number of specific commitments for SADC Member States, including reviewing, amending, and repealing all laws that discriminate on the ground of sex or gender; enacting and enforcing legislative and other measures to eliminate gender-based violence (GBV); putting in place affirmative action measures to promote the participation of women in all spheres of life; ensuring that women have equal rights in marriage and property ownership; providing access to quality education and training for women; promoting women's economic empowerment; and mainstreaming gender into all SADC policies and programmes.

South Africa is acknowledged globally as having made significant progress as far as several spheres in the Protocol. The South African Constitution is considered to be one of the most progressive and democratic constitutions in the world. It enshrines a wide range of human rights, including the rights of vulnerable groups such as women, children, asylum seekers and refugees. In the interpretation of any legislation, it needs to be consistent with international law and must be preferred over any other interpretation that would be inconsistent with international law; and that customary international law is law in the Republic except where it is in conflict with the Constitution or an Act of Parliament.[2]

Even with incredibly progressive law, violence perpetuated against women and girls is increasing. Countries in Southern Africa have some of the highest rates of crimes committed against women. South Africa is considered to be the rape capital of the world with 10,818 rape cases reported in the first quarter of 2022.[3]

Gender-Based Violence Issues Refugees, Asylum Seekers and Migrants Face

Refugees, asylum seekers, and economic migrants are some of the most vulnerable people in the world. They often flee their homes due to war, violence, or persecution, and they may arrive in their host countries with nothing. The vulnerability sometimes begins in their country of origin, in places like Congo[4] and Somalia[5] where young women are forced into marriages with the militia groups. Women are raped in their villages by militia as an act of war and have no other option but to leave to seek refuge in another country. En route and upon arrival, they are often forced to provide sexual favours in exchange for their safe passage.

For the most part South Africa has complied with the articles in the SADC Protocol on Gender and Development. One area where South Africa can improve is the implementation of Article 8, Marriage and Family Rights. Women sometimes come to South Africa as accessories to their husbands or their betrothed and therefore their claim for Refugee Status as a dependent per the terms of section 3 (c) of the Refugees Act;[6] that is as a dependent of someone who has a claim to refugee status either on the basis that they were persecuted or feared for their lives due to civil unrest in the country of origin. One of the biggest challenges facing migrant women is the lack of documentation. If their marriage is not recognised by the state, they may not be able to obtain a visa or work permit. This leaves them at a high risk of exploitation and abuse. You find that even when a woman approaches one of our legal partners to seek assistance with documentation, she will step into the attorney’s office with the spouse, and he does all the talking leaving her voice unheard, further perpetuating patriarchy. Legal practitioners need to afford the women with private consultations where possible to better understand their position and experience, as supported by Article 7, Equality in Accessing Justice, of the SADC Protocol.

When marriages are not recognised by state agencies and said recognition is the only way one can attain documentation, it leaves women vulnerable to different injustices. Section 9 of the Bill of Rights in the Constitution provides that everyone is equal before the law and has the rights to equal protection and benefit of the law. On 28 June 2022, the Constitutional Court confirmed the Supreme Court of Appeal (SCA) ruling in Women’s Legal Centre Trust v President of the Republic of South Africa and Others.[7] It held that the non-recognition of Muslim marriages in South African law infringes on the constitutional rights of both Muslim women and their children in terms of their right to equality, dignity, access to justice as well as the best interests of the minor child as enshrined in our Constitution. From experience, the women who come to South Africa as dependence are usually illiterate and are unfamiliar with basic human rights. The dependency one has on their spouse can be extreme when you are in a foreign country where you do not speak the language. The level of vulnerability is astronomical in the Muslim migrant communities for example where a husband can simply end the marriage by uttering the words “talaq” three times. This means that without the now former spouse, the women are unable to renew their permits.

The recent Constitutional Court judgment applies to all Muslim marriages entered into after 15 December 2014 and a declaration of invalidity will be suspended for a period of 24 months to enable Parliament, together with the President and Cabinet, to remedy the defects found within the existing pieces of legislation, so as to ensure the recognition and regulation of Muslim marriages as valid for all legal purposes in South Africa. The Department of Home Affairs (DHA) has invited South Africans to have a say on the new Marriage Bill. Written submissions were due to the DHA on or before 31 August 2023. Contribution by civil society in such instances is crucial in helping our State to adhere to the Protocol and promote the rights of women.

The move by the government seeks to extend legislative benefits to all marriages and ‘ensure a fair outcome to the spouses to a marriage whenever a dispute arises’ – regardless of religious, cultural, sexual, gender or belief factors.

Involving Men and Boys

It has been reiterated that we should not leave men and boys out of these conversations and try and get to the root cause of GBV. People, including men leave their countries after experiencing traumatic events which later affects them in negative ways. For example, a man who experienced persecution in his country of origin and was forced to flee confessed to abusing his partner and having thoughts of killing her. This was a man who had been diagnosed with Post Traumatic Stress Disorder after he had been captured, tortured and almost killed in his home country and was then a victim of xenophobic attacks in his host country. When addressing issues of GBV we must also address the root causes of the violence and provide support where one of the causes is mental illness. We need to provide support and services to survivors of GBV and we need to hold perpetrators accountable.

Conclusion

The role of civil society ebbs and flows with what is happening in and around them on a daily basis. Their role can take many different shapes and this provides an entry point for productive engagement including oversight on governance and implementation, transparency and holding the government accountable. This includes the SADC Protocol on Gender and Development as well as raising awareness and educating both the civilians and the authorities on the rights of women and girls they as member states have agreed to. As civil society we are a powerful force that should be leveraged effectively to ensure that we contribute toward the development of women and girls.[8]

Bibliography

[1] M.Y.P Selebogo ‘An Evaluation of the SADC Gender and Development Protocol on equality, empowerment and Gender Based Violence in South Africa (2008 – 20212).

[2] D Tladi ‘Interpretation and international law in South African courts: The Supreme Court of Appeal and the Al Bashir saga’ (2016) 16 African Human Rights Law Journal 310-338 http://dx.doi.org/10.17159/1996-2096/2016/v16n2a1

[3] Govender, I. (2023). Gender-based violence – An increasing epidemic in South Africa. South African Family Practice, 65(1). https://doi.org/10.4102/safp.v65i1.5729

[4] World Report 2023 – Democratic Republic of Congo: Events of 2022 https://www.hrw.org/world-report/2023/country-chapters/democratic-republic-congo

[5] World Report 2023 – Somalia: Events of 2022 https://www.hrw.org/world-report/2023/country-chapters/somalia

[6] Section 3 (c) Refugees Act 180 of 1998 https://www.gov.za/sites/default/files/gcis_document/201409/a130-980.pdf

[7] ProBono.org, Legal Recognition of Muslim Marriages by the Constitutional Court https://probono.org.za/legal-recognition-of-muslim-marriages-by-the-constitutional-court/

[8] Terry Ince, International and Regional Instruments on Women’s Rights and Gender Equality: The Caribbean Perspective. How Civil Society and Feminist movements can support States in the implementation of the Montevideo Strategy in Synergy with BFFA and the 2030 SDGs agenda. Available at https://conferenciamujer.cepal.org/14/sites/crm14/files/presentations/instruments_on_women_equality_caribbean_perspective.pdf