BEYOND CHARITY; MENSTRUAL HEALTH SHOULD BE A RIGHT PROTECTED BY LAW IN SOUTHERN AFRICAN COUNTRIES

Words by Zwelithini Matsoso

Until there are laws that protect and raise the legal obligations for duty-bearers in Menstrual Health Management (MHM), free distribution of dignity packs (sanitary pads) will likely remain a charity work and the promises emanating from International Conference on Population and Development 25 (ICPD25) and the 9th Africa Conference on Sexual Health Rights (ACSHR), will remain futile.

MHM is a sexual health right often neglected by legislatures during law reform or enactment. One understands that for a right to be fully exercised and enjoyed it should be legally and constitutionally recognised and protected. Rights according to The Advocates for Human Rights are minimum standards which reflect dignity and have to be protected against those who have powers to abuse them. To date distribution of dignity packs has not been about bringing women closer to enjoying their sexual rights rather it’s their desperation used as a token to score political points.

Why should we care about formulating laws that promote and protect MHM?

The centre of attention in a plethora of studies and activism is on young girls who withdraw from school during menstruation. Often it is discovered that young girls miss school for the lack of having dignity packs to aid them to manage their flow comfortably and in a hygienic way.  However the concept of MHM has been regularly overlooked. Women in many spheres are affected by their flow. A female factory stands a chance of missing work where she is paid by the hours she spends and units she produces. The consequence is a cut in her wage for not producing adequate units thus pushing such a woman to the end of economic disempowerment. To a further extent some employers do not even empathise with period pains that come with menstruation every month. Some women their flow may take longer than other women whose flow last for four normal days, or understand the need to make toilet facilities resourced with equipment to manage menstrual waste. The last point is also about justice to the environment and our climate; the disposal of used dignity pack should be in secure facilities where they will not be blow to open ponds and dams by wind.

Reformation of the labour code

Southern African Clothing and Textile Workers Union (SACTWU) (2011) findings gathered from factories in Newcastle Kwazulu Natal revealed human and labour violations within the textile sector where maintaining hygienic facilities was not a priority. SACTWU revealed that there are factories which charged employees penalties for staying long in the toilet, while some factories do not have toilets. One cannot manage their flow effectively if there are no dignified facilities to exercise their respective calls of nature. According to Solidarity Center (2019) Trade Unions in Lesotho signed a pact with textile factories to combat Gender Violence and Sexual harassment in factories by senior management. Needless to say where there are reported cases of gender violence and sexual harassment like they exist within the Lesotho textile industry, challenges that come with menstruation will not be prioritised. Failure for labour laws to promote and protect MHM is an infringement human dignity.

The Labour Codes require reformation to normalise within employment sphere sexual and reproductive health rights for women by ensuring that women are not paid less than the male counterparts for seeking menstrual leave to manage period pains amongst other things that come with menstruation. It is important to note that employers tend to prioritise productivity and profits over employee well-being. Women are therefore likely to be biased against in recruitment because a monthly menstrual absenteeism can be seen to reduce productivity within the organisation. For this reason having a quota on employment to enforce by the Labour Code is the economic justice agenda that must be fully protected by law and not just being an affirmative action that organisations can volunteer to implement.

Reformation of education laws

The right to education is infringed by inadequacies in education laws meant to address MHM. Across the Southern African region, most education laws do not provide protections for sexual health rights let alone menstruation. It is, therefore, questionable as to what happens when a student misses an exam because of the absence of having dignity packs. Surely one cannot have a sick note to justify that they missed an exam as a result of not having the means to manage the flow. It is quint essential therefore for education laws to be reformed to accommodate natural occurrences that individual bodies go through.

Enacting water and sanitation laws to protect animals, people and environment

United Nations Water (2019) believes that “limited access to hygienic menstrual products and poor sanitation infrastructure undermines the educational opportunities, health and overall social status of women and girls around the world. As a result, millions of women and girls are kept from reaching their full potential.” The Mail and Guardian report (2009), revealed a damning case in which the township of Khayelitsha in Cape Town was left with open latrine (no wall structures) toilets constructed by the City of Cape Town. This provision of inadequate facilities by the City of Cape Town completely disregarded concerns for dignity and health of the people of Khayelitsha more severely so of the women in the community. Unless water and sanitation becomes a right protected by law, menstruation will never be effectively managed and will remain a health and environmental hazard. Unless water and sanitation becomes a right protected by law, menstruation will never be effectively managed and will remain a health and environmental hazard. The environmental hazard could be linked up with a study commissioned by United Nations Fund for Population Activities East and Southern Africa Office (UNFPA ESARO) which revealed that disposal of dignity packs in open latrines in Malawi and Lesotho are found to have been carried around school grounds by dogs and crows. This impacts negatively on environment and health of people and animals. Correspondingly.

Reform tax laws to allow financing of MHM

The advocacy for free distribution of dignity packs need to be accompanied by the realisation that production and procurement of dignity packs requires financing; therefore taxes and levies are a panacea for ensuring that there is money that will buy them. Procurement of MHM commodities should be part of the national fiscus of every country. The Botswana Government is exemplary in Africa of how taxes and levies imposed on cigarettes and alcohol can be put to good use. Botswana funds its Youth Development Fund through levies imposed on cigarette and alcohol. The Ministry of Trade in Botswana reports that it collects up to P100 million per annum in alcohol levies of which P30 million is used for Youth empowerment programmes the same model can apply to MHM. Kenya, Nigeria and Canada are some of the countries that have also exempted menstrual products from Value Added Tax (VAT), nonetheless countries like Lesotho and Eswatini still impose VAT on dignity packs.

Increase the quota of women in legislature through local government and national assembly electoral law

Increasing the quota of women’s representation within Local Government and National Assembly structures is arguably important towards creating laws and policies that are more responsive towards women’s needs and to provide an extra voice amongst men who seem to be predominantly driving the Sexual health rights agenda. The quota of women can be increased by enforcing of the zebra electoral system which provides that the quota of women is balanced with that of men on the proportional representation lists submitted to the Electoral Commission, however, failure to enforce this provision has resulted in gender inequalities in parliaments and failure to force such within the Constitutions of political parties has resulted also in parties that have male-dominated committees hence even manifestos drafted by parties are always not Youth and Women sensitive.

Schwandt-Bayer (2017) holds the belief that increasing the participation of women result in Bill initiation that is more concerned with women, children and family affairs, on the one hand Dodson et al. (1991) is cited alluding that “10% of women in United States of America legislatures named bills on women’s rights as their top priority compared to only 4% of men” This says the numerical strength that is sensitive of the gender lens can add extra voice for women in parliament so is on MHM policies and laws.

In conclusion: Implementation of MHM policies and laws will not materialise without a string Civil Society

Government is a closed handed system which has no service delivery acumen thus require coordinated Civil Society Organisations (CSO’s) advancing a strong rights-based advocacy for it to open its hands of implementation of MHM policies and laws. The South African Constitution is one that is considered to be a shining model of a Constitution that is human rights centered. Notably section 27 of South Africa’s Constitution guarantees right to quality healthcare and reproductive services. Violation of sexual health rights in South Africa has received much relief from this Constitutional right which paves the way for ease of CSO working in the health sector to lobby for MHM laws. This is a good case study for countries that have not guaranteed sexual health rights and a CSO advocacy angle towards the implementation of laws that guarantee MHM as a right, not charity.

Zwelithini is a Southern Africa Region sexual and reproductive health rights fellow at a public interest law organisation entitled SECTION27 and a Youth development advisor to the UN Youth Advisory Panel in Lesotho.