sexual relations among adolescents is not an internationally recognized obligation of
the State. Countries in Africa have different ages for sexual consent ranging from 12
years to 18 years. Moreover, the Committee has taken a position that consensual and
non-exploitative sexual relations among adolescents should be decriminalized. 73
Furthermore, the exclusion of pregnant and married girls from schools with no
opportunity for re-entry creates a vicious cycle of gender-based discrimination as
these girls will be excluded from the benefits of education. This is because education
is not only a substantive right, but the enjoyment of the right to education also
facilitates the realization of other rights of children and the elimination of discrimination
against girls.74 Additionally, article 1(f) of the Maputo Protocol provides that
discrimination against women includes any form of discrimination against women from
the enjoyment of their rights regardless of their marital status. Therefore, the expulsion
of pregnant and married girls with no re-entry amounts to discrimination based on sex,
marital status, and health status (pregnancy) within the meaning of article 3 of the
ACRWC, and further entrenches gender-based discrimination.
56. Concerning the issue of the mandatory pregnancy testing of schoolgirls, the
Committee believes that it is a differential treatment based on sex as the mandatory
testing and the subsequent expulsion target only girls. Mandatory pregnancy testing
is differential treatment on the ground of sex and interferes with the right to education,
the right to privacy, and the health of girls among others. Moreover, the mandatory
pregnancy testing presumes that all girls who fall pregnant have committed an
immoral act which is a perpetuation of structural gender-based discrimination which
subjects girls to scrutiny on their sexuality although they are victims of sexual abuse.
Hence, mandatory pregnancy testing also amounts to discrimination under the scope
of article 3 of the Charter.
57. Regarding the detention of pregnant girls, the Committee has found that the detention
is occurring to question pregnant girls about who impregnated them (see the finding
of the Committee on the alleged violation of article 16 of the ACRWC). The Committee
also notes that the detention of pregnant girls is discrimination based on their gender,
age, and health status (pregnancy) as they are being targeted on these grounds while
having committed no crime.
58. On the issue of discrimination on the grounds of socio-economic status and
geographic location through the denial of re-entry of pregnant and married schoolgirls,
the Committee notes that the Complainants argue that the result of the policy
disproportionately affects girls living in economically disadvantaged families, as well
as rural and remote areas. While the Committee is cognizant of the structural
discrimination against children living in economically disadvantaged, rural and remote
areas, in this present case, the Respondent State has not subjected children living in
economically disadvantaged or rural and remote areas to differential treatment of any
kind. The expulsion and non-re-entry of pregnant and married girls as well as the
73 ACERWC, General Comment No. 7 on article 27 of the ACRWC, para 50.
74 CESCR, General Comment no. 13 on the right to education, UN Doc. E/C.12/1999/10, 8 December 1999;
CEDAW, General Recommendation no. 36 on the right of girls and women to education, UN Doc.
CEDAW/C/GC/36, 27 November 2017.
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