Empowering women to advocate for change in South Africa

This year’s theme for International Women’s Day is #BeBoldForChange. Rape Crisis Cape Town Trust has embodied this by launching our Rape Survivors’ Justice Campaign in 2016 to lobby for a significant change in how South Africa’s criminal justice system deals with sexual offences cases. The Rape Survivors’ Justice Campaign calls for access to sexual offences courts for all survivors and holds the government accountable for the national rollout of these courts, as was promised in 2013.

These Sexual Offences Courts are crucial in ensuring justice, because they focus on the needs of the survivor and aim to provide survivor-centred justice. These courts have specialised personnel, services and infrastructure. Some of the special features of these courts, are that the sexual offences courtrooms have separate entrances so that survivors do not have to walk past the defendant on their way to the courtroom. In addition, the survivor is able to testify from a separate room using CCTV. We believe that these courts will provide support to survivors throughout the court process and Rape Crisis Cape Town Trust provides court supporters at 5 courts in the Cape Town. These court supporters are trained to help survivors navigate the criminal justice system and offer much needed emotional support to survivors.

The specialised personnel and services that makes up a sexual offences court is centred around the survivor and we therefore refer to it as survivor-centred justice. These resources also include a friendly, welcoming environment that makes it easier for survivors who are children and/or mentally challenged to testify, because it reduces the secondary trauma that survivors experience as a result of entering the criminal justice system.

Pelisa who has been a court supporter at Parow Magistrates Court for six years knows the importance of Sexual Offences Courts. She first got involved with the court support programme because she recognized a “need” for change after hearing stories from community members in Khayelitsha, where she lives. Pelisa is a passionate supporter for survivors of sexual offences who has always helped others heal and become stronger. Her role in the court support programme has been to explain to the survivor why they are there, how they can handle the situation better and, most importantly, help them “learn to love again”. According to Pelisa, her favourite parts about being a court supporter is “when [she] sees a smile on the survivor’s face” and “when [she] talks to them and sees that they have become free and strong”.

Rape Crisis Cape Town Trust welcomed the promise by government to re-establish sexual offences courts. These services, personnel and infrastructure are vital to survivors seeking justice. Rape Crisis Cape Town Trust has continually been in the forefront of empowering women to advocate for change in South Africa. However, there is still a lot of work that needs to be done. There are only 49 Sexual Offences Courts, and other services offered to survivors of sexual offences are still inadequate. A donation to Rape Crisis Cape Town Trust will go a long way to help us continue our work to hold government accountable for the rollout of sexual offences courts and to offer much needed support to survivors through our counselling and court support services.

Image above: Pelisa Nokoyo – Rape Crisis Court Supporter

Written by: Adam Kirschner – Communications Intern at Rape Crisis

If you would like to contribute to our programmes, Donate now and find out more here: http://rapecrisis.org.za/donate/

 

 

It takes a movement to end sexual violence: Not One Less!

On June 3, 2015, hundreds of thousands of protesters filled the streets of over 70 cities in Argentina. They gathered as part of the campaign #NiUnaMenos, Not One Less. Protesters also marched in Miami, in the United States; Santiago, Chile; and Montevideo, Uruguay. The spark that set this campaign and these marches off was the brutal murders of 14-year-old Chiara Páez, by her boyfriend, and 44-year-old María Eugenia Lanzetti, by her husband. Those tragedies were the spark, but the fire was the understanding that only a movement, a real social and political movement, could end sexual violence.

On May 11, Chiara Páez’s corpse was found in the city of Rufino, in the Santa Fe province. She was three months pregnant. Her boyfriend beat her to death and then buried her in his family’s backyard. He has since confessed.

María Eugenia Lanzetti’s death was, initially, much more public. Lanzetti was separated from her husband and had initiated divorce proceedings. She also had a restraining order placed on him. On April 15, her husband entered the kindergarten where she taught and, in front of the class, killed her.

In Buenos Aires, a small group of women said, “NO!” No more killing, no more violence against women, no more acceptance of violence against women as inevitable. Not One Less. Journalist Marcela Ojeda hit the Twitter nail on the head, “Actrices, políticas, artistas, empresarias, referentes sociales  … mujeres, todas, bah.. no vamos a levantar  la voz? NOS ESTAN MATANDO”.  Actresses, women politicians, women artists, women businesspeople, social references, all women… Aren’t we going to raise our voice? THEY ARE KILLING US”

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#NotOneLess MARCOS BRINDICCI (REUTERS) http://elpais.com 4 June 2015

Then the women started organizing a campaign, a hashtag, a day of demonstration, a slate of public policy actions, and more. They committed to leaving no stone unturned and no corner untouched. They pulled together disparate political parties and factions as well as different sectors from across the country and across society. They demanded action from the State. They argue that Argentina doesn’t need new laws; it needs the State to vigilantly implement the laws already on the books.

The women revised the national conversation. Instead of “why is there no reliable data on violence against women”, the women argue “the State has refused to gather reliable data on violence against women, and, in so doing, has failed.” The women are pushing for more than a few laws here and a few training sessions there. They are demanding serious budgetary action be taken … or else.

As I watched and read reports of the campaign and of the march, I thought of Anene Booysen and the muted response to her horrible death. Many, such as Kathleen Dey and Sisonke Msimang, wrote compellingly. There were some protests, but they weren’t national and they died down pretty quickly. Why? When will hundreds of thousands, and millions of people fill the streets of South Africa and shout, in the richness of the eleven official languages of the rainbow nation, Not One Less! Not One Woman Less! When? When will thousands take to the streets to demand real funding of the Sexual Offences Courts? When? It takes a movement to transform outrage into justice.

Dan Moshenberg

Dan Moshenberg writes at Women In and Beyond the Global and at Africa Is a Country, and is Director of the Women’s Studies Program at The George Washington University in Washington, DC.

It seems an opportune time to comment on Parliament

It seems an opportune time to comment on Parliament. After all, the very foundation of its colonial decorum is being questioned by many, and it has recently done little to indicate the integrity, efficacy and ethics that one would expect from the arm of government tasked with oversight.

Our President, it seems, can be both lawless and celebrated by ‘honourable’ members in the plenary, and we the public are supposed to sit back whilst our tax and VAT are spent on refurbishments rather than services. When things get too sensitive, Parliament is simply put on hold, while the party asking the real and only question the nation wants the President to answer is thrown out.

But there is more to the working of Parliament than just the plenary. The plenary is, around the world, an opportunity for grandstanding and heckling. The work of Parliament happens in Parliamentary Committee meetings. It is here that legislation is debated, that oversight is proposed and undertaken, that opportunities for public participation are facilitated, and that ‘cooperative governance’ (as yet unsuccessful) is considered. So what does it mean when the number of committees is cut, whilst the number of Departments they are required to oversee grows? This question is particularly pertinent for the National Council of Provinces (NCOP), where the number of Committees stands at a paltry eleven.

Perhaps it’s worth clarifying what the focus of the NCOP should be. As the Council of Provinces, the focus is essentially provincial. Yes, national budgets and legislation are (or should be) considered there, but when it comes to oversight and public participation, the focus is clearly on the nine individual provinces. This is important because much of South Africa’s spending happens at this level, and even more so at the municipal level.

Consider the budget of the Department for Social Development, for example. This money is dispersed to provincial Departments, who can pick and choose the areas they spend on defined, purportedly, by provincial interests. Social Development is responsible for a number of things via their funding of NGOs – shelters, drug and alcohol abuse programs, social workers in the province, Thuthuzela Care Centres, children’s rights, the rights of people with disability, and support for the many abused women in South Africa. But what happens when these critical areas do not receive sufficient funding? What happens when Parliament doesn’t notice? What happens when it has been redesigned not to notice?

Perhaps that sounds very conspiratorial – a grand government scheme to get away with things. But when you consider that the Portfolio Committee on Social Development only considers social development issues, and the Select Committee on Social Services considers issues of social development, health, human settlements, home affairs, and water and sanitation, then you have to ask, how is the Committee supposed to adequately or regularly check whether the DSD is adequately funding NGOs? The truthful answer is it can’t. And if the Portfolio Committee doesn’t get around to it, then NGO funding doesn’t get checked at all.

The same could be said for women’s issues. At a Portfolio Committee level there is the Portfolio Committee on Women in the Presidency. This committee is tasked with oversight over the Department of Women in the Presidency, which to date has not clarified what it is that they will actually be doing. Their website still speaks to issues of children and disability, hangovers from the previous department. They don’t know what their budgetary allocation will be for this year. Even when they are called before the Committee, they can’t answer. So the work of that Committee is focussed on clarifying the role and responsibilities of the Department of Women in the Presidency, and on hearing from the Commission for Gender Equality. What happens then when women on the ground, the 27 plus million women in South Africa, are not receiving services appropriate to their needs?

The task of looking at what is happening at the provincial level would fall to the Select Committee on Cooperative Governance and Traditional Affairs. Yes, you read that right. This Committee, like the previous one mentioned, is tasked with being an oversight giant. Issues that fall under the mandate of this committee include cooperative governance, traditional affairs, public services and administration, youth, women, and intergovernmental relations. You’ll notice that local government falls in there – which means that every time there is a municipality in crisis it is this committee that must respond. What does that mean for the rights of women? When will those be considered to be in crisis?

The new configuration of committees in the National Council of Provinces has severely hindered the ability of Parliament to support and further women’s rights, or to consider the needs of the numerous NGOs that fund them. The revised structure makes it impossible to adequately fulfil its task as the institution guarding democracy. We should all be very concerned.

Helen Johnston

TRAFFICKING DEFINITION CHANGED IN WORKING DRAFT OF BILL

By Monica de Souza

A working draft (version as at 27 October 2011) of the Prevention and Combating of Trafficking in Persons Bill [B7-2010] has recently been debated by the National Assembly’s Portfolio Committee for Justice and Constitutional Development.   While the recent discussions have focussed on issues such as the status and residence rights of foreign trafficking victims and the penalties that should be imposed for convicted traffickers, the draft reveals that important changes had previously been made by the Committee to narrow the definition of “trafficking”, which, in the original Bill, had encompassed a broad range of conduct.[1]

What is meant by the term “trafficking”?

This question is of great significance because the scope of conduct included in the Bill’s definition of “trafficking” is the same conduct that the Bill criminalises.  Effectively, the definition sets out the elements that need to be proven in order to say that a crime has been committed.  Where the definition is too narrow the risk is that genuine trafficking victims are denied access to the criminal justice system.  On the other hand, where the definition is too broad, unclear or confusing, the trafficking offences based on that definition are difficult to apply and the Bill’s prevention, prosecution and protection aims are unlikely to be achieved.  Police do not know whether the behaviour they encounter is legal or illegal, prosecutors do not know how to prove a suspect’s guilt and citizens do not know what conduct they will be punished for.  Perhaps more importantly, the victims of “trafficking” cannot be identified, their rights to dignity and security, amongst others, cannot be protected and no assistance can be provided to them after the trafficking ordeal.

In terms of both the original version of the Bill and the working draft, the trafficking definition contains three elements: the trafficking acts (for example, transportation or sale), the means used to commit the acts (for example, coercion or fraud) and the purpose of the acts (most often, exploitation).  Each element then lists various conditions that would satisfy the element.  This formulation is closely based on the definition of “trafficking in persons” contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), to which South Africa is a party.

How does the working draft change the Bill’s definition?

In its original form, published early in 2010, the Bill contained a definition for “trafficking” in clause 1 and an offence for “trafficking in persons”, to which that definition had to be applied, in clause 4(1).  In other words, the definition of the crime and the criminalisation provision were dealt with separately in the Bill.  The working draft does away with this separation and incorporates the definitional elements of “trafficking” into the criminalisation provision at clause 4(1).  This eliminates the confusion of having to jump between two different clauses in order to determine the full content of the trafficking offence.  It also has the effect of closing the list of acts that could satisfy the first element of the trafficking offence.  Whereas the Bill’s definition of “trafficking” introduced the list of acts with the word “includes”, this word does not appear in the working draft’s trafficking criminalisation clause.  According to Constitutional Court jurisprudence, the word “includes” potentially introduces a non-exhaustive list of terms.  The new formulation of the trafficking definition thus removes this potential and, as such, also removes the potential for a crime that is stated in overly broad terms and rendered ineffective, at least in respect of the first element.

An important change to the third element should also be noted.  While the Bill recognised three possible purposes for committing the trafficking acts (exploitation, sexual grooming or abuse), the working draft lists only one purpose – exploitation.  The inclusion of “sexual grooming” and “abuse” as purposes was problematic because no definitions were given in the Bill for these terms, and the scope for interpretation was potentially infinite.  It was unclear whether “sexual grooming” was equivalent to the offence of sexual grooming included in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA), in which case only the sexual grooming of children and mentally disabled persons could be applicable.  The inclusion of “abuse” as a purpose also broadened the scope of the trafficking definition considerably, because it is often used as a blanket term for any kind of sustained harm and because the original Bill explicitly stated that sexual acts (such as kissing) could constitute “abuse”, without stipulating a non-consent requirement.

The meaning of “exploitation” has also been adjusted in the working draft, with the removal of forced marriage and debt bondage as forms of exploitation that could satisfy the purpose element.  However, it should be noted that the list of exploitative purposes is non-exhaustive, which means that other forms of exploitation could be included in an interpretation of “exploitation” where these have been removed. The meaning of “sexual exploitation” (a listed form of “exploitation”) is essentially the same as in the original Bill, and refers to any sexual offence contained in SORMA and also “any offence of a sexual nature in any other law”.  This could cover a number of offences, some more serious than others, and all of these would satisfy the purpose element of trafficking.  While this would provide protection to victims who were trafficked for a range of different sexual reasons, it could also adversely affect the state’s ability to effectively apply and implement the trafficking definition, with the result that victims are unlikely to benefit as the legislation intends them to.

Thus, while some adjustments have been made to narrow the scope of the trafficking offence’s definitional elements, there are other aspects of the definition that are still convoluted and open to much interpretation.  It is understandable that the legislature is trying to account for the many different forms and processes of human trafficking.  However, where inclusiveness comes at the expense of effectiveness and there is a danger of over-criminalisation and legal uncertainty, the scope of conduct prohibited in the Bill should rather be limited – especially in light of arguments that the three trafficking elements can be prosecuted separately via various other existing laws.  This would better protect the rights of trafficking victims.


[1] Information about the Bill, the working draft and Portfolio Committee discussions can be found at www.pmg.org.za.