Gender equity target: 50%

2013-11-10 14:00

New bill takes a soft approach to seek out detailed targets to achieve greater female representation on all of SA’s ‘decision-making structures’

A new bill that seeks 50% representation for women in all “decision-making structures” will trump targets set by any other empowerment legislation or policy, says the department for women, children and people with disabilities.

This includes the effective target for female representation of 43% set by the Employment Equity Act and is based on their share in the economically active population.

It also possibly affects the targets set by the Broad-based Black Empowerment Act, although the codes already target 50% black female management.

“All legislation with a target on women that is below 50% must be aligned to this legislation,” says Mikateko Maluleke, special adviser to the department’s minister, Lulu Xingwana.

The new, and almost completely rewritten, Women Empowerment and Gender Equality Bill was tabled in Parliament this week, more than a year after the initial draft promised fines and even imprisonment for noncompliance.

The new bill includes more detailed targets that extend beyond representivity to set a 50-50 gender target for any empowerment initiative, explicitly including “economic and land reform”.

At the same time, the new bill has virtually no enforcement mechanism. Instead of fines and jail sentences, it promises to enforce its provisions through recourse to “any dispute-resolution mechanism”. (see box)

“It’s a softer approach,” says Sam Gumede, an attorney at Webber Wentzel.

“The key term is progressive realisation. It might have come from a realisation that overnight implementation would throw everyone off their game.”

This gives Xingwana’s department more of a “governance, advice-driven role” instead of the harsh sanctions of the 2012 draft, he adds.

In practical terms, the bill will require “a lot of legwork” as all sorts of legislation will have to be aligned to reflect the genderequity target, says Gumede.

The old draft expressly covered companies, political parties, unions, “traditional organisations”, religious, cultural, civil society and nongovernmental organisations.

It also holds company directors liable for noncompliance.

The new bill refers only to “public bodies” and “private bodies”, and only mentions political parties explicitly as far as the genderequity target is concerned.

It also does not automatically include all “public and private bodies”.

The bill allows Xingwana to “designate” bodies, obliging them to partake in a new system of submitting plans on how they intend to ensure gender equality.

This includes a “progressive realisation” of 50-50 genderequity in “decision-making” structures.

“Private bodies” still include companies, says Maluleke.

By “decision-making structures”, the department means boards as well as “management, special committees or task teams (i.e.) audit committees, etc”.

The target of 50% female representation can be weighed up against the findings of the Commission for Employment Equityon women in “top management”.

The tally was 30.7% in government and 18.6% in the private sector, while nonprofit organisation had to be 38.9% female at the top end.

The minister can then review the plans and require the bodies to report on their progress at any time.

The issues that the plans would have to address include how women’s access to training and healthcare will be promoted, as well as plans for public education around gender-based violence and other “prohibited practices”.

No more gender police

Under the old draft genderequity bill from last year, the minister could issue directives and compliance notices leading to court, fines and even imprisonment if they were disregarded.

She could also issue fines for “practices with adverse effects”, including anything likely to “infringe the fundamental rights of women or have substantial adverse effect on their wellbeing”.

This expressly included gender-based violence.

If the fines were ignored, it was proposed that prison sentences could follow, in effect making many crimes or offences against women more severely penalised than they are at present.

Under the new bill, the minister can issue “guidance” and “use any dispute-resolution mechanism” to address noncompliance.

“The department would rather work with companies and use other mediation processes if available. Courts will be a last resort,” says Maluleke.

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