Harmonising the legal environment for adolescent sexual and reproductive health and rights

The Centre for Child Law (CCL) in the Faculty of Law at the University of Pretoria, in collaboration with Enterprises University of Pretoria, recently concluded an extensive research project that involved the examination of laws, policies and other related sources in 23 countries in East and Southern Africa that create either impediments to, or an enabling environment for adolescent sexual and reproductive health and rights (ASRHR). The study, conducted under the leadership of Child Law attorney Karabo Ozah from the CCL, was requested and funded by the United Nations Population Fund (UNFPA).

The research on the harmonising of laws and policies was aimed at creating common standards across a region, in this case East and Southern Africa, with regard to the specific issues of adolescent sexual and reproductive health rights and the removal of unjustified gaps and anomalies in existing laws. Every government has a primary responsibility to regulate most matters within its jurisdiction by means of specific laws and policies. However, harmonisation is aimed at creating legal certainty by eliminating (arbitrary) disparities between laws. In this case the harmonisation is based on international and regional conventions and commitments relating to adolescent sexual and reproductive health and rights that have already been ratified or signed by governments in the region.

The research was conducted by way of a desktop review of laws, policies and case studies in six of the 23 East- and Southern African countries (Malawi, South Africa, Swaziland, Tanzania (Zanzibar), Uganda and Zambia), which was undertaken by CCL attorneys Karabo Ozah and Carina du Toit. The objective of the six in-depth country case studies was to gain better insight into how the laws and policies protect the rights of adolescents and young people and affect their sexual and reproductive health by looking at concrete examples that highlight the experiences of adolescents and young people between the ages of 10 and 24 years. (Click here for information on the introduction and methodology of the research project).

The research covered the following: the age of consent to sexual activity; the age of consent to marriage; the age of consent to health services and medical treatment; the criminalisation of consensual sexual acts between adolescents; access to sexual and reproductive health services; the sexual and reproductive health rights of vulnerable adolescents and young people; harmful cultural, religious or traditional practices; law and policy regarding pregnant learner retention and re-entry; and the provision of comprehensive sexuality education  and the legal reforms proposed with a view to the achievement of  this goal.

The research showed, inter alia, that:

of the 23 countries, only 11 have legislation and policies (although mostly punitive in nature) on the prevention and management of learner pregnancy and re-entry after delivery;

17 of the 23 countries have criminalised homosexuality; and 

although numerous international and regional instruments exist to prohibit harmful cultural practices (see block below), only seven countries have banned female genital mutilation.

One of the preventative measures proposed is that legislation should explicitly prohibit cultural, religious or traditional practices that are harmful to the health of women, children, adolescents and young people. This includes, but is not limited to female genital mutilation, virginity testing and early, child or forced marriage.

The report highlights the urgent need for the immediate discontinuation of harmful practices.  It also highlights the need for the promulgation of legislation that explicitly stipulates which practices are regarded as harmful, that criminalises such practices and effectively prosecutes perpetrators.  It also recommends that the governments of these 23 countries actively start working towards and adopting the necessary legislation to harmonise the legal environment for adolescent sexual and reproductive health and rights.