We write in advance of the pre-sessional Working Group for the 77th session of the Committee on the Elimination of Discrimination Against Women (“the Committee”) relating to South Africa’s compliance with the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”).

  1. Protection of Sex workers (Articles 6 and 12)

Selling and buying sex in South Africa is illegal. The criminalisation of sex work has not deterred mostly poor, black and economically marginalized South African women from selling sex to make a living and support their children, and often other dependents too. Criminalisation in South Africa has, however, made sex work less safe, made sex workers more vulnerable to exploitation and crimes and meant that sex workers are less likely to report trafficking for fear of recrimination. Criminalisation undermines sex workers’ access to justice for crimes committed against them and exposes them to unchecked abuse and exploitation by law enforcement officials, including police officers. And although the Department of Health’s national strategy on sex work and HIV is grounded in respect for the human rights of sex workers, outreach and non-discrimination, criminalisation hinders sex workers’ efforts to access health care, including HIV prevention, treatment, care and support.

Human Rights Watch’s 2018 report documented violence experienced by sex workers in South Africa, and their difficulties in reporting crimes and creating safe places to work. We interviewed 46 female sex workers in 10 interview sites in Limpopo, Mpumalanga, and Gauteng provinces. We also interviewed more than 40 lawyers, health workers and others working to provide services to this vulnerable population as well as representatives from the South African government.[1]

Sex workers described facing frequent arbitrary arrests and police profiling as well as coerced sex and extortion. They said that to avoid police harassment they were compelled to work in dangerous areas like dark parks, bushy areas behind bars, or back roads in towns where they felt unsafe. Sex workers also said that they often did not report crimes against them because they feared arrest or harassment. Some chose not to report out of fear that the police would laugh at them, blame them, or take no action. Many of the interviewees had been raped by men purporting to be clients, and almost all had been victims of robbery or serious violence, including being beaten, whipped, and stabbed.

Health workers and health rights activists interviewed said that criminalisation obstructs efforts to prevent and treat HIV infections among sex workers. Outreach workers from clinics providing services to sex workers have been arrested and police have relied on sex workers’ possession of condoms as evidence of prostitution, discouraging them from carrying them. Some sex workers also reported that arrest and detention interrupted their essential HIV treatment.[2]

Human Rights Watch recommends that the Committee call upon the government of South Africa to:

  • Introduce a new law to parliament that removes criminal and administrative sanctions against consensual adult sex work and related offences, such as solicitation, and current prohibited practices such as “living off the earnings” of prostitution or brothel-keeping;
  • Recommend municipal governments reform or repeal overly broad by-laws prohibiting vague offences such as loitering and being a “public nuisance” so they can no longer be used to target vulnerable groups, including sex workers;
  • Implement an immediate moratorium on arrests of sex workers, including for loitering, indecent exposure and other misdemeanours;
  • Publicly commit to strict nationwide enforcement of provisions that prohibit torture, arbitrary arrests and detentions, police brutality, coerced confessions or telling detainees to sign “admissions of guilt” paperwork without fully explaining the content;
  • Ensure police training and awareness-building on human rights and sex worker rights under international and South African law, tolerance and sensitive and non-discriminatory policing is carried out regularly and rigorously. This training should include on the correct protocol of arrest and police detention and also non-discrimination concerning crimes reported by sex workers.
  1. Girls’ Access to Education (Articles 10 and 12)

Insufficient Protections for Pregnant Students and Adolescent Mothers

South Africa has had a policy on the prevention and management of student pregnancies since 2007, which states that school children who are pregnant shall not be unfairly discriminated against and cannot be expelled.[3] However, research by South African NGOs indicates that this policy has not been fully respected by schools, and schools have often discriminated against female students.[4] Research conducted by South African organisations shows that some school officials continue to exclude pregnant girls from school or ask them to shift to other schools, contradicting their obligations to respect student’s right to compulsory education.[5]

In 2018, the government initiated a consultation to develop a new policy on management and prevention of student pregnancies.[6] This new policy has not yet been released at time of writing this submission.[7] Human Rights Watch recommends that the government removes any conditional measures–currently applied through the government’s 2007 policy—that impact on girls’ education or deter them from going back to school. For example, students should not have to wait a conditional period until they can return to school.[8]

The new policy should ensure that pregnant students can stay in school while they are medically able to, and that they return to school as soon as they are ready. Schools should also provide basic accommodations for adolescent parents, including: time to breastfeed during breaks, and time off in case a student’s child is ill or to comply with other medical or bureaucratic requirements.[9]

Through its policy, the government should communicate a clear obligation on all education establishments to respect girls’ right to stay in school. Schools should not be able to block a student’s return to school.

We welcome the Department of Basic Education’s commitment, expressed in this draft policy, to focus both on prevention and management of pregnancies. The government should act on its commitment to provide access to an age-appropriate, scientifically accurate sexual and reproductive health rights (SRHR), and ensure it is-embedded in its comprehensive sexuality education (CSE) curriculum.[10] The government’s new policy should stipulate the mandatory nature of this curriculum, and should specify that learners will have access to comprehensive sexuality education from primary school, in line with international guidance.

Human Rights Watch recommends that the Committee pose the following questions to the government of South Africa:

  • What steps will the government take to fully guarantee, in law and policy, pregnant students and adolescent parents’ right to education?
  • What measures will the government adopt to fully support pregnant students and adolescent parents’ retention in school?
  • How will the government ensure provincial governments’ and schools’ compliance with its forthcoming policy on pregnancy management and prevention in schools?
  • How does the government ensure that its compulsory sexuality education curriculum complies with international standards, and how does it ensure that teachers are trained in its contents, and allocate time to teach it?

Human Rights Watch recommends that the Committee call upon the government of South Africa to:

  • Encourage the government to adopt a human rights compliant policy that guarantees pregnant girls’ and adolescent parents’ right to education and includes basic accommodations to ensure parents are supported to stay in school. The government should regularly monitor this policy to ensure schools adhere to its provisions.

Discrimination in Education for Children with Disabilities

An estimated 600,000 children with disabilities remain out of school in South Africa, but the government has not published accurate, disaggregated data that shows exactly how many girls and boys with disabilities are out of school.[11]

The high cost of education, including school fees and other school-related costs, continues to be a significant barrier keeping children with disabilities out of school. South Africa does not guarantee the right to free primary or secondary education to all children in law or practice.[12] Research by Human Rights Watch in 2014 and 2015 found that the current fee-based system particularly discriminates against children with disabilities.[13] It results in many children with disabilities paying school fees that many children without disabilities do not, as well as additional costs, such as for uniforms, food, transport, and to secure reasonable accommodations for the child’s disability.[14]

South Africa’s Schools Act mandates that the state fund public schools on an equitable basis.[15] The government in turn requires that the governing bodies of public schools—made up of teachers, parents, and other community representatives—adopt a resolution for a school to charge fees and supplement a school’s funding “by charging school fees and doing other reasonable forms of fund-raising.”[16]

Public schools may be classified as “no-fee” schools, a status granted to public schools by provincial governments, which means that those schools should not charge fees. The “no-fee” designation is based on the “economic level of the community around the school,” and on a quintile system from poorest to richest, whereby the lowest three quintiles do not pay fees in designated public schools.[17]

The government treats public special schools differently from other public schools. Special schools are still not listed in the national government’s publicly available annual “no-fee” schools lists. In 2019, Human Rights Watch found that, for the first time, Gauteng province listed 5 special schools as “no-fee” out of 128 special schools in the whole province. The Western Cape province’s 2017 “no-fee” schools list excluded all special schools.[18]

Although a high number of students in special schools come from townships and predominantly poor areas of towns, many public special schools in urban areas are located in wealthier suburbs previously inaccessible to the majority of children under apartheid.[19] The income level of surrounding communities and locations means many special schools fail the “needs” or “poverty” test used to assess a school’s access to recurrent public funding or to qualify as a “no-fee” school.[20]

Human Rights Watch recommends that the Committee pose the following questions to the government of South Africa:

  • How many children with disabilities remain out of school, and how many are girls?
  • What measures has the government adopted to ensure children with disabilities have access to free quality inclusive education, on an equal basis with children without disabilities, particularly in rural and remote areas? How do those measures respond to girls with disabilities needs?
  • What binding measures has the government taken to ensure provincial governments respect and fulfill the right to inclusive education of children with disabilities?
  • What steps has the government taken to ensure legislation and policy reflect the government’s obligation to provide free education, and its obligation to provide reasonable accommodation to allow children with disabilities to access education without discrimination?
  • Will the government adopt legislation providing specific protections to children with disabilities and guaranteeing inclusive education?

Human Rights Watch recommends that the Committee call upon the government of South Africa to:

  • Urge the government to disclose robust, disaggregated data on the number of children with disabilities out of school.
  • Urge the government to ensure access to free and compulsory primary education and to secondary education to children with disabilities, including by developing a detailed plan of action for the immediate realization of free compulsory primary education, in line with its responsibilities under international human rights law.
  • Call upon the government to adopt stronger legal protections for children with disabilities to complement the South African Schools Act. This includes a clear duty to provide reasonable accommodation in public ordinary schools, accompanied by specific provisions that prevent the rejection of students with disabilities from schools in their neighborhood.
  1. Targeting of Women Activists (Articles 2(c), 3 and 14)

Community activists in mining areas in South Africa face harassment, intimidation, and violence. The attacks and harassment have created an atmosphere of fear for community members who mobilize to raise concerns about damage to their livelihoods from the serious environmental and health risks of mining and coal-fired power plants. When police are informed of attacks or threats, they sometimes fail to conduct timely or adequate investigations into the incidents. According to Human Rights Watch’s 2019 report, women are often first to experience the harms of mining and can play a leading role in voicing these concerns, which makes them potential targets for harassment and attacks.[21] We cite activists’ reports of intimidation, violence, damage to property, use of excessive force during peaceful protests, and arbitrary arrest for their activities.[22]

In South Africa women are often the most directly responsible for children, and may be without a second parent present in the household, caretaking of others.[23] Research by the Centre for Applied Legal Studies found that threats against women in South Africa adversely affect their children and families because of the role women predominantly play as primary caregivers.[24] Women are also often first to experience the harms of extractive industries on land, water, food, health, and livelihoods.[25] In many places collecting water and gathering food are responsibilities of women and impacts on these resources affect them first. As elsewhere globally, on average women in South Africa are poorer than men and more vulnerable to sudden losses of income or food or water resources and the burden of buying more expensive alternatives. This often motivates them to play a leading role in voicing these concerns and acting as human rights defenders, which makes them potential targets for harassment and attacks.[26]

Human Rights Watch recommends that the Committee call upon the government of South Africa to:

  • Publicly condemn assaults, threats, harassment, intimidation, and arbitrary arrests of activists, and direct the police and other government officials to stop all arbitrary arrests, harassment, or threats against community rights defenders.
  • Provide adequate and effective individual and collective protection measures to individuals and communities at risk.
  • Ensure that law enforcement authorities respect and protect the right to protest, including by not using unlawful measures of crowd control beyond what is strictly necessary to prevent harm to people or excessive harm to property.
  • Direct government officials at all levels, in particular in any departments responsible for regulating mining or protests, to comply with South Africa’s domestic and international obligations to respect, protect, and promote all human rights of activists across South Africa, including the community rights defenders in mining-affected communities, to freedom of expression, association, peaceful assembly, and protest, and the rights to health and a healthy environment.
  • Ensure women activists receive equal attention and support as male activists.

[1] Human Rights Watch, Why Sex Work Should be Decriminalised in South Africa, August 2019, https://www.hrw.org/news/2019/08/07/south-africa-decriminalise-sex-work

[2] Ibid.

[3] Republic of South Africa, Department of Basic Education, “Measures for the Prevention and Management of Learner Pregnancy,” 2007, https://www.naptosa.org.za/doc-manager/40-professional/46-general/105-sg... (accessed August 28, 2018), pp. 6 – 7. Despite its existence, schools continue to expel pregnant girls in breach of South Africa’s constitutional laws. Lisa Draga et al, “Basic Education Rights Handbook – Chapter 8 – Pregnancy, http://section27.org.za/wp-content/uploads/2017/02/Chapter-8.pdf (accessed August 28, 2018).

[4] Equal Education Law Centre and Section 27, “Equal Education Law Centre and Section 27 Submission to the Department of Basic Education in Respect of the Draft “National Policy on the Prevention and Management of Learner Pregnancy in Schools,” April 2018, http://section27.org.za/wp-content/uploads/2018/05/EELC-and-S27-Submissi... (accessed August 15, 2018).

[5] Lisa Draga, Chandré Stuurman, and Demichelle Petherbridge, “Basic Education Rights Handbook – Education Rights in South Africa – Chapter 8: Pregnancy,” 2017, http://section27.org.za/wp-content/uploads/2017/02/Chapter-8.pdf.

[6] Department of Basic Education, “DBE Draft National Policy on the Prevention and Management of Learner Pregnancy in Schools,” 2018, https://www.education.gov.za/Portals/0/Documents/Policies/Draft%20Pregna... (accessed August 15, 2018).

[7] Parliamentary Monitoring Group, “Inclusive Education: status update,” Basic Education Committee, October 30, 2019, https://pmg.org.za/committee-meeting/29205/.

[8] Republic of South Africa, Department of Basic Education, “Measures for the Prevention and Management of Learner Pregnancy,” 2007, https://www.naptosa.org.za/doc-manager/40-professional/46-general/105-sg... (accessed August 17, 2018).

[9] Human Rights Watch, Letter to the Department of Basic Education regarding their draft pregnancy policy, August 16, 2018, https://www.hrw.org/news/2018/08/15/letter-south-africas-department-basi....

[10] Department of Basic Education, “Basic Education Department releases scripted lesson plans to the public to allay fears regarding comprehensive sexuality education content,” November 13, 2019, https://www.education.gov.za/Portals/0/Documents/CSE%20Scripted%20lesson... (accessed February 6, 2020).

[11] IOL, “Advocacy group heads to court as 600 000 disabled school kids forced to stay at home,” September 26, 2019, https://www.iol.co.za/news/advocacy-group-heads-to-court-as-600-000-disa... Human Rights Watch, “South Africa Education Barriers for Children with Disabilities,” August 18, 2015, https://www.hrw.org/news/2015/08/18/south-africa-education-barriers-chil....

[12] Department of Basic Education, “School fees and exemption,” undated, https://www.education.gov.za/Informationfor/ParentsandGuardians/SchoolFe....

[13] Human Rights Watch, “South Africa: Education Barriers for Children with Disabilities,” August 18, 2015, https://www.hrw.org/news/2015/08/18/south-africa-education-barriers-chil... (accessed February 10, 2020).

[14] “School fees” are defined as “any form of contribution of a monetary nature made or paid by a person or body in relation to the attendance or participation by a learner in any programme of a public school,” South African Schools Act, Act No. 24 of 2005: Education Laws Amendment Act, 2005, http://www.gov.za/sites/www.gov.za/files/a24-05_0.pdf, ch. 1 and s. 1(b).

[15] South African Schools Act, s. 34.

[16] Department of Basic Education, “School Fees and Exemption – No Fee Schools”, undated, http://www.education.gov.za/Parents/NoFeeSchools/tabid/408/Default.aspx (accessed August 9, 2018).

[17] Department of Education, “National Norms and Standards for School Funding,” General Notice 2363, October 12, 1998, http://www.education.gov.za/LinkClick.aspx?fileticket=ZYYtOiXHTeE%3D&tab... (accessed August 5, 2018); Department of Basic Education, “Amended National Norms and Standards for School Funding,” January 16, 2015, http://www.gov.za/sites/www.gov.za/files/38397_gon17.pdf (accessed August 5, 2018).

[18] See for example, “Western Cape No Fee School 2017,” https://www.education.gov.za/Portals/0/Documents/Publications/2017%20No%... (accessed August 15, 2018)

[19] Human Rights Watch found that this is particularly the case in Gauteng and Western Cape provinces where special schools were traditionally set up to cater for white children with disabilities. Within Gauteng Province, many full-service schools are mainly in the outskirts of the city and the majority are Afrikaans speaking.

[20] Provincial Departments of Education are guided by a “Resource Targeting Table” to define needs-based allocations, “National Norms and Standards for school funding,” pp. 27-28. See Department of Basic Education, “Amended National Norms and Standards for School Funding,” Government Gazette no. 38397, 16 January 2015.

[21] Association for Women’s Rights in Development & Women Human Rights Defenders International Coalition, “Women Human Rights Defenders Confronting Extractive Industries: An Overview of Critical Risks and Human Rights Obligations,” pp. 10ss, https://www.awid.org/sites/default/files/atoms/files/whrds-confronting_e... (accessed December 17, 2018).

[22] Human Rights Watch, “We Know Our Lives are in Danger”: Environment of Fear in South Africa’s Mining-Affected Communities, April 2019, https://www.hrw.org/report/2019/04/16/we-know-our-lives-are-danger/envir... (accessed February 10, 2020).

[23] “Single Motherhood in South Africa,” The Borgen Project, https://borgenproject.org/single-motherhood-in-south-africa/ (accessed February 10, 2020).

[24] Gumboh, Esther, et al., “Victimisation Experiences of Activists in South Africa,” Centre for Applied Legal Studies, April 2018, p. 21ss, https://www.osf.org.za/wp-content/uploads/2018/09/Centre-for-Applied-Leg....

[25] Human Rights Watch, “We Know Our Lives are in Danger”: Environment of Fear in South Africa’s Mining-Affected Communities, April 2019, https://www.hrw.org/report/2019/04/16/we-know-our-lives-are-danger/envir... (accessed February 10, 2020).

[26] Association for Women’s Rights in Development & Women Human Rights Defenders International Coalition, “Women Human Rights Defenders Confronting Extractive Industries: An Overview of Critical Risks and Human Rights Obligations,” pp. 10ss, https://www.awid.org/sites/default/files/atoms/files/whrds-confronting_e... (accessed December 17, 2018).