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

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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. 106
[95] South Africa provides an exception to the rule at two levels – a constitutional level, and a legislative level. In the light of the expansive approach of the South African Constitution on equality and non-discrimination, it can be surmised that gender identity is protected as ground implicit in ‘gender’ or ‘sex’ or as an analogous ground. Though not the same as sexual orientation, gender identity shares parallels with sexual orientation in terms of the rationale for guaranteeing protection against unfair discrimination. The constitutional rationale for upholding equality on the basis of sexual orientation that was discussed earlier in the leading case of National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others 343 applies with appropriate modification to gender identity. [96] More specifically, South Africa has specific legislation that addresses gender identity. The Alteration of Sex Description and Sex Status Act was adopted in 2003 to regulate aspects of gender identity, especially, alteration of gender identity. The Act confers a right on persons belonging to any of the three following categories to apply to the Director-General of the National Department of Home Affairs to have their sex description altered on their birth certificate: • persons whose sex characteristics have been altered by surgical or medical treatment • persons whose sex characteristics have been altered by evolvement through natural development • persons who are intersexed 344 The Alteration of Sex Description and Sex Status Act provides definitions of the operative concepts. Sexual characteristics are defined very broadly to mean not only ‘primary’ or ‘secondary’ sexual characteristics, but also ‘gender’ characteristics. 345 Primary characteristics refer to the genitalia at birth, while secondary characteristics mean characteristics that are dependent upon the hormonal constitution of the individual. 346 Gender characteristics mean the ways in which a person expresses his or her social identity as a member of particular sex through the style of dressing, wearing of prosthesis or other means. 347 Intersex refers to a person whose ‘congenital sexual differentiation is atypical’ and it does not matter in what proportions. 348 343 1999 1 SA 6 (Constitutional Court of South Africa). 344 Section 2(1) of the Alteration of Sex Description and Sex Status Act. 345 Section 1ibid. 346 Ibid. 347 Ibid. 348 Ibid. 107
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SEXUAL HEALTH AND HUMAN RIGHTS IN T
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TABLE OF CONTENTS ACKNOWLEDGMENTS
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4.9 Marriage and Sexual Orientation
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9.2 Equality and Non-discrimination
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the Universal Declaration and the C
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3.3 Ages of consent to sexual activ
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and the Sexual Offences Act of Sout
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10.3 Though access to contraceptive
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1 INTRODUCTION TO THE STUDY 1.1 Int
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epresentative. Cameroon and Nigeria
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1.5 African Regional Human Rights S
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• receive information; 18 • bes
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provisions of the African Charter,
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[15] The Protocol to the African Ch
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and the International Covenant on E
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Though Africa has, at least, fourte
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Community has largely not been acti
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said that while the requirement of
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eproductive autonomy. The fact that
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Cairo and Beijing Conferences. 96 C
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the Treaty and to adjudicate disput
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elimination of conflicts, and that
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anchored in development, New Partne
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In respect of the assumption by col
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It is significant that the above ob
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(1) In the interpretation of all la
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primogeniture rule was a violation
Page 55 and 56: Islamic Shari’ah has become an im
Page 57 and 58: 1.17 Conclusions [62] The African C
Page 59 and 60: 2 EQUALITY AND NON-DISCRIMINATION 2
Page 61 and 62: • Covenant on Economic, Social an
Page 63 and 64: Shar’iah leave no room for compat
Page 65 and 66: The Commission shall also take into
Page 67 and 68: d) take corrective and positive act
Page 69 and 70: their children that were born durin
Page 71 and 72: The Court said that, as far as poss
Page 73 and 74: We, people of Cameroon, Declare tha
Page 75 and 76: with respect to that matter which i
Page 77 and 78: (i) to a fair disposition of proper
Page 79 and 80: article 7 of the Universal Declarat
Page 81 and 82: [37] On their own, inheritance or s
Page 83 and 84: • clearly situate equality and no
Page 85 and 86: ape. In Fraser v Children’s Court
Page 87 and 88: 2.8 Marital Status and African Char
Page 89 and 90: [52] The Court said that in giving
Page 91 and 92: [59] The decision of the Constituti
Page 93 and 94: Rights ought to be interpreted to p
Page 95 and 96: [68] It is not just in constitution
Page 97 and 98: Benin 295 and Burkina Faso 296 Guin
Page 99 and 100: Botswana in Kanane v The State, 310
Page 101 and 102: orientation is a protected status i
Page 103 and 104: [85] In reaching its conclusion tha
Page 105: legally sanctified heterosexual heg
Page 109 and 110: [99] Though sexual harassment is a
Page 111 and 112: (1) Sexual harassment may include u
Page 113 and 114: the workplaces. The scope of Zimbab
Page 115 and 116: 3 PENALIZATION OF SEXUALITY AND SEX
Page 117 and 118: him, or attempts to procure the com
Page 119 and 120: care services, employment, or educa
Page 121 and 122: Special Provisions Act of 1998 394
Page 123 and 124: [25] The appellant appealed against
Page 125 and 126: and female victims. Sixteen years i
Page 127 and 128: [38] The other side of the argument
Page 129 and 130: een conducted to ascertain whether
Page 131 and 132: transmission, the Acts seek to: 1)
Page 133 and 134: HIV to another person as doing some
Page 135 and 136: Section 80 of the Zimbabwean Crimin
Page 137 and 138: 4 REGULATION OF MARRIAGE AND THE FA
Page 139 and 140: of marriage to be eighteen years an
Page 141 and 142: legislation which sought to reflect
Page 143 and 144: [16] On the one hand, the Ugandan C
Page 145 and 146: Offences Act of 1998, prescribes 18
Page 147 and 148: Though a dying practice, leviratic
Page 149 and 150: [35] The Women’s Convention requi
Page 151 and 152: therefore, invalid under the Consti
Page 153 and 154: of gay and lesbian couples, paved t
Page 155 and 156: Safiyyatu Husseini 534 an alleged a
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5 VIOLENCE: SEXUAL VIOLENCE AND GEN
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5.2 SEXUAL VIOLENCE: REGIONAL FRAME
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the southern part of Nigeria is rep
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without her consent involving penet
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definition of rape should extend in
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human dignity, privacy and freedom
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A male person commits the offence o
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and if accepted concludes the matte
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developing the common law or custom
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internal security of the Republic.
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constitutional norm of separation o
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Children’s Charter, specifically,
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(e) maintains or hires a person to
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and coordinating with other domesti
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psychological abuse; economic abuse
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time, the Zimbabwean Act is differe
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5.11 Female Genital Mutilation: Pre
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cause prolapsed and vaginal fistula
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way of inference, are even more rea
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same time, Nigeria has federal poli
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designing legislation that is inten
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physical and mental health’. 708
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[9] Whilst health care facilities m
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failed to adopt a reasonable measur
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Nigerian constitution make referenc
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contraception and other sexual heal
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The requirement to obtain consent d
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Act of 1967. 782 Under English comm
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eligion, belief and opinion 796 and
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[42] The Constitutional Court held
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[49] In EN and Others v The Governm
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[58] Termination of pregnancy remai
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sexuality. 818 Education must seek
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countries. 838 When posited in this
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the application of this Act the con
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Nigeria 851 and Uganda 852 have sta
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8 SEX WORK 8.1 Introduction [1] The
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[7] Like Zimbabwe, Kenya criminaliz
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merchant as the merchant is likely
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particular as someone who is so mor
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discharge its treaty obligations, i
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marriages generally recognize marri
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emphasis on physical violence as a
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[38] Though access to contraceptive
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245
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South Africa B and Others v Ministe
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Tanzania Chiku Lidah v Adam Omari C
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BIBLIOGRAPHY: LEGISLATIVE INSTRUMEN
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Guinea Constitution of Guinea of 19
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Female Circumcision (Prohibition) L
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Togo Constitution of Togo of 1992 L
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SELECT BIBLIOGRAPHY Banda F Women,
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