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

2.1 There is universal recognition of ‘sex’ as a ground protected against
discrimination in regional human rights instruments as well as in domestic
constitutions. However, ‘sex’ has tended to be understood narrowly as a
biological category only but not as social category. Only South Africa is
systematically developing jurisprudence that is inspired by gendered
understanding of sex. Furthermore, save in the selected area of inheritance, sex
and gender have generally not been the subject of litigation before African
domestic courts.
2.2 Though customary law stands in conflict with constitutional guarantees of
equality on the ground of sex on account of its patriarchal orientation, domestic
courts have demonstrated a clear willingness to require customary law to be
modified so as to comply with universal guarantees in a constitution. However,
the decision of the Supreme Court of Zimbabwe in Magaya v Magaya remains an
exception to the rule in terms of protecting discriminatory customary law from
constitutional reach.
2.3 The discriminatory effects of Shari’ah law have yet to be subjected to
constitutional and human rights litigation.
2.4 Only a minority of jurisdictions recognize marital status as a protected ground.
An increasing number of jurisdictions recognize HIV status as a protected
ground and prohibit compulsory testing. On the whole, African jurisdictions are
far from recognizing sexual orientation as a protected ground. Protection of
gender identity has generally not come to the fore in African jurisdictions. With
the exception of South Africa, there is generally no jurisprudence on gender
identity save the requirement to indicate sex or gender in formal documentation
such as birth certificates and travel documents. A minority of jurisdictions have
instituted legal protection against sexual harassment.
2.5 The decision of the South African Constitutional Court in National Coalition for
Gay and Lesbian Equality and Others v Minister of Justice and Others provides the
African Charter-based system as well as domestic jurisdictions with an important
benchmark for not only developing laws that respect and promote the right to
equality and non-discrimination on the basis of sexual orientation, but also other
grounds, including sex, marital status, and gender identity.
3 Penalization of Sexuality and Sexual Activities
3.1 Criminalization of same-sex sexual relations is the general norm in the African
region. South Africa is an exception in developing jurisprudence that respects,
protects and promotes human rights to same-sex sexuality and sexual activities.
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