1 PC on Women, Youth and Persons with Disabilities

BACKGROUND South Africa is already a signatory to the SADC Protocol on Gender and Development (‘the SADC Protocol’).
In general, the SADC Protocol seeks—
to provide for the empowerment of women;
the elimination of discrimination and the achievement of gender equality; and
equity through the development and implementation of relevant legislation, policies, programmes and projects by signatory Member States.
The SADC Member States have since revised the Protocol in the form of the Amended SADC Protocol, with all but two (South Africa being one) Member States having signed the latest version of the text. 4<br>

LEGAL FRAMEWORK Section 231 of the Constitution adopts a dualistic approach to international instruments.
Obligations and standards set out in international agreements and instruments, only have the effect of law once incorporated into South Africa’s domestic law.
Section 231(2) requires National Assembly and the National Council of Provinces approval. 5<br>

OVERVIEW OF PROTOCOL AMENDMENTS Most of the amendments to the SADC Protocol—
appear to be uncontroversial; and
speak to general issues that fall within the policy mandate of the Department of Women, Youth and Persons with Disabilities and the oversight mandate of the Committee.
The CLSO—
is in agreement with the opinion provided by the Office of the Chief State Law Adviser (dd 7 August 2018) that indicates that the majority of the articles do not change the substance of the SADC Protocol as previously signed by South Africa as a Member State; but
share the concern expressed with regard to the provisions in the Amendment SADC Protocol that shifts the focus from a prohibition of child marriage, with the possibility of exceptions in circumstances that do not infringe on the best interest of the child, to an ultimate prohibition without the possibility of legal exceptions. 6<br>

AREA OF CONCERN: Absolute Prohibition on Child Marriage Amendment agreement seeks to amend Article 8 of the SADC Protocol:
Prior to amendment, Article 8(a) read as follows: ‘no person under the age of 18 shall marry, unless otherwise specified in law, which takes into account the best interest and welfare of the child;’.
The Amended SADC Protocol now omits the above underlined.
Amendment agreement seeks to amend Article 11 of the SADC Protocol, which aims to ensure equal development and protection of the girl child and boy child.
Amended text seeks to place obligation on Member States to “develop concrete measures to prevent and eliminate … child marriages …” 7<br>

AREA OF CONCERN: Absolute Prohibition on Child Marriage (cont) Amendment agreement seeks to amend Article 20 of the SADC Protocol, which speaks to development of legislative measure addressing gender based violence:
to extend the reach of the provision to include an obligation States Parties to develop strategies to prevent and eliminate all harmful social and cultural practices, such as child marriage, 8<br>

AREA OF CONCERN: Absolute Prohibition on Child Marriage (cont) In its unamended form—
Articles 8 and 20 of the SADC Protocols—
align with section 28 of the Constitution; and
permits the use of legislative measures at domestic law level that allow for parental or judicial consent to the marriage of one or two individuals under the age of 18, as long as this does not amount to abuse or goes against the best interest of the child.
Article 20 aligns with the Executive’s current multi-departmental policy strategy to address gender-based violence as the second pandemic.
Although section 28 of the Constitution and Children’s Act, 2005 do not negate the possibility of SA adopting a position that prohibits child marriages, such a shift in regulatory position would require a clear policy change, which would in turn call for legislative amendment, given the current scope of the Marriages Act, 1961 and the Recognition of Customary Marriages Act, 1998. 9<br>

AREA OF CONCERN: Absolute Prohibition on Child Marriage (cont) Our Office is in agreement with a DIRCO memorandum (dd 6 September 2018), which aligns its opinion with that expressed by OCSLA, that –
‘[t]he amendments provided … will therefor give rise to a conflict between the provisions contained in the [SADC] Protocol as amended by the Draft Agreement and South Africa’s domestic law’.
When considering the legislative regulation of marriage, a review of domestic law in relation to child marriage would be necessary in the event that South Africa’s international position changes.
In the context of parliamentary oversight of legislation administered by the Executive, it is important to note that the (potentially) affected legislation would (for purposes of aligning the Amended SADC Protocol with domestic law, as required by section 231 of the Constitution) fall within the scope of the Department of Home Affairs. 10<br>

CONCLUSION 11 In summary: the Amended SADC Protocol, if signed by South Africa, would stand in conflict with our domestic law.
For purposes of assisting the National Assembly in considering the Amended SADC Protocol, the Committee could—
report to the National Assembly on the general approval (if in support) of the articles of the Amended SADC Protocol; and
express reservation with regard to the amendments speaking to Article 8, 11 and 20 of the SADC Protocol
due to the fact that this could have unintended consequences for legislation administered by the Department of Home Affairs.<br>

THANK YOU 12<br>