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 In Mozambique, Order No. 39/2003, which forced pregnant girls to attend night classes, was repealed in 2018 after a strong multi-stakeholder campaign.1192 However, observers note that the climate within schools is marked by gender inequality and by a culture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

of HIV constitutes an “unlawful sexual act” in Lesotho’s Penal Code of 2010.1211 Activists and courts have been using the few non-discriminatory laws illustrated in this section to promote and protect the rights of women. Concerned actors, victims of the criminalisation of HIV and survivors can utilise gender-responsive laws, such as those cited above, to enforce the rights of women and girls.

4.2.2. Policy and Institutional Reforms

All countries have plans, strategies and programmes to implement services and priorities related to SRHR and HIV, including PMTCT and ARVs.

All countries in the region have launched CARMMA.1212 There is evidence that countries’ efforts to combat maternal mortality in the region are paying off, despite prevailing challenges, as the maternal mortality ratio has been in steady decline, according to modelled estimates.1213 In Eswatini, it dropped rapidly between 2004 and 2013, then rising slightly between 2014 and 2017.1214 The lowest rates are in South Africa, at 119 deaths per 100,000 live births in 2017, followed by Botswana (144).1215 In the middle are Angola and Mozambique (241 and 289, respectively) and Malawi (349).1216 Zimbabwe and Eswatini continue to have high rates, at 458 and 437 per 100,000 live births, respectively.1217 The highest estimates are from Lesotho – the only country above 500 deaths per 100,000 live births (544). 1218

Countries are developing programmes to address some of the major constraints in service delivery, especially physical access for the more vulnerable women in rural areas. In all the region’s countries, spousal consent for married women to access SRH services is not required.1219 Despite this, the majority of women live in rural areas and tend to be far from service delivery points and to lack adequate information and, sometimes, agency to realise their rights. In Lesotho, almost half (49%) of rural women have experienced constraints in accessing a health facility, compared with 29% of women living in urban areas.1220 To tackle this, the government has established “mothers’ waiting houses,” where pregnant women can stay for a minimum of two weeks prior to delivery.1221 Some of these are in the most underserved rural areas, where CSOs are partnering with government to prevent risky home deliveries.1222 Zimbabwe subsidised health care for pregnant women in rural areas through its Rural Based Treasury Initiative in 20141223 and created maternity waiting homes in remote districts, at which women can stay for the last six weeks of their pregnancy.1224 A number of hospitals in Angola have also added transit houses for women who have travelled a considerable distance;1225 “waiting villages” were established in Malawi under the Presidential Initiative for Safe Motherhood, where health education is also provided to women.1226

Major challenges to implementing SRH policy and realising women’s rights in the region have been lack of human and financial resources, weak services and limited information for service users. By 2015, Angola had increased the number of delivery rooms and skilled birthing personnel and trained midwives in both peri-urban and urban areas, and the availability of pre-natal consultations (82% in urban and 52% in rural zones).1227 Namibia has focused since 2011 on increasing maternal health care services, distributing staff more equitably between urban and rural areas, implementing information and awareness campaigns on health issues and increasing access to antiretroviral drugs in rural areas.1228 Angola and Mozambique have programmes addressing obstetric fistula specifically to deal with the challenges women face in post-natal maternal care. In 2010, the first obstetric fistula treatment centre was established in Uige province, Angola, and a campaign against obstetric fistula was set up in 2019.1229 Mozambique developed the National Strategy for the Prevention and the Treatment of Obstetric Fistula in 2012.1230 All countries in the region have PMTCT policies. All women living with HIV have been eligible for lifelong antiretroviral therapy in Malawi since 2011, which resulted in 80% of pregnant women living with HIV receiving ARVs in 2015, up from 21% in 2009.1231 In Zimbabwe, 84% of pregnant women living with HIV received ARVs in 2015; in Zambia the figure was 87%. 1232 Around 95% of Mozambique’s, Namibia’s and South Africa’s HIV-infected pregnant women, and over 90% of those in Botswana, received antiretroviral medicine in 2015 to prevent mother-to-child transmission, thereby meeting or exceeding the 90% Global Plan goal.1233 South Africa has also reached another Global Plan milestone with an estimated transmission rate of 2% in 2015.1234

Contraceptive use remains a problem for women seeking to plan the timing, spacing and number of births in exercising their reproductive health rights. Although Botswana, South Africa and Zimbabwe have developed more effective family planning initiatives, other countries in the region face constraints that include inadequate service delivery mechanisms and limited resources for family planning commodities.1235 As a result, not all women have access to satisfactory contraceptive information and products. In 2020, the rate of unmet need for family planning (for women aged 15–49) ranged from 8% in Botswana and Zimbabwe to 9% in Angola, 10% in Eswatini, 11% in Namibia, South Africa and Lesotho, 13% in Malawi, 15% in Zambia and 19% in Mozambique.1236 Furthermore, a clear link exists between unmet need for family planning, contraceptive use and adolescent pregnancy, whereby adolescent pregnancy is more prevalent among populations with low contraceptive use.1237

Pregnancy in young girls can, in many instances, result in denial of critical services and rights, including access to education. In Malawi, girls are suspended from school for a year if they fall pregnant but they may be readmitted later, based on Malawi’s ReEntry Policy.1238 While in theory this also applies to the boy who has impregnated the girl, the rule is often enforced only against the young mother. Malawi drafted a Revised Re-Entry Policy in 2017. Meanwhile, activities have continued to campaign for institutional and policy reforms through various strategies targeted at governments. In 2013, the Constitutional Court of South Africa found that schools’ policies prima facie violated learners’ rights to human dignity, privacy and bodily and psychological integrity by requiring learners to report to the school authorities when they believed they or other learners were pregnant. The Court found that such policies stigmatised pregnant learners for being pregnant and risked their not seeking medical, emotional and other support from school authorities.1239 South Africa’s 2018 Draft National Policy on the Prevention and Management of Learner Pregnancy1240 was criticised for not establishing a process for learners to return to school following delivery, and using inconsistent language in terms of eligibility to access SRH services.1241 As of July 2020, the government was reviewing the public commentary.1242 A nationwide campaign Together Against Pregnancy and Early Marriage started in Angola in 2015.1243

In a number of countries, abortions remain restrictive, even where the countries have enacted or amended laws to address the issue. Ten countries (Angola, Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, Zambia and Zimbabwe) allow abortion if the mother’s life is at risk or the pregnancy poses a risk to the mother’s health or in cases of foetal impairment.1244 Eight countries (Angola, Botswana, Eswatini, Mozambique, Lesotho, Namibia, South Africa and Zimbabwe) stipulate abortion to be legal in cases of rape, sexual assault or incest.1245 Two countries (South Africa and Zambia) stipulate socioeconomic circumstances as grounds for legal abortion.1246 In Eswatini, no laws exist to operationalise the constitutional provisions on abortion, and illegal abortions continue to result in the deaths of adolescent girls and women.1247 Two countries allow for abortions on request during the first 12 weeks (Mozambique and South Africa).1248

South Africa also allows abortion on request under certain circumstances between 13 and 20 weeks.1249 In this sense, it has the most expansive provisions – although these have not gone unchallenged. Various religious groups have legally contested the Choice on Termination of Pregnancy Act. Meanwhile, illegal abortions persist as knowledge about legal abortions remains low and inequalities in access to services persist.1250 For instance, out of all public health facilities with the adequate resources, only 3.9% were offering abortion services in 2017, and the government list of these facilities was inaccurate.1251 In Angola, the Amendment to the Abortion Law in 2018, which criminalised all abortions, was met with unusually strong protests that led to the final vote on the law being cancelled.1252

Figure 19 Southern Africa: Contraceptive prevalence, any methods (% of women ages 15-49)

Angola 13.7%

Mozambique 27.1%

Zambia 49.6%

South Africa 54.6%

Namibia 56.1%

Malawi 59.2%

Lesotho 60.2%

Eswatini 66.1%

Zimbabwe 66.8%

No data available for Botswana. Source: The World Bank, World Development Indicators.