sexual health and human rights in the african region - The ICHRP

elated discrimination, including discrimination in respect of access to health
services. In this connection for, example, section 19 of the Kenyan HIV/AIDS
Prevention and Control Act says:
(1) Every health institution, whether public or private, and every health management
organization or medical insurance provider shall facilitate access to healthcare services to persons
with HIV without discrimination on the basis of HIV status.
(2) The Government shall, to the maximum of its available resources, take the steps necessary to
ensure the access to essential healthcare services, including the access to essential medicines at
affordable prices by persons with HIV or AIDS and those exposed to the risk of HIV infection.
[22] South Africa has legislation that is intended to implement the constitutional right
to access health care services. The South African National Health Act 748
subscribes to constitutional objects, including the universal provision of access to
health care and the deployment of state resources to this effect in accordance
with section 27 of the Constitution. 749 It requires the state to ensure the universal
provision of ‘essential health services which must include primary health care
services’. It puts on a statutory footing, free health care services for pregnant and
lactating women and children below the age of six who are not members or
beneficiaries of medical schemes, and all persons who are not members of
medical schemes. 750 The object is that those who cannot access the private sector
(that is approximately 80% of the population), should be guaranteed access to the
public health sector. The Act is comprehensive in the sense that it is not only
aimed at the organization and governance of health care services, but also at
assuring quality and delivery of services within an institutional framework that
recognizes the respect for human rights.
6.4 Access to Health Services by Children
[23] Laws relating to age of consent to medical and surgical treatment have
implications for sexual health. Laws that discriminate on the ground of age
impact adversely on the sexual health of minors. Individual decisions to take
responsibility for the prevention of sexually transmitted infections and unwanted
pregnancies cannot be realized when adolescents who are sexually active are not,
as a matter of course, recognized under the law as competent to consent to
treatment on their own. Domestic laws that equate minority status with
incompetence to consent to treatment unless there is parental consent or
approval, violate the human rights of children, including the rights to equality,
human dignity and privacy. The obligation to respect, protect and fulfil the rights
of the child under the Children’s Convention and, perforce under the African
Children’s Charter, requires the state to develop and implement programmes
that ensure access to sexual and reproductive health services, including access to
748 National Health Act of 2003 (South Africa).
749 Preamble to the National Health Act ibid.
750 Section 4 ibid.
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