Recently, the Department of Basic Education (DBE) published a second draft of a national policy on the management of HIV, sexually transmitted diseases and TB in schools. Unfortunately, the initial reaction of the media to the policy was sensationalised and inaccurate. This sensational approach sidelines much-need rational debate over this long-overdue policy, which DBE spokesperson Elijah Mhlanga has correctly described as “a matter of life and death”.

The draft DBE policy on HIV, STIs and TB: what does it say?

The policy seeks to provide a comprehensive plan of action for government departments, schools and school governing bodies in combating HIV, STIs and TB. In order to achieve this, the policy contemplates the expansion, roll-out and improvement of existing policy.

First, it contemplates a holistic sex-education programme which will provide “[a]ccurate, age-appropriate and comprehensive information and materials on HIV and STIs” to all learners, educators, support staff and department and government officials. This comprehensive programme includes information on sexual and reproductive health services; but also on gender, sex, sexuality and sexual orientation more generally. In reality, this crucial content is largely absent from the lessons presently taught by underequipped teachers in the much-criticised Life Orientation subject at schools.

Second, the policy then seeks to back up this improved flow of information to schools and “provide a positive and supportive environment” in which “treatment, care, counselling and support” are made available at schools. In line with the Department of Health’s Integrated School Health Policy, the DBE policy contemplates a “holistic package of care and support, particularly for the most vulnerable learners” to be provided by “school health teams”. Consistently with the government’s National Strategic Plan on HIV, STIs and TB 2012-2016 – which aims to increase male condom distribution from 492 million (2010/11) to 1 billion (2016), and female condom distribution from 5.1 million (2010/11) to 25 million (2016), in part by introducing condoms to “non-traditional outlets” – the DBE policy intends to make condoms easily and discreetly available to all learners in schools.

Why is this policy necessary?

Studies repeatedly indicate that school learners who are presently having sex are doing so without either the information on sexual and reproductive health required to do so safely, or the means of acting on this knowledge to protect themselves from risks associated with sexual activity such as pregnancy and the transmission of HIV and STIs. We cannot afford to pretend that children in schools are not having sex. In a judgment about a law which criminalised consensual sexual activity of teenagers as innocent as kissing, the Constitutional Court recently noted that “the majority of South African adolescents between the ages of 12 and 16 years are engaging in a variety of sexual behaviours as they begin to explore their sexuality”. Earlier this year it was reported in Parliament that 717 primary school and 20 116 high-school learners fell pregnant in 2014 alone. Almost a third of new HIV infections in sub-Saharan Africa occur in young women between the age of 15 and 24. At the same time, studies show a dramatic decline in condom usage, coupled with low knowledge about HIV among young people.

More broadly, although children should not be encouraged to have sex without all the information required to make responsible, healthy and mature choices, there is a danger in continuing to stigmatise the sexual development of young people. HIV, STIs and pregnancy are significant dangers, but they are not the only possible consequences of sex.

In the judgment mentioned above, the Constitutional Court accepted expert evidence indicating that “it is not unusual or necessarily unhealthy and harmful for adolescents to engage in sexual behaviours as they begin to learn about their sexuality and become more mature in several life domains”.  The Court struck down this law as an unconstitutional violation of children’s dignity, privacy and bodily integrity, indicating that it impeded and stigmatised healthy adolescent behaviour and reduced children’s comfort in speaking to teachers and parents about sex to the detriment of their health and development.

The DBE’s constitutional obligation to learners

Many children in South Africa, for whom access to condoms currently means a trip to a far off clinic or hospital during school hours, may not have discreet and consistent access to condoms at present. Condom-usage is a proven method of guarding against HIV and STI transmission. Access to condoms alongside comprehensive sex education is likely to increase condom usage among young people, which is worryingly on the decline.

The South African Constitution places an obligation on the state to take proactive reasonable, evidence-based measures to prevent the transmission of HIV in order to protect and fulfil our rights to life, dignity, bodily integrity and access to healthcare services for children. To be lawful, therefore, all laws and policies must be capable of protecting people from the transmission of HIV. As perhaps the single most effective evidence-supported measure to prevent the transmission of HIV, as SECTION27 has argued, these rights must therefore be understood to entail a right to access to condoms and to the information about how and why they should be used.

But the Constitution does not only place obligations on the Department of Basic Education in this regard. It reminds us that “[a] child’s best interests are of paramount importance in every matter concerning the child.” There is a therefore a moral and constitutional obligation on all of us to look out for the best interests of children, even when they conflict with our considered and deeply-held views. The challenge is for parents, educators and members of School Governing Bodies to acknowledge the severity of the problem, and place children’s health, safety and dignity at the centre of an evidence-based debate on the DBE’s policy on HIV, STIs and TB.

The need for meaningful debate and discussion about the DBE’s policy

Supporting access to condoms does not necessarily mean encouraging children to have sex. What it does mean is accepting that if and when children do have sex, they should be armed with full knowledge and understanding of the risks involved, and the means to protect themselves from at least some of the more serious health-related consequences.

In a participatory constitutional democracy, lively debate about the merits of government policy is critical. These debates benefit from a diversity of views and opinions, but must be informed by available evidence and the Constitution’s commitment to a rights-based approach to law and policy-making.

A comprehensive report of the Human Sciences Research Council published in 2014 shows that the prevalence of HIV increased from 10.6% in 2008 to 12.2% in 2012. That means that an estimated 6.4 million people were living with HIV/AIDS. Significantly, for the same period, condom use for people between the ages of 18 and 24 decreased dramatically, from 85.2% to 67.5%. There were an estimated 469 000 new infections in South Africa in 2012. In 2013, over 250 000 people died of AIDS-related illnesses in South Africa alone.

We are losing the battle against HIV. The DBE requires our assistance in grappling with the crucial question of making condoms available in schools, alongside comprehensive information on sexual and reproductive health services and rights. Policy measures which may appear to some to be drastic may well be required if we are to turn this tide. We owe it to our children and the children of the future to set aside our ideological inclinations, and at the very least to participate in a calm and rational debate about the merits of the DBE’s policy on HIV and TB.  Whatever the result of this debate, we can all agree that engaging in it maturely and responsibly will set the kind of example we want for our children. As the Constitutional Court reminded us in S v M:

“Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood. And foundational to the enjoyment of the right to childhood is the promotion of the right as far as possible to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma.”

It is with this goal firmly in mind and evidence at hand that we need to assist the DBE as it continues to grapple with the shape of its policy, which is not aimed at preventing our children from living full and healthy lives.