AWD Report 2020
4.2. Trends in Legal, Policy and Institutional Reform 4.2.1. Legal Reforms Two countries passed laws during the AWD that specifically touch on SRHR. Botswana enacted the Gender Equality Act in 2013, and Zambia affirmed women’s SRHR in its 2015 Gender Equity and Equality Act. Both laws include provisions on access to family planning, protection from sexually transmitted infections, reproductive rights education and access to contraception.1191 A number of SRHR and HIV priorities and indicators are embedded within Southern African countries’ national gender policies, health frameworks and educational programmes in schools and for communities. The sexual and reproductive rights of adolescent girls are sometimes put in jeopardy, particularly at the institutional and societal level, when they become pregnant. At least one country has made efforts to address this challenge. In Mozambique, Order No. 39/2003, which forced pregnant girls to attend night classes, was repealed in 2018 after a strong multi-stakeholder campaign.1192 However, observers note that the climate within schools is marked by gender inequality and by a culture of sexual violence.1193 Abortion remains proscribed, with some exceptions, and is contentious in many instances, couched as a medical issue rather than a rights issue in the majority of the countries. Even in countries where women can access abortion based on limited conditionalities within the law, religious controversies and social taboos may deter women from seeking abortion care services. Failure to access abortion services in safe conditions raises the risk of backdoor abortions using unsafe practices that often contribute to maternal mortality.1194 Two countries made abortion-related legal reforms during the Decade. Mozambique amended the Penal Code in 2014, allowing for abortion on request within the first 12 weeks of pregnancy for any reason. Angola’s 2019 Penal Code allows for conditional abortions (e.g. health of the mother and foetal anomalies, as attested by a local medical board).1195 While HIV/AIDS rates are on the decline, women remain the most vulnerable to new infections; they are disproportionately affected, especially when experiencing intersecting vulnerabilities.1196 To protect the rights of persons living with HIV, various laws have been enacted, although these do not necessarily articulate gender issues. Botswana, Malawi and Mozambique have enacted laws on the rights of workers with HIV.1197 Notably, Mozambique’s Protection of Persons, Workers and Job Seekers Living with HIV and AIDS Act grants the right to legal assistance for infringement of rights.1198 Malawi’s HIV and AIDS (Prevention and Management) Act 2018 addresses HIV holistically1199 and the Child Care, Protection and Justice Act 2010 addresses children affected by HIV and AIDS, directly or indirectly.1200 Eswatini has no anti-discrimination law on the grounds of HIV but the Sexual Offences and Domestic Violence Act, Section 76(2), makes post-exposure prophylaxis available to victims of rape to prevent HIV transmission.1201 Five countries have laws that criminalise transmission and non-disclosure of or exposure to HIV (Angola, Botswana, Lesotho, Mozambique and Zimbabwe)1202 but four (Eswatini, Namibia, South Africa and Zambia) have no laws that specifically criminalise the transmission of HIV,1203 although in Malawi, Namibia, South Africa and Zambia those living with HIV can be prosecuted through other general criminal laws. 1204 In five countries (Botswana, Mozambique, South Africa, Zambia and Zimbabwe), HIV status can be used as an aggravating factor in the judgement of rape cases.1205 Although Zambia does not have an HIV-specific law, the Penal Code Act includes a misdemeanour for unlawfully or negligently spreading the infection of any disease dangerous to life.1206 While this could technically apply to cases of HIV transmission, no such cases have been prosecuted thus far.1207In Zimbabwe in 2020, female parliamentarians called for the decriminalisation of HIV transmission and there are ongoing discussions on this law.1208 However, controversies abound on the legitimacy of these laws, which are in some instances seen as a violation of the rights of those living with HIV, including women’s rights to confidentiality and privacy.1209 There are concerns that women living with HIV may conceal their status to avoid familial or societal stigmatisation and yet may end up being prosecuted as a consequence. Botswana’s Public Health Act of 2013, Lesotho’s Penal Code of 2010 and Mozambique’s 2014 Law Amending the Penal Code criminalise the conscious transmission of infectious diseases.1210 Non-disclosure
> back to contents
169
