Author: Thandwa Dlamini
Department of Sociology, Faculty of Humanities, University of Pretoria
At the International Conference on Population and Development (ICPD) in 1994, the right to sexual and reproductive health was recognised as the core of development. The right has also been embedded in various conventions, including the Convention on the Rights of the Child where it was established that adolescents have a right to ‘age-appropriate’ sexual and reproductive health information, education, and services that enable them to deal positively and responsibly with their sexuality. However, these agreements have not been fully and effectively implemented in Africa mainly because the policies of most African countries are framed on the basis of religious morality which pushes the unrealistic agenda of abstinence. As a result, a line between impermissible age discrimination and legitimate protection of minors has been difficult to draw in young adolescents’ sexual relations. This article argues that there is a need to direct attention to the issues involved in consensual relations among young adolescents, in tandem with other strategies that work towards giving them full sexual autonomy whilst curtailing unsafe, risky health outcomes and violence.
Children as autonomous sexual beings
In Africa, children’s sexual rights are perceived as taboo and indicate a moral crisis. This has been largely influenced by Western notion of the child as inferior, unstable and irrational. These ideas have been evolved into consent laws and have played a pivotal role in shaping responses to challenges perceived to be a result of their engaging in sexual conduct such as teenage pregnancies and HIV/AIDS. Historically, the transition ‘from childhood to adulthood’ discourse depending on age did not exist in African cultures. Instead, it was discerned by following rites of passage, initiation rites and distinctive sexuality education. For instance, The Kiganda’s of Uganda had ritual sex, signifying ‘completion’ of a daughter’s pre-puberty years, completion of a child’s unmarried status. The problem with the transition from childhood to adulthood outlined in consent laws is that it disregards sexual autonomy and agency. It is quite surprising then, that youth sexualities in modern day Africa are treated as deviant, non-consensual, dangerous to reproductive health and degenerate.
I think the starting point is to acknowledge, as Ugandan feminist legal scholar, Sylvia Tamale argues, that children are sexual beings, whose sexualities evolve from conception through infancy, childhood, puberty, adolescence and the teenage years. As sexual beings, children have diverse sexual rights and entitlements. Therefore, children have a right to adequate sex education that would enable them to make consensual and informed sexual decisions. It would also develop the children’s appreciation of their gendered sexual bodies and body parts, and their understanding of the maturation processes and cycles.
However, a prominent legal barrier to attaining the recognition of children as sexual beings is the criminalisation of consensual sexual activity among adolescents. In Eastern and Southern African (ESA), some countries including Kenya, criminalise defilement, which can be a consensual act, and this can result in the criminalisation of adolescents and young people. South Africa is the exception, having amended its age of consent law, where the permissible age difference must be no more than two years. Most laws do not explicitly criminalise consensual sexual conduct between adolescents. Rather, they prohibit, sexual conduct with persons below a specified age. In countries such as Comoros, Kenya and Swaziland, the age of consent is determined as a minimum single age, below which a person is considered incapable of consent to sexual activity, and above which the person is capable of consent.
The consequences of the criminalisation of consensual sexual acts is that it discourages young adolescents from seeking and accessing sexual and reproductive health information and services for fear of being charged with offences and stigmatises adolescent sexuality. More significantly, it shifts attention away from structural impediments that create conditions for teen pregnancy, including failure to provide quality comprehensive sexuality education. This contradicts the recognition of children’s evolving capacities and as active agents of their lives, while also being entitled to protection [as stipulated in Article 5 of the Convention on the rights of the Child]. African countries should consider the decriminalisation of consensual sexual acts between adolescents and young people and continue to criminalise sexual activity between adults and minors as rape. This protects children while simultaneously enabling them to develop their sexual autonomy.
The African youth charter stipulates that ‘it is the youth’s responsibility to become the custodians of their own development’ but for that to effectively occur, an enabling environment which allows them to fully exercise their sexual autonomy must be present. That would require that states and sexual and reproductive health rights partners refrain from framing young pregnant girls as the perpetrators of poverty, and shifting the responsibility of economic prosperity of young women on young women themselves. It is a clarion call for African states to commit to their responsibility to provide quality education and to provide support for the sexual development of the child through a reformed legal framework (guided by Committee on the Rights of the Child General Comment 20, para 16) that facilitate a sexual debut that is free from violence, coercion or violation.
About the Author:
Thandwa Dlamini is a Master’s candidate in Gender Studies at the Department of Sociology, Faculty of Humanities, University of Pretoria. Her research interests include gender and development, youth affairs in the Global South, and decolonial work.
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