By Mark Heywood and Thuthu Mbatha, SECTION27
The latest edition of Spotlight, produced by TAC and SECTION27, is a special edition, edited by a young woman activist and SECTION27 researcher, Thuthukile Mbatha. It focusses on the state of implementation of sexual and reproductive health rights (SRHR) in South Africa. The edition illustrates that whether it be on access to termination of pregnancy, access to health services or the continued decriminalisation of sex work South Africa is failing badly in its duty to realise SRHR. In a two-part article, Mark Heywood and Thuthu Mbatha, attempt to ask, and suggest some answers to, the hard and painful questions arising from the articles in Spotlight. Why are we failing to advance – or even defend – rights issues that are central to our very being? Part 1, published here provides some analysis on the state of affairs. Part 2 makes an attempt to share some insights into what can be done. Mark and Thuthu do not pretend to have all the answers or to be authorities on the subject. This is an attempt to get an important conversation going and Spotlight will aim to publish a numbers of other opinion pieces on the subject.
Sexual and reproductive health is a state of physical, emotional, mental and social well-being in relation to all aspects of sexuality and reproduction, not merely the absence of disease, dysfunction or infirmity. Therefore a positive approach to sexuality and reproduction should recognise the part played by pleasureable sexual relationships, trust and communication in promoting self-esteem and overall well-being. All individuals have a right to make decisions governing their bodies and to access services that support that right.
Guttmacher-Lancet Commission, Integrated definition of sexual and reproductive health rights, May 2018:
Sex and the enjoyment of sex is universal and timeless. At some point in their life almost everybody fondles and touches and makes love. Most people know the language of sex; it is a universal language, it has its own words. Most people have felt sexual desire deep within themselves, they seek their pleasure in another’s pleasure, they relish the anticipation, the foreplay, the gathering of energy and excitement and the quiet that follows the end of a sexual encounter.
Because it is so central to human life and experience sex is celebrated in poetry, in painting, in all forms of literature, in music, in photography. Sex is associated with joy, intimacy and love. It’s a part of being human, one of our most exquisite and meaningful forms of expression. We have written about it, debated it, perfected it, for the whole of human history.
Sex and the abuse of sex is also universal and timeless. Paradoxically, because sex is so central to human experience of joy, it has a flip side. Rape has been central to slavery, colonialism and apartheid. What Pumla Dineo Gqola calls “the culture of rape” is deeply embedded in our society. Forms of sexual behaviour have also been persecuted and discriminated against. People have been marginalised and persecuted in law because of their sex, sexual orientation or sexual preferences. Even today, sex brings persecution and death. Sexual relationships are inextricably tied up with inequality between men and women as well as other genders; they become chained to issues of power, violence and exploitation.
In this context of oppression, inequality and discrimination, sex is turned into its opposite. It becomes about coercion, powerlessness and pain. As with so many other forms of oppression that rob people of autonomy to protect their own bodies, sex becomes linked to risk of sexually transmitted diseases, like HIV, illness, physical harm and death.
Reproduction is inextricably linked to sex. It’s hard – but no longer impossible – to reproduce without having sex. Reproduction is mostly also about joy: the joy of creation, of parenthood, of the union of two people embodied in their offspring. Healthy reproduction needs healthy bodies and minds. Giving birth should be a moment of exquisite joy for a woman – but it can also be a moment of great risk.
This means reproduction too has a dark downside. It too is meshed into inequality and unequal power relations between men and women. Girls and women are forced to get pregnant against their wishes or forced to have children against their wishes through anti-abortion laws. Some women are denied the right to have children, because of disability or stigma. For example, in some parts of the world women have been sterilised because they have HIV.
And then there’s the issue of patriarchy. In every country in the world it is predominantly men, whether as legislators or judges, who prescribe laws that proscribe women’s control over their own bodies or seek to eliminate non-conforming gender differences.
Global recognition of Sex and Rights
Safe and pleasurable sex and safe reproduction are inextricably connected to those foundational rights that most inhere within us – our dignity, our privacy, our autonomy over our bodies and decisions, our equality as men and women, our sexual identity, OUR FREEDOM. It is in recognition of the centrality of sex and reproduction to our human experience that activists fought successfully for sex and reproduction to be recognised and protected as fundamental human rights. These rights exist primarily to recognise, enhance and protect the joy of sex, our individuality, our sexuality and sexual orientation.
Today, sexual and reproductive health rights are recognised in several international Covenants. Although they were not recognised in the Universal Declaration of Human Rights, the foundational document of the United Nations, they are referred to, recognised or developed in subsequent treaties.
According to researchers the 1994 International Conference on Population and Development (ICPD), in particular, “transformed the approach from reproductive control to meet demographic targets to a more comprehensive and positive approach to sexuality and reproduction, free from coercion, discrimination and violence. ICPD forged the link between sexuality and health as human rights, where women’s agency over their own bodies and sexuality are intrinsically linked to their sexual and reproductive health.” Following this, a year later the Beijing Platform for Action “was the first declaration to embody the concept of sexual rights, and expanded the ICPD definition to cover both sexuality and reproduction by upholding the right to exercise control and make decisions concerning one’s sexuality.”
Most recently the UN’s Sustainable Development Goals (SDGs), include under Goal 3, ‘Good Health and Well-Being’ the target:
“By 2030, ensure universal access to sexual and reproductive health-care services, including for family planning, information and education, and the integration of reproductive health into national strategies and programmes”
As well as under Goal 5, ‘Gender Equality’, a commitment to:
“Ensure universal access to sexual and reproductive health and reproductive rights as agreed in accordance with the Programme of Action of the International Conference on Population and Development and the Beijing Platform for Action and the outcome documents of their review conferences.”
Building on this the most recent significant development in international law was the publication in 2016 of General Comment No 22 on the Right to Sexual and Reproductive Health by the UN Committee on Economic Social and Cultural Rights (UNCESCR). This important document spells out states’ duties in relation to SRHR, such as the right to “education on sexuality and reproduction that is comprehensive, non-discriminatory, evidence-based, scientifically accurate and age appropriate.”
The fact that there is now global recognition of SRHR is a victory for activism. It is evidence of the power of activists when organised around a common vision. It is proof of the adaptability of human rights standards as society struggles to evolve beyond conservative and oppressive ideas of sex and sexuality. Yet, in spite of these positive developments, a 2017 survey found that there is reference to sexual and reproductive health rights in the Constitutions of only 27 out of 195 countries. The UNCESCR says that SRHR are “a distant goal for millions of people, especially for women and girls, throughout the world.” In May 2018 the Lancet Commision on Sexual and Reproductive Health Rights confirmed this, finding that:
At a global level … almost 4.3 billion people of reproductive age worldwide will have inadequate sexual and reproductive health services over the course of their lives and that, each year, an estimated 25 million unsafe abortions take place. Each year in developing countries, more than 30 million women do not give birth in a health facility, more than 45 million have inadequate or no antenatal care, and over 200 million women who want to avoid pregnancy are not using modern contraceptive methods. Intimate partner and non intimate partner sexual violence affects around a third of women in their lifetimes, including an estimated 29% of adolescent women aged 15-19 years who have ever had partners.
In the face of this evidence we must admit that the inability of activists to ensure the domestication and implementation of rights that we have won at an international level – rights that seem to exist on paper – is our collective failure. As we shall see, the fight for sexual and reproductive health rights is far from complete. It needs renewed commitment and a better strategy from activists and progressive governments in the world. It requires self-examination and self-criticism from within civil society and deep introspection. It is urgent, perhaps the most urgent issue we face, because it connects to so many other rights violations.
National recognition of sex and rights
In the early 1990s in South Africa a range of organisations from the women’s health movement and the National Coalition for Gay and Lesbian Equality (NCGLE) campaigned successfully to ensure that sexual and reproductive health rights were included in the new Constitution. As a result, the Constitution declares that no one may be discriminated against on grounds including sex, sexual orientation, pregnancy or gender. But our Constitution goes further. It does not just include negative injunctions against discrimination: the Bill of Rights says that “equality includes the full and equal enjoyment of all rights and freedoms”.
Building on this, section 12 of our Constitution recognises that “everyone” has a right “to make decisions concerning reproduction” and to have “security in and control over their own body”. Section 27 says everyone has a right of access to “reproductive health care”.
In the context of adolescent sex and sexuality, in a very important judgment, our Constitutional Court recognised that in relation to their sexuality “children merit special protection through legislation that guards and enforces their rights and liberties.”
It is important for activists to understand that these grand rights create legal obligations, especially on the government. They ought to translate into specific policies, programmes and budgets. They ought to be evident in concrete programmes such as access to condoms in schools for prevention of teenage pregnancy and HIV; as well as access to medical technologies that can protect and enhance people’s sexual and reproductive lives.
Sexual rights and sexual wrongs in South Africa
You would think that given their growing recognition in domestic and international law, that this aspect of human rights has been placed beyond contest. If only. In reality the global crisis around sexual freedom and reproduction has never gone away. It is being exacerbated by the actions and words of ‘leaders’ like USA President Donald Trump. However, we would be mistaken to think that Trump is the problem. He is just a very visible and unapologetic manifestation of it. Across the world there is an undeclared war on sex and gender. The black American writer Ta-Nehisi Coates called the abuse of black women in the USA during slavery “rape on an industrial scale” – sadly rape on an industrial scale, particularly of black women, continues in many other parts of the world.
In South Africa there exists what Pumla Dineo Gqola insists we must call “a culture of rape”, with deep historical roots. She argues that there has been an unceasing war on women’s bodies and autonomy since the start of colonialism. Today, this is reflected in statistics that reveal:
- Very high rates of rape;
- Very high rates of sexually transmitted infections;
- Very high new HIV infections among women and girls (said to be 2000 a week); 
- Very high rates of teenage pregnancy.
- Very high rates of back-street abortion; 
Poor implementation of policy and law have had the effect of pushing back on women’s rights. For example, in 1996 the Choice on Termination of Pregnancy Act was one of the first progressive laws to be passed by our democratic government. Yet 21 years later only a minority of public clinics offer this service – thousands of women a year are still maimed, and many die, as a result of backstreet abortions. Add to this the epidemics of violence against women, girls and hate crimes perpetrated against sex workers, lesbians (so-called “corrective rape”) and other people because of gender identity or sexual orientation. Finally consider the continued marginalisation of girls and women in our education system and economy, despite the fact that the Constitution proclaims us all to be equal.
All of this violence is linked to the systematic denial, by omission and commission, of the sexual and reproductive health rights that are meant to be respected, protected, promoted and fulfilled under our Constitution and other laws.
All of this is violence on people’s bodies and minds. Consequently much of it leads to illness and trauma.
Almost all of this is preventable.
All of it is connected. Yet people pretend that SRHR can be realised separately from other rights.
In reality we are only half way even to political freedom in South Africa. We have men’s political freedom, but not women’s freedom. We have a degree of freedom for materially secure women but almost none for poor black women. Poverty, race and sex are overlapping and reinforcing oppressions. In the words of activist Naledi Chirwa, “black women can’t breathe.” 
So what is going wrong?
Centuries of struggles have won the recognition of human rights in policies and some laws. But their implementation is another story altogether. Worryingly, in a world of conservative men and bigots who have captured religions in order to once again enslave women, it’s clear we can’t take the rights we have on paper for granted.
The failure to “respect, protect, promote and fulfil” (the words of the Constitution) SRHR is first and foremost a failure of government. But the leadership of social justice movements and human rights NGOs cannot escape responsibility. Most trade unions, faith based organisations and NGOs do not take SRHR seriously. Our gender-neutral campaigns, our failure to advance women’s leadership in civil society, are a reflection on the prevailing patriarchy. It is not enough if an organisation says it stands for gender equality (most say we do); unless it actively seeks gender equality, women’s leadership and the realisation of SRHR then its default position is reinforcing patriarchal ‘norms’. That is a sad state of affairs.
We become complicit with a horrendous status quo.
 L Pizzarossa and K Perehudoff, Global Survey of National Constitutions: Mapping Constitutional Commitments to Sexual and Reproductive Health Rights, Health and Human Rights Journal, 2017. https://sites.sph.harvard.edu/hhrjournal/2017/12/global-survey-of-national-constitutions-mapping-constitutional-commitments-to-sexual-and-reproductive-health-and-rights/
 See footnote 2.
 In an important article analyzing effective (and ineffective) social justice advocacy Barbara Klugman says the following: “In the context of AIDS denialism, much of the media focus was on the conflict between the government and HIV activists, with very little attention to the lived realities of people living with HIV, nor to the high levels of sexual violence, and cultural imperatives to have children, all of which were key determinants in the escalation of HIV. Claims regarding the need to promote sexual and reproductive rights as a key dimension to preventing HIV brought a level of complexity that this call could not contain, or, argued differently, neither AIDS activists nor reproductive rights activists were able to frame these issues in ways that caught the public and media imagination. Hence, a critical opportunity for broadening and deepeningpublic understanding and legal precedent regarding the scope of reproductive rights and women’s rights in particular, was lost. In the process, public and policy recognition of the right to treatment eclipsed the issues underlying the HIV/AIDS epidemic, in particular the lack of mutuality in sexual and reproductive relationships.” Effective social justice advocacy: a theory-of-change framework for assessing progress, Reproductive Health Matters 2011: 19(38): 146 -163.
 Pumla Dineo Gqola’s Rape, A South African Nightmare, MFBooks Joburg, 2015, should be mandatory reading for all social justice activists, especially men.
 Africa Check, Factsheet: South Africa’s Crime Statistics for 2016/2017, October 2017 http://www.africacheck.org/factsheet/southafricas-crime-statistics-201617/ 39, 828 cases of rape were reported in 2016/17, that is approximately 109 rapes per day. In addition 6,271 cases of sexual assault that were reported.
 South African National AIDS Council (2017) South African National Strategic Plan for HIV, TB and STIs 2017-2022. Pg.8
 Id at Pg.7
 Statistics SA, South African Demographic and Health Survey 2016, May 2017http://www.statssa.gov.za/publications/Report%2003-00-09/Report%2003-00-092016.pdf
 HEARD, South Africa Fact Sheet on Unsafe Abortion, May 2016 https://www.heard.org.za/wp-content/uploads/2016/06/south-africa-country-factsheet-abortion-20161.pdf.