Harmonisation of the legal environment on Adolescent Sexual and Reproductive Health in Eastern and Southern Africa 21 JULY 2016 DURBAN

Themes for legal analysis Ages of consent to sexual activity Ages of consent to marriage Criminalisation of consensual sexual activity among children Ages of consent to medical treatment, including treatment for HIV and access to contraceptive aids Access to quality integrated reproductive health services including termination of pregnancy/abortion Sexual diversity

Themes for legal analysis National AIDS plans with focus on addressing stigma and discrimination Criminalisation of HIV/AIDS transmission Forced sterilisation Harmful cultural practices Protection for victims of sexual abuse Gender specific legal protection Law and policies for managing learner pregnancies Provision and access to comprehensive sexuality education and sexual health

Age of consent to marriage Only 6 countries set the age of consent to marriage at 18 years without exceptions. The combination of customary and statutory laws in many of the ESA countries also complicates the age of consent to marriage as in most instances there is a conflict between the age of consent in terms of civil law – typically a set minimum age – and customary law which relies more on the child’s physical development as an indicator of marriage readiness. There is still discrimination between boys ands girls in respect of the age of marriage. Law differentiates between girls and boys still in respect of the minimum age of marriage Age of consent to marriage is not necessarily a barrier to access to SRHRS, but the consequences thereof leads to the need to access SRHRS which is then denied due to age. Malawi (legislation vs constitution) Zimbabwe- Mudzuru judgment

Recommendations Provisions that clearly stipulate the age of consent to marriage at 18 years without exceptions. The differentiation in the minimum age of consent between girl and boy children, must be removed. The contradictions between ages of consent to marriage under common/civil law and those provided for under customary or religious laws should be resolved by making the minimum age of consent to marriage of 18 years applicable to all legal systems.

Criminalisation of consensual sexual activity Clear criminalisation of consensual sexual acts amongst adolescents in the East and Southern African Region appears to be minimal, which is a positive trend as the criminalising consensual sexual acts may result in prohibiting adolescents and youth from accessing SRHRS in fear of prosecution and will also stigmatise normal adolescent sexual development. Some countries criminalise defilement, which is consensual acts and equally result in criminalisation of adolescents. In most cases it is boys who are convicted and end up in prison. Court challenges in South Africa and Kenya.

Recommendations The appropriate solution to this is for countries to decriminalise consensual sexual acts amongst adolescents, including defilement provisions, and focus on comprehensive educative approaches that will enable adolescents to make informed choices in relation to their sexual and reproductive health rights and needs. Where there is criminalisation, the provision of close-in-age defences must be considered and non-custodial sentences are encouraged.

Age of consent to medical treatment,. including HIV and access to Age of consent to medical treatment, including HIV and access to contraceptive aids Some countries are providing for an age of consent to access HIV-testing and counselling services in terms of policy (as opposed to legislation).The ages range from 12 to 18 years. Other countries have no legal provisions regulating the age of consent to medical treatment. A few countries have comprehensive legislative provisions dealing with the age of consent to medical treatment, medical procedures and HIV-testing and counselling, the remainder of the ESA countries have limited provisions in this respect.

Recommendations Legislative reform is necessary to provide for the following: An age of consent to medical treatment without parental assistance need to be set An age of consent to medical procedures (possibly with and without parental assistance) An age of consent to HIV-testing Irrespective of the age decided upon, there should be a proviso that a child should be of sufficient maturity and should have the mental capacity to understand the benefits, risks and effects of the treatment, procedure or testing.

Provisions indicating who or what institutions may give consent when parental consent is required and cannot be obtained Pre- and post-HIV-testing counselling should be mandatory Confidentiality of test results must be guaranteed An age of consent to access contraceptives should be indicated.

Access to reproductive health services, including termination of pregnancy Provision for the right to access to RHS is scant in legislation. The majority of East and Southern African countries criminalise termination of pregnancy, but provide for exceptions. The concern in relation to criminalisation of termination of pregnancy is that it may drive women and girls to unsafe terminations. The exceptions in relation to termination of pregnancy, where provided in law, are difficult to implement due to the discretionary nature thereof and still result is limited access A few countries are working on expanding the grounds for termination of pregnancy to make it more accessible.

Recommendations The legislation should follow a human rights-based approach and must make it clear that adolescents have a right to access all SRHS. ASRHR comprises a full range of services including preventative and curative service of which termination of pregnancy is only one these service. Legislation must provide for the establishment of youth friendly clinics to provide ASRHS, including the proper resourcing of clinics at state expense. Legislation should set out the norms and standards for youth friendly clinics, including which services will be accessible at the clinic, training of staff and confidentiality requirements.

Recommendations Termination of pregnancy should be decriminalised. Elective termination of pregnancy should be available subject to conditions depending on the period of gestation. The conditions become more restrictive as the pregnancy developments. Termination of pregnancy services should not be subject to minimum age of consent requirements or parental consent. An obligation on countries to provide safe and legal termination of pregnancy services where the pregnancy is the result of rape or incest, irrespective of the age of the female

A great number of ESA countries criminalise homosexuality. Sexual diversity A great number of ESA countries criminalise homosexuality. Some countries specifically criminalise “sodomy”, meaning that the prohibition is aimed at male homosexual acts, with the inference that sexual acts committed between females are excluded. In some countries consensual homosexual acts committed between persons under 18 years are specifically criminalised, although the penalty is less severe than in the case of adults.

Recommendations The case studies revealed the stigma and challenges that are faced by the LGBTI when accessing SRH due to the criminalisation of homosexuality in particular. This also affects adolescents and young people. ESA countries that still have legal provisions prohibiting and criminalising homosexuality must decriminalise same-sex relationships. Particularly since some of them already recognise the LGBTI group as a key population that needs to be targeted for services. Issues concerning the protection of transgender and intersex young people need to be researched more in order to inform policy approaches of countries.

Comprehensive Sexuality Education Although the majority of the ESA countries have provisions in their diverse policies indicating that CSE is key and should be given attention, only a handful appear to have CSE curricula in schools aligned to the international standards. CSE is mostly contained in the Life Skills curriculum and focus predominantly on HIV and AIDS HIV and AIDS information tends to be disseminated at an earlier age than other SRH information Some countries’ policies focus on abstinence education, including the risks of sexual activity. There is a need to evaluate existing curricula in order to align them with international standards.

Recommendations Sexuality education be included as a stand-alone subject in the curriculum— as opposed to just a cross-cutting theme—with its own contents, time frame, and specific evaluation. The contents of CSE should include the cognitive, emotional, social, psychological, and interpersonal relationship, components of sexuality. Develop and disseminate human rights based materials which are sensitive and tailored to different ages and needs of particular groups and which incorporates accurate science and evidence based information that will assist adolescents and young people to make informed choices.

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