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

acknowledging and recognizing the diversity of sexualities, and, in consequence,
undermines rather than facilitates HIV education and prevention strategies.
[91] As the first case to declare as unconstitutional the common law crime of sodomy
on the African continent, National Coalition for Gay and Lesbian Equality and Others
v Minister of Justice and Others provides the African region with an invaluable
human rights benchmark. It provides the organs of the African Charter on
Human and People’s Rights, in particular the African Commission on Human
and People’s Rights and the African Court on Human and Peoples Rights with a
thoroughly reasoned and human rights suffused African decision to drawn on
when faced with a communication seeking to vindicate the right to sexual
orientation. Equally, it provides African domestic courts with a persuasive
authority drawn from the African region. With the exception of South Africa,
African countries have generally maintained colonial laws that criminalised
consensual same-sex. Paradoxically, the human rights recognition of same-sex
relationships has been resisted on the claim that it is an imposition foreign to
Africa. 342
2.12 Gender Identity as a Protected Ground
[92] There is very little by way of direct jurisprudence on gender identity in the
African region. At the level of the African Charter and African Charter-based
instruments, even though there are no direct provisions that specifically
addresses discrimination on the basis of gender identity, it can be inferred that
gender identity an implied category under ‘sex’ or ‘other status’ in article 2 of the
African Charter and in the non-discrimination provisions under the African
Children’s Charter and the African Women’s Protocol.
[93] Equally, there is very little jurisprudence that has specifically addressed gender
identity in the African region at the domestic level with South Africa and
Uganda being the exceptions under the sample of countries studied. However, in
similar vein, it can be argued that the categories or ‘sex’ or ‘gender’ or ‘other
status’ and their equivalents in equality and non-discrimination clauses of
African constitutions, permit reading in gender identity.
[94] The connection that African jurisdictions have thus far made with gender
identity is rudimentary. It is essentially through legal requirements to register
births and indicate the sex of the child as either male or female and in legal
documents such as identity documents as travel documents such as passports
that require the holder’s gender to be identified as either male or female using
primary sexual characteristics in the form of genitalia at birth.
342 CF Stychin ‘Same-sex Sexualities and the Globalisation of Human Rights Discourse’ (2004) 49 McGill
Law Journal 951.
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