Seventeen years of the Pan-African Parliament: taking stock and reimagining its future

Bonolo-Makgale-Tariro-Sekeramayi
Authors: Bonolo Makgale and Tariro Sekeramayi

Introduction

Dr. John Henrik Clarke once remarked, “History is not everything, but it is a starting point. History is a clock that people use to tell their political and cultural time of day. It is a compass they use to find themselves on the map of human geography. It tells them where they are, but more importantly, what they must be.”

The 18th of March 2021 marked the commemoration of the Pan-African Parliament’s (PAP) 17th year anniversary. The Midrand, South Africa based Parliament was established by the Abuja Treaty as one of the organs of the African Union (AU). At the time of its establishment, the PAP was earmarked as an organ of the AU that will provide a platform for increased public participation and for the Africans to participate in decision-making processes that affect the continent. The Parliament consists of representatives nominated by local legislatures and currently represents all of AU member states, with the exception of Eritrea. The PAP aims to foster development and economic integration on the continent, espousing the principle of “batho pele”, a Southern African political principle that translates to ‘people first’. The core of the PAP’s mandate is to promote citizen engagement and representation as democratic ideals. As we mark this incredible milestone, we take stock of how far the PAP has come and what its prospects  are for improvement as we advance.

Reflection & Opportunities for Improvement

As we reflect, a pertinent question to ask is the extent to which the PAP has created avenues to engage with African citizens effectively. The PAP has recognised Civil Society Organisations (CSOs) as essential partners in efforts to promote human rights, legislative reforms, and other initiatives that further good governance and democracy in Africa. One such strategic partnership is between the PAP and the Centre for Human Rights at the University of Pretoria through its Democratic and Civic Engagement Unit. This partnership aims to ensure CSO engagement with the PAP. It has done so through various initiatives such as the CSO forum that capacitates African CSOs across the continent  to engage with the PAP and involvement with the PAP advocacy and outreach initiatives. However, a criticism levelled against the PAP is the lack of genuine engagement with the citizens of the states they represent and the lack of a framework that guides the interactions between the Parliament and non-state actors. This is one area where  the formal mechanisms established to strengthen public participation and inclusion should be enhanced. 

In 2021 as we celebrate the anniversary of the PAP amid COVID-19 and against the backdrop of the AU’s 2020 theme of Silencing the Guns, it is prudent to look at the PAP’s performance in times of crisis and reflect on what we would imagine the role of the PAP to be in these situations.  One of the PAP’s objectives is to ‘promote peace, security and stability’ on the continent. Nevertheless, in 2020 there was an increase of citizens’ human rights violations by states that threatened peace, security, and stability in many ways. We saw increased police brutality in Nigeria, which culminated in the #ENDSARS movement, which was met with more violence from the state, leading to loss of life. We also saw an increase in excessive use of force by security forces in South AfricaUganda and Zimbabwe. Amid the lockdowns necessitated by COVID-19, the Southern African region saw a spike in gender-based violence (GBV), with Amnesty International reporting that women were most unsafe in their homes during the lockdowns. 

PAP-17

Most of the civil unrest that occurred in Africa was in response to issues linked to good governance amid the COVID-19 crisis and other issues affecting democracy. As such, the silence of the PAP as a ‘parliament of the people’ is disconcerting. We note that the rules of procedure may have hindered the PAP’s ability to intervene in these issues, as the rules had not been modified to allow the PAP to sit virtually and deliberate on  these issues. The time it has  taken for the PAP to adjust and amend its rules of procedure to accommodate the pandemic illustrates a lack of creativity and the favouring of bureaucracy over efficiency. As we look towards the next decade and the continuing mandate to Silencing  the Guns, African governments will have to change the violent and repressive ways in which they engage with their citizens. As a continental Parliament, the PAP can play a central role in this. It may need to increase scrutiny on states that violate human rights and democratic ideals and be more vocal about these issues through observer and fact-finding missions that can culminate in recommendations and resolutions on volatile situations.

In fulfilment of its objectives, the PAP has adopted various resolutions and recommendations around issues of development, protection of human rights, and efforts to foster peace and security. We have seen these interventions in countries such as Uganda, Chad, and the Central African Republic. The PAP has also prioritized the self-determination of the peoples of the Sahrawi Arab Democratic Republic through resolutions. The PAP has also taken strides towards protecting vulnerable groups in Africa, such as persons with albinism seen in the resolution passed in 2018 which gave more concrete measures on the protection of persons with albinism. To this end the PAP encouraged implementation of the Regional Action Plan on Albinism in Africa as well as annexure of this plan to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa. We appreciate the work of the Justice and Human Rights Committee of the PAP in the resolutions, recommendations, and other initiatives to protect vulnerable groups.

The PAP Malabo Protocol

In 2014, the AU adopted the  Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament (Malabo Protocol). The Malabo Protocol was adopted to amend the current Protocol relating to the PAP and  is expected to enable the Parliament to extend its functions and allow members of the Parliament to be elected through adult suffrage.

While the amendments in themselves do not confer the power to make laws for the Continent on the PAP, there are some key features of the Protocol that should be celebrated particularly because they purport to strengthen accountability and representation through institutional reforms. The Malabo Protocol introduces gender balance in the Parliament’s membership, requiring representatives from the various legislatures to have at least two women in the delegation whereas currently delegations are required to have at least one woman out of the five members. This is an essential stride towards increased representation and participation of women in politics, which is still an issue on the continent. 

The Malabo Protocol will also introduce exclusive membership to the PAP and election through universal suffrage in their respective countries. Exclusive membership means that members of the PAP will be elected from outside their national legislatures and will not  be members of their local legislatures. This will mean that the PAP will become more representative of the will of the people it governs. It will become more accessible as the election process will afford ordinary citizens an opportunity to contest in elections to represent their state at the PAP. The exclusive membership will also allow a greater focus of the PAP issues at local legislatures as members will have an exclusive mandate to PAP which will increase accountability measures.

Concluding Remarks

As we commemorate this anniversary and celebrate how far the PAP has come in the past decade, we commend and celebrate the Parliament’s steps in fulfilling its objectives and mandate, albeit with limited powers. We also celebrate the proposed reforms to the PAP through the Malabo Protocol that will increase citizen participation and representation and allow for increased access to the PAP.  The ratification of the Malabo Protocol will be essential to improving the Parliament’s effectiveness. To this end, we encourage the member states of the AU who have not yet ratified the protocol to do so and allow the PAP to reach its full potential. In imagining the PAP of the future, it will be necessary for the PAP to ensure that institutional reforms take place and that there are measures in place that allow for monitoring and evaluating the institution’s progress and the extent to which states are implementing the recommendations tabled by the PAP.

Message of Solidarity 

Read the message of solidarity to Pan-African Parliament (PAP) on behalf of civil society delivered by Prof Frans Viljoen, Director, Centre for Human Rights on 18 March 2021.

Message of Solidarity

About the Author

Bonolo Makgale is the Manager of the Democracy and Civic Engagement Unit at the Centre for Human Rights, University of Pretoria. She is a social justice activist with an academic interest in governance, politics and democratisation in Africa.

Tariro Sekeramayi is an LLM (Multidisciplinary Human Rights) Candidate at the Centre for Human Rights, University of Pretoria and a Programme Intern at the Democracy and Civic Engagement Unit at the Centre.

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Constitutionalisation of public service and administration in Africa

Author: Paul Mudau

Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa

‘Modern African constitutions’ produced by the recent wave of constitutional reforms that swept across Africa generally transpired in the constitutionalisation of public service and administration. Public administration is any institution with operations aimed at applying, enforcing or fulfilling public policies and programmes or undertaking public service duties as well as regulating the conduct of public servants. Public service is any service or public-interest activity provided by government under the authority of the relevant administration.

Heightened by national legislation, the quest to promote democracy, good governance, human rights and development in the government structures emerged to be inevitable. By today, most countries have constitutions that sets up their governments’ organisations, structures, managements, regulations, duties, disciplines and defines the relationships between public entities, the interactions between these entities and individuals seeking public service, more particularly, making provision for the manner in which different divisions of government interact and function together. More vitally, these constitutions are cognisant of the need to promote an administrative culture that is based on the respect for the rights of the user; quality and innovative service delivery; and active and effective participation of citizens and users of public services in public administration processes. Other constitutions further encourage professional ethics, equitable access to services, optimum conditions of equity and efficiency, transparency, accountability, good human-resource management practices and compliance with the laws governing the affairs of public service and administration. In this regard, Bergling et al, argues as follows:

Constitutional reform, or restoring constitutionalism as the governing paradigm, may be the most fundamental example of legalisation. Constitutionalism here is understood both as an outline of the offices of the state and their functions, and a stipulation of the normative limits of their power and a guarantee of the rights of individuals.

The place of constitutional law in public administration

Public administration is an academic discipline and a field of broad scope that is geared toward the understanding of policy and its implementation in regard to the government and public sector. It has the fundamental goal of advancing management and policies to improve the functioning, as well as defining the role of government. The intersection between the constitutional law and public administration is the fundamental bond for the government and how its public administrators would act in relation to individual liberties. Constitutional law primarily affects public administration in the sense that it provides for the constitutional duties of public administration, sets out the code of conduct and general restrictions of public officials as it prevents the encroachment of human rights protected by the constitution, and set the basic framework for the social status of the public servants and other officials involved in public administration and guarantees their rights.

According to Bergling et al, the framework for rule of law in public administration would entail five basic ‘orientations’:

  1. constitutionality and legality in public administration – There should be clear regulation in the law of the organisation of the administration, and with concrete remedies (courts with appropriate jurisdiction) to combat illegal acts by administrative bodies, etc.
  2. citizens and the public administration – There should be clear administrative procedures, based on rule of law principles and guarantees (the right to be regarded as a party in the procedure, to be heard, to appeal, to access information, etc.).
  3. staff management – There should be laws regulating recruitment, career structure, discipline, etc. of public officials.
  4. service or utilities delivery – The relationship between the public and private sectors should be clearly defined in law; there should be rules governing fair competition, transparency and dispute resolution.
  5. law and governance – There should be agreement and decision on the appropriate governance pattern (law, soft law, contracts, etc.) for intergovernmental relations and relations with non-state entities.

Public service and administration in African constitutions

A number of constitutions in Africa recognises public services and administrations in vastly varying degrees. Some, apart from mentioning public services and/or administrations in various levels of government, organs of state and public enterprises, contain a list of the basic values and principles governing the public service and administration. Others require national legislation to do so, or succinctly provide such values and principles, or merely provide for a certain objective, principle or function or entity in the civil service. Among them, are the constitutions of South Africa (ch 10), Zimbabwe (ch 9), Uganda (ch 10), Namibia (part 12, ch 1), Botswana (ch 7), Lesotho (ch 13), Eswatini (10), Malawi (ch 20), Mozambique (title 12, ch 1), Zambia (part 13), Democratic Republic of Congo (sec 7), Angola (title 5, ch 1), Ghana (ch 14), Nigeria (ss 169-173, 206-209), Kenya (ch 13), The Gambia (ch 11), South Sudan (part 9, ch 1), Somalia (ch 11), Sierra Leona (ch 10), Morocco (arts 154-160), Mauritius (ch 8), Guinea (art 23), Seychelles (ch 11), Sao Tome and Principe (art 113), Cape Verde (title 7), Burundi (art 71), Côte d’Ivoire (arts 41-42), and Eritrea (art 9).

Continental response: African Charter on Values and Principles of Public Service and Administration

At continental level, on 31 January 2011, the African Union (AU) adopted the African Charter on Values and Principles of Public Service and Administration (the Charter). The Charter entered into force on 23 July 2016. Thus far, among the fifty-five (55) member states of the AU, only nineteen (19) have ratified the Charter. The Charter is the first legally binding and clear-cut continental legal framework that serves as catalyst for the public service and administration reform agenda on the continent. Taking this into account over and above the sweeping constitutionalisation of its similar values and/or principles, this offers hope in addressing the frailties of the African public service and administration. Among others, the principles of the Charter include: equal use of public service and administration; impartiality, fairness and due process in the delivery of public services; continuity of public services under all circumstances; adaptability of public services to the needs of users; professionalism and ethics in public service and administration; and effective, efficient and responsible use of resources. Hence, public services have to be delivered in accordance with the existing national laws, regulations and policies.

In the process, the public service and administration and public servants have to respect the human rights, dignity and integrity of all users of public service. By situating public administration within a rule of law framework, the ‘users’ of the system become rights-holders, capable of legally claiming services of a certain quality and holding the agents of the state accountable. Mostly, constitutional law dimensions in public administration reform efforts is often overlooked. Article 23(1) of the Charter stipulates that, while implementing the objectives, applying the principles and respecting the commitments enshrined in the Charter, individual State Parties have to adopt legislative, executive and administrative measures to align their national laws and regulations with this Charter. It further requires individual State Parties to integrate the commitments, values and principles of the Charter in national policies and strategies.

Drawbacks of public service and administration in Africa: constitutions without constitutionalism

Nevertheless, in spite of the constitutionalisation of public service and/or administration and the coming into force of the Charter, poor service delivery, lack of professionalism and public service ethics and rampant bureaucratic corruption are deeply entrenched within the African public services and administrations. A major point of concern arises from the fact that the constitutionalised values, principles, organisations, structures, managements, regulations, duties and disciplines of public service and administration are dented by the lack of rule of law and the lack of effective implementation of the constitutions. Seemingly, the intertwined relationship between public administration, constitutional law and the rights of users of public service are disconnected in reality. Apart from the fact that constitutions may have ushered in the provision of public service and administration, non-compliance with the legislative, executive and administrative instruments aimed at giving effect to constitutional imperatives amounts to partial or wholly lack of constitutionalism.

It is worth noting that section 195(1) of the Constitution of South Africa, 1996, richly provides for the basic values and principles governing public administration which bear a striking resemblance to the various values and principles that are enshrined in the Charter. In addition, South Africa enacted the Public Administration Management Act 11 of 2014 in order to give effect to the values and principles referred to in section 195(1) of the Constitution. Fombad asserts that ‘the quality of the South African Constitution, enhanced by the jurisprudence from its Constitutional Court provides better material adapted to the African condition for African constitutionalists to learn from…’. Needless to mention, the basic values and principles governing public administration contained in section 194 of the Constitution of Zimbabwe of 2013 is a copycat of section 195 of South Africa’s Constitution. Yet, despite these massive correspondence between the provisions of the constitutions of South Africa and Zimbabwe and the Charter, not much practical transformation has been witnessed in the public administration and service of these countries. In order words, the actual implementation of the Charter, constitutions, laws, policies and strategies becomes a yardstick for assessing the nature of constitutionality and legality of public service and administration processes. The presence of the common values, principles, organisation, structures, management, regulation, duties and discipline of public service and administration in a constitution or national laws and policies (as required by the constitution) does not automatically guarantee the existence of constitutionalism. Despite having an impressive constitutional framework pertinent to public service and administration, the South African experience is marred by detrimental revelations of mal-administration, corruption, bad governance, unethical conduct and poor performance, lack of service delivery and far-reaching implications of State Capture.

Conclusion

The partial or wholly absence of constitutionalism in public administration processes contributes to the challenges faced by many African states. They continue to languish from mal-administration, corruption, bad governance, unethical conduct and poor performance, lack of service delivery and State capture. These challenges aggravate poverty and underdevelopment on the continent. It is impractical to promote and attain democracy, good governance, human rights and development if the relevant African public entities do not effectively implement the constitutions, national laws, public policies and programmes or undertake public service duties with the objective to meet the optimum conditions of equity and efficiency. Pertinent to the public service and administration, the failure to uphold the imperatives envisaged by the constitution defeats the purpose for the constitutionalisation of their organisations, structures, managements, regulations, duties and disciplines.

Except for reliance in constitutionalising the public service and administration, it is desirable that AU member states accede and/or ratify the Charter. The Charter’s effective application and implementation will enhance efforts to promote an administrative culture that is based on the respect for the rights of the user; quality and innovative service delivery; and active and effective participation of citizens and users of public services in public administration processes. As a result, increasing the likelihood to best expedite the promotion and attainment of democracy, good governance, human rights and development in Africa.

An accountable and effective public service and administration is based on a functional legal framework, efficient regulatory structures, and transparent systems for financial and legal accountability.  In this regard, an operational public entity is fixed, among others, on impartiality, fairness and due process in the delivery of public services; continuity of public services under all circumstances; adaptability of public services to the needs of users; effective, efficient and responsible use of resources. All these public service activities should take place in accordance to the Charter, constitutions and the existing national laws, regulations, policies and strategies.

The constitutional ethos of the relations between public servants and users of public services should be based on professional merit and respect for human rights.  Accordingly, from a human rights perspective, the laws that regulate public administration should affirm the rights of users of public services and impose a corresponding obligation on public servants to respect such rights.  In the same vein, the regulations should also provide for the rights of public servants.

About the Author

Paul Mudau is a Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa. He is currently a PhD Candidate in the School of Law at the University of the Witwatersrand. He holds an LLB from the University of Limpopo, an LLM in Human Rights and Democratisation in Africa from the University of Pretoria, and an LLM in Law, State and Multilevel Government from the University of the Western Cape. His research interests include local government law, human rights, constitutionalism, democracy and public administration.

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Decriminalisation of consensual same-sex acts in Angola and the progress of LGBTI human rights in Lusophone Africa

Author: Rui Garrido
Ph.D Candidate, University Institute of Lisbon (Portugal)

On 11 February 2021, the new Angolan Penal Code officially entered in force. This new legislation represented a major achievement for LGBTI people not only in Angola, but across the rest of Africa. It is important to highlight that, while the Penal Code was approved in Parliament in 23 January 2019, it was only officially published on 11 November 2020. Prior to this, the criminal legislation, the Portuguese Criminal Code (1886), inherited from colonialism, criminalised the “vices against nature” (art. 71)), a very vague formulation for deemed to refer to consensual same-sex conduct. Angola was the last of the African former Portuguese colonies to repeal the colonial legislation.

This decision was long-awaited by Angolan sexual minorities. For them, this new legislation represents a huge step towards equality. It does much more than simply removing the colonial criminalisation. It goes far beyond, protecting people from violence and discrimination. In the 2020 Penal Code, the words ‘sexual orientation’ are mentioned twelve times, in distinctive moments and specific type of crimes, which is indicative of the awareness of the Angolan legislature on this subject. Sexual orientation is an aggravating factor for several crimes as discrimination (art. 212) or incitement to discrimination (art. 380), injury (art. 213) and defamation (art.214), and corpse desecration (art. 223, in conjunction with articles 221 and 222). Sexual orientation is also included as a characteristic of persecution, which constitutes a crime against humanity (art. 382), protecting sexual minorities in times of extreme violence and internal turmoil. In sum, the Angolan legislation is not just about decriminalisation of same-sex conduct but also about protection against discrimination. It’s a comprehensive legislation that acknowledges the patterns of discrimination against marginalised people, in higher risk of violence, and ensures the right of every citizen to live without fear. Of course, this is not an automatic path, and society must follow this evolution, but that is one of the potentialities of the law. Despite the expected backlash from conservative movements inside Angola, the Penal Code may, and certainly will produce social change in time.

It’s important to mention that this transformation doesn’t happen in the vacuum. Several milestones, from social, political, and legal fields, happened in Angola in the last decade. In 2014, Angola hosted the 55th ordinary session of the African Commission on Human and Peoples’ Rights, at which the Commission adopted the Resolution 275 – Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity – the first soft law instrument focusing on the violence towards LGBTI people and in fighting accountability for SOGI hate crimes in Africa. In September 2017 João Lourenço was elected President, ending more than 37 years of José Eduardo dos Santos presidency. The Penal Code had been discussed since 2004, but its adoption in Parliament took place in the first year of the new presidency. When it was adopted, the Deputy President José Semedo – responsible for the drafting of the law that approves the Penal Code – said to a local news media that such legislation was the first drafted “by Angolans, for Angolans and Angola” and it reflected a “modus vivendi” of actual Angola.[1] In June 2018, and five years after the formal request, the LGBTI association IRIS Angola was legally registered.[2]

But Angola is not unique in Lusophone Africa. In fact, the repeal of colonial Portuguese Penal Code in Africa started in early 1990s’ in Guinea Bissau.[3] Cape Verde (2004), São Tome & Principe (2012) and Mozambique (2015) followed the same path. The case of São Tome highlights what we can understand as a pattern inside Lusophone Africa: the inclusion of sexual orientation as a characteristic that marginalises people and the need to protect them from violence. In fact, in 2008, the Santomean Parliament adopted domestic violence legislation which identified sexual orientation as of the factors leading to domestic violence. Recently, in 2018, the country adopted a new Labour Code, prohibiting discrimination of employees based on their sexual orientation. Similar provision is be found in Mozambican Labour Code (2007).

These legal developments in Lusophone Africa destroys the fable of the unAfrican nature of homosexuality. It also centres the issue in a human rights perspective of one´s freedom to live without discrimination. Other African countries must follow these examples to ensure the rights and dignity of their fellow citizens and guarantee their full citizenship, irrespective of their sexual orientation and gender identity.

[1] https://www.angop.ao/noticias/politica/codigo-penal-faz-historia-na-era-joao-lourenco/

[2] https://globalvoices.org/2018/06/27/in-long-awaited-victory-angolas-only-lgbt-association-receives-legal-recognition/

[3] Garrido, Rui, “Patterns of discrimination based on sexual orientation in Africa: is there a Lusophone exception?”, African Human Rights Yearbook, volume 3, pp. 83 – 118, available at: Garrido, R (up.ac.za)

About the Author:

Rui Garrido is a Ph.D Candidate in African Studies at Iscte – University Institute of Lisbon (Portugal). His research focus on human rights and sexual orientation in Lusophone Africa.

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African youth’s sexual and reproductive health: a plight of degeneration?

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.

Conclusion

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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Zimbabwe: High Court upholds Transgender persons’ constitutional rights

reprohealthlaw blog

Many thanks to Keikantse Phele, a Botswana based Human Rights lawyer and LL.M. graduate in Sexual and Reproductive Rights in Africa, at the Centre for Human Rights of the University of Pretoria’s Faculty of Law. Her summary and analysis of this pioneering decision has just been published among the online updates to co-published third volume of case summaries, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts. We are pleased to circulate brief excerpts:

Ricky Nathanson v Farai Mteliso, The Officer in Charge Bulawayo Central Police Station, Commissioner of Police and the Minister of Home Affairs, Case no.HB 176/19 HC 1873/14 [2019] ZWBHC 135( (14 November 2019);  (Zimbabwe, High Court) Decision online.   Case Summary by Keikantse Phele (download PDF).

COURT HOLDING: The Plaintiff, a transgender woman, was awarded damages of 400,000 ZWD, for unlawful and malicious arrest during which she was subjected to inhuman…

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Kenya: “JMM” decision: Abortion legal after rape; Restore training guidelines

reprohealthlaw blog

Many thanks to Benson Chakaya, a D.Phil Candidate and M.Phil Graduate in the LL.M./M.Phil (Sexual & Reproductive Rights in Africa) degree program at the Centre for Human Rights, Faculty of Law, University of Pretoria. He also serves as National Coordinator for Right Here Right Now Kenya ​hosted by the ​Family Health Options Kenya and formerly worked with the Network of African National Human Rights Institutions. His full case summary and comment has been added to the online update of Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts.

We also thank Bernard Dickens, Professor Emeritus of Health Law and Policy at the University of Toronto, co-editor and author of Abortion Law in Transnational Perspective: Cases and Controversies (2014), who provided a concise overview of this important decision:

Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General& 2 others [2019] eKLR, Petition No…

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Making policy changes on the domestic level: a critical exposition of the Convention of the Rights of Persons with Disabilities (CRPD)

Author: Oludayo Olufowobi
Law student, University of Lagos

Fifteen percent of the world population experience some form of disability, with between 110 million and 190 million people experiencing significant disabilities. Persons with disabilities are more susceptible to experiencing more adverse socio-economic or living conditions compared to others. The Convention on the Rights of Persons with Disabilities (CRPD) aims to bridge this gap. At the domestic level, persons with disabilities are most times subjected to live as second-class citizens. Discriminatory practices in our society and deficits in inclusive infrastructure exacerbate this problem. It is against this premise that this article seeks to explore the peculiarities of the Nigerian landscape, taking into account its plaguing insecurity, infrastructural deficits, and lapses in the protection of the human rights of persons with disabilities. There is a focus on the Discrimination Against Persons with Disabilities (Prohibition Act) 2018 vis-a-vis the government’s quest to realise the objectives of the CRPD.

Disability is an encapsulating term for impairments, activity limitations, and participation restrictions, referring to negative aspects of the interaction between an individual (with a health condition) and that individual’s contextual factors (environmental and personal factors). Disability is a part of the human condition. There are predictions that everyone would experience at least both temporary or permanent impairment in life, and those who survive until old age would have trouble in functioning. There has been debate on the best approach to dealing with persons with disabilities. The CRPD established a human rights-based approach upon its adoption on 13 December 2006 and entering into force on 3 May 2008. This was a replacement for the charity approach, following a forceful call by persons with disabilities around the world to have their human rights respected, protected, and fulfilled on an equal basis with others. This instrument accentuates the human diversity and human dignity of all persons, persons with disabilities inclusive.

The introduction of the Sustainable Development Goals (SDGs) marked a turning point in recognising the challenges faced by persons with disabilities and further bolstered the achievement of the objectives of the CRPD. It effectively covered the lapses in the Millennium Development Goals, because it opened the floodgate for mainstream participation of persons with disabilities as stakeholders in government. In leaving no one behind, the SDGs include persons with disabilities: seven targets and eleven indicators of the 17 goals have an explicit reference to persons with disabilities and the need for their consultation by the governments, the UN system, civil society, and stakeholders.

The CRPD is the first international instrument, which explicitly makes provisions for the rights of persons with disability and contains robust provisions towards this end. Article 3 of the Convention proclaims the principle of respect for the individual autonomy of persons with disabilities and the freedom to make their own choices.  Article 12 of CRPD recognises the equal rights to enjoy legal capacity in all areas of life, such as deciding where to live and whether to accept medical treatment. The drafters of this instrument did not fail to recognise precedence in other instruments including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. For instance, Article 15 of the Convention posits that PWDs have the right to be free from torture, or cruel, inhuman or degrading treatment or punishment, in particular, to scientific or medical experimentation.

In contrast, the legislation in Nigeria for persons with disabilities has lacunae. It does not fare well compared to other African jurisdictions like South Africa that have specific legislation on disability and guidelines for implementation. Although the introduction of the Discrimination against Persons with Disabilities (Prohibition) Act, 2019 is a step in the right direction there can still be improvements.

There is an inextricable link between poverty and disability. However, the Act fails to address this sufficiently. This is because although proscribing discrimination against persons with disabilities by employers, there is no real enforcement mechanism put in place. In addition, it is necessary that the government consider bolstering this effort with skill development schemes and other inclusive social protection schemes that are inclusive of women and girl children because of their vulnerability. This is against the background of the high unemployment rate ravaging the nation; this type of initiative affords persons with disability a level playing field for economic empowerment.

The legislation like others in time past, has failed to cater for political participation of persons with disability. Although in the previous elections, there were provisions to aid persons with disability exercise their franchise, there is room for improvement in terms of those covered. In addition, there is no provision for their participation as candidates for political positions through, for instance affirmative action. The government should consider a quota system to ensure their participation. This is because it would foster their ability to implement policies that will better serve their needs as a group.

To achieve full implementation of this legislation, the Nigerian government should consider using the Washington Group questions. The Washington Group developed these questions as a United Nations Statistical Commission City Group. It aims at promoting and coordinating international cooperation in generating statistics on disability suitable for censuses and national surveys, to provide basic information on disability that is comparable worldwide. The Nigerian government can leverage these questions on disability status in national census or surveys to facilitate data disaggregation into national policies on education, health, disaster risk reduction

Bearing in mind the insecurity in Nigeria, especially the Northern areas, and statistics that reveal that in crisis-affected communities, persons with disabilities are the most marginalised with 80% living in poverty as a result of persecution, conflict, and human rights violation, the legislation should seek to improve inclusive humanitarian response. In providing these humanitarian actions, the government should adopt a twin-track approach. This is such that on one hand, it strengthens the participation of persons with disabilities through the delivery of disability-specific services, capacity development and advocacy; to ensure that persons with disabilities and their representative organisations can equally access and contribute to humanitarian responses. On the other hand, the government should ensure that the relevant authorities and stakeholders have clear knowledge of the needs of persons with disabilities during a humanitarian response such as rehabilitation services, reasonable accommodation, and accessible information in Braille amongst others.

About the Author:

Oludayo Olufowobi is a fourth-year law student at the University of Lagos. He has interests in intersections between law, finance, and technology and is deeply concerned about the welfare of persons with disabilities. He is an avid researcher and writer. He is currently the Deputy Editor-in-Chief for UNILAG Law Review and the Under-Secretary-General (Research) for the Lagos Model United Nations 2021.

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Some reflections on the harmonisation of business law in Francophone Africa and constitutionalism

Author: Balingene Kahombo
Professor of Public Law and African International Relations, Faculty of Law, University of Goma (Democratic Republic of Congo)
Author: Trésor M. Makunya
Doctoral Candidate & Academic Associate, Centre for Human Rights, Faculty of Law, University of Pretoria (South Africa)

Context

The Organisation for the Harmonisation of Business Law in Africa (OHADA) a supranational organisation established by the Treaty of Port-Louis of 17 October 1993 to standardise business legislation and regulation in Africa. It was believed that the creation of OHADA will attract foreign investors because its norms increase legal and judicial security and certainty. The imperfection, disparity and inaccessibility of existing business-related legal rules and judicial institutions were identified as major problems to address. The OHADA sought to combat the ‘backwardness’ of African business law by adopting legislation regulating different aspects of business, such as company law, simplified recovery procedures and enforcement measures, and labour law. These laws are known as uniform acts.

In a contribution we presented at the Seventh Stellenbosch Annual Seminars on Constitutionalism in Africa (September 2019), we challenged the claim that the OHADA legal and institutional arrangements serve economic interests of Francophone African countries and citizens. The analysis was conducted through two lenses; the extent to which the OHADA embodies Pan-African ideals and constitutional issues which it raises within its member states.

This article discusses two basic arguments. First, Pan-Africanism generally viewed as the ideological driver of the African unity and the fight against colonialism and neo-colonialism forms part of the post-1990 Francophone Africa’s constitutionalism. Most Francophone Africa’s constitutions commit, under preambles and substantive provisions, to seek African unity through cooperation, association or by entering into community organisations. OHADA is an economic integration project imposed on its member states, most of them being former French colonies. It promotes a neo-colonial agenda of the former coloniser. This poses serious challenges to African constitutionalism. Second, the coming into being of the OHADA Treaty and the adoption of uniform acts resulted in promoting interests of big businesses and foreign companies at the expense of local entrepreneurs. This is despite the fact that most constitutions in Francophone Africa proclaim that their states are ‘social state or Republic’ and recognise the right to free enterprise or private initiative to either citizens/or everyone, which may entail an obligation to protect local entrepreneur’s rights.

Origin of the OHADA

The decision to create OHADA was made during the meeting of Ministers of Finance of Franc Zone in Paris (France 1991) and approved by Heads of State in 1992 in Libreville (Gabon). The organisation intended to harmonise business laws in former French colonies to reduce and eliminate differences in national business laws. It also intended to attract foreign investments, to further economic integration in Africa and enhance judicial and legal security. OHADA made three transformations within the African business regulation landscape. The adoption of legislation directly enforceable in member states, including by domestic courts. The establishment of a Council of Ministers. The Council is tasked with adopting uniform acts without direct participation of national parliaments. Chief among the transformations is the establishment of an apex Court based in Abidjan, the Common Court of Justice and Arbitration. Some authors have noted that this Court of last instance in business matters is located far from ordinary litigants. While big businesses may have financial resources to litigate cases before it in Abidjan, this might not be the case of those located in remote areas, like in the Democratic Republic of Congo.

OHADA and Pan-Africanism

Under the auspices of the Organisation of African Unity/African Union, the African Economic Community was established through the Abuja Treaty to enhance economic integration in Africa. Regional Economic Communities (RECs) established under Pan-African instruments reinforce the community. Contrary to OHADA, existing RECs operate within the Pan-African/African Union ambits. They were not created under the guises of former colonial powers, their creation is largely not based on a shared colonial legacy and consider the diversity of legal traditions in Africa. OHADA lacks direct links with the African Union (AU) and its organs, for instance the Assembly of Heads of States, Executive Council and the Pan African Parliament. Uniform acts it adopts are generally drafted by French and African experts through the financial support of foreign donors including the French government.

At the substantive level, most of these acts are based on French business laws. The level of participation of national parliaments (to give more legitimacy and ensure that national specific issues are considered) is very low. As Salvatore Mancuso has pointed out, the OHADA regime remains based on western ideas of business and services that may, and have, overlooked indigenous practices. Charles Fombad has argued that the OHADA regime paid ‘more attention to regulating transactions involving big businesses and multinational corporations than it does to regulating transactions involving smaller businesses or even the informal economy, which is the driving force of African economies in the region’.  ‘Informal contracts’ as a practice largely widespread had been eschewed in the Uniform Act on General Commercial Law, probably because its drafting was chiefly based on the Convention on Contracts for the International Sale of Goods.

In relation to membership, Article 53 of its founding treaty opens the organisation to the accession of any member state of the OAU/AU and of any non-OAU/AU member state, which may be invited to accede to it, by common agreement of the member states. One may think that the expression ‘any non-OAU member state’ necessarily refers to an African state. This might not be entirely the case. If the intent was to limit the membership of OHADA to African states, the logical wording should have been ‘any other African state’. Yet, the epithet ‘African’ was avoided in this provision, which makes the accession of non-African states possible. This is moreover the most plausible hypothesis because all African states are destined to be members of the OAU/AU. There would be no other African country outside the latter to adhere to OHADA. Such a broad opening of membership does not exist in any other Pan-African international organisations where the status of African state is a peremptory criterion for becoming a member.

Free enterprise and private initiative

Most Francophone Africa constitutions adopt a liberal approach to regional integration and legal harmonisation. Under the Benin, Burkina Faso or DRC constitutions, ‘states may enter into cooperation or association with others provide that principles of equality, mutual respect of sovereignty, reciprocal advantages and national dignity’ are preserved. They do not require prior assessment and identification of national economic interests which may be affected by economic integration. They also do not require legal harmonisation to be preceded by wide domestic consultations. Although constitutions of Benin and Burkina Faso have provisions that may foster popular consultation, their formulation suggests that this is not compulsory. Under Article 58 of the Benin Constitution, the President of the Republic ‘may’ submit a question on sub-regional or regional integration to referendum. The provision is faulty because submitting such a matter to referendum is not mandatory. The President of the Republic can also avoid referendum and merely consults the Speaker of the National Assembly and the President of the Constitutional Court.

We argue that this constitutional weakness could have been resolved by Constitutional Courts which had the duty to control whether the OHADA Treaty was consistent with constitutions before the executive could ratify it. Unfortunately, the analysis of their decisions demonstrated that the control they performed remained formalistic in nature and substantive issues were not dealt with.

As a consequence, the manner in which the new legal regime will positively and negatively affect the rights of local entrepreneurs to free enterprise and private initiative was never assessed. The rights of local entrepreneurs are being undermined by the fact that big businesses are mostly allowed to conduct economic activities in areas which, before the advent of OHADA, were the preserve of small scale businesses. A 2018 French Ministry of Economy and Finances report noted that the Uniform Act on Commercial Companies and Economic Interest Groups positively impacted the creation of private limited liability companies, the bulk of which were foreign companies. This may have rendered local businesses less lucrative, some of which could be forced to close down. Although the new regulations do not specifically preclude any person from undertaking the type of trade they wish to conduct, laws and regulations may indirectly discourage them from doing so. The South African Constitutional Court once ruled that ‘one may also conceive of legislative provisions that, while not explicitly ruling out a group of persons from choosing a particular trade, does so in effect, by making the practice of that trade or profession so undesirable, difficult or unprofitable that the choice to enter into it is in fact limited’.

Two ways to deliver OHADA’s sins

One way to cure the OHADA sins is to enable national parliaments to participate in the drafting and the adoption of uniform acts. Another way can be to ensure that the OHADA Council of Ministers adopt model laws to be approved/adjusted by parliaments to local realities. Further, the OHADA can be incorporated within the African Union economic architecture. In this instance, the drafting and adoption of uniform acts could be conducted by an African Union organ or specialised agency through an inclusive and participative process.

 

About the Authors:

Balingene Kahombo is an Associate professor of Public Law and African International Relations at the University of Goma (Democratic Republic of Congo). He is a Member of the Center for Research and Studies on the Rule of Law in Africa (Centre de Recherches et d’Etudes sur l’Etat de Droit en Afrique–CREEDA).

Trésor Makunya is an Advocate of the Court of Appeal of North-Kivu (DRC), a Visiting Lecturer at the Notre Dame University of Tanganyika (DRC). He is a Doctoral Candidate and the Publications Coordinator at the Centre for Human Rights, Faculty of Law, University of Pretoria.

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Addressing gender-based violence against women and children in Africa

Author: Kwasi Asiedu Abrokwah
Operational Supervisor, Prime Legacy Construction Pty; Communications Director, The Great People of South Africa

Introduction

Gender-based violence (GBV) is defined as violence that is directed against a person on the basis of their gender or sex, including acts that inflict physical, mental, or sexual harm (intimate partner violence or non-intimate partner violence), suffering threats of such acts, coercion and deprivations of liberty. According to the United Nations Women’s Organisation (UNWomen), it is estimated that 35 percent of women worldwide have experienced either physical or sexual violence at some point in their lives. In the West African region, Liberia, Cote d´Ivoire and Sierra Leone are examples of countries where GBV were used as weapons of war. GBV has been a huge problem in Africa where women and children are violated by men. GBV occurs in various forms, including femicide, female genital mutilation (FGM), child marriage, intimate partner violence, sexual harassment, sexual violence and kidnapping. It may also occur in the form of socio-economic violence, including discrimination and denial of opportunities or services on the basis of sex, gender, sexual orientation.

African Heads of States have failed to put measures in place to address GBV among women and children, which has become a concern to women’s rights groups and civil society organisations across the continent. In South Africa, gender-based violence has been a major concern, as women and children are assaulted, kidnapped and killed. Civil society organisations and women groups are making their voices heard through protesting for their rights and for harsher sentences for the perpetrators. Inefficient criminal justice system means that many perpetrators are left off the hook.

Causes of GBV

There are a number of factors that increases the exposure of women and children to GBV in African, including the lack of physical security owing to the break-down of law and order, presence of armed forces or armed groups (such as the Boko Haram abduction of girls in Nigeria) and the collapse of family, social or community structures. Women and girls are especially vulnerable when leaving their communities in search of work, food or shelter, which makes poverty one of the risk factors. That is, lack of education and livelihood opportunities, and inadequate access to shelter, food, water and income generation can increase exposure to GBV, including forced prostitution or survival sex.

Another root cause of GBV is social or political factors – discriminatory social or religious laws, norms or practice that marginalises women and girls and fail to respect their rights. Others include lack of confidence or trust in social or public institutions, including law enforcement and justice institutions that discourages victims or survivors from seeking redress. Furthermore, there are inadequacies in mechanisms and avenues for protection and redress. Judicial barriers and lack access of justice institutions and mechanism, results in a culture of impunity for violence and abuse. Lack of adequate and affordable legal representation and advice, lack of adequate protection for victims or survivors and witnesses pose a further challenge to fighting GBV. There are also inadequate legal frameworks, including national, traditional, customary, religious laws, that discriminate against women and girls and fail to guarantee their rights, or exposes them to further harm and abuse.

Effects of GBV

Gender-based violence can have long term and life–threating consequences or effects for the victim or survivor. Theses can range from permanent disability or death to a variety of physical, psychosocial and health related problems that often destroy the survivor´s self-worth and quality of life, and exposes her to further abuse. There are emotional and psychological effects of GBV, which includes depression, mental illness, shame, self-hate, self-blame, and post-traumatic stress disorder. Reproductive health challenges such as unwanted pregnancy, fistulas, miscarriage, unsafe abortion, fistulas, sexually transmitted infections (including HIV/AIDS), sexual disorders, menstrual disorders are also effects of GBV. Other effects of GBV include loss of role in the society, social stigma, rejection and isolation, increased gender inequalities and loss of livelihood and economic dependency.

Ways of addressing GBV

Target 5.2 of the SDGs aim at the elimination of all forms of violence against women and girls in both public and private spheres. This requires all stakeholders in the Africa region to improve and work towards eliminating violence against women and children. One of the measures necessary in addressing GBV is the responsibility of the state, which includes taking all necessary legislative, administrative, judicial and other measures to prevent, investigate, and punish acts of GBV. To that effect, states for example, must criminalise all acts of GBV and ensure that national laws, policies and practices are adequately respected and protect human rights without discrimination of any kind, including grounds of gender. States should investigate allegations of GBV thoroughly and effectively, prosecute and punish those responsible, and provide enough protection, care, treatment and support for victims/survivors, including access to legal aid, psychosocial support, rehabilitation and compensation for the harm suffered. Furthermore, states must take measures to eliminate all forms of beliefs and practices that discriminate against women and take action to empower women to strengthen their personal, legal, social, and economic independence. Another way to address GBV is the role civil society organisations, which entails organising workshops and seminars about GBV, educating women and men, providing support for women who have suffered from GBV, and holding states accountable for failure to take appropriate measures.

In conclusion, GBV is a serious cancer that requires a concerted effort from all stakeholders, including state actors, international human rights monitoring mechanisms, and civil society groups. Victims/survivors should be given maximum care and support, violations must be properly investigated, offenders prosecuted and sentenced to serve as deterrence.

About the Author:

Kwasi Asiedu Abrokwah is Ghanaian resident in Cape Town where he works as the Operational Supervisor at Prime Legacy Construction Pty in South Africa. He is also the Communications Director for The Great People of South Africa, a non-profit organisation in Cape Town, South Africa. Kwasi is passionate about human rights and gender issues. He holds a Diploma in Aviation Studies from the International Air Transport Association(IATA) and a certificate in Understanding Human Rights from Young African Leaders Initiative.

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When policy isn’t enough: Examining accessibility of sexual and reproductive health rights for displaced populations in South Africa

Author: Lidya Stamper
Research Fellow, Centre of Human Rights, University of Pretoria

The right to sexual and reproductive health services (SRHS) is a fundamental human right for all, guaranteed under international human rights law. Legal protections outlining these rights have been recognised in South Africa through international, regional and domestic instruments. More specifically, these protections are highlighted and specified in documents such as the ‘Convention on the Elimination of all Forms of Discrimination Against Women’ (CEDAW), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), and the 1996 Constitution of the Republic of South Africa. Despite the presence of these legal frameworks, outlining equality and non-discrimination, persistent inequalities continue to act as barriers to exercising SRHS. Legislative and policy advances in SRH have been undermined by a lack of successful implementation and improvements in service delivery, service accessibility, and service availability. Implementation challenges combined with a fragmented health sector have resulted in various obstacles including a lack of standardised care, gaps in the dissemination of information, overburdened health facilities, and provider opposition. Social conditions such as gender inequality, poor access to health services, and provider attitudes continue to reinforce these barriers, undermining many of the intended outcomes of the existing legislative and policy advances in the SRH realm.

While access inequality has become a recognised problem amongst all individuals, the right to care continues to disproportionately impact displaced populations in the country, whose numbers have dramatically increased in the past 20 years.[1] Within South Africa, and specifically within Johannesburg, critics have argued that large-scale development projects reflect one of the largest reasons for internal displacement in the post-apartheid era. These massive evictions often create situations of arbitrary displacement, in which individuals are torn from their homes, communities, original habitats, sources of work, and access to adequate health facilities. Displacement often places individuals a distance away from their regular point of access to health services, often leading to an infringement on their right to freely and fully access SRHS. As this year marks the 20th anniversary of the UN Guiding Principles on Internal Displacement, it is now more important than ever to advance and protect internally displaced persons (IDP) by ensuring equitable access to fundamental human rights services.

Due to the chaotic nature of the public health sector, many non-governmental organisations (NGOs) have undertaken reproductive service initiatives in areas with a weak or non-existent capacity to provide these services. This past year, I sat down with over 30 international, regional, and national organisations with the goal of identifying key variables that may impact rights-based SRHS intervention programming for IDP populations within the country.

My research findings reveal that providers play a critical role in determining access to, and quality of, SRHS outcomes. Participants explained that rights-based reproductive health frameworks and policies have little impact on everyday services when providers are not included in the creation and implementation of these initiatives. Organisations working specifically with community-based health clinics repeatedly referenced “moral policing,” “stigma” and “discriminatory attitudes” as some of the biggest barriers to accessing care. Gaps in sensitisation training and rights literacy as well as community-based beliefs around SRHS has made the baseline for accessing care extremely difficult. When individuals hold reservations about the judgmental and disapproving attitudes of their service providers in public sector facilities, they are more likely to seek alternative abortion options outside of the formal health sector. As noted by one of the interviewees:

“Individuals become overwhelmed with all the barriers from community partners, staff, friends, family etc…so much so that they stop accessing services because nobody’s going to go where they’re not wanted.”

The top-down policy process purportedly characterising the health system not only has led to a substantial gap in communication between policy makers and health care workers, but has reportedly exacerbated pre-existing challenges in health facilities such as overcrowding and staff shortages. Organisations working specifically with displaced populations not only re-echoed these challenges but spoke to the unique ways in which migrant populations have been impacted by these attitudes. Medical xenophobia in the form of delayed waiting periods, slower staff response times, and/or being turned away from treatment continue to disproportionately impact individuals on the move within the country. Intergovernmental establishments such as the International Organisation for Migration (IOM) further reference documentation or a lack thereof, as well as language barriers as indicators of service inaccessibility within migrant populations in South Africa.

For many, the context in which they live in determines access. Outside of sociocultural obstacles, economic circumstances and structural environments were considered the largest indicators of SRHS inaccessibility, with one participant explaining that:

“Clearly, everything we do as human rights activists is affected by people’s socioeconomic circumstances…personal finance mitigates any problem in terms of human rights access.”

For those reliant on public health facilities for SRHS, clinic availability and proximity become significant indicators of accessibility. High levels of poverty and unemployment within the country leaves individuals with little to no money to access transportation to the clinics as well as services. However, once an individual physically arrives at a clinic, findings reveal that service access remains challenging. Underfunded clinics with staff shortages often characterise facilities providing SRHS. Stock-outs and shortages were reportedly extremely common leaving the individual with only one contraceptive option, which undermines an individual’s ability to make autonomous decisions about their health. Barriers such as inconsistent hours, location, wait times, and underdeveloped facilities continue to impede access to SRH rights-based frameworks.

While these challenges impact everyone’s reliance on the public health system, populations on the move reportedly experience these barriers at higher rates, due to the inconsistent nature of service accessibility. Participants explain that the challenges facing vulnerable communities become exacerbated amongst populations on the move, as economic, physical, and structural insecurity are found to be more prevalent within displaced and migrant populations.

“When you have no fixed address or your address is constantly changing because of displacement, maintaining the details needed by service providers becomes extremely difficult, how can you provide contact details with no address?”

Barriers to accessing SRHS are multiple and often interdependent, with poverty, discrimination, gender inequality, resource and capacity constraints, and adverse political and legal environments working to undermine an individual’s ability to make autonomous and fully informed decisions regarding their sexual and reproductive health. My findings reveal implementation failures have shown that SRHS interventions cannot be founded on strictly biological, demographic, or qualitative rationales. While policies within South Africa are progressive in nature and work to advance the right to access SRHS, gaps between national and provincial implementation standards continue to act as a barrier.  Effective interventions require a contextual analysis of the service delivery environment using intersecting instruments of analysis including subjectivity, culture, politics, economy, social relations, and ethic and/or religious values. Understanding the role of power and politics in the development of health systems as well as analysing implementation frameworks at the service delivery level remain critical in creating effective interventions.

[1] Starrs, A. M., Ezeh, A. C., Barker, G., Basu, A., Bertrand, J. T., Blum, R., Coll-Seck, A. M., Grover, A., Laski, L., Roa, M., Sathar, Z. A., Say, L., Serour, G. I., Singh, S., Stenberg, K., Temmerman, M., Biddlecom, A., Popinchalk, A., Summers, C., & Ashford, L. S. (2018). Accelerate progress—sexual and reproductive health and rights for all: Report of the Guttmacher–Lancet Commission. The Lancet, 391(10140), 2642–2692. https://doi.org/10.1016/S0140-6736(18)30293-9

 

About the Author:

Lidya Stamper served as a 2019-2020 Fulbright Research Fellow with the Centre of Human Rights at the University of Pretoria. She has spent significant time working within women’s rights spaces and is interested in understanding the broader implications of policy paradigms. Her research is focused on the ways in which policy agendas account for social, economic, and political contexts. She plans to expand on her work around sexual and reproductive health access for vulnerable communities in 2021 as a Research Fellow with the Research in Color Foundation, as well through her master’s program with the London School of Economics

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