PROMOTION OF SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS & - PowerPoint Presentation

Slide1

PROMOTION OF SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS & HIV AND GOVERNNANCE, THROUGH MEDIA INTERVNTIONS-A RIGHTS BASED APPROACH-27

TH-28TH CTOBER, 2015, JOHANNESBURG, SOUTH AFRICA

Presented by

Mrs. Eva JhalaSlide2

CONTENT OF PRESENTATION

My presentation will cover the following inter-related topics to the subject of this workshop: Definition of child marriage;Some facts and figures on child marriage and reproductive health rights, including issues of sexuality; Rationale for and Why a Model Law;A human rights based approach in tackling the issue of child marriage;

Thematic areas included in the Model Law, highlighting some Parts;

The model law, sexual and reproductive health and rights and role of media in highlighting these;

Conflicting laws and policies related to child marriage;

How Model Laws can be highlighted through the media;

Key Provisions Of The Model Law; and

Way forward.Slide3

DEFINITION OF CHILD MARRIAGE

Child marriage has been defined by numerous international and regional bodies as any marriage where one party is below the age of 18. This comports with the uniformly accepted definition of a child being anyone under the age of 18. For example, the African Charter on the Rights and Welfare of the Child and the Convention on the Rights of the Child, both define a child as anyone under the age of 18. This definition of child marriage has been accepted and used by the African Union and the United Nations Children’s Fund (UNICEF) which defines child marriage as the marriage of anyone under 18.See United Nations Children’s Fund (UNICEF), Child protection from violence, exploitation and abuse: Child marriage available at

http://www.unicef.org/protection/57929_58008.htmlSlide4

SOME FACTS AND FIGURES

Child marriage remains a problem in Southern Africa due to a variety of factors. These include poverty; gender inequity; tradition; insecurity, especially in times of conflict; limited education; and lack of adequate legal frameworks in Member States. The Model Law is meant to address these factors, using a human rights-based approach. Slide5

SOME FACTS AND FIGURES CONT…

Sub-Saharan Africa has the highest prevalence of child marriage in the world. In at least five countries in the Southern African Development Community (SADC), almost 40% of children are married before they are 18 years of age. Malawi and Mozambique are amongst 10 countries in the world with the highest rates of child marriage. In both countries over 50% of children are married before they are 18 years of age.In Mozambique and Malawi 1 in 2 girls is married before she turns 18 years of age. Slide6

SOME FACTS AND FIGURES CONT…

The Democratic Republic of Congo has one of the highest absolute numbers of child marriage in the world, as on average, about two out of five girls will be married before their 18th birthday. In 2010, about 39% of the women aged between 20-24 years of age were married or in a union before the age of 18. In Zambia and Madagascar, the prevalence of child marriage is over 40%.See Girls Not Brides, Child Marriage Around the World available at http://www.girlsnotbrides.org/where-does-it-happen

/Slide7

SOME FACTS AND FIGURES CONT…

Child marriage significantly reduces a country’s efforts to combat poverty and will impact negatively on achieving key Sustainable Development Goals (SDG), in particular SDG 1, which seeks to end poverty; SDG 3, which seeks to ensure healthy lives and promote well-being for all at all ages; SDG 4 which addresses education; and SDG 5 which addresses gender inequity. Child marriage significantly undermines all of these goals and thereby also undermines a country’s economic and social development.Slide8

SOME FACTS AND FIGURES CONT…

Child marriage has life-threatening health consequences for children, especially girls. Studies indicate a close association between child marriage and early pregnancy as girls are pressured to prove fertility. Further, girls may not have access to contraceptives and other family planning services and thus are unable to control the timing of their pregnancies. This is despite the fact that pregnancy complications is the leading cause of death among girls aged 15 years to 19 years, especially in low- and middle-income countries according to the World Health Organization (WHO).For boys and girls alike, an early marriage has far-reaching physical, intellectual, psychological and emotional consequences. For example, serious threat to sexual and reproductive health, maternal and newborn mortality and morbidity, obstetric fistula and sexually transmitted infections, including HIV/AIDS.

.Slide9

SOME FACTS AND FIGURES CONT…

Young mothers experience higher rates of maternal mortality and higher risk of obstructed labour and pregnancy-induced hypertension because their bodies are unprepared for childbirth. According to UNICEF, girls who give birth before 15 years of age are five times more likely to die in childbirth than women older than 20 years of age. In the SADC region, the Democratic Republic of the Congo, Malawi and Mozambique have among the highest rates of both maternal mortality and child marriage.Slide10

SOME FACTS AND FIGURES CONT…

Further, the health and life of children born to girls under 20 years old is at significant risk. Studies show that children born to mothers under 18 years of age have a 60% greater chance of dying within the first year of life than children born to mothers who were over 19 years of age. Often children born to mothers under 20 years old have lower birth weights and weaker immune systems, and are often malnourished leading to significant health complications.Slide11

SOME FACTS AND FIGURES CONT…

Girls married before they are 18 years of age are also more vulnerable to HIV, especially in countries with generalised epidemics. A study in Kenya and Zambia found higher HIV prevalence among married girls who have more frequent and unprotected sex as compared to unmarried girls who had more autonomy in choosing their sexual partners. The development of the Model Law took into account all these facts and figures which underpin the thematic areas of the Model Law.Slide12

Rationale for and Why a model law

The Model Law on Eradicating Child marriage and protecting Children already in Marriage responds to a resolution of the 35th SADC Parliamentarian Forum Assembly held in Mauritius in June 2014 which called for concerted efforts to eradicate child marriage in the SADC Region. This decision was followed, in February 2015, by a SADC Regional Parliamentary Dialogue on Child Marriage Law organised by the SADC PF with the Association of European Parliamentarians with Africa (AWEPA) and Plan Netherlands. This forum discussed the benefits of a Model Legislation on child marriage and the possible contents of such a law.

The Dialogue ended by adopting a Six Step Road Map proposed towards the development of a Model Law that would contribute towards ending child marriage.Slide13

Rationale for and Why a model law cont…

The African Union Summit of Heads of State and Government has also recently adopted a common position on the matter as amplified in the Ending Child Marriages Agreement. This Agreement signals AU’s commitment to empower women and girls and protect their human rights. Under the Agreement, AU Member States are to establish comprehensive Action Plans to end child marriages and to establish and enforce laws which set the minimum age for marriage at 18 years. The AU will monitor progress towards this goal as part of its Agenda 2063 Strategy, which aims to ensure positive transformation within the next 50 years.Slide14

Rationale for and Why a model law cont…

The objective of the Model Law is to serve as a yardstick and an advocacy tool for legislators in the SADC Region ( and elsewhere). It also provides best practice language without loopholes which can be easily adopted/adapted by Member States in their national laws dealing with the eradication of child marriage. The Model Law will assist policy makers and legislative drafters to address all the relevant areas in need of legislative reform without usurping the authority of national legislatures to determine the content, extent, style and form of their national laws.

The following key users of the Model Law have been borne in mind when developing this Model Law:Slide15

Rationale for and Why a model law cont…

policy makers, when developing policies and strategies relating to eradication of child marriage;

SADC PF members to encourage and reinforce a commonality of approach and uniformity of legislation in the region;

legislative drafters, when drafting national laws on eradicating child marriage;

lawmakers, when enacting legislation on the eradication of child marriage to guide them as to what a law on child marriage should contain, thereby serving as a yardstick;

judicial officers, when interpreting the laws on and related to eradication of child marriage;

researchers, when doing research on child marriage;

CSOs, including the Media, when carrying out sensitization, awareness and advocacy programmes; and

administrators, when applying and implementing the laws on and related to eradication of child marriage

.Slide16

Rationale for and Why a model law cont…

Further, the creation of a robust and uniform legal framework relating to child marriage is a key path to addressing child marriage. A legal framework/model law on child marriage will encourage Governments to be accountable in the execution of policies, enactment of laws and coming up with strategic plans and measures aimed at addressing child marriage and protecting children already in marriage.

There are a number of challenges that may be a hindrance to the eradication of child marriage, some of which are as follows:

lack of effective and well streamlined birth registration systems making age determination difficult for purposes of enforcing a law on child marriage;Slide17

Rationale for and Why a model law cont…

sometimes there are no provisions in the law penalising those who contravene the minimum age of marriage requirement; slow reform in laws that impact on eradicating child marriage which may frustrate interventions to prevent child marriage;

there still exist some cultural, religious and traditional practices that infringe on the rights of children and create power relations between women and men that favour the latter in the domestic, community and public domains and impede the advancement of women; and

attitudes and behaviour which resist change with the belief that the old way of doing things is fine, making reforms difficult and change management even more difficult. Slide18

A human rights based approach

The eradication of child marriage, using a human rights based approach, is of absolute importance if the legislative intent of National Legislatures is to be achieved. It is a truism that child marriage is a violation of a child's human rights and fundamental freedoms and impacts negatively on reproductive health rights as provided for in a number of international and regional programmes and agreements. Therefore, any law dealing with the subject matter must be underpinned by a strong restatement of the child's rights and the principles and concepts on the best interest of the child, including reproductive health rights and sexuality.Slide19

A human rights based approach cont…

Child marriage, as stated, violates the rights of children and contravenes countries’ legal obligations under international law which States have committed to abide by. The African Children’s Charter and the Convention on the Rights of the Child and many national constitutions and laws provide for the right to be free from discrimination; the right to equality and equal protection; the right to dignity; the right to be free from cruel, inhuman and degrading treatment; the right to health; and the right to education, amongst other rights. Further, regional and international treaties require countries to set the minimum age of marriage at 18, register all marriages and take effective action, including legislation, to eradicate child marriage.Other relevant international and regional treaties include the African Charter on Human and Peoples’ Rights; Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; African Youth Charter; Convention on the Elimination of All Forms of Discrimination Against Women; Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages.Slide20

A human rights based approach cont…

Therefore, the Model Law is based on these and other listed international and regional instruments and programmes which States must ratify where they have not done so and domesticate. These instruments are cited in some provisions, such as the preamble and some provisions are restated (in a different way so that it is more clearly or strongly expressed) especially in Part II, such as the rights to equality, life, privacy and respect; and the right to education, health and reproductive health, social protection and the right to be protected from child labour and the right to a sustainable livelihood and empowerment.Slide21

A human rights based approach cont…

Finally, child marriage impacts on the child’s economic and social development. Children in child marriage will often end their education when they get married, thus contributing to low levels of education. Studies have shown that children with less education are more likely to have children at a younger age with little time between each pregnancy. In addition, offspring of young and less educated mothers are less likely to continue with their education, thus perpetuating the poverty cycle.Slide22

A human rights based approach cont…

State authorities have a duty to enforce human rights in their countries. It is now a truism that child marriage is endemic in most parts of SADC Member States and can no longer be regarded as a private matter confined within the family. It is, therefore, time that suitable legislation, including constitutional amendment, is enacted to stop child marriage and its attendant consequences.Slide23

Thematic areas included in the MODEL LAW

The Model Law address five main thematic areas: prohibition of child marriage, prevention and intervention measures, protective and intervention measures, monitoring, evaluation and reporting and compliance and enforcement measures. These are reflected in the Part headings and the sub-thematic areas, and are further reflected in the sections and subsections, as follows:

Domestication of international instruments and definitions;

Restatement of Rights and Concepts Relating to the Child, Policies, Measures and Interventions;

Prohibition of Betrothal and Child Marriage and Supportive Provisions;Slide24

Thematic areas included in the MODEL LAW Cont…

Measures and Interventions to Prevent Child Marriage;Measures and Interventions to Mitigate the Effects of Child Marriage;

Access to Data and Information, Public Awareness and Monitory

prvisions

; and

General Provisions, Offences and Enforcement.

These Parts are based on evidence based research on the incidences of child betrothal and child marriage and recommended best practices contained in a variety of documents/articles and literature on child betrothals, child marriage and children already in marriage by UN bodies and other renowned authors on the subject, Slide25

Thematic areas included in the MODEL LAW Cont…

Part III of the Model Law is core to any law on eradicating child marriage. The provisions impact on other laws that are already on Member States Statute Book, such as laws on marriage, legitimacy, custody and maintenance, adoption, citizenship, gender-based violence, penal laws, trafficking and criminal responsibility and the juvenile justice system. It is, therefore, important that where there is conflict in national laws these are made consistent and harmonised in the best interest of the child. Any conflicts in the laws may result in the law being interpreted against the intention of the legislator therefore not achieving the legislative intent being pursued.Slide26

Thematic areas included in the MODEL LAW Cont…

Part V is specifically targeted at children already in marriages and provides for measures and interventions to mitigate the effects of such marriages. It also goes into detail on measures to deal with a child who is in need of care and protection.Member States are obliged to provide in national legislation for intervention programmes to support child brides/wives and their families by promoting earlier and more frequent use of family planning, HIV/AIDS and maternal health services, and educational and economic opportunities to help break the cycle of inequality, illiteracy, illness and poverty that

frequently

perpetuate child marriage.Slide27

Thematic areas included in the MODEL LAW Cont…

Part VI of the Model Law deals with access to data and information, public awareness, reporting, monitoring and evaluation.The successful and efficient monitoring of child marriage and providing awareness of it and its consequences depends on having efficient access to information and data on child related issues. Access to information and data is dependent on the creation and maintenance of public records which can be easily accessed, data retrieved and disseminated efficiently while protecting critical data, such as personal data to ensure the privacy of the child. Slide28

Thematic areas included in the MODEL LAW Cont…

Further, having successful awareness programmes will depend on the nature of mechanisms put in place to support the awareness campaigns. Part VI provides for detailed measures and interventions to enable effective access to evidence based information and data on child marriage. The measures, include public awareness campaigns, on the sensitization of men on HIV/AIDS prevention, gender-based violence, effects of gender inequality and inequity and challenging dominant, religious or traditional conceptions of masculinity.

The Government is obliged to ensure that the programmes are made accessible to the media.

The public and private media, including the advertising industry, are obliged to develop policies and codes of conduct to increase awareness of, and sensitivity to, the effects of child marriage, human rights and freedoms of children, prevent the sensationalisation of child marriage issues and the use of inappropriate language and stereotyping when reporting and advertising on child related issues.Slide29

the model law, sexual and reproductive health and rights and role of media in highlighting these

Poor sexual and reproductive health is a persistent and major problem in developing countries. According to UNFPA, illnesses and deaths from poor reproductive health account for one-fifth of the global burden of disease. In Africa, only 20% of married women use modern contraception. Of all the regions of the world, Africa has the highest prevalence of deaths due to unsafe abortion. Further, overall maternal mortality rates are highest in the sub-Saharan African region.Slide30

the model law, sexual and reproductive health and rights and role of media in highlighting these cont…

In sub-Saharan Africa, poor reproductive health is manifested in the high number of deaths and illnesses resulting from HIV/AIDS, childbirth, and abortion. Other indicators of poor reproductive health in sub-Saharan Africa include adolescents’ lack of access to reproductive health information and services and low use of contraception.The mass media can contribute greatly to efforts to address these challenges by focusing public attention on these issues, making them more visible in development discourses through their agenda-setting role, and providing accurate and comprehensive information on these issues to the public. Slide31

the model law, sexual and reproductive health and rights and role of media in highlighting these

The World Health Organisation defines reproductive health and rights as:

‘‘The rights of all couples and individuals to decide responsibly the number, spacing and timing of their children and to have information and means to do so, and the right to attain the highest standard of sexual and reproductive health; including the right of all to make decisions concerning reproduction free of discrimination, coercion and violence.’’

The Model Law is emphatic, in some of its provisions on the issue of reproductive health for children and comprehensive sexuality education. Slide32

the model law, sexual and reproductive health and rights and role of media in highlighting these cont…

i) their right to have control over and decide freely and responsibly on matters related to their sexuality, reproductive health, free of coercion, discrimination and violence;ii) Equal relationships between men and women in matters of sexual relations and reproduction, including full respect for the bodily integrity of the person, require mutual respect, consent and shared responsibility for sexual behaviour and its consequences.

In addition, the

Cairo Program for Action,

adopted in 1994 at the International Conference on Population & Development asserted that governments have the responsibility to meet individual reproductive needs; and recommended a number of reproductive health services such as:

family planning, health and safe child birth; post abortion care, and adolescent health.

Further, the

Beijing Program for Action-

a broader context for reproductive rights says; reproductive rights for women include:Slide33

the model law, sexual and reproductive health and rights and role of media in highlighting these cont…

The program among other things identified some elements of reproductive health such as: satisfying and safe sex, capability to reproduce and Freedom to decide if, when and how often to do so.In 1999, at the International Conference on Population and Development - ICPD + 5, these were expanded to include :

-

Aid education, research, and prevention of mother to child transmission and development of vaccines and microbicides.

The Model Law takes into account and obliges the Government to put in place programmes and strategic plans to achieve these recommendationsSlide34

the model law, sexual and reproductive health and rights and role of media in highlighting these cont…

Naturally, young people are curious about sex and sexualityComprehensive sexuality education emphasises the importance of forming healthy relationships; how to gain self-esteem and teaches on how young persons can protect their physical and emotional well-being, understand the consequences of having sex, the need of safer sex and sexual health rights.

These rights form another aspect of human reproductive rights.

The UN Commission on Human Rights

has established that if women had more power, their ability to protect themselves against violence would be strengthened. Slide35

the model law, sexual and reproductive health and rights and role of media in highlighting these cont…

In view of that need, at the 14th World Congress of Sexology (Hong Kong, 1999), there was adopted the Universal Declaration of Sexual Rights, which includes 11 sexual rights:

The right to sexual freedom, the right to sexual autonomy; the right to sexual privacy; the right to sexual equity; the right to sexual pleasure; the right to emotional sexual expression; the right to sexual associates freely; the right to make free and reasonable reproductive choices; the right to sexual information based upon scientific inquiry; the right to comprehensive sexuality education and; the right to sexual health care.

The model law provides for comprehensive sexuality education which asserts the rights of young people to receive adequate education to make well informed choices in relationships and their sexual lives and respects the other rights by not forbidding them.Slide36

the model law, sexual and reproductive health and rights and role of media in highlighting these cont…

The media can help break the culture of silence and high levels of stigma and discrimination associated with SRHR issues by promoting openness and public discussions of these issues.The media has the capacity to reach out to and influence key audiences including policymakers, program implementers, stakeholders, children, and the general public. “The Power of the Pen is Indelible so you can make a difference”Slide37

Conflicting laws and policies related to child marriages

In connection with the question of health is the age of consent for medical-related matters which proponents on the rights of a child say should be based on the evolving capacity, age and maturity of a child. The age of consent to medical treatment in Africa varies. In Kenya, the age of consent is 15. In Mozambique, Zambia, and Zimbabwe, the age of consent is 18. Further, the age of consent can be different depending on the particular medical treatment. In South Africa, under the Children’s Act, children of 12 years or older who have the maturity to understand the implications of a proposed treatment may consent on their own behalf. If a surgical procedure is being proposed, the child’s consent must be accompanied by a parent or guardian’s written assent.

In addition, individuals who are 12 years or older can ask for contraception. However, individuals have to be 18 years or older to consent to sterilisation

.Slide38

Conflicting laws and policies related to child marriages cont…

In South Africa, there is no consent needed for termination of a pregnancy, other than that of the pregnant woman, regardless of her age. There is no international or regional guidance on the exact age of consent for medical treatment. However, the United Nations Committee on the Rights of the Child notes that “minimum ages should be non-discriminatory between boys and girls…and closely reflect the recognition of the status of human beings under 18 years of age as rights holders, in accordance of their evolving capacity, age and maturity”Slide39

Conflicting laws and policies related to child marriages cont…

Children in marriages may require special dispensation with respect to consent to medical treatment. The Regional Minimum Standards for the Harmonised Guidance on HIV Testing and Counselling in the SADC Region has noted that “young people whose age falls under the country’s stipulated age of consent and who are married, pregnant or parents should be considered mature minors who can give consent for HIV testing and counselling in accordance with the legal provisions of the country”Slide40

Conflicting laws and policies related to child marriages cont…

Generally in the SADC region, if an individual falls under the age of consent, his or her parent or guardian must consent to medical treatment. In the case of child marriage, this can be difficult as the child may no longer be living with his or her parents or guardian. To ensure that children in marriages have full control over their own bodies and health, including their sexual and reproductive health, they must be able to consent to medical treatment, otherwise, they will not have the necessary authority to protect themselves and make decisions about their own well-being.Slide41

Conflicting laws and policies related to child marriage cont

Nine countries in SADC continue to permit marital rape as consent to sex is seen as given in perpetuity once married. For example, Zambia and Botswana continue to fail to criminalise marital rape despite pressure from civil society organisations and legal experts. However, in recent years, SADC countries are beginning to criminalise marital rape. Lesotho, Namibia, Seychelles, South Africa, Swaziland and Zimbabwe have criminalised marital rape.Permitting marital rape or allowing for marriage to be a defence to any sexual violence increases incentives for child marriage. Further, permitting marital rape fails to offer the needed protection to children in existing marriages who cannot seek redress for rape by their spouse.

 Slide42

Conflicting laws and policies related to child marriage cont

African treaties prohibit marital rape. The Maputo Protocol clearly requires countries to take adequate measures to protect women from violence. In particular, article 4(2)(a) of the Maputo Protocol requires countries to “enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public”.Slide43

Conflicting laws and policies related to child marriage cont

Further, only a handful of countries in Africa provide for at-will abortion. In approximately 5 countries in SADC, termination of pregnancy is prohibited altogether, or there is no explicit legal exception to save the life of the woman. The majority of countries in SADC provide for legal termination of pregnancy in specific circumstances, such as to save the life of the mother and to preserve the mental health of the mother.Slide44

Conflicting laws and policies related to child marriage cont…

It is important to note that laws related to the age of consent for sexual activity and minimum age of marriage can often be in conflict, creating incentives for child marriage or leading to a failure to protect children from child marriage. The lack of consistency is due in part to the fact that laws related to the age of consent are often found in the Penal Code as sexual relations prior to the age of consent are criminalised, while laws dealing with the minimum age of marriage are found in other statutes, relating to marriage or children.Slide45

Conflicting laws and policies related to child marriage cont…

There is no clear consensus on the age of consent for sexual activity worldwide. According to UNICEF, most countries have chosen to set the age of consent at 16 years. In SADC, the age of consent ranges from 14 years to 18 years. For example, in Botswana the age of consent is 16 years while in Tanzania, it is 18 years.Slide46

Conflicting laws and policies related to child marriage cont…End

However, the right for children to engage in consensual sexual activity is clear. In South Africa, the Constitutional Court in the Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another affirmed that criminalising consensual sexual activity between children aged 12-16 years violated the children’s constitutional rights.Slide47

How Model Laws can be highlighted through the media

Given the media’s ability to disseminate information in a broad, timely, and accessible manner, the mass media constitute an important source of information for the general public and policymakers. As information providers, the mass media informs, educates, entertains, persuades, socializes, and markets commercial products, among other roles. Mass media communication, is thus an agent for socialization, as it disseminates values and information to society. More importantly, the mass media have been shown to have the power to focus public attention on important issues in society (the media’s agenda-setting role).

The recognition of this role and the critical value of the media in communication is the driving force in motivating and building the capacity of the media to communicate research on various health and socio-development issues, including sexual and reproductive health and rights (SRHR).Slide48

How Model Laws can be highlighted through the media cont…

The mass media are not always interested in, nor trained to report on, health research, reproductive health issues or indeed child marriage issues, as witnessed from the invisibility in most newspapers of these issues, including the SADC PF HIV/AIDS Model Law. Media coverage of health has in the main been “shallow and reactive”, dominated by announcements of new drugs, shortages of drugs in health facilities, announcements by politicians or health officials on some health matter or official health promotion campaigns, but lacking in “investigative depth”. Besides lack of interest, the media in sub-Saharan Africa often lacks motivation, skills and capacity to understand, interpret, and report research findings on health, including SRHR. This fact is also aggravated by researchers who often lack the capacity to simplify research and present it in a way that captures media interest. Researchers also tend to shy away from the media fearing misrepresentation and sensationalisation of their work. Slide49

How Model Laws can be highlighted through the media cont…

To respond to these challenges, to assist the media highlight the Model Laws adopted by it, SADC PF must adopt a partnership/networking approach which establishes relationships between individuals, organizations and institutions with the media. Participants suggest what can be done to motivate the media and improve partnering/networking arrangements. For effective reporting on Model Laws passed by SADC.Slide50

KEY PROVISIONS OF THE MODEL LAW

PREAMBLEArticle 6 of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (the Maputo Protocol) which provides that – States Parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage. They shall enact appropriate national legislative measures to guarantee that –

no marriage shall take place without the free and full consent of both parties;

the minimum age of marriage for women shall be 18 years;

monogamy is encouraged as the preferred form of marriage and that the rights of women in marriage and family, including in polygamous marital relationships are promoted and protected;

every marriage shall be recorded in writing and registered in accordance with national laws, in order to be legally recognised;

a woman and a man shall jointly contribute to safeguarding the interests of the family, protecting and educating their children; ETCSlide51

KEY PROVISIONS IN MODEL LAW

Protection from harmful practicesA harmful practice shall not be used on, imposed on, or developed for, a child.The Minister shall, in consultation with relevant appropriate authorities, put in policies, measures and interventions to ensure that a child shall not be subjected to harmful practices. The Minister shall, in consultation with the Ministers responsible for community development, culture and traditional affairs and relevant appropriate authorities take appropriate measures to ensure that family education includes a proper understanding of maternity as a social function and the recognition of parental responsibility in the upbringing and development of their children, taking into account the best interest of the child in all cases.The Minister shall, in collaboration with other relevant appropriate authorities and stakeholders, comprehensively and regularly, investigate and recommend for review or eradication harmful practices that condone and promote child betrothal and marriage.

A person shall not use or impose, subject or encourage another person to use or impose, a harmful practice on a child.Slide52

KEY PROVISIONS IN MODEL LAW

Right to Health (nutrition and health services)A child has the right to receive adequate nutrition and health services. The Minister responsible for health shall, in consultation with the Minister, put in place policies on the health of the child which shall ensure the following: access to health and medical services;access to measures and programmes that assist in-diminishing infant and child mortality;combating disease and malnutrition; andensuring the provision of appropriate pre-natal and post-natal health care for child mothers and their offspring; ETC

The Government shall provide to a child that is pregnant or has given birth, access to maternal health services, including ante-natal and obstetric care, immunization and nutrition programmes for the child and offspring, as the case may be.

The Government shall put in place measures for accessing HIV/AIDS counseling and family planning for a child in marriage or a victim of child marriage. etcSlide53

Key provisions of the model law

Best interest of child The best interest of the child shall be the paramount consideration in any matter, decision or action concerning the child, whether undertaken by the Government, judicial institution, appropriate authority, service provider or a body in the private sector, to the extent that a child’s – rights are safeguarded and promoted; andwelfare is promoted and the child is given adequate guidance in matters relating to the child.A child is entitled to know of decisions affecting him or her.

A child who is capable of forming his or her own views shall be accorded an opportunity to express that child’s opinion in any matter, decision, action or procedure affecting the child and that opinion shall be taken into account, as may be appropriate, having regard to the age and maturity of the child and nature of the matter, decision, action or procedure. Slide54

Key provisions of the model law CONT…

Protection from discrimination A child has a right not to be discriminated against.The Government, a judicial institution, an appropriate authority, a service provider, a traditional leader, a religious authority and any other person shall not–

discriminate against a child on grounds of race, color, sex, gender, age, language, religion, tradition and custom, political or other opinion, conscience, ethnic or social origin, disability, property status, birth, marital status, location or other status; or

discriminate against or punish a child on the basis of the race, color, sex, gender, age, language, religion, political or other opinion, conscience, ethnic or social origin, disability, property status, birth, marital status, location or other status of the child’s parent or relative.Slide55

Key provisions of the model law CONT

…Protection from child marriage, sexual exploitation and abuseA child has a right not to be married.A child shall not be subjected to sexual abuse or exploitation or used in prostitution, inducement or coercion to engage in any sexual activity or exposure to obscene or pornographic materials.

The Government shall put into place the policies, measures and interventions specified in this Part, Part III, IV, V, VI and VII in order to eradicate child marriage and protect children already in marriages, victims of child marriages and their offspring. Slide56

KEY PROVISION OF THE MODEL LAW

Equality, right to life, privacy, dignity and respectA child is equal before the law and shall be entitled to the full protection of the law.A child has the right to life, liberty and security.A child has a right to privacy, dignity and respect.The Government and a judicial institution shall ensure that –all children, whether born in or outside marriage, are treated equally before the law and are accorded equal protection and rights; anda child’s inherent right to life, liberty, security, dignity and respect are ensured and upheld.Slide57

KEY PROVISIONS OF THE MODEL LAW

Right to Health (sexual and reproductive health)A service provider shall -respect the sexual and reproductive health rights of every child;respect the dignity and integrity of every child accessing sexual and reproductive health services;provide family planning services to a child demanding sexual and reproductive health services, irrespective of marital status or whether that child is accompanied by a spouse or partner;impart the information necessary for a child to make a decision on whether or not to undergo testing or medical procedures or to accept any service relating to the child’s sexual and reproductive health;record the manner in which the information imparted to the child seeking reproductive health services was given and whether it was understood by the child; and

obtain the written consent of the child being offered sexual and reproductive health services or family planning services before performing any test or medical procedure or offering any service.Slide58

Key provisions of the model law

Minimum age of marriage and contractual capacity From the commencement of this law, the minimum age of marriage shall be 18 years, without exception or gender discrimination. From the commencement of this law, a person under the age of 18 years has no capacity to contract a marriage and any marriage purportedly so contracted is deemed to be a prohibited marriage. Prohibition of child betrothal and marriage  From the commencement of this law –

the betrothal of a child

is prohibited;

a marriage between a child and an adult or between two children is prohibited; and

a person shall not contract, solomonise, abet or aid, promote, permit, coerce or force the betrothal or marriage of a child.

A person, other than a child, who contravenes subsection (1), commits an offence and shall be liable, on conviction, to a fine not exceeding XXX or to a term of imprisonment not exceeding XXX, or to both.

Where it is proved to a court that a child was, at the time the betrothal or marriage was contracted, living or dependant on the accused person, the court shall consider the parental relationship as an aggravating circumstance. Slide59

KEY PROVISIONS OF THE MODEL LAW

Programmes to delay Child marriage (comprehensive sexuality education)The Ministry shall, in consultation with relevant appropriate authorities, make learning of the nature, causes and consequences of child marriage and the consequences of traditional and customary initiation programmes compulsory, as components of a comprehensive sexuality education subject, in public and private learning institutions, including vocational, non-formal, indigenous learning systems and religious institutions.For purposes of subsection (2), the Ministry shall ensure that-the content, scope and methodology of the comprehensive sexuality education subject is based on aged, appropriate, scientifically accurate, evidence-informed and human rights data and information;every teacher or instructor of the comprehensive sexuality education subject is adequately trained and duly qualified to teach the subject; and

the content of the comprehensive sexuality education subject includes sexual health and rights education and provides opportunities for students to discuss and analyse gender inequality and the acceptance of child in marriage and a victim of a child marriage.Slide60

Key provisions of the model law CONT…

Programmes and incentives to delay marriage (general) The Government shall establish programmes for families, girls and boys to assist delay marriage, including the following:provide opportunities for girls to continue their primary and secondary education, including life skills and vocational training;

provide opportunities to families, girls and boys to earn money through entrepreneurship and work in the public sector through human resource development programmes;

supporting programmes that retain girls in school;

supporting alternative forms of positive discrimination and broadening opportunities for girl education;

supporting innovative programmes for adolescent girls that may help provide preferred alternatives to marriage;

targeting families in communities where child marriage is most prevalent by providing advocacy on the dangers and effects of child marriage; and

supporting awareness programmes in primary and secondary schools on the right not to marry before the age of 18 years. Slide61

Key provisions of the model law

Power of court to issue restraining order  Notwithstanding any other law, customary or religious practice if – on an application of a child marriage prohibition officer or an appropriate authority; oron receipt of information from a person who has personal knowledge or information;

relating to the likelihood of a betrothal or solemnization of a child marriage, a court is satisfied that a betrothal or child marriage has been arranged or is about to be solemnised, the court shall issue a restraining order.

A restraining order issued, in accordance with subsection (1), shall prohibit the respondent from committing any act that may lead to a betrothal or child marriage and restrain any person from aiding or abetting the commission of any such act. Etc..Slide62

Key provisions of the model law

Mitigatory MeasuresThe Minister shall, in consultation with relevant appropriate authorities, put in place measures and interventions, to mitigate the effects of child marriage, which shall be funded from the Child Marriage Fund.The Government shall establish public safety homes, public foster homes or any other public facility for the residence, care and maintenance of victims of child marriage which shall be funded from the Child Marriage Fund.

Protection against violence

A child in marriage shall not be subjected to any form of violence, including sexual violence, rape, coerced sex or harmful practices

A child in marriage has a right to refuse sexual acts, including acts that put the child at risk of infection, such as HIV/AIDS or other sexually transmitted infection.

Marriage shall not constitute a defence to a charge of rape.

A person, who contravenes section (1), commits an offence and shall be liable, on conviction, to a fine not exceeding XXX or to a term of imprisonment not exceeding XXX, or to both.Slide63

Key provisions of the model law CONT…

Measures, interventions and entitlements for child in need of care and protection The Government shall ensure that the following measures and interventions are put in place for a child in need of care and protection, at no cost to the child or the child’s parents: assistance and maintenance for the child;

appropriate health facilities for the treatment, counseling, rehabilitation and care of the child; and

other facilities, programmes and support structures and appropriate measures and interventions to promote the safety, physical and psychological rehabilitation of the child.

A child in need of care and protection shall be entitled to the following:

free and particularised legal services;

assistance for care and maintenance of any offspring;

other health and social services for any offspring.Slide64

Key provisions of the model law CONT…

Strengthening community networksThe Ministry shall, in order to mitigate the effects of child marriage, establish contact with traditional leaders and religious authorities and assist in the establishment of community networks and encourage the development of community centers to – provide for psychological and physical support to girls who run away from marriage;

provide emergency facilities where victims of child marriage can be accommodated and cared for;

support the re-integration of victims of child marriages with their parents;

re-integrate victims of child marriages into society; and

launch child advocacy programmes for the prevention of child marriage and reporting child marriages and children in need of care and protection to a child marriage prohibition officer or other appropriate authority.

The Ministry shall, in collaborate with other appropriate authorities, encourage and assist local communities to establish community watch committees, under the auspices of traditional leaders or religious authorities, for the prevention of child marriages and protection of children already in marriages.Slide65

Key provision of the model law

Evidence based information and data The Ministry shall develop and implement effective evidence based policies and programmes for eradicating child marriage.The Ministry shall set up disaggregated data collection, child surveillance systems and national child rights observatories in line with the objectives of the ACRWC and the CRC and shall –

collect data on the incidence and prevalence of child marriage;

collect data on the number and status of girl children already in marriage, including the girl child’s education, access to resources, health care, education, information and entertainment and the socio-economic status of the family;

collect data on causes of death of girls aged between 12 and 18 years of age, including death from HIV/AIDS and gender-based violence; and

maintain an up-to-date record of information on the nature and magnitude of child marriage and keep track of emerging child marriage concerns.Slide66

Key provision of the model law CONT…

Public awareness campaigns The Ministry shall promote public awareness about the nature, causes, consequences and means of prevention of child marriage through comprehensive nationwide campaigns conducted with appropriate authorities or other agencies at local and national levels.The public awareness campaigns, referred to in subsection (1), shall-

use evidence-based approaches that have proved to be successful elsewhere;

be adapted to the age, gender and nature of activities of the targeted groups and address social and cultural constraints, including masculinities and unequal gender relations;

be carried out in schools

and other institutions of learning, workplaces and rural and urban communities;

be guided by evidence on potential opportunities for, and barriers to, behavior change, and include effective measures to ensure that information, education and communication translate into behavior and attitude change;

challenge stigma and discrimination against victims of child marriage and address misinformation about perceived benefits and advantages of child marriage; and etc.Slide67

Key provisions of the model law

Child marriage education and information as a health care serviceThe Government shall ensure that providing the data and information, stipulated in this Part, forms part of the delivery of health services by all healthcare providers, at both public and private healthcare facilities.For purpose of subsection (1), a person responsible for the management of a healthcare facility shall ensure that all healthcare providers are trained on how to provide the information and data stipulated in this Part.The training of healthcare providers, in accordance with this section, shall include training on topics such as, confidentiality of information relating to the child, privacy of the child and displaying positive attitudes towards a child in marriage or a victim of child marriage.Slide68

Key provisions of the model law

Child marriage information and mediaThe Ministry and every appropriate authority shall ensure that its relevant departments design child marriage prevention and protection programmes that –take into consideration cultural, religious, age, status, locality and gender specificities;challenge gender inequality and inequity, gender based violence and attitudes of discrimination and stigmatisation against children in marriages or victims of child marriages; andensure that such programmes are made accessible to the media. The public and private media, including the advertising industry, shall develop policies and codes of conduct to increase awareness of, and sensitivity to, the effects of child marriage, human rights and freedoms of children, prevent the sensationalisation of child marriage issues and the use of inappropriate language and stereotyping when reporting and advertising on child related issues.Slide69

Key provisions of the model law

  Anti -Child Marriage Fund and other portfolio related resourcesThe Minister shall, with the approval of the Minister responsible for finance, establish a an Anti-Child Marriage Fund or recommend to the Minister responsible for finance, in consultation with a portfolio Minister, such funds, to be directly budgeted for the portfolio ministry, for purposes of eradicating child marriage, preventing child marriage, assisting children already in marriages, assisting victims of child marriages and supporting the general implementation of the measures, public sensitization and advocacy campaigns and interventions specified in this Law.

General offences

 A person, who is not a child, who

–

refuses to answer any questions asked for purposes of an investigation or gives an answer which is false or misleading in a material particular or is incomplete;

fails to produce a document required by a child marriage prohibition officer or an appropriate authority;

willfully signs or delivers any false or incorrect notification, report or statement;

refuses to allow a child marriage prohibition officer or an appropriate authority to enter and search a premise, as specified in section 47;

fails to comply with any order or warrant issued under this law;

commits an offence and shall be liable, on conviction, to a fine not exceeding XXX or to a term of imprisonment not exceeding XXX, or to both.Slide70

Way forward

The Model Law has completed its initial drafting process and is proceeding through the consultative process, to be enhanced and refined.SADC PF will then adopt the Model Law, thereafter National legislatures will take up the issue for enactment into national laws. Bear in mind the Model Law is the ideal to aspire to. It is not a whip to force States to legislate the entire content of the Model Law as it is, as they still maintain the constitutional legislative powers to enact legislation for the good of their people.

The Model Law is the tool that will assist them to do just that.Slide71

THE END

THANK YOUI NEED A PEN NOT A PENI….MAKE A GUESS!!