The National Council on Gender-Based Violence and Femicide Bill was signed into law on 24 May 2024. However, the legislation falls short of commitments agreed to in the National Strategic Plan on Gender-Based Violence and Femicide. Kayan Leung, Head: Strategic Litigation and Gender Equality Programmes at Lawyers for Human Rights, outlines what companies need to know about the new legislation.
How does the National Council on Gender-Based Violence and Femicide (NCGBVF) Act differ from the 2020 National Strategic Plan on Gender-Based Violence and Femicide (NSPGBVF)?
Briefly, the institutional framework (as set out in the NSPGBVF) was carefully crafted to hold all roleplayers and stakeholders accountable, demand accountability across government departments, not be tied to the mandate of any one department, and encourage and facilitate collaboration and coordination within respective sectors and communities. The Act deviates substantially from the model developed and agreed on regarding clarity on a funding framework for gender-based violence and femicide (GBVF) or accountability mechanisms that ensure government departments provide indicators on how to contribute to the fight against GBVF.
The NCGBVF Bill establishes the Council, its powers and its scope, with the board monitoring the implementation of the Council’s action plan. The current NCGBVF Act 9 of 2024 has reversed the composition of representation in favour of government. Both civil society and private sector members for the board are appointed by the President and from a list of persons recommended by the National Assembly by way of resolution with a supporting vote of a majority of the members of the Assembly.
The Council must report to the Minister of Women, Youth and Persons with Disabilities. The Minister will prescribe norms and standards for coordinating and accountability of the provincial and local GBVF structures.
As a call to action, we strongly believe that transparent and fair appointment processes must be in place and draw a distinction between people who come from civil society and people who represent civil society. This is to safeguard against political deployment and interference within important spaces, which can ultimately hamper the implementation of the NSPGBVF.
The Act also states that the minister has a prerogative to make regulations, meaning there is no duty to do so and certainly not within clear time frames. Depending on the political will of the department, this can hamper the effective implementation of the NSPGBVF.
No mention is made in the Act of a GBVF fund, save for funding for the administration of the Council. Placing the onus to establish a national GBVF fund through the Council who would manage it was deliberated extensively through both Presidential summits on GBVF. This fund should pool all resources instead of the current GBVF response fund which consists only of funds from the private sector and development partners.
The Act proposes the creation of an NCGBVF. How would the Council be constituted and funded?
The Council will be funded through:
- i. Monies appropriated by Parliament for this purpose
- ii. Donations or contributions received from any source
- iii. Trust funds vested in the Council; interest derived from investments
- iv. Money received from any other source.
What would need to be done to ensure the Council is capacitated to bring about meaningful change?
The NCGBVF Act does not adequately reflect the 2018 commitment to combat GBVF. The Act must be urgently reviewed and its shortcomings must be addressed through a participatory process that involves all key stakeholders. While the recent enactment of the Act was intended to mark a significant step towards better leadership, coordination and accountability in the fight against GBVF, it has unfortunately fallen short of its purpose. To add insult, the DWYPD intends to unilaterally appoint the EndGBVF Collective as the Council secretariat, disregarding the clear process set out in section 17 of the Act
Do you foresee a legal challenge to the Act and, if so, what outcomes would you like to see?
We are pursuing all avenues to engage with the government to correct the Council’s fundamental defects. If this fails, we will explore legal action. We want to see the Council constituted as envisaged by all stakeholders in the NSPGBVF.
What impact does the Act have on companies and how would this affect their GBVF work?
Funds from companies that have invested and committed to GBVF may not be fully optimised for its purpose in the NSP. Companies would struggle to hold government and implementers of the NSP accountable, leaving meaningful impact lacking. Our country faces so many issues of corruption and mismanagement, we do not wish to see this repeat in this space.
What recommendations do you have for companies and NPOs that want to improve the outcomes for GBVF survivors and prevent GBVF in the first place?
Support the call to fix the NCGBVF Act that will include:
- A funding framework for the NSPGBVF
- Fair representation for civil society and the private sector on the Council
- Strong accountability mechanisms that ensure commitments are integrated into government performance indicators
- Political leadership at the highest level, including the Presidency
- Inclusion of provincial and local structures in the fight against GBVF.
Finally, demand that we stop the DWYPD from appointing the End GBVF Collective as the Council’s secretariat, which contravenes the Act.
KAYAN LEUNG
- Head: Strategic Litigation and Gender Equality Programmes at Lawyers for Human Rights
- kayan@lhr.org.za
- https://www.lhr.org.za/