Tongue, Sue --- "Women and the New South African Constitution" [1995] ALRCRefJl 5; (1995) 67 Australian Law Reform Commission Reform Journal 21

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WOMEN & THE NEW SOUTH AFRICAN CONSTITUTION

International Interest in the ALRC's 'Equality Before the Law' Report

In June 1995 Sue Tongue visited South Africa to swap notes on law and gender equality.

In 1993 South Africa adopted an Interim Constitution. Equality for Women was enshrined in the Preamble to this Interim Constitution and in Chapter 3 (Fundamental Rights). The Constitution also specifically prohibits discrimination on grounds such as race, gender, sexual orientation, ethnicity and social origin.

In April 1994 the election produced not only a Government of National Unity but also a Constitutional Assembly which was given the task of producing a final Constitution within two years of the date of its first sitting, that is, by May 1996. Equality for women is one of the Constitutional Principles which bind the Constitutional Assembly in drafting the new Constitution.

The Constitutional Assembly consists of the 490 members of the National Assembly and Senate. 117 of the members are women placing South Africa in the top seven countries in terms of female representation in parliament. 24% of the members of the national Parliament in South Africa are women compared to 13% in the Australian federal Parliament.

The Constitutional Assembly decided that the process to produce the new Constitution must be people driven and representative. It aims to integrate the views of political parties with those of civil society and the broader public. To achieve this the Assembly established six Theme Committees to focus on various constitutional themes. Theme Committee Six has focussed on the theme specialised Structures of Government'. The Committee has four Subtheme Committees including one (Subtheme Committee 6.3) looking at specialised structures that give effect to the Transformation, Monitoring and Evaluation Process'. This includes an examination of the office of the Public Protector (similar to our Ombudsman), the Human Rights Commission, the Commission for Gender Equality and the Commission on Land.

In June 1995 I was a member of a Commonwealth team observing and speaking at a Workshop on the National Machinery for the Advancement of Women hosted by Committee 6.3. Commonwealth participation was made possible by Australian aid. Other members of the team were Sarah Longwe from Zambia and Maria Kapere from Namibia. The team attended the Workshop and a Constitutional Assembly public hearing and met with representatives of the Ministry of Justice, non governmental organisations and academic institutions. The ALRC's work in plain English writing and drafting and its report on Aboriginal Customary law were discussed. I also met with members of the South African Law Reform Commission and agreed to further close cooperation and exchange of information.

The attendees at the Workshop were very interested in national machinery in Australia for the advancement of women. Australia was generally regarded as having an admirable model despite the lack of a Constitutional guarantee of equality. The ALRC's work in its reference on Equality and its reports, which outline the machinery and examine its strengths and weakness, were of great interest. There were many requests for copies of our reports from governmental and non governmental organisations. Issues of interest included the role of women's desks in departments, the role of the Office of Status of Women, particularly in relation to the budget process, the need for analysis of bills for gender impact prior to their passage and the role of women's legal centres and non governmental organisations.

In the past race discrimination, not sex discrimination, has been the focus of human rights activity in South Africa but in recent years the need for gender equity has clearly been recognised. It was stated that women in South Africa have lived in varying degrees under three forms of oppression: race, class and gender. Black, white and coloured women, including representatives from most political parties, attended the Workshop and there was a high degree of co-operation and commitment to the task. While participants had different experiences and needs there were common concerns identified. Many women had participated in a Women's National Coalition, which was drawn from across the political spectrum and in 1994 produced a Charter for Effective Equality and lobbied for entrenchment of equality in the Constitution. In addition the African Report to the UN Beijing Women's conference has provided a focus for collection of information and data about the position of women in South Africa.

There was a deep understanding of gender issues. While most industrialised countries have used the formal equality model in establishing their machinery and have then had to modify it to take account of the new understanding of these issues, South Africa is in a position to establish new machinery tailored to address gender bias and systemic discrimination from the start. Great care is being taken to consult widely and establish the best possible model.

It was very exciting to be part of a such a broad and important law reform process. Sisterhood is truly global.

A brochure outlining the consultation process has been distributed across South Africa by the Constitutional Assembly.

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