4.3. Challenges and Gaps 5. WEST AFRICA ........................................................................................................................................................................................... 174

4.3. Challenges and Gaps

There continue to be recurring gaps with regard to girls’ access to health services. Reproductive health rights, including on abortion and access to contraceptives, as well as the rights of persons living with HIV, have a correlation with issues related to the age of consent and access to services. Countries’ approach to the minimum age of consent to medical treatment and to SRHR services is uneven in the region. Mozambique, Namibia and South Africa do not require parental consent before one can access SRHR.1253 South Africa’s Children’s Act sets the age of consent for medical treatment, including surgery, at 12 years.1254 Namibia’s Child Care Protection Act of 2015 allows a child over the age of 14 to consent to a surgical procedure, which could allow girls to access abortion services if their pregnancy falls under the permitted grounds for a legal abortion.1255 Eswatini’s Children’s Protection Act of 2012 allows children age 12 or older to consent to medical treatment, or to be tested for HIV, but not to consent to surgery. It also prevents service providers from refusing to provide SRH services to a child and allows children to receive reproductive health protective devices without parental consent,1256 although girls under the age of 16 need parental consent to have an abortion.1257

In Zimbabwe, the Children’s Act of 1971 provides that children under 18 require parental consent to surgical or other treatment, or else can apply for a magistrate to approve the procedure,1258 as does the Public Health Act of 2018, which provides that children under 18 years require adult consent to access medical health services.1259 However, 40% of Zimbabwean girls and 24% of Zimbabwean boys have had sexual intercourse before age 18.1260 As such, this provision limits girls’ access to reproductive health services, as they may have reservations or face limitations relating to parental consent. To address this, in 2019, the Parliamentary Portfolio Committee on Health and Child Care sought to grant minors as young as 12 access to SRH services. This initiative was interpreted by the public as an attempt to lower the age of sexual consent to 12, creating resistance and slowing down the progress towards ameliorating the gap in service provision for girls.1261

The HIV epidemic poses a continuing health challenge in various countries in the region. In 2018, it was estimated that South Africa constituted more than a quarter of Southern Africa’s new infections (240,000). Other substantial contributors were Mozambique (150,000), Zambia (48,000), Malawi (38,000) and Zimbabwe (38,000). Eswatini and Lesotho had the highest adult HIV prevalence rates in the world, with 27.2% and 23.6%, respectively.1262 Young women are particularly disproportionately infected, owing to risky behaviour, harmful practices and sexual violence. In 2019, it was estimated that the risk of young women in Southern Africa being infected with HIV was six times higher than that among young men.1263 This calls for measures to protect women at all levels, including legal and policy measures. Angola’s Constitution of 2010 promotes a right to work without discrimination of any form (Sect.76). Botswana’s National Policy on HIV and AIDS of 2012 acknowledges that the right not to be discriminated against from Chapter II of the Constitution also applies to people living with HIV, as does Malawi’s National HIV and AIDS Workplace Policy. Eight countries (Angola, Botswana, Lesotho, Mozambique, South Africa, Namibia, Zambia and Zimbabwe) have non-discrimination legislation based on HIV in place, as well as legal and/or police regulations regarding voluntary HIV testing.1264 The 2014 Mozambican Law on the Protection of Persons, Workers and Work Seekers Living with HIV and AIDS applies to public and private institutions, as well as domestic workers.1265 Two countries (Eswatini and Malawi) do not have non-discrimination based on HIV legislation but have legal and/or police regulations regarding voluntary testing. Various countries have national policies on HIV/AIDS that prohibit HIV- or AIDS-related stigma and discrimination, particularly in health care, education and employment, and also adopt programmes, campaigns and services for women living with HIV.

All 10 countries have strategies and plans to promote maternal health, reduce the transmission of HIV and increase access to family planning services.1266 A positive trend in the region has been to focus on adolescent health as a standalone issue, recognising that much of the new transmission of HIV occurs among girls and young women.1267 An example of this policy trend is Zimbabwe’s Second National Adolescent and Youth Sexual and Reproductive Health Strategy (2016–2020)1268 as well as Zambia’s earlier Adolescent Strategic Health Plan 2011–2015. In South Africa, the Department of Health aligned its Anti-Retroviral Programme with WHO guidelines in 2015, expanding the enrolment of people living with HIV from those with CD4 counts lower than 350 to all those with CD4 counts lower than 500. New

guidelines also enrol all HIV-positive pregnant women on life-long ARVs irrespective of CD4 counts.1269 As a result, the population on treatment tripled between 2009 and 2017.1270

Parental consent for adolescents to access HIV testing is skewed across the region. Such consent is required in Eswatini for children under 18 and for children under 14 and 16 in Botswana, Malawi, Namibia, Zambia and Zimbabwe. Countries that require parental consent where adolescents are under 12 are Lesotho, Mozambique and South Africa.1271 Zimbabwe’s National HIV Testing Guidelines of 2014 state that a child under the age of 16 is unable to consent to HIV testing and counselling.1272

Medical consent to procedures is a key element of the right to SRH for women living with HIV. Several incidents of forced sterilisation in Namibia and South Africa have revealed denials of women’s right to informed consent to medical procedures, particularly women living with HIV. To address this, institutions have taken remedial measures in favour of the rights of women living with HIV. In 2014, Namibia’s Supreme Court ruled that HIV-positive women had indeed been forcibly sterilised and that the incidents constituted a human rights violation.1273 In 2016, Malawi’s High Court overturned the life sentence of a woman who had unintentionally exposed a child to HIV by breastfeeding.1274 However, in 2016, Zimbabwe’s Constitutional Court considered the constitutionality of Section 79 of the Criminal Code, which criminalises the transmission of HIV/AIDS. It found that the Constitution of Zimbabwe did not provide for protection against discrimination based on HIV status and that Section 79 of the Code was constitutional.1275 In 2019, the minister of justice of Zimbabwe announced a plan to repeal Section 79 as part of the Marriages Bill,1276 which was still under consideration in 2020.1277

In 2020, following a complaint by Her Rights Initiative and the International Community of Women Living with HIV, the South African government’s Commission on Gender Equality conducted a systemic investigation into forced and coerced sterilisation of women living with HIV (in 15 hospitals), and found that women’s rights to bodily autonomy and informed and consensual SRH services had been violated. The Commission made recommendations for the National Department of Health to correct the circumstances that had enabled these sterilisations and also recommended reforming the law so that consent was even more thoroughly enforced.1278