I wish to express my profound gratitude to the SADC PF Secretary General, Dr Chiviya, and the SADC PF Secretariat, for inviting me to share with this distinguished gathering of regional editors and journalists my thoughts on advocating for Sexual Reproductive Health Rights through the Media.
My multiple roles as a parent, citizen of the region, Judge and interim Co-chair of the newly established Regional Think Tank on HIV, Health and Social Justice in Southern and Eastern Africa makes this intervention a matter of duty and a rare honor indeed.
It is not quite often that a member of the judicial arm of the State has an intellectual moment with members of the 4th Estate - the shapers of public opinion.
Most Judges pride themselves on their clarity of thought, the powers of persuasion which they bring to their judgments - and not necessarily their ability to make public speeches. So if I fumble, stammer, and exhibit some incoherence, please bear with me! Judgments are generally not addressed to non-lawyers; and are rarely addressed to journalists! It follows therefore that this is not a familiar territory for me.
I am used to writing judgments, in which the manner of communication is somewhat rigid, couched in misleadingly neutral terms, dry and devoid of emotion. In the result, no one could credibly argue that Judges have any appreciable competence at public speaking. This constitutes my disclaimer. I can only hope it is effective.
In the tapestry of constitutional literature, the Media like the other three arms of the State, is considered an indispensable component of any democratic society. It has a duty to entertain, inform, and educate. A free and critical Media is indispensable in engendering an educated and enlightened citizenry. I am therefore tempted to go further and suggest that a progressive media has a duty to re-orientate people's values so that they are aligned to the supreme law of the land.
One of the foremost American statesmen, Thomas Jefferson, expressed his belief in the value of the Media/press in the following golden words:
" The basis of our governments being the opinion of the people, the very first object should be to keep that right; and where it left to me to decide whether we should have a government without newspapers or newspapers without government, I should not hesitate a moment to prefer the latter"
The Media has a huge and untapped potential to inform and educate the general populace about SRHR and HIV and governance issues - such as the imperative for the three arms of the State to be interested and indeed obligated to honor God given rights in executing their diverse mandates.
In other words, the need to respect human rights should never be seen as the monopoly of the judiciary and the three arms of the State need to cooperate at all times to honour fundamental rights of all people.
Defining the Universe of Discourse
Reproductive health is not just a health issue - it is also a human right issue. Reproductive health is a state of complete physical, mental and social wellbeing, and not merely the absence of disease in all matters relating to the reproductive system, its functions and processes. Sexual and Reproductive Health encompasses health and wellbeing in matters related to sexual relations, pregnancy, and birth.
It follows from the above that reproductive health deals with the most intimate and private aspect of people's lives, which can be difficult to write about and discuss publicly.
Furthermore, cultural sensitivities and taboos surrounding sexuality often prevent people from seeking Sexual and Reproductive Health information and care. Yet, Sexual and Reproductive Health affects social and economic development of any country. When women die during child birth or from AIDS, children are orphaned.
Girls often drop out of schooling to take care of their siblings. Deprived of education, they later become a burden to their countries.
Without education, girls often marry and begin having children early, which can jeopardize their health and limit their opportunities to contribute to their own development, those of their families, communities, and countries.
The Media plays an important role in bringing Sexual and Reproductive Health matters to the attention of the people who can influence public health policies.
Journalists who produce accurate reports about Sexual and Reproductive Health issues can:
a) Bring taboo subjects in the open so that they can be discussed.
b) Monitor their governments' progress towards achieved stated goals.
c) Hold government official accountable to the public.
Reproductive health of necessity, implies that people are able to have satisfying sexual relations and that they have the capability to reproduce and freedom to decide, if, when and how often to do so. Implicit in the latter point, are the rights of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice and the right to access appropriate health care services that would enable among other things, women, to go safely through pregnancy and child birth.
Speaking for myself, it is imperative that efforts within the field of Sexual Reproductive Health Rights, HIV and governance issues, should be approached from a human rights perspective, where participation, inclusion and accountability are the central principles. This approach views citizens not as passive receivers of services or beneficiaries of programmes, but as active rights holders, who should be empowered to claim their rights. The Media can play an important role in empowering the people to claim their rights.
The media should never tire to point out contiguously that states have obligations to respect and protect their citizens against violations of their rights.
The courts too have a duty to hold the legislature, the executive and other entities to honor human rights, effect the promise of most constitutions that eloquently speak of the right to dignity. The courts in the region have enforced Sexual and Reproductive Health Rights with admiration even in the face of hostile executive stand points or inadequate legal framework.
The courts are best placed to uphold human rights because unlike politicians, they are not beholden to public opinion and are, therefore, in a position to disregard misguided popular opinion on any matter. This has been particularly the case in the area of HIV.
Our courts have done particularly well in the area of HIV where discrimination and stigma are still rife. The jurisprudence of our courts has sought to infuse rationality in the debate by steadfastly applying scientific logic in their judgements.
In the case of Diau v BBS and Mwale v the Attorney General the Botswana High Court remarked that even in an underdeveloped legal framework that is not fully protective of those infected and affected by HIV, it is the duty of the courts to determine the extent, content and context of human rights of individuals and that the courts must not treat constitutions as museum pieces but rather as living documents intended to cover the interests, not only the current generation, but generations yet unborn.
In Mwale, the High Court went further, and suggested that the right to life encapsulated in the Botswana Constitution is expansive enough to include the right to health especially in the circumstances of the applicant where he was denied the right to be provided with life-saving drugs simply because he was a foreigner. However, it must be indicated that this expansive definition of the right to life was rejected by the apex court in the land.
It must also be noted that Sexual Reproductive Health Rights embrace certain rights that are often recognized by national laws and international law. These rights rest on the basic right of all couples and individuals to decide freely and responsibly, the number, spacing and timing of their children and to have the information and means to do so. To this extent, it is imperative that women should have access to safe and legal abortion care.
I want to put it plainly, and boldly, that without access to safe and legal abortion, women are not fully able to decide freely, on matters related to their Sexual and Reproductive Health, and thus, not able to fully enjoy their human rights.
I do not wish to be understood to be saying that abortion should be promoted as a method of family planning. The position I hold is that the best way to avoid abortions is through improved access to reproductive health services (contraception), information and the empowerment of women - through education which can be done brilliantly by the Media.
I submit further, with respect, that gender equality - in terms of equal rights, (as the High Court of Botswana recently enunciated in the case of Mmusi) including Sexual and Reproductive Rights, equal access to resources and equal opportunities, is central for women to become fully integrated and equal citizens in their countries and thus fulfill their enormous potential for contributing and benefiting from the development of their countries.
It is for this reason that the Botswana High Court, recently, in the case of Mmusi, polemically indicated that, on matters of gender equality, especially in under-developed legal environments, the courts have a duty to act as judicial midwives for the birth of a society based on equality between men and women - that is still struggling to be born. In terms of my experience and conviction, occasionally it becomes necessary for the courts to aid the birth of a new society based on equality by resorting to caesarian birth.
This is so because promoting gender equality demands changes to existing power relations. Women, more particularly girls, are still disadvantaged to negotiate safer sex due to cultural and economic reasons.
It must always be remembered that human rights are universal. There is no such thing as African or European human rights. To this extent cultural and traditional arguments should never be used to undermine human rights.
Concerns around Media Coverage of SRHR and HIV Issues
There is concern in our region that the Media often fail to prioritize Sexual and Reproductive Rights, HIV and governance issues, or report them in an accurate manner.
In the SADC region, it is generally agreed that the Media coverage of reproductive health issues is not satisfactory on account of weak capacity and motivation for reporting these issues.
According to some authorities, the interest of the Media in the area of SRHR is often dominated by announcements of new drugs or official health campaigns. This criticism notwithstanding, it must also be pointed out that, the Media's lack of capacity or motivation is not the only problem; researchers also often lack the capacity to simplify their research or to present it in a way that captures the Media's interest.
In this era, where the ideology of patriarchy is still dominant and religious intolerance high, a capacitated Media can assist in promoting Sexual Reproductive Health Rights and in bringing down the walls of prejudice, discrimination and stigma that still haunt the fight against HIV. And as for the courts there can be no finer moment than cutting through concise legal reasoning to bring down the walls of prejudice.
The Media can also help shine the spotlight on poor legislative frameworks and implementation capacity by the executive on the jurisprudence of deficiency and retrogression that still dominates our law reports, mainly from the jurists of the yester year who pay lip service to human rights.
The SADC Capacitation Programme of the Media
It is in the context of the above that this particular initiative by SADC PF must be appreciated as it seeks to inspire and build capacity of journalists to undertake evidence based reporting of reproductive health issues. It is important that the SADC PF approach must emphasis the following:
a) Enhancing journalists interest in and motivation for reporting on reproductive health issues through training and competitive grants for meaningful and effective reporting on SRHR:
b) Building the capacity of journalists to report simply and clearly, on reproductive health research and the capacity of reproductive health researchers to communicate their research to the Media using plain language, devoid of jargon, where practicable.
c) Establish and maintain trust and mutual relationships between journalists and researchers.
It is indisputable that Sexual and Reproductive Health is a major problem in our region. According to some sources, illness and deaths from poor reproductive health accounts for more than one-fifth of the global burden of the disease.
In our SADC Region, the use of contraceptives by married couples is not satisfactory and as with HIV prevalence, our region is the epicenter of deaths due to unsafe abortion. We still have serious problems of women who die from complications associated with childbirths and too many of our adolescents are hospitalized every year with abortion related complications
Other indications of poor reproductive health rights include adolescents' lack of access to reproductive health information and services.
SADC PF must remain committed to the agenda of seeking to cultivate the interest and capacity of the Media to educate the populace about the need to honor in words and deed, the constitutional provisions of member States that seek to honor the all-embracing right to life - the umbrella provision under which SRHR can find protection. Amongst the issues that SADC PF must seek to unearth and resolve, includes understanding the drivers and consequences of population change in our region.
I am conscious that I have kept you listening for a long time and that I must conclude my address. I conclude by inviting you, in covering SRHR, HIV and governance issues, to remain critical in an informed and respectful manner. Don't hesitate to criticize the Judges if they betray their constitutional oath of office. We are not infallible. Neither are we untouchable angels. A critical appraisal of our judgments is necessitated by the fact that law is fraught with illusion; the illusion that law and justice mean the same thing. What I can say and say unapologetically is that the ultimate objective of law must be the welfare of the people.
The law can be a force for good; but also for bad. This is an incontestable reality. You must also, in covering the issues I have highlighted above, demystify the notion that the law is accessible to all irrespective of wealth or privilege.
You, the members of the 4th Estate, need to keep watch over us - those engaged directly in the enterprise of law - that we keep our faith in honouring the morality of our constitutions - whose central theme is equality and dignity. I am certain that if you remain focused on quality and evidence based reporting, and reduce undue sensationalisation and distortion, in the context of the theme of this conference, this world shall be a better place to live in.
I thank you for listening.