Today I learnt that the South African Law Reform Commissions (SALRC) is going to publish its report regarding sex work. Late last year, the SALRC and the Deputy Minister of Justice presented in Parliament, after several consecutive Women’s Parliament reports have demanded the decriminalisation of sex work.
This report released today is a result of a process that started 20 years ago. Twenty years ago our law reflected a fledgeling democracy, finding its feet and trying to redress past discrimination. During these twenty years the SALRC research team on the project has changed, and so has our legal framework.
Many laws have been passed advancing human rights, respecting women’s rights to make choices about their bodies and reproduction, and providing for the protection of LGBTIQ+ people.
But, the SALRC report does not reflect these advancements. The presentation in Parliament months ago reflected sexism in the state’s analysis if issues, and cast women as victims. The bottom line is that a law is not going to stop sex work from happening, but a law can decriminalise sex work, making it safer for sex workers to report abuses against them, and safer for sex workers to seek the healthcare they need so that they and their clients can remain healthy.
It was clear at that time that the SALRC was leaning towards remaining with full criminalisation, or partial decriminalisation. This is despite many presentations from sex workers and sex workers organisations saying that the law in its current form:
legitimises harassment of sex workers by police,
restricts their access to make choices about their careers and bodies,
restricts sex workers access to healthcare,
makes it more dangerous to practice sex work and thus increases the vulnerability of sex workers to gender based violence, and
serves as an arbitrary form of labour discrimination.
Our democracy is supposed to hear the voices of those affected by law, and to take those voices into account when making and amending legislation. Our government claims it wants to protect women from violence, and prevent the norms that encourage violence.
But it appears that the Department of Justice and the SALRC are deaf to the voices of sex workers. It appears that they are fine with the abuses that sex workers continue to endure because of bad law. There seems to be no other explanation for the decision of the SALRC to ignore research that shows the evidence that decriminalisation is the right choice for South Africa.
I support law that protects women and vulnerable groups from abuse, promotes their right to access basic services and human rights. A law that does not advocate for the decriminalisation of sex work does not do this. The duty of our law is to guide us towards the values of the Constitution – respect for dignity, respect for women, respect for LGBTIQ+ people, respect for choice. The duty of our law is not to make judgements about people’s choices, unless those choices cause direct harm to others.
I have explained before that I support sex work decriminalisation in order to respect the right to dignity of sex workers in South Africa. I support it from an informed perspective from sex work led organisations, and also from the evidence of research, and a commitment to human rights.
There is no evidence to suggest that partial criminalisation works. What is known is that it endangers women further by driving sex work underground, enables violence against women and girls and decreased access to health care.
Hundreds of sex workers have died whilst the SALRC and the Department of Justice have taken their time preparing this report. These deaths occur because the law does not protect sex workers.
I along with many organisations and sex workers across the country, call on the Department of Justice to review this decision and to listen to South African sex workers requests for the decriminalisation of sex work.
One of the key recommendations of the Ad Hoc Committee was the establishment of a “Single Human Rights Body”, amalgamating the following institutions:
The National Youth Development Agency,
The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities,
The Commission for Gender Equality,
The Pan South African Language Board, and
The South African Human Rights Commission.
The aim of doing this would be to avoid duplicated effort, use resources (human and financial) efficiently, and improve public access by having a coordinated approach. Parliament then invited submissions by the 25th of May 2017, just ten days after the announcement appeared online.
Now, surely the matter of doing away with some of our critical democratic institutions is not a matter to be easily decided. There doesn’t seem to be any merit in rushing a submission or comment on this.
It’s true that the Chapter 9 Institutions have become increasingly weakened over the past decade by poor allocation of financial resources (with the exception of the NYDA that is just rolling in dosh), the requirements of sticking to reporting on international treaties sometimes at the expense of pursuing local interests, the decreasing respect / value accorded to these institutions in political spaces, and the lack of follow up on the recommendations they make.
But, these institutions are Constitutionally created and protected.
The Constitution, Chapter 9, Section 181 (2) provides for the independence and impartiality of of Institutions Strengthening Constitutional Democracy, and states that they must “exercise their powers and perform their functions without fear, favour or prejudice.” Section 181 (3) states that “Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity, and effectiveness of these institutions.” Section 181 (4) states that “No person or organ of state may interfere with the functioning of these institutions.” Finally, Section 181 (5) states that “These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.”
To me then, this sudden call for a review of the powers functioning of some of these organisations raises a number of questions:
1. Has the State assisted and protected these institutions as it is Constitutionally required to do?
2. When these institutions have reported to the National Assembly annually, has Parliament taken up its own role in making sure that any inefficiencies, duplications, or uncertainties around their functions, are addressed?
3. Given that these institutions play an important role in promoting equality and protecting the human rights of South Africans, particularly vulnerable groups, why is there a ten day deadline in which to comment?
To me, the first and second questions have easy answers – No. A quick budgetary analysis will show that under-resourcing of these institutions is significant. Each year, for example, the CGE reports to Parliament quarterly through the Portfolio Committee on Women. And each year that Committee reflects on the smaller and smaller budget, and recommends that this is addressed to improve the functions, and each year…nothing happens. So Parliament is failing to ensure that its recommendations to Treasury and to the CGE are enforced.
But the answer to the third question is less clear. Why not allow more time for meaningful engagement both from the Chapter 9s themselves and from civil society? Why try to rush a process that could have significant effects on the lives of South Africans, and that would affect the nature of the Constitution, Section 189? The answer can’t be because a parliamentary report in 2006 recommended it, because there are hundreds of reports that go through Parliament each year that make recommendations and aren’t upheld (cough, cough, um electoral reform?)
There does not seem to be any clear reason for the limited time frame. A more reasonable time frame would be to allow at least one month, ideally two for civil society organisations supporting democracy to prepare their submissions on the matter. Anything less, in my view, casts a question on whether Parliament wants to uphold Section 189 (3) (4) of the Constitution.
If you agree, write to the Office of the Institutions Supporting Democracy, here email@example.com, asking for an extension to at least mid-July.
Though women have often been granted legislative rights, it is clear that men who hold tightly to power in Africa.
Yet, power is more complex than one over the other, and in our lived experiences we are able to engage with ideas of what it means to be powerful, who has the power, and what our power is for.
What’s clear is that discussions of feminism must come with discussions of power – racial power, sexual power, the power of the voice, gender power, mainstream power, political power, and the power of feminist critique. Every single situation in our lives is imbued with power.
As women, we have exercised our power historically, both in mass mobilisation and in micro-level protest and change within the home, workplace, and media. We know what it means to feel powerful, and also what it is like to be disempowered and powerless.
This September, I invite all of you to write in and tell us your thoughts on power. Send in your fiction (max 2000 words), non-fiction (1000 words), interviews (1000 words), poetry, or pictures of your artwork and they’ll be posted on the blog. Send them all in, with a photograph of yourself and a three line bio, and your social media details to:
Also, keep your eyes on the site for pieces from Rebecca Hodes (SA), Tammy Sutherns (SA), Rosa Lyster (SA), Lizl Morden (SA), Njoki Wamai (Kenya), Kagure Mugo (Kenya) and Marion Stevens (SA).
Marion: The State of the Nation speech happened last week and despite a number of health challenges continuing to face South Africans, far less was said about this than would have been the ideal. In fact, more was said about the Rhino protection programme.
Within health the broad epidemics of HIV, Tuberculosis (TB), Violence against women (VAW) and substance abuse were noted and plans to remedy these through antiretroviral Treatment (ART) and TB treatment programmes, speaking out against VAW and tobacco control were proposed.
As I was digesting this input the face of a black woman with a bruised face surfaced repeatedly on my media platforms, following her expulsion from the House in the EFF scuffle. This disconnect was jarring.
In my area of focus (reproductive justice) women, and in particular black women, continue to bear the brunt of ill health in South Africa. We need leadership and the implementation of our good policies in order to truly transform the lives of women accessing reproductive health services. Schools need to provide comprehensive sexuality education and provide condom access (both female and male). We also need to continue Human Papilloma Virus (HPV) vaccination programmes to reduce the risk that women will contract cervical cancer late in life.
Women and girls need information about the range of contraception options available and to be able to have a conversation with a health provider and choose the method that is most suitable for them. Should contraception fail and a pregnancy takes place women should have access to HIV testing and also have access to a safe and legal abortion and not have to have to resort to an illegal provider. Maternal health programmes need to continue to welcome women and to provide them with good information about their pregnancy and planned delivery.
The Department of Health needs to strengthen it’s work on sexual and reproductive health and rights and the leadership needs to refrain from using misinformed language that suggests that women use abortion as a form of contraception. Commodities, supplies in relation to reproductive health from female condoms to IUCDS need to be strengthened. These suggestions are not new, our Department of Health has fabulous policies, but little leadership and stewardship to implement them.
Are Rhino’s more important than the health of women in South Africa?
Rebecca: There is good news and bad news.
The good news:
By the end of 2010, over 1 million people in South Africa had been initiated on ART (Republic of South Africa 2010). By 2013, this figure had escalated to 2 010 340 adults reported to be receiving ART in South Africa’s public health services (UNAIDS 2013: A86). The expansion in ART provision was testament to the efficacy of a broad-based alliance of healthcare workers, patients, activists, researchers, government officials, donors and other partners who continue to collaborate in the expansion and improvement of the national HIV response. South Africa’s ART programme has begun to reverse the precipitous decline in life expectancy, wrought by AIDS mortality, that came to characterise South African demography in the late 1990s. Due to the provision of ART, life expectancy in South Africa has increased by six years, and mortality among children and adults has declined by 43% and 20% respectively (Mayosi et al, 2012). By 2010, the life expectancy of patients initiating ART was around 80% of normal life expectancy (Johnson et al. 2013: 5).
The bad news:
The structural factors that increase vulnerability to HIV infection and transmission pose persistent challenges to the progress in South Africa’s health sector, and to the democratic transition more broadly. These factors are manifest in enablers of HIV infection, including unemployment, alcohol abuse and gender violence. While health and social interventions to diagnose, treat and manage HIV have provided some of the services necessary to address the needs of patients, the deep-seated determinants of risk and resilience towards HIV infection in South Africa have remained largely intact.
In South Africa’s struggle for public access to treatment, the attention of health care workers and activists was focused on initiating patients onto antiretroviral treatment. Now that South Africa has the world’s largest cohort of patients on antiretrovirals, we must confront the challenges posed by sustaining a massive public health intervention at a time in which resources for health are declining and there is donor fatigue for funding HIV treatment programmes (Mills et al., 2010).
The stigma surrounding HIV remains prohibitive, preventing the vast majority of HIV-positive people from disclosing their status openly and publicly. While antiretroviral treatment has saved the lives of many, recent studies have shown that, contrary to the expectations of public health specialists, the public provision of treatment has not alleviated HIV stigma in South Africa.
While the fight for public access to ART has won numerous gains for women, the primary focus on their health outcomes as mothers, and the related prioritisation by public health specialists, donors and activists of Prevention of Mother To Child Transmission (PMTCT) initiatives, has shifted attention away from other reproductive health rights. Health interventions that have prioritised treatment for women as mothers has placed primary value on their reproductive capacity rather than their individual health outcomes (Eyakuze, Jones, Starrs & Sorkin, 2008, p. 33).
In spite of the requirement in many healthcare settings that HIV-positve women accept contraception as a pre-requisite for access to ART, social sanctions and individual factors compelling people to become parents continue to play a formative role in the reproductive choices of people with HIV. If the roll-out of ART is to continue to improve the health outcomes of women in Southern Africa, sexual and reproductive health must be repositioned at the centre of HIV prevention and treatment programmes.
South Africa has among the highest rates of rape and sexual assault in the world, but research has shown that very few women report rape or seek healthcare services after being raped or assaulted.[i] Survivors of rape and sexual assault have the right to free medical advice and medications, as stated in the Sexual Offences Act (2007).
Jen: In terms of mentioning women specifically, the 2015 SONA limited itself to describing the fact that ‘some progress had been made in fighting crimes against women and children.’ Whilst that can be debated in other platforms, what is important to consider for women’s health is the very strong linkages between violence against women and HIV and sexually transmitted infection contraction.
In addition to what Rebecca describes above, the links between violence and HIV have been well documented by the World Health Organisation and can be summarised as follows:
rape and sexual violence usually result in trauma to women’s genitalia, increasing the likelihood of contracting HIV and other viruses;
sexual abuse in childhood has been linked to risky sexual behaviour in adulthood, increasing the chances that an individual will contract HIV;
violence or fear of violence can reduce the likelihood that a woman feels safe or empowered to negotiate condom use;
violence or fear of violence, in addition to societal stigma and the gendering of disease, can make it less likely for women to go for HIV and other STD testing; and
violence can make it less likely for women to go for antenatal testing when pregnant, thus reducing the efficacy and reach of programmes designed to prevent mother to child transmission.
Another element that was left out of the State of the Nation was South Africa’s extremely high maternal mortality rate, and the fact that over the past years this has only reduced marginally. South Africa is far off from achieving the maternal mortality rate set by the Millennium Development Goals as made clear in Part 1 of this series. The leading causes of death were non-pregnancy related infection (most often HIV related illnesses) and high blood pressure. It seems essential then that the outreach of maternal health services should be widely expanded.
Our teen pregnancy rates also remain high. Early pregnancy has long term impacts on the lives of girls, and because of patriarchal gender norms continues to impact on girls education and life choices far more than it does on boys. In addition, the number of pregnancies that happen in school should be a serious concern as many of these are legally rape. Where healthy consensual sexual activity happens between adolescents, problems with the legislation around sexual offences have the impact of limiting adolescents access to sexual and reproductive health services, making it more likely that they will not seek treatment for sexually transmitted infections or pregnancy. Possible amendments to this legislation are currently before the Portfolio Committee on Justice. This must be addressed as soon as possible.
The State of the Nation will never be the speech that will solve all women’s health problems. However, there was certainly more space available to address these significant challenges than was used.
The speech is done. The State has announced its priorities for this year. Women were not highlighted as a core group, other than to be mentioned as victims of crime, and the occasional few mentioned as entrepreneurs.
Before I get to the ‘what now’, I’d like to begin with a story. I hope you’ll take the time to bear with me for this.
I first heard this story in Uganda, surrounded by women just like myself who had come together for the privileged activity of writing. I think at the time we watched it, it was raining outside, the type of persistent and thorough rain that you experience in warm humid climates. The type that doesn’t take the heat or humidity away, just cements it in, closer to your skin.
While it rained outside my new friends and I listened to the story of a fire. Wangari Maathai, leader of the Green Belt Movement, told the story on a youtube clip that we all leaned forward to watch, eager to hear the sound.
The story went along these lines: Many animals of different sizes inhabit the forest, each with its own purpose. There is no animal that is insignificant, and each animal’s actions have an impact on the others. Some might call this the circle of life, or the food change, or simply nature. One day, in the forest of Maathai’s story there is a fire. Many of the animals flee their homes, running away to the edges of the forest away from the fire for safety. They watch as the fire grows and grows, feeling helpless to do anything to stop it. Watching as their beautiful home is slowly destroyed.
One animal chooses not to watch. It is the animal that you least expect, a tiny hummingbird. So small that it seems useless. Whilst the other animals stand and observe, the hummingbird takes tiny droplets of water in her beak, and releases each droplet down onto the fire. Drop, after drop, she doesn’t give up.
The other animals mocked her – and perhaps to them her impact seems insignificant, her effort purposeless against what seemed an obvious destructive force that would not be reckoned with. Eventually, on her return flight to collect water, the animals stopped her with a condescending question: “What do you think you are doing?” Her response? “I am doing the best I can.”
For many of us watching the SONA from home there was a lot to reflect on. It’s possible that from where we are, there seemed to be a fire of magnificent proportions, a fire that is harming many of us whilst we watch from the sidelines feeling powerless. There may have even been the sense that there was nothing to be done, that this blaze would continue around us regardless.
So, what does that mean? What does that mean for the women in your life? How do you go into the weekend, and the weeks that lie ahead knowing that you are not the focus of development plans, and that they will not be focussed on your needs? But, if you feel a sense of your smallness, ask yourself are you doing the best you can?
I have a suggestion. Take your energy and make the country you want to live in.
Vote in the 2016 local government elections. Before you do that, find out who the candidates are and make an effort to meet them. Find out who your representatives are here. Send them a letter/email or make a phonecall and ask them how women are being represented in your area, and how our interests are being taken into account.
Participate in community meetings and forums. Get to know your neighbours. Talk to them about issues in your area. Encourage them to attend the meetings and forums with you.
Send letters and petitions to government and parliament. Comment on laws you don’t agree with, suggest ones you do.
This is not a chance to give up, sit back, and complain.This is a chance to consider that little girl who listened to President Zuma from the audience. Who had tea with him and told him that she wanted to be President one day. Let’s not give up on her dream.