1. Commission for Gender Equality Submission to Parliament on Electoral Amendment Bill [B22-2013] 10 September 2014 Women’s substantive equality: A case for 50/50 legislation

2. CGE MANDATE AND VISION Section 187 of Constitution requires the CGE to promote respect for, and the protection, development and attainment of gender equality CGE Act No. 39 of 1996 mandates the CGE to monitor and evaluate legislation, policies and practices of the state, statutory bodies, and the private sector, as well as indigenous, customary and religious laws and practices The CGE is empowered to research and make recommendations to Parliament; receive and investigate complaints of gender discrimination; and conduct public outreach and education on gender equality. The CGE has powers of subpoena and litigation to further its mandate. PEPUDA Act 4 of 2000 obliges the CGE to institute proceedings in equality courts in instances of discrimination on the basis of gender CGE vision is a society free from gender oppression and all forms of inequality.

3. INTRODUCTION Constitution and PEPUDA call for positive action to promote gender equality International obligations call for measures to promote women’s equality Women’s substantive equality must be attained in political decision-making structures – most expedient way to achieve 50/50 through amendment of electoral legislation CGE submission to Parliament argues Constitutional and legislative framework permit legislation on 50/50, and proposes amendments to Electoral Amendment Bill accordingly

4. LEGAL FRAMEWORK: CONSTITUTIONAL PROVISIONS Equality as Constitutional value and section 9 guarantee S9(2) permits “fair discrimination”, and envisages legislative and other measures designed to protect or advance persons/categories of persons disadvantaged by unfair discrimination, to promote the achievement of equality Test for fair discrimination, ex Harksen vs Lane, if differentiation bears rational connection to legitimate government purpose, and considering position of complainants in society and whether they have suffered from past discrimination Legislation mandating women’s equal representation in decision-making structures would be Constitutional, as affirmative action and other remedial remedies are a means of promoting and achieving equality, ie constitute fair discrimination, as it is designed to protect and advance women, historically disadvantaged by unfair discrimination, and seeks to promote equality as mandated by S9 of the Constitution.

5. LEGAL FRAMEWORK: PEPUDA PEPUDA as a legislative tool that demands implementation of 50/50 legislation – calls for positive action to eradicate social and economic inequalities. PEPUDA seeks to prohibit unfair discrimination, provide remedies for victims of unfair discrimination, and s(3), by promoting the achievement of substantive equality Places obligations on state and non-state actors to promote equality, through action plans, equality legislation, codes of practice, guidelines etc. Regulations may be developed to require corporations, clubs, associations etc to prepare equality plans or abide by codes of practice. Requires special measures to promote equality viz race, gender and disability Provides a right to affirmative action for certain groups entitled to preferential treatment Requires state to pass legislation and other measures to address unfair practices Supports the passing of legislation on 50/50 representation

6. LEGAL FRAMEWORK: INTERNATIONAL LAW CEDAW: Envisages equal participation of women in public life. State bound to take steps to promote women’s participation in decision-making and leadership positions. Art 7 requires signatories to enact measures to promote political equality and eliminate discrimination against women in the political sphere. BPA: Quotas considered key remedy for electoral gender inequality, by empowering women in political systems. S190 calls on states to set targets to increase the number of women to achieve equal representation, if necessary positive action, and take measures in electoral systems that encourage political parties to integrate women in elective and non-elective public positions, in the same proportion and at the same levels as men. AU WOMEN’S PROTOCOL: Art 9 on Right to participation in political and decision-making processes, sets targets for achieving gender equality in the electoral process and to participate in politics without discrimination SADC GAD PROTOCOL: State parties shall endeavour that by 2015 50% of decision-making positions in public and private sectors are held by women, including the use of affirmative action measures viz Art 5

7. ELECTORAL REFORM Will require amendment of Electoral Act as a starting point Will establish quota system Will provide mechanisms for non-compliance by political parties Aim of legislation will be: To provide for 50% representation of women at national and provincial legislatures, to amend the Electoral Act 1998, accordingly, and to provide for matters connected therewith\ This should be followed by further amendments to the Local Government: Municipal Structures Act 1998, and the Local Government Municipal Electoral Act 2000, to embed the principal of 50/50 in our local government framework. The CGE will engage Parliament on this later.

8. AMENDMENTS TO ELECTORAL ACT 73 OF 1998 Propose that numbers of women and men on party list may not differ by more than one; and that names of women and men on each party list shall alternate – CGE submission details proposed wording for subsection be inserted as Section 27(1)(A) in the Electoral Act. Sanctions for non-compliance could include: political seats remain vacant; parties are penalised viz funding; or parties are required to pay fines. CGE proposes however that quota system be included as requirement in party candidate list compilation and submission process. Should a party not comply, IEC provides the party the opportunity to correct their list accordingly, failing which it would be disqualified from participating in the election. CGE submission details proposed wording for subsection to be inserted as Section 28 (4) of the Electoral Act. In addition, envisaged complaints procedure for non-compliance – members of general public/Chief Electoral Officer object to compilation of party list on rounds of non-compliance, to be lodged with the IEC and served on party concerned. CGE submission proposes insertion as Section 30 (1)(A) and 30(2) of the Electoral Act.

9. CONCLUSION The CGE is of the opinion that Parliament is obliged and empowered to make legislative provision for the attainment of 50/50, and that the current vehicle of the Electoral Amendment Bill provides such an opportunity. The CGE will further engage with Parliament with regard to proposed amendments to the Local Government: Municipal Structures Act, 1998 and the Local Government Municipal Electoral Act, 2000, to embed the quota system seamlessly within the South African electoral legislative framework. 50/50 representation for some leadership positions cannot be achieved through the suggested legislation – speaker, deputy speaker, chairpersons, deputy chairs, members of Cabinet – requires further deliberation Quota system will require training and skills development support for women in politics, and requires political parties to put measures in place to address social barriers to women’s equal participation in political life – access to child care, maternity leave, campaign finances etc