Uganda’s Constitutional Court hears a Landmark Maternal Health case

By Paul Wasswa

In what many describe as a landmark case, Uganda’s Constitutional Court will tomorrow morning (Thursday, 13 June) hear a case which challenges the government’s failure to stop the high number of women who die while giving birth.

The case of Center for Health, Human Rights and Development (CEHURD) and others vs. Attorney General (Constitutional Petition 16 of 2011) reveals that more than 16 pregnant women die every day in Uganda with many of these tragic deaths preventable.  Research shows that most of the deaths are due to absence of maternal health kits, no midwives, stock outs of essential medicines and the lack of emergency obstetric care. This state of affairs is attributed to the failure of the state to address the problem of maternal mortality.

Genesis of Uganda’s Maternal Health case

CEHURD’s case is based on the fact that Uganda has an extremely high maternal mortality rate – it increased from 418 maternal deaths per 100,000 live births in 2006 to 438 maternal deaths per 100,000 live births in 2011. This was attributed to the absence of enough midwives and doctors attending to expectant women, frequent stock-outs of essential drugs and other basic supplies such as gloves, an absence of maternal health kits and the lack of Emergency Obstetric Care services at Healthcare facilities and hospitals. The shortage of health workers was compounded by poor pay that greatly contributed to absenteeism and poor attitudes of workers towards pregnant women, according to CEHURD. Rhoda Kukiriza and Inziku Valente also submitted affidavits describing the loss of their relatives at child birth with a belief that it was linked to the poor quality of service in the healthcare system.

When the case was heard in 2012 before the Constitutional Court, CEHURD contended that the poor services coupled with inadequate financial resource allocation to the health sector contributed to the high maternal mortality rate which amounted to the violation of Government’s obligation to provide basic maternal health care services in health facilities.

However, the State argued that the court did not have the power to hear the petition because the government had the power and authority to handle issues connected to maternal health and not the Courts. The court agreed and found that it did not have the power to hear the petition as it raised no questions for constitutional interpretation and summarily dismissed the case.

CEHURD appealed the Constitutional Court Judgement in the Supreme Court (Uganda’s highest court) in 2013. The  Supreme Court found that the Constitutional Court was being called upon to determine whether the Government had taken all practical measures to ensure the provision of basic medical services to the population and in this case maternity services.  It thus held that the Constitutional Court had the power to hear the case on its merits and ordered the Constitutional Court to re-hear the case.

Why this case is important

In a country where the Right to Health is not a constitutionally guaranteed human right, this case seeks to question the progressive realisation of the Right to Health and its rightful place within the ambit of the Ugandan Constitution. Though Uganda is a signatory to several international human rights instruments such as the International Covenant on Economic, Social and Cultural Rights and General Comment No. 14 on the Right to the Highest Attainable Standard of physical and mental health, this case demonstrates the fact that not much has been done by the Ugandan government to address the problem of maternal deaths.

By contrast, South Africa’s constitutional framework, which recognizes the right of access to health care services and the Guidelines on Maternity care in South Africa; which recognize the right to emergency obstetric care, provide the basis on which the public health system has been able to make strides in combating maternal deaths. The maternal death ratio in 2016 in South Africa was 134 per 100 000 live births down from 189 in 2009.

The CEHURD Petition asks the Constitutional Court to take the same progressive approach as South Africa and to breathe the Right to Health into Uganda’s Constitution. It seeks to address the systematic and structural imbalances in society that have led to the death of pregnant women while giving birth in Uganda’s public healthcare facilities. It seeks the recognition that maternal health is a right for all and not a privilege for a few.

Paul Wasswa is a fellow at SECTION27 and Programme Associate at the Center for Health, Human Rights and Development (CEHURD).

 

#FootSoldiers: It’s a bloody affair, but we are all human.

“In 2017 a young girl called *Akeelah showed up at lady Michaelis Clinic one morning to see a Termination of Pregnancy (TOP) nurse. The nurse on duty was busy attending to another patient at the time. While she waited Akeelah  kept shifting anxiously in her seat, eventually she popped her head into the office and asked the nurse if she was going to be long, as she was in a rush. The nurse explained that she had to see everyone in the queue and referred her to the local hospital, if she couldn’t wait. A few hours later Akeelah returned , still  visibly anxious. This time she managed to consult with the nurse. They discussed the option of an abortion and agreed that Akeelah would come back to the clinic.

The next day Akeelah’s aunt arrived at the clinic to enquire about her medical  situation as she had tried to take her life the night before. The nurse did not disclose the reason why Akeelah had come, but just confirmed that Akeelah had presented herself at the facility.

Just as Akeelah’s aunt  left  the clinic , Akeelah  was back again. This time she had a drip needle hanging from her arm and a hospital tag around her wrists – she had  gone to the hospital, but ran away to come back to the nurse.

She told the nurse she was sure that she wanted an abortion. The nurse provided her with the medication she needed to perform an abortion at home, and informed her to call her if she was uncertain about what was happening to her body during the abortion process.

The call never came.

Instead, the aunt returned to the clinic to see the nurse and deliver some news.

Akeelah, had thrown herself in front of a train and died.”

Fourty-eight-year-old nursing Sister Judy Ranape is in tears by the time she finishes narrating this story. She was the nurse on duty the day Akeelah first turned up at the clinic.

It is this harrowing memory that keeps the Cape Town abortion  nurse doing her bit within the corridors and wards of hospitals, and in the lives of people in her community.

Ten years ago, Judy made the decision to become an abortion (Termination of Pregnancy) nurse. A staunch Catholic woman, somehow she navigated a way through her religious beliefs and faced the stigma of being viewed as a person who allows people to take away lives instead of saving them. “I come from a background where abortion Is a sin, it took me sometime before I said to myself, what the heck, I need to help people anyway,” she says   If ever she feels uncertain, she repeats the following mantra to herself “These patients may have chosen whatever, but they are human and above all else, I am pro-human and that also means looking past my own discomforts,”she said.

By April 2019 Judy Ranape estimates she had facilitated around 10 000 abortions – both surgical and medical (dispensing of a pill).  “I never imagined that this is where I would be today,” she reflects.

“The idea of abortion is still very taboo in our communities, people won’t speak honestly about it, and even people in the health system share stigma themselves, I’ve heard of abortion providers not being spoken to at work or being actively avoided,” said Judy.

“When I started my career in TOP, I saw many of my colleagues fail to complete the training course. Many put on brave faces, but were paralysed with fear when it came time to perform the procedure. It’s a scary thing, some woman are screaming in pain, others are desperately fearful, it’s a bloody affair and it takes a lot to be brave and go through with the process of providing a surgical abortion ,” she says.

Judy herself has faced challenges in her own home due to the path she has chosen. Her husband is also a staunch Catholic.

“My family knows about the work that I do, but we don’t talk about it at home,” she says.

Despite sometimes facing judgement and criticism, Judy wakes up every morning to attend to patients who require abortions. “When these woman walk through the door, they usually need two things. An abortion and to talk. Every woman has a story,” says Judy.

Judy quietens for a moment, and tears well up in her eyes. She is thinking about Akeelah again.

“I can’t help but think, that if I had just made the effort to speak to her more, to listen to her, I could have been able to help her.”

After the experience with Akeelah, Judy has become intent on providing a holistic approach to her patients. “It’s important to me that I speak to these women, there is a reason every single one of them come, it’s not just for an abortion.”

Judy has worked with the community of Lady Michaelis to break the taboos around abortion, she speaks openly about it and encourages others to do the same. Initially Judy’s patients would shy away from acknowledging her or speaking to her in public, but now, everywhere she goes, people shout her name and always want to stop for a chat.

“It brings me such great joy, to see people from the community interacting so freely and genuinely with me,” she says.

While access to abortion remains controversial in much of the world, Judy refuses to get caught up in the politics. She is clear that her role is to provide support to her patients and give them the option to make a choice about their lives, after all- her only concern is providing help to those who need it”

“If I don’t do it, who will?,” she grins.

*Name changed to protect identity of the patient and her family.

  • Foot soldiers of the health system: It’s election time which means men and women in party regalia take to the streets, podiums, loudhailers and stadiums. Invariably they tell people about all the good and wonderful things they have done or plan to do in the health system. SECTION27’s Nomatter Ndebele and photojournalist Thom Pierce travelled the roads of South Africa in search of the foot soldiers of the health system, the men and women who quietly get on with doing the job and saving lives, often without any acknowledgement.

 

 

 

 

South Africa urgently needs an antiretroviral pregnancy registry

South Africa will roll out a new antiretroviral medicine called dolutegravir in the public sector later this year. One reason for caution about dolutegravir are reports from Botswana that suggests it may cause serious birth defects if women take the drug in the early stages of pregnancy. As previously argued in Spotlight “Women of childbearing age have the right to make an informed decision on whether they want to use dolutegravir or not – and alongside that they have the right to be provided with access to a range of contraceptive options and termination of pregnancy services”. It is likely that this approach will be endorsed by the committee that decides South Africa’s HIV treatment guidelines.

However, the question of dolutegravir’s safety in pregnancy remains an open one, and we owe it to patients to answer this question as quickly as possible. It is important to understand that this critical question cannot be answered in a test-tube or in an animal laboratory. It can only be answered if some women fall pregnant while taking the drug, something that is sure to happen if women of childbearing potential choose to take the drug, regardless of their contraceptive choices. It is therefore incumbent upon researchers and policy makers to ensure that we answer questions about dolutegravir’s safety as quickly as possible and with the minimum number of pregnancies. If we don’t, and dolutegravir is confirmed to cause birth abnormalities, we will have allowed too many foetuses to be exposed to this risk. On the other hand, if we can establish that there is no increased risk, we will miss the chance to quickly reassure patients of its safety.

The solution is a registry of women falling pregnant while taking antiretroviral therapy. This means that as soon as pregnancy is confirmed in a woman taking ART, and before any assessment of the baby has been made, her details are recorded in a register. She is then followed-up until the end of the pregnancy, and regardless of the outcome, an assessment is made of whether or not the baby had a birth abnormality. It is only by taking this rigorous approach that we can be sure that any birth abnormalities are indeed related to ARVs and not a chance finding.

To date, South Africa has an appalling record with regard to pregnancy registries. There is no national registry and only 2 provinces have made attempts to create one. There is a registry in KZN based on women receiving medicines of interest as part of their routine clinical care.. In addition, the Western Cape has a Pregnancy Exposure Registry-Birth Outcomes Surveillance programme. This is is based on routinely collected data which is notoriously unreliable as there are often inaccuracies and gaps in the data compared to when a dedicated registry is used. Neither registry has thus far published a peer-reviewed paper which is open to scrutiny. Therefore, after more than a decade of the widespread use of antiretrovirals in South Africa, we still have a huge gap in knowledge about the safety of drugs in pregnancy.

This is a terrible omission and patients have every right to deserve better.

Many remember the confusion and distress caused by the possible link between another antiretroviral medicine called efavirenz and birth defects. Efavirenz is currently part of the three-drug combination given to almost all public sector patients newly diagnosed with HIV.   In the case of efavirenz it took many years to resolve an issue that could have been solved in a very short period of time if there had been an active registry in South Africa. We must not repeat these mistakes with dolutegravir.

There are a number of well-functioning pregnancy registries around the world, notably the ‘Antiretroviral Pregnancy Registry‘ (APR) which is based in the United States, but accepts reports from any country. The scientific conduct and analysis of the registry data are overseen by an independent advisory committee consisting of members from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), the National Institutes of Health (NIH), and the academic sector. A review of the data from January 1989 to July 2018 found 20,064 prospective registry reports with birth outcomes. So far, the registry has provided reassuring data that does not suggest that any anti-retroviral causes birth defects.

Rather than ‘re-invent the wheel’ it would be straightforward for South Africa to join forces with this well-funded and professional endeavour by registering as many sites as possible with the APR and prospectively reporting all women who fall pregnant while taking ARVs, including dolutegravir. It has taken 29 years for the APR to accumulate 20,000 reports; with 1 million births per year in South Africa and around 30% of pregnant women being on ART, we could collect that same number in a matter of months and with minimal effort.

With the dolutegravir roll-out around the corner, the time is now ripe for patients and activists to demand a prospective pregnancy registry for the whole of South Africa. Whether it is a new endeavour or piggy-backs on international efforts is a matter for debate, but it is the only way we can answer the question of dolutegravir’s safety with the minimum number of women being exposed to the drug. It’s the least that patients deserve.

Dr Tom Boyles is a Senior Research Clinician at the Wits Reproductive Health and HIV Institute.

Let women decide whether they want to take dolutegravir

By Maureen Milanga and Lotti Rutter

An important new antiretroviral medicine called dolutegravir will soon become available to people living with HIV in various Sub-Saharan African countries, including South Africa. Unfortunately, many women might be denied access to this new drug due to an inability of regulators and health departments to see potential risks associated with the drug in the proper context. (See this article for more on the benefits of dolutegravir over current treatments.)

In May this year, preliminary findings from an observational study in Botswana raised a potential concern about the use of dolutegravir for women. Dolutegravir was in the process of being recommended in national HIV guidelines in almost 70 low- and middle-income countries, following the medicine’s earlier introduction in wealthier countries.

The concern relates to an ongoing observational study in Botswana (the Tsepamo study) that found a potential risk relating to the use of dolutegravir at the time a woman conceives. Preliminary analysis from the study showed that four women out of 426 who conceived while taking the medicine gave birth to infants who had neural tube defects. This worked out to a rate of 0.9%, higher than the average of 0.1% of women in the rest of the population. Updated data since shows an additional 170 births, with no additional neural tube defects reported (thus bringing the rate down to 0.67%). At the time of writing, the number of conceptions in the study are over 800, and no more babies have been born with neural tube defects.

Neural tube defects can be caused by a number of factors, such as a woman having insufficient folic acid at conception, or diabetes. The cause of these four cases is not conclusive and we do not know if dolutegravir causes birth defects when taken during conception. In fact, while an increase in neural tube defects was observed in Botswana, it has not been observed in any other countries conducting similar studies. In summary, it all may be by chance, or it may be a real danger. We need more time to be sure. The final outcomes of Tsepamo are expected in April 2019.

What the guidelines say

The WHO issued guidelines recommending dolutegravir as an alternative option for first line treatment of HIV in 2016. After the preliminary Tsepamo findings were released, the WHO issued updated guidelines in July 2018 outlining how countries should proceed in rolling out dolutegravir. The guidelines stated:

“Adolescent girls and women of childbearing potential who do not currently want to become pregnant can receive dolutegravir together with consistent and reliable contraception.”

And that;

“Woman-centred health services involve an approach to health care that consciously adopts the perspectives of women and their families and communities. This means that health services see women as active participants in and beneficiaries of trusted health systems that respond to women’s needs, rights and preferences in humane and holistic ways. Care is provided in ways that respect women’s autonomy in decision-making about their health, and services must provide information and options to enable women to make informed choices. The needs and perspectives of women, their families and communities are central to providing care and to designing and implementing programmes and services. A woman-centred approach is underpinned by two guiding principles: promoting human rights and promoting gender equality”.

Following the WHO caution regarding the use of dolutegravir many countries have taken a conservative approach on women’s access to this medicine, and in some cases slowed or stalled progress altogether. We understand a guidelines committee meeting in South Africa is scheduled for 30 November.
The conservative stance being taken in a number of countries restricting women’s ability to choose dolutegravir echoes other age-old struggles for women to be able to make choices about their own health. In this instance, some policy makers are changing treatment guidelines to recommend that dolutegravir be reserved only for men and for women above 50 years of age. In doing so they are taking away women’s right to make an informed choice over their own bodies and health needs.

Women of childbearing age have the right to make an informed decision on whether they want to use dolutegravir or not – and alongside that they have the right to be provided with access to a range of contraceptive options and termination of pregnancy services. The Tsepamo data is as yet not conclusive, and is one study from a single country. We do not know if dolutegravir causes birth defects when taken during conception. On the other hand, dolutegravir’s side effect profile of decreased risk of development of drug resistance, decreased costs, and superior ability to suppress high viral loads late in pregnancy, make it an important option for use in South Africa and the region.

This is an edited extract from a new dolutegravir briefing developed by Health GAP. To download the colourful and informative briefing click here.

Lotti Rutter and Maureen Milanga are Associate Directors of International Policy & Advocacy at Health GAP based in South Africa and Kenya respectively.

A new normal where SheDecides: What needs to happen to get there?

By Robin Gorna

I want to live in a world where every girl and every woman can decide what to do with her body, her life, and with her future. Without question.

The SheDecides manifesto (below) outlines the vision of the world I want to live in: a world which respects, upholds and promotes my fundamental rights to decide what I do with my body, the choices I make, the pleasure I have, the people I share it with, the times I use it to bring more life into the world. And the times I do not.

As an old AIDS activist, with a passion for womens rights (my activism began in 1986 and I was one of the first to write about HIV and women; my first book was published nearly a decade later, after many articles etc), I am dazzled and frustrated to see how we can make progress in many areas, and walk backwards in others.

When I started my AIDS work we were all about convening workshops, writing brochures, designing sexy campaigns, extoling the delights of Safer Sex. We promoted to young women and men – and some older ones too –  the positive joys of sex, the ways in which we needed to modify what we do to avoid HIV and other STIs, as well as pregnancy. And that consent was Queen. We’d call it integrated programming now, or comprehensive SRHR.

These are not radical notions. The underpinnings are enshrined in the Universal Declaration of Human Rights, and – as Mark Heywood & Thuthu Mbatha rightly observe in their excellent article they are bolstered by repeated declarations at United Nations and regional levels. What’s more: South Africa’s constitution has been heralded as one of the most progressive in the world. South Africa should be more than capable of creating a society where she decides. Yet the translation of good laws into policies and programmes is tough and complex, especially when sex is involved.

Mbatha & Heywood provide a rounded picture of that simplistic acronym: SRHR (sexual and reproductive health and rights). It gets flung around by professionals with few of them ever stepping back to remember that sex includes so much, including pleasure. Kudos to Heywood & Mbatha for bringing pleasure to the front of their paper and argument! They also rehearse, with great pain, the distance that must be travelled in order for South Africans to realise their rights, and enjoy good health in their sexual and reproductive lives.

Yes, activists must shoulder some blame – we have all too easily and too often collapsed into our silos – and there is much more that has brought us to this place. As a non-South African, perhaps it is not for me to comment on Pumla Dineo Gqola’s lament against “the culture of rape” that is so deeply embedded in South African society. Yet her description and analysis of the war on women’s bodies and autonomy cannot be denied: it is urgent that society tackles this perversion of culture, this abuse of the inherent goodness of sex.

Culture is society. Without tackling these enormities, these complexities, without shifting social norms, the promise and hope of the impressive South African constitution – or any brave international declarations – can not be realised. The rights of all people to enjoy their sexual rights, reproductive justice, the health and economic benefits that flow from those rights – all will remain a distant dream.

SheDecides has taken shape as a movement because it hooks into an urgent need to shift social norms, to shape a new narrative, removing the sting of historic battles and jargon and re-focusing communities and individuals on the simple story of fundamental rights: the autonomy of the body. It is an initiative designed to do what Barbara Klugman notes has been lacking: to frame these issues in ways that [catch] the public and media imagination[1]. It espouses the vision expressed by Mbatha & Heywood: All of it is connected…. SRHR can[not] be realised separately from other rights[2].

They go on to outline a plan of action, priorities that South Africa needs to work on. They remind us that the constitution provides the framework, that action is lacking, and they define an agenda to get the country back on track. It is a good one. Without doubt, tackling the rape culture and the HIV crisis are hot priorities for South Africa. And I would add in the urgency (for the 2018 short term) of getting good quality, comprehensive sexuality education (CSE) in place in every school across the country; the importance of vigilance on abortion policy (and scaling up provision of medical abortion, including by non-specialists); and emphasising (over the medium term) action on SRHR as a means to achieve Universal Health Coverage (UHC) – clearly a top priority in South Africa, and one where evidence of the linkages is already emerging.

In their agenda, Heywood & Mbatha talk about action in schools this year. Yes, PrEP, and condoms and sanitary pads – but without the knowledge, skills and resilience to understand how all of these commodities relate to my body, the self respect and resilience to choose what I do with my body, making pills and products available to young people will never be enough.

In India, where SheDecides engages through many organisations, and especially our Champion Indira Jaising (a remarkable senior advocate who has driven legal and policy change for women over the decades) there are repeated stories of girls, as young as 10, raped by family members and then forced to give birth. Why? Laws and policies exist (not perfect, but so much better than most countries) but these girls and young women simply do not know that they have had sex or that they became pregnant. There is an abject failure of the state to provide education and information. Of course the law must step in and make sure that abortion is available and easy for girls in these dreadful situations, but education, culture, social norms must also shift for that to be possible.

Currently in South Africa there have been efforts to tighten up the abortion legislation making it tougher for women and girls who choose not to continue with their pregnancies, by reducing term limits and imposing a set of conditionalities (such as a requirement for ultrasounds). The National Department of Health (NDOH) argued against the amendments[3] pointing out that WHO guidance does not support the amendments, the costs are prohibitive – and, significantly, that the amendments will add further barriers to services, and to the ability of women and girls to decide for themselves. The NDoH leadership here is important. It occurs against a backdrop – highlighted by Mbatha & Heywood – of a situation where fewer than 20% of health facilities offer abortion, and in 2010 there were some 250,000 unsafe abortions in the country. Laws must not go backwards; services must reach those in need. The promise of the constitution is not being realised, indeed it is under threat.

Vigilance on abortion services and laws is key. Globally we see a well orchestrated campaign aiming to influence the rights of girls and women to decide for ourselves. The “Opposition” failed in Ireland (by a hefty margin!) but their tactics are smart. And that is why the solidarity of global movements like SheDecides is important. It is not simply a “Pro Choice” movement – although you cannot be a Friend of SheDecides without sharing a belief in the rights of girls and women to end pregnancies that are not right for them. Nor is the movement focused solely on ending the Global Gag Rule: the pernicious re-introduction and expansion of that nasty piece of US policy sparked the creation of SheDecides. It was an immediate reaction by (mostly Northern European) politicians who turned around in January 2017 and said No: She – not He! – should decide.

The movement goes much further than that, and also stretches far beyond the ambitions of Northern donors (as an aside, I’m not convinced (m)any of those governments see SRHR as “soft” or easy rights[4]). Rather SheDecides believes, quite simply, that every woman, every girl, everywhere should have the skills, knowledge, and quality services, laws and policies in place so that she can decide for herself what happens to her body – especially in respect of her sexual and reproductive life. That means amplifying the campaigns and work of hundreds of others, all over the world. The intention is to work across silos, to bring issues, people and organisations together: to add an extra push to what is already happening, not re-invent an initiative or organisation to add to the confusion of efforts.

The movement is little over a year old. Like any infant and toddler we have stumbled and taken a few wrong steps. Yet the vision and actions needed to achieve that vision are clear. With growing numbers of Friends – now almost 50,000 around the world, with 300+ organisations and some 40 Champions driving it forward – the call is to Stand Up and Speak Out; Change the Rules and Unlock Resources. Three simple actions, which combined can lead to the new normal expressed in the manifesto. Anyone who shares the vision of the manifesto is invited to sign it, and to take action in whatever way makes sense in their community. There are already many examples, and with national movements taking off in India, Uganda, Tanzania, Kenya and beyond. National movements reflect the global shape of a Political movement with Community Support.

Why Political? Politicians have power to allocate resources and change laws and policies – and some act even before they are asked to by civil society. Indeed the first words and pledge by (then) Dutch Minster Lilianne Ploumen took many community groups my surprise.

SheDecides is political – and it is also driven by young people: the leaders of today and tomorrow. It is no accident that the extraordinary changes in Ireland – overturning long standing abortion laws – occurred under a new leader who is under 40 (and also brown and queer). He understood the power of young people’s vision for progress, of the youth vote. Our best estimate is that over two thirds of the Friends of SheDecides are young people (under 30) – also no accident. The biggest push on the first ever SheDecides Day (2 March 2018) was from young activists, organising over 50 events around the world. At the Flagship Event (in Pretoria) more than half of the 300 participants were young people, debating and co-creating future actions with their Parliamentarians and Ministers from across the East and Southern African region.

In every country there will be different priorities, different groups and leaders who are best placed to drive change. Heywood & Mbatha argue passionately that the time is now, and that other efforts will fail if these fundamental rights are not protected and promoted. I agree. There is a long tradition of South Africans drawing on the global community for solidarity, whether it has been to end apartheid or to end thousands of deaths caused by bad AIDS policy. The global SheDecides movement stands ready to participate, to stand in solidarity – as and when South Africans decide “how and when”.

WHEN SHE DECIDES

The world is better, stronger, safer.
She decides whether, when, and with whom.
To have sex.
To fall in love.
To marry.
To have children.
She has the right. 
To information, to health care, to choose.
She is free.
To feel pleasure.

To use contraception.
To access abortion safely. To decide.

Free from pressure. 
Free from harm.
Free from judgement and fear.

Because when others decide for her, she faces  violence, forced marriage, oppression.
She faces risks to her health, to her dignity, to her dreams, to her life.

When she does not decide, she cannot create the life she deserves, the family she wants, a prosperous future to call her own.
We – and you, and he, and they – are uniting. Standing together with her so she can make the decisions only she should make.

Political leadership and social momentum are coming together like never before.
But we can go further, and we can do more. From today, we fight against the fear.
We right the wrongs.
We mobilise political and financial support.
We work to make laws and policies just.
We stand up for what is right.
Together, we create the world that is better, stronger, safer.  But only if. And only when.

She. Decides. [5]

 

Robin Gorna is an AIDS activist who lived in Pretoria, working for the UK Department for International Development, from 2007. She retains strong ties to South Africa. In the early 90s she wrote “Vamps, Virgins and Victims: How can women fight AIDS”, was ED of the International AIDS Society (IAS), the Partnership for Maternal, Newborn and Child Health (PMNCH) and now co-leads the global SheDecides Support Unit.

[1] see footnote 5 in orginal paper

[2] page 6 of orginal paper

[3] Yogan Pillay, personal communication. Power Point presented, 2 May 2018

[4] page 7 of orginal paper

[5] The SheDecides Manifesto, July 2017

Sexual and reproductive health rights should matter to all

By Tendai Mafuma

There is overwhelming evidence that on the African continent, even in those countries where there are liberal laws, the protection and promotion of sexual and reproductive health rights has taken a back seat. In most instances, there have been express push back against the entrenchment and/or realisation of sexual and reproductive health rights.[1] Why have sexual and reproductive rights remained controversial and contested? In this article I attempt to give one of the reasons why this is.

Largely, issues relating to sexual and reproductive health are considered taboo.

The fact that not everyone is heterosexual, or that women can and should have control over their own sexuality and reproduction has often been perceived as a threat to ‘tradition’ or to the dominant patriarchal social order. Various reasons, religious and moral, are used to justify restrictions on making sexual and reproductive health education and services available, especially sexuality education and services for youth, contraception, safe abortion and condom promotion. For the longest time, people have thought of sexual and reproductive health rights as being for others, and have been seen as seeking to promote behaviours that are contrary to the boni mores (moral convictions) of the society. These perceptions can be summarised in the most generalised way as follows:

  1. Sex is for adults, or only for married people;
  2. Reproductive health is for those suffering from infertility;
  3. Abortion is for the young girl who really should not be pregnant because she had no business having sex in the first place
  4. Sexuality rights are those who do not fit within the heteronormative space; and
  5. Sexual health is for people living with HIV or for people suffering from impotence.[2]

Largely, issues relating to sexual and reproductive health are considered taboo. Parents do not want to talk to their children about them, health practitioners think that only certain people should be talking about them, teachers do not consider it their job, and governments do not want to wade into contentious issues. We hardly talk about attitudinal barriers that people living with disabilities encounter when they try to access sexual and reproductive health services. So in the end, not enough people talk about it and because of this, there is inadequate budgeting and implementation of plans to ensure the health and well-being of people. This despite evidence of the benefits that follow from the realisation of sexual and reproductive health rights.[3] For example, various sexual and reproductive health rights concerns have direct and indirect consequences on the education, particularly of young girls. These concerns include unwanted pregnancies, sexual abuse, early marriage, and HIV/AIDS and other STIs. In 2014, a survey by Statistics South Africa indicated that 473 159 girls between the ages of 12 and 19 were not attending school.  Of these learners, 18% (85 182) said that they had fallen pregnant. It is a no brainer that comprehensive sexuality education would equip young girls to make sexual and reproductive decisions in a way that does not negative impact their education.

The truth is, when we do not buy into an idea, we are not invested in it. It is very difficult to convince people to support a cause when they do not see or understand its impact in their lives, or of those closest to them. When we think that certain causes are for “others” we do not feel the need to invest as much of our energies, money, and time because we do not think that there is any benefit. Unfortunately, that has been the case with sexual and reproductive health rights. But this position is uninformed and incorrect. Sexual and reproductive health rights are for all and they matter to all. Not only because of a human rights perspective, or because of public health arguments, but in very real and personal ways.

The recent Spotlight article by Thuthukile Mbatha and Mark Heywood starts that conversation. I want to build on that conversation here.[4]

Sexuality does not matter only to those who do not fit within the heteronormative space. Sexuality lies at the core of human life, of what makes us fully human – it is the key to our capacity to contribute positively and fully to the societies we live in. The World Health Organisation defines sexuality as “…a central aspect of being human throughout life. It encompasses sex, gender identities and roles, sexual orientation, eroticism, pleasure, desires, beliefs, attitudes, values, behaviours, practices, roles and relationships…”. Put simply, sexuality is deeply personal, it is about understanding the sexual feelings and attractions we feel towards others. It is not just about who we happen to have sex with.[5] Despite this, sexuality has been treated either as a ‘luxury’ or as a problem which needs to be solved. Meanwhile, it concerns everyone, personally. Whether people are single, married or living in civil partnerships, living alone or with others, sexuality will be part of their personal stories.

In the same vain, sex is definitely not only for married people. Young unmarried people have sex. So instead of burying our heads in the sand and pretending that this does not happen, we need to have constructive conversations about encouraging healthy sexual behaviours. In 2014, the University of Cape Town Gender and Health Justice Research Unit conducted a study aimed at documenting and analysing the experiences and challenges faced by health care workers providing sexual and reproductive health services to teenagers aged 12 – 15 years. The study showed that many health care workers feel uncomfortable speaking to adolescents about sexuality and sexual and reproductive health. When they do, they often adopt judgmental attitudes that reflect their own moral ideas[6] about a ‘healthy’ and ‘decent’ sexuality for teenagers. The result is that adolescents often adopt unhealthy sexual behaviours due to social pressure and poor information, and often do not seek the guidance of health care workers.[7] Healthy sexual behaviours also need to be promoted even for married people.

Reproductive health and reproductive rights are not just for those seeking to have children. It is also about young girls who will undergo puberty and need sanitary products. Reproductive rights seek to ensure that those girls will experience their menses without being discriminated against in school, bullied and excluded by others for not having sanitary products. It is about ensuring that young girls are not forced into early marriages, and that even those in marriages, can have autonomy over their bodies. They are also about ensuring that women have access to safe abortions. In South Africa, reproductive health rights place an obligation on the State to ensure that it meets the needs of all people who attend to health establishments seeking reproductive health care. The State must take reasonable, legislative and other measures, within available resources to ensure that the reproductive health care needs of all in South Africa are met.

Other than contributing to the slow pace in embracing sexual and reproductive health rights, the issues discussed above have also wormed their way into service delivery at health establishments. The result is that even where the law makes provision for sexual and reproductive health rights, and places obligations on the State to provide such services, there are still impediments to accessing sexuality education and sexual and reproductive health care services.

What we need to do is to start debunking the idea that sexual and reproductive health rights only concern other people. There needs to be intentional campaigns to highlight the importance of sexual and reproductive health rights for all. A campaign that seeks to educate all, does not seek to undermine/dispute the well documented evidence that more needs to be done for invisible, marginalised and/or key populations. It simply means that even those who are neither marginalised nor vulnerable also understand why it is of import to all Knowledge of sexual and reproductive health and access to correct information, comprehensive sexuality education, sexual and reproductive health services and basic health and medical care are also crucial for reducing infant and maternal mortality in sub-Saharan Africa.

So whilst we might sometimes think that sexual and reproductive health rights do not relate to us whatsoever, we are wrong. Just because we do not understand something does not mean we are exempt from it. Everyone should be equipped to make independent sexual and reproductive decisions. We should promote sexual relationships that are mutually respectful, free of coercion, discrimination and violence, where people can enjoy their sexuality safely. And this should matter to everyone, regardless of age, race, gender and sexual orientation.

Note: Tendai Mafuma is a Legal Researcher at SECTION27. Her work mostly centres on access to quality public healthcare.

 

[1]Particularly on the African continent. For example, For example, the East African Community (EAC) Council of Health Ministers in March 2008 refused to sign the EAC Sexual and Reproductive Health and Rights strategy as they felt the „rights language‟ within the document would promote homosexuality and what they described as „other undesirable sexual practices‟ in the sub-region”. This was revealed at a Regional East African Community’s Multi-Sectoral Consultative Meeting on Sexual and Reproductive Health (held in Arusha on June 25-26, 2008). This may imply that many African leaders are struggling to understand the rationale for rights-based approaches in addressing sexual and reproductive health challenges. http://www.realising-rights.org/docs/newsletter/Why%20Realizing%20Sexual%20and%20Reproductive%20Rights%20in%20Africa%20Remains%20a%20Dream.pdf. In another instance, one of the African leaders who was negotiating, on behalf of Africans, at the global level at the Commission on Status of Women 58th Session in March 2014 is said to have said this “When we allow sexual and reproductive health to include rights, as Africans we are accepting to be influenced by western culture that of accepting persons with different sexual orientations which is not in line with our African culture”. http://femnet.org/2014/07/16/sexual-and-reproductive-health-and-rights-srhr-the-african-agenda/

[2] The list is not exhaustive.

[3] Sexual and reproductive health and rights – a crucial agenda for the post-2015 framework https://www.ippf.org/sites/default/files/report_for_web.pdf. Research has shown that realisation of sexual and reproductive health rights would result in the achievement of other development goals such as education, gender equality, the economy and broader health benefits.

[4] Thuthukile Mbatha and Mark Heywood https://www.spotlightnsp.co.za/2018/05/21/sexual-and-reproductive-health-wrongs-what-do-we-need-to-do-to-get-them-right-an-activist-perspective-part-1/. I will not venture into the human rights rationale for sexual and reproductive health rights. This article sets that out very nicely.

[5] http://www.who.int/reproductivehealth/topics/sexual_health/sh_definitions/en/

[6] My own emphasis.

[7] http://www.ghjru.uct.ac.za/sites/default/files/image_tool/images/242/documents/Policy_Brief_1.pdf

Sexual and Reproductive Health Wrongs: What do we need to do to get them right? – An activist perspective: Part 2

By Mark Heywood and Thuthukile 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 this 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 provided some analysis on the state of affairs. Part 2 published here 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.

Part 1 in the series ends with the statement that we have become complicit with a horrendous status quo. We kick off Part 2 with some suggestions about how we can change this.

SRHR require a struggle for power and equality.

Let’s be clear: SRHR cannot be achieved without confronting issues of power – particularly who has power and who doesn’t. Although they seem to be loved by Northern donors SRHR are not ‘soft’ or easy rights. Their realisation would have an immediate bearing on improved health and HIV prevention, but that recognition  doesn’t seem to be enough to persuade policy makers to act on them. In reality their implementation requires a challenge to men’s power in the world not only in the home, but particularly in politics and economy.

SRHR may exist in law and policy in many countries, they may be acknowledged in the SDGs, but they don’t get budgets.  This is because men dominate parliaments and men don’t take SRHR seriously. SRHR require a revolution.

SRHR require youth leadership and campaigns that prioritises young people’s well-being.

SRHRs are relevant to all people of all ages, but they are especially important for and to young people. Young people are in the phase of their lives where they are discovering the potential joy of sex and learning about their sexuality. South Africa’s Constitutional Court has recognised 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.” Sexual experiences during adolescence, in the context of some form of intimate relationship, are “[n]ot only . . . developmentally significant, they are also developmentally normative.”

Yet despite this the law continues to deny young people access to sexual and reproductive health care services. Only last year did the Department of Basic Education (DBE) finalise a policy on HIV in schools.[1] Only in 2018 has the DBE published a very poorly written draft policy on Pregnancy in schools.[2]  Given that 59% of our population is under 30, and 17% are between the age of 15 and 24 of which nearly five million are women, this amounts to the denial of access to health care services to which they are legally entitled to a lot of people.[3]

Most women give birth before they reach the age of 30.[4] So, that’s when we most need recognition of these rights. Yet the world is mostly run by older people. For example, the average age of MPs in our National Assembly is over 50. SRHR therefore also force us to reflect upon the age and interests of the people who makes decisions and how these decisions reflect their priorities and preoccupations. They call for youth to mobilise and become much more involved in politics.

SRHR require us to recognise that experiencing sexual pleasure and freedom without risk is a right.

It is wrong to communicate and advocate for sexual and reproductive health rights as just/mainly about negative obligations and preventing harm. Young people especially pay little heed to SRHR because they are often spoken about as if they are primarily about minimising risks rather than enhancing pleasure, freedom and equality.

Another weakness in campaigns for SRHR is that they are often most spoken about by middle class people who have them; and, or, they are driven by a donor agenda that makes assumptions about the people who need them and takes little account of their real lives and needs. The people who most need SRHR are poor and marginalised. They experience multiple rights violations. There is a fight for survival, every day. They do not have the luxury to fight only for their SRHR.

Activists must start to assert SRHR as positive rights. They have been recognised in law because they are necessary to enhance human joys and freedom. They are vital for the achievement of freedom and equality, freedom particularly for women and girls, and for marginalised people and populations.

SRHR require us to join the dots between sex and struggles for equality and social justice in education and health.

Relevant SRHR at schools include access to well taught and informed life orientation programmes, that inform young people about sex, sexuality, sexual health and their rights. They should also include access to condoms, access to Pre-exposure Prophylaxis (PrEP) and voluntary medical circumcision for boys. But these rights cannot be achieved without being joined to struggles for social justice and equality in the provision of education.

Today South Africa’s basic education system fails poor learners without discrimination. Of every 100 learners who enter the education system at grade 0, fewer than 5 complete school with a qualification that admits them to University education.[5] However, girls and young women bear the main burden of this failure.[6] The denial of a quality education, the denial of knowledge and information, the denial of a safe learning environment, reduces a young woman’s power and autonomy.

Having been failed by the education system, a young woman falls into a society that further marginalises her in higher education and the economy. This disempowerment may affect a women’s ability to stand up for her SRHR. It predisposes poor women and girls towards older men (‘sugar daddies’) and in some cases sex-work, it leaves many women dependent on men and subject to domestic violence. The question for activists then is how we can integrate campaigns for SRHR into struggles for quality basic education.

A similar situation exists in relation to access to health care services. Because sex and reproduction can be affected by and impact on our health, and because the people most in need of these rights are poor, many SRHR depend upon a functional, accessible and quality public health system, a health system that has sufficient doctors and nurses, appropriate medicines and a budget to meet needs. A health system designed more with the users in mind as well as with the rights of health workers, for example the simple matter of clinic hours. Many patients complain that operating hours are solely determined by what suits healthcare workers with no consideration for what is best for those who need the services.

The issue of the right to abortion (termination of pregnancy) is an example of all that is wrong. It is also an example of the overlapping of SRHR with health and basic education rights. South Africa has a high rate of teenage pregnancy, starting at a shockingly young age.[7] The right to abortion doesn’t only exist on paper; it exists in law, and the law is explicit that a girl can seek a termination without involving her parents from the age of 12. Yet less than one in five (20%) of health facilities offer abortion. According to Marie Stopes International, 245,211 unsafe abortions were carried out in South Africa in 2010 alone.[8] SRHR would be advanced if there was a properly trained cadre of community health workers, able to play a role in community based health education on issues including sexual and reproductive health.

So the question facing human rights activists again is how SRHR can be fought for not as stand-alone rights, but as an integral part of primary health care and as an essential part of a National Health Insurance scheme? How can activists research and then educate politicians and policy makers about the personal and social cost of not respecting these rights? How can we gather the evidence to show that a sufficient and dedicated budget for SRHR would be cost-saving to the health system as well as advancing women’s rights to dignity and equality?

This is why SRHR advocacy needs well researched activism, not just slogans – however justified the slogans are. Unfortunately SRH rights are still battle-grounds and battle grounds require a battle plan.

What is to be done?

In South Africa activists have a huge advantage over our comrades in many other countries because of the legal power given to us by the Constitution and because of the entrenchment of SRHR in the Constitution, law and policy. However, no rights are ever capable of enacting themselves. They require campaigns and activism.

Before and immediately after the advent of democracy in 1994 a number of organisations fought valiantly for SRHR, initially the Women’s Health Project, Reproductive Rights Alliance and the National Coalition for Gay and Lesbian Equality. More recently the One in Nine campaign, Soul City, and others have taken forward this struggle. Social justice movements such as TAC, have taken up individual issues that overlap with SRHR, without fighting for these rights as a whole. But at best most civil society organisations have been silent and at worst many, particularly in the trade unions, have been complicit in gender based violence. Today we need to learn from and follow the lead of those who have fought in this field, but also cut a path to a much broader and more powerful activist front. SRHRs must no longer be in a silo. As I have tried to show above, they are central to social justice. We all have a responsibility to make SRHR part of our practice.

Below are some tentative suggestions about the types of campaigns that must be launched and sustained.

Make millions of people aware of their rights: The people who most need SRHR are not aware that the law and Constitution views things such as bodily autonomy and reproductive choice as fundamental rights.[9] Even the term SRHR is confusing and foreign – it is ‘NGO-talk’. To change this a massive and accessible communication campaign is needed that reaches young women and other vulnerable communities to make it clear that they are not powerless in the face of violence and to start to suggest local strategies and campaigns to advance these rights. This campaign must have scale. It cannot reach only small circles of communities. It needs to be carried through public and accessible media, like the indigenous language radio stations on the SABC which reach over 30 million people.

But linked to this a campaign is needed to educate society as a whole about SRHR, overcome misunderstandings and to engage those who think they are opposed to SRHR.

Define an agenda for SRHR: short, medium and longer term and demand action. Below are some examples of demands we should make:

In the short term (2018) we should demand:

  • A costed, budgeted national strategic plan to confront rape culture.
  • The immediate and extensive provision of PrEP to young women and girls, including through school health programmes;
  • Immediate implementation of the policy on access to condoms in schools;
  • Immediate provision of sanitary pads in every school nationally;
  • Drastically improved accesss to services for abortion.
  • Communication and mass media strategies that publicise all of the above.

In the medium term (2019-2020) we should demand:

  • The decriminalisation of sex work;
  • Implementation of the draft policy on pregnancy in schools;
  • Access to a wide range of safe contraceptives in the public health sector;
  • Extensive provision of contraceptives in schools and higher education institutions;
  • Improved access to screening, testing, diagnosis and treatment of cancers in the reproductive system;
  • Improved access to SRH services that are suitable for queer folk and health services that recognise the special needs of adolescents, LGBTQIA+ folk, pregnant teenagers and so on.

In the longer term:

  • Establishment of more shelters for gender based violence survivors;
  • Improved access to affordable breast, cervical and prostate cancer treatment in the public health sector;

Get civil society to join the dots and connect its own struggles: Civil society organisations’ greatest weakness, and the reason why we don’t often bring about lasting and systematic change, is that we don’t make enough effort to work together. NGOS and social movements have not yet worked out how to focus on ‘their’ particular issues, but at the same time reinforce others campaigns. We have not learnt how to work at the intersections of issues. Despite all the lip-service we pay to issues of gender and women’s equality, they are almost never at the centre of rights practice or advocacy. Gender and SRHR issues are on the margins unless you are an organisation  focussing on ‘woman’s rights’ or LGBTQI issues. And, as we have seen most tragically with regards to Equal Education, even the social justice sector is not immune to the plague of sexual harassment and exploitation. This is not unrelated to the fact that most of civil society, whether in the form of churches, trade unions or NGOs, is led by men and therefore – by default – reflects patriarchy and men’s agendas. Even where women lead organisations, they are not ‘allowed’ to reorient the method and focus of these organisations to take into account gender and a woman’s perspective on the approach to struggle and rights.

In the context of SRHR the biggest problem is that identified by Pumla Gqola: we treat each act of violence, whether deliberate or by omission – as if it is an individual aberration. The only weapon in our armoury seems to be outrage. Outrage is a necessary starting point, but it alone doesn’t bring change. We have to fight a system of rape by consistently demanding and campaigning for a system of rights. In the words of Pumla Gqola:

“… we need to rebuild a mass-based feminist movement, a clearer sense of who our allies in this fight really are, to return to women’s spaces as we develop new strategies and ways to speak again in our own name, to push back against the backlash that threatens to swallow us all whole.”

If this challenge is not taken up by civil society immediately, ultimately our other efforts will be unsuccessful.

The question is how and when?

[1] Url to policy on HIV in schools

[2] Url to policy on pregnancy and S27 and EELC submission

[3] https://www.indexmundi.com/south_africa/demographics_profile.html

[4] Of the 969 415 births registered in 2016, 136 996 (13,9%) were born to mothers who were between the ages of 10 and 19 years old. A large number (783 322) of the births registered in 2016 occurred to mothers between the ages of 20 and 39 years; of these, 243 148 (31%) occurred to mothers within the 20−24 years age group. A total of 34 923 (3,6%) of births registered in 2016 were to mothers in the 40−54 years age group. http://www.statssa.gov.za/?p=10524

[5] Nicholas Spaull, What Should We Be Focusing On in the Next 10 years, October 2017 https://www.dropbox.com/s/7lz256gjl3wk2sv/Penreach%20-%20Spaull%20(Oct%202017).pptx?dl=0.

[6] http://www.hsrc.ac.za/uploads/pageContent/4991/Gender%20inequalties%20in%20education%20in%20South%20Africa.pdf

[7] https://africacheck.org/reports/sa-teen-pregnancies-not-increasing-as-bbc-claimed/

[8] https://www.dailymaverick.co.za/article/2018-01-29-health-e-news-abortion-the-legal-service-performed-mostly-illegally/#.Ws7aImXBbou

[9] According to a recent study by the Foundation for Human Rights http://www.fhr.org.za/index.php/latest_news/democracy-challenged-south-africas-largest-attitudinal-survey-constitution/ only 51% of respondents were aware of the Constitution and the Bill of Rights and “as poverty levels increased, so the awareness levels decreased.” Shockingly, but perhaps not surprisingly “In response to the statement that married women are allowed to refuse to have sex with their husbands, a worrying two fifths (41%) of all respondents disagreed with this statement. Again the differences between male (44%) and female (39%) were not that stark.”

Sexual and Reproductive Health Wrongs: What do we need to do to get them right? – An activist perspective: Part 1

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:[1]

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.”[2]

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).[3] 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.[4] 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.[5]  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.[6] 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.[7] 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;[8]
  • Very high rates of sexually transmitted infections;[9]
  • Very high new HIV infections among women and girls (said to be 2000 a week); [10]
  • Very high rates of teenage pregnancy.[11]
  • Very high rates of back-street abortion; [12]

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.[13] 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.” [14]

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.

[1] https://www.thelancet.com/commissions/sexual-and-reproductive-health-and-rights

[2] 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/

[3] https://www.escr-net.org/resources/general-comment-no-22-2016-right-sexual-and-reproductive-health

[4] See footnote 2.

[5] 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.

[6] Klugman

[7] Pumla Dineo Gqola’s Rape, A South African Nightmare, MFBooks Joburg, 2015, should be mandatory reading for all social justice activists, especially men.

[8] 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.

[9] South African National AIDS Council (2017) South African National Strategic Plan for HIV, TB and STIs 2017-2022. Pg.8

[10] Id at Pg.7

[11] 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

[12] 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.

[13] Id.

[14] https://www.marieclaire.co.za/hot-topics/naledi-chirwa-tribute-winnie-read-transcript