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UNFPA Global Population Policy Update
Laws and Policies in Algeria, Mauritius, Tunisia, Tanzania, Ghana and South Africa
ISSUE 59 - 16 December 2005
This issue of the UNFPA Global Population Policy Update highlights laws and policies relating to gender and domestic violence, sexual harassment, employment rights, HIV/AIDS, termination of pregnancy and national health care systems that were adopted in Africa in the latter part of 2003 and in 2004.
Algeria Issues Executive Decree to Create National Centres for Victims of Gender Violence
On 24 June 2004, Algeria issued Executive Decree No. 04-182 , which creates national centres for girls and women who are victims of violence and/or are in a situation of distress. The centres have the following objectives: a) to ensure the provision of reception, lodging and medical, social and psychological care of victims for certain periods; b) to diagnose and evaluate psychological problems of women admitted to the centres; c) to provide victims with education and vocational training; d) to carry out activities in collaboration with concerned institutions for the reintegration of victims into their society and families; e) to provide legal assistance to victims; and f) to provide medical follow-up by personnel of health establishments under the Ministry of Health. Other provisions of the Decree relate to the organization and functioning of the centres, personnel and financing, among others.
Mauritius Amends its Domestic Violence Act
On 25 May 2004, Mauritius amended its Domestic Violence Act to broaden the scope of application of the Act. The major change made by the amendments was to expand the definition of domestic violence to include acts of violence committed by any person living in the same household. Previously, only the violence committed by one spouse against another was subject to the Act. Other changes include: a) providing for protection orders to be issued in all cases of domestic violence; b) increasing the penalties imposed on the perpetuators of domestic violence; c) authorizing a court to order counseling sessions for the perpetuators/victims of domestic violence; and d) authorizing a court to direct a probation officer to report on the compliance of orders made under the Act.
Tunisia Enacts Law Criminalizing Sexual Harassment
On 2 August 2004, Tunisia enacted Law No. 2004-73 , amending the 1913 Penal Code to criminalize sexual harassment and certain offences "against morality." The provision relating to sexual harassment defines the offence as persistent harassment of another person through humiliating or offensive actions, words or gestures that are intended to cause the victim to submit to one's own sexual overtures or to those of third party or to weaken the victim's efforts to resist those overtures. The provision penalizes offenders with imprisonment of one year and a fine of 3,000 dinars, and doubles the punishment where the victim is a child or a person with physical or mental disabilities. Criminal proceedings for sexual harassment or other offences under the new provisions may only be initiated by a public prosecutor on the basis of a victim's complaint. An individual tried or convicted under the provisions may still be subject to proceedings for other offences carrying more severe penalties. A defendant acquitted of charges under the provisions may seek damages for any harm suffered as well as initiate criminal proceedings for libel or slander.
Algeria Enacts Law Criminalizing Sexual Harassment
On 10 November 2004, Algeria enacted Law No. 04-15 , which amends the Penal Code to create the offence of sexual harassment. Sexual harassment is defined as abusing the authority conferred by one's function or profession in order to give orders to, threaten, impose constraints or exercise pressure on another person for the purpose of obtaining sexual favors. A person convicted of this offence is subject to imprisonment of two months to one year and a fine of 50,000 to 100,000 dinars.
Tanzania Enacts Employment Law Prohibiting Discrimination and Regulating Hours and Leave for Pregnant Employees and Mothers
On 4 June 2004, Tanzania enacted the Employment and Labour Relations Act, 2004, which guarantees fundamental labour rights and establishes basic employment standards. The Act provides broad protection against discrimination. Specifically, the Act mandates that employers "promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice." It prohibits direct or indirect discrimination by employers, trade unions and employers' associations on a number of grounds, including gender, pregnancy, marital status or family responsibility, disability, HIV/AIDS and age. Harassment of an employee on any of these grounds is equally prohibited. The Act also requires employers to take "positive steps" to guarantee women and men an equal pay for the work of equal value. Affirmative action measures intended to promote equality or eliminate workplace discrimination do not constitute discrimination under the Act. Contravention of any of the Act's anti-discrimination provisions is an offence punishable with a fine of up to five million shillings.
The Act's provisions on basic employment standards include those relating to female employees who are pregnant or mothers. With respect to working hours, employers are generally prohibited from requiring or permitting pregnant employees and mothers to work at night (between the hours of 8 p.m. and 6 a.m.) during the two-month periods prior to and following childbirth. With respect to employment leave, the Act provides for at least 84 days of paid maternity leave (with up to four terms of leave per employee) and at least three days of paid paternity leave for employees with at least six months service, subject to certain conditions. The Act entitles female employees to resume employment on the same terms and conditions at the end of their maternity leave. Employers may not allow an employee to work during the six weeks after giving birth unless a medical practitioner certifies that she is fit to do so. Employers may also not allow or require pregnant or nursing employees to perform work that is hazardous to their health or to that of the children they are nursing. The Act further requires employers to allow nursing employees up to two hours' worth of breaks per day for breastfeeding.
Ghana Adopts National Guidelines on HIV Voluntary Counseling and Testing
In November 2003, Ghana adopted the National Guidelines for the Development and Implementation of HIV Voluntary Counseling and Testing. The Guidelines set forth the minimum acceptable standards for the establishment of voluntary counseling and testing (VCT) centres, including staff qualifications and training requirements. They provide instructions on how to set up a VCT facility, ensure adequate counseling, administer tests, ensure quality services and offer patients referrals. In their provisions on counseling, the Guidelines emphasize confidentiality and respect for patients' basic human rights, including their rights to privacy, non-discrimination and equality, as well as their rights to marry and give informed consent. Guidance is offered for counseling in "special circumstances," including when testing is provided to pregnant women and adolescents. Testing during pregnancy is the first step in preventing transmission of HIV to newborns. The Guidelines emphasize that in order to encourage pregnant women to be tested, strict procedures for maintaining the confidentiality of their test results must be observed.
Counseling for pregnant women should ensure that they fully understand the benefits and risks of HIV testing as well as the additional services they would receive if they test positive. Pregnant women who decline HIV screening should not be denied antenatal care, nor coerced into accepting testing. As for adolescents, the Guidelines call for staff sensitivity to the vulnerability of adolescent girls to HIV infection. Services should be youth-friendly, understanding, and non-judgmental. In cases where the adolescent is under the age of 18, if a counselor assesses that the adolescent can understand the reasons and implications for the test, then he or she should be considered a "mature minor" capable of giving informed consent. Counselors are instructed to encourage adolescents to inform parents or guardians of test results, and assist them in doing so if it is in the adolescent's best interest.
South Africa Amends Choice on Termination of Pregnancy Act
On 31 December 2004, South Africa enacted the Choice on Termination of Pregnancy Amendment Act, 2004, amending the Choice on Termination of Pregnancy Act, 1996 to, inter alia, expand the types of providers authorized to perform abortions, decentralize government regulatory authority over abortion facilities and eliminate the need for facilities meeting certain requirements to obtain government approval to provide abortion services. Pursuant to the amendment, registered nurses trained in accordance with the Act may perform abortions during the first 12 weeks of pregnancy. Under the 1996 Act, only medical practitioners and registered midwives were authorized to perform the procedure. The amendment also eliminates the requirement that the Minister of Health approves all facilities providing abortion services and enables relevant government authorities at the provincial level to provide the necessary approval. The amendment further permits facilities with 24-hour maternity services otherwise in compliance with the Act to perform abortions during the first 12 weeks of pregnancy without approval from the Minister. The amendment also sets forth explicit staffing and resource requirements for facilities performing abortions, which were lacking under the 1996 Act, and penalizes noncompliance with imprisonment of up to ten years or a fine. Lastly, the amendment enables relevant government authorities at the provincial level to prescribe implementing regulations for the Act, which was previously within the exclusive authority of the Minister of Health.
South Africa Adopts National Health Act
On 23 July 2004, South Africa adopted the National Health Act, 2004, which aims to regulate national health care and provide uniformity in the provision of health services. To achieve these goals, the Act seeks to: a) establish a national health system that provides equitable and high-quality health services in both the public and private sectors; b) establish the rights and duties of patients and health-care providers; and c) protect, respect, promote and fulfil the following rights: the constitutional right to access to healthcare services, including reproductive healthcare; the right to a safe and healthy environment; the rights of children to basic nutrition and healthcare; and the rights of vulnerable groups, including women, children, the elderly and persons with disabilities.
Consistent with its goal of ensuring access to healthcare, the Act guarantees free public services for primary healthcare, termination of pregnancy and for care of children under age six and pregnant and lactating women. The Act also authorizes the Minister of Health to expand the prescribed categories of persons eligible for free services.
The Act includes a chapter on patients' and healthcare providers' rights and duties. Patients' rights include the rights to: access emergency treatment; receive full information on one's health status as well as the benefits, risks, costs, and consequences of available treatment options; consent to procedures; participate in decisions about one's own healthcare; and be guaranteed confidentiality. Healthcare providers' rights include freedom from discrimination on account of one's health status and the right to refuse to treat an abusive or sexually harassing patient. The Act also requires relevant provincial and municipal government bodies to establish procedures to investigate patient complaints relating to their treatment.
Subsequent chapters of the Act detail the functions of government health departments and other bodies at the national, provincial and district levels and the regulation of health services and practices in formal and informal venues. The Act specifically enables the government to regulate the practice of circumcision and traditional health practices to ensure the health and well-being of affected persons. The Act also includes chapters relating to the development and regulation of human resources, the regulation of blood and human reproductive and health research.
All previous issues of the UNFPA Global Population Policy Update can now be found on UNFPA's website at: http://www.unfpa.org/parliamentarians/news/newsletters.htm.
This newsletter is issued by the United Nations Population Fund (UNFPA) in its capacity as secretariat for the biennial International Parliamentarians' Conference on the Implementation of the ICPD Programme of Action (IPCI/ICPD). The first IPCI/ICPD was held in November 2002 in Ottawa, Canada and the second in October 2004 in Strasbourg, France. These dispatches are intended to highlight important developments taking place around the world so that parliamentarians can be kept informed of and learn from the successes, setbacks and challenges encountered by their fellow parliamentarians in other countries and regions in their efforts to promote the implementation of the Programme of Action of the International Conference on Population and Development (September 1994, Cairo, Egypt). It should be noted that UNFPA does not necessarily endorse all of the policies described in this newsletter.
Thanks to Center for Reproductive Rights and Harvard University School of Public Health for their contributions to the content of this newsletter.
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