The Day Human Rights Became Immoral

On 3 March 2015, the Portfolio Committee for Justice began the public consultation process on the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill 18 of 2014. The Legal Resources Centre attended Parliament and presented oral submissions which were based upon our written submissions of 4 March 2015.

The Amendment Bill seeks to implement two Constitutional Court judgments which have become known as the Teddy Bear Clinic case and J v the NDPP case. Both of these cases dealt with aspects of the constitutionality of certain provisions of the “Sexual Offences Act”. The Teddy Bear Clinic matter dealt with the constitutionality of criminalising consensual sexual behaviour of adolescents between the ages of 12 years and 16 years, and J dealt with the automatic recording of the details of minors convicted of sexual offences on the National Register of Sex Offenders. The amendment that will address the constitutional concerns raised in the Teddy Bear Clinic case has received much more media attention than the issue of recording minors’ details.

It seems that the reason for this was on full display during the public consultation process this past week, when a number of religious organisations, churches and institutions came to Parliament to object to the amendment which, in essence, seeks to recognise normal sexual behaviour between consenting adolescents. The Constitutional Court has recognised adolescence as a difficult period in a person’s growth and that adolescents require support and not prosecution. These particular amendments will give adolescents the ability to experience their normal sexual exploration and development by not criminalising this behaviour.

Those who attended on behalf of the religious community did not afford the same recognition to sexual behaviour between adolescents. This apparently normal period in the development of human beings became “episodes of consensual abuse”, “unnatural urges and needs” and “immoral and sinful”.

Repeatedly, those of us who believe in human rights and the Constitution where told that we hold no moral compass. At one point in the presentations, it was stated that civil society organisations funded by the west have become “agents of Satan”. They referred to a Constitution in which “the moral values of the majority were not reflected in the liberties contained in the Constitution”. One could almost forget that the Constitution, in fact, recognises rights for South Africans and instead begin to believe that they were in fact liberties; liberties that we can either be deprived of or which we are happy to give up, if only government would allow us to do so.

We recognise and acknowledge that, as South Africans, we have a wonderful opportunity and right to participate and engage in the process of enacting legislation. This is a right that was hard won and we continue to struggle for its realisation.

But we further recognise that we need to ensure that the values in the Constitution and the rights enshrined therein are protected by taking a proactive stance in engaging at the parliamentary level in order to ensure that legislation that is passed within its halls are indeed in compliance with the Constitution. If we do not, we run the risk of parliamentarians only hearing the voices of those who are too eager to give up rights on our behalf.

The amendments to the Sexual Offences Act will, in all likelihood, be adopted by Parliament; there is, after all, a Constitutional Court order mandating them to do so. We ask that Parliament implement the tolerant and accepting nature of the Constitutional Court in both its recognition of the support needed for adolescents during a difficult time in their lives, as well as the need to de-criminalise their normal sexual behaviour.

We echo the sentiments of the Chairperson of the Portfolio Committee in saying that religious leaders and institutions have a duty not only to educate their members on their religious duties, but also to ensure that they use their platforms to educate the public on our Constitution and the rights enshrined therein.

By: Charlene May

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.


Implementing the MDGs for Women and Girls

Implementing the MDGs for Women and Girls: Conclusions from the Commission on the Status of Women

The 58th Session of the Commission on the Status of Women (CSW) took place from 10 March 2014 to 21 March 2014 at the United Nations in New York. The aim for this year’s session was to examine the challenges and achievements in the implementation of the Millennium Development Goals (MDGs) for women and girls.

Late on the final day, one particular conclusion was agreed upon; that those of us present can only hope to make a meaningful impact on the lives of ordinary women.

In general, at events as big as these, it is no easy feat to reach agreement on certain conclusions, but in this instance, there was a general concern about the overall lack of progress made in respect of women and girls in the implementation of all the MDGs.

MDG 3, which seeks to promote gender equality and empower women, was identified as a paramount goal, as it impacts on the success of all of the other goals. It was made clear that this is the goal that countries, including South Africa, battle with the most.

South Africa has made slow progress towards realising gender equality. We have recently seen the introduction of the Women’s Empowerment and Gender Equality (WEGE) Bill into Parliament. It is interesting then to note that the conclusions reached at the Commission identify exactly what is wrong with the WEGE Bill and its proposed implementation; specifically through pointing out that a substantive approach to women’s rights is necessary for real change to happen.

A substantive approach accepts that women are not all the same, and that measures taken must address specific and targeted issues. These measures must recognise that women experience increased vulnerability and marginalisation due to multiple and intersecting forms of discrimination and inequalities.

Government must implement concrete and long-term measures to transform discriminatory social norms and gender stereotypes, including those that limit women’s roles to being mothers and caregivers, and eliminate harmful practices, such as forced marriage (Ukhutwala) and virginity testing, in order to empower women and girls and achieve the full realisation of the human rights.

The agreed conclusions of the CSW also emphasised the need to increase and cement effective financial resources across sectors.

In order for the agreed conclusions to mean anything for ordinary South African women and girls, government must begin to understand the difference between a formal equality model and a substantive equality model. The government must recognise that it cannot simply address the end results of discrimination, but that it must focus on the root causes (such as patriarchy and women’s unpaid work) of gender inequality.

This will not be done through legislation that prescribes policy development for women in the formal economy. Neither will it be achieved when government promises no additional financial resources will be extracted from the public purse in order to implement it. A commitment to eradicate gender discrimination and empower women must be aligned with a financial policy that ensures proper and adequate financial resource allocation. Until there is a real understanding and commitment to gender equality, the agreed conclusions of the Commission on the Status of Women will have no real impact on the lives of ordinary women, and government will continue to fail in its implementation of the Millennium Development Goals.

By Charlene May

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.