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

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It is significant that under the Alteration of Sex Description and Sex Status Act alteration of gender identity is not contingent upon gender surgery that is designed to modify primary sex characteristics. Under section 2(1) of the Act, gender reassignment through medical treatment or through natural evolvement, are alternatives to surgery in terms of eligibility. Also it is significant that the Act envisages a role for other health care practitioners and not just doctors in the documentation that is required for meeting the eligibility requirements. In respect of a person applying to alter a sex description following alteration of sex characteristics by surgical or medical treatment the application must be accompanied by a report prepared by a medical practitioner who carried out the treatment. 349 In respect of an application where or sexual characteristics have been altered by gender reassignment, the application must be supported by a report prepared by a medical practitioner other than the one who carries out the any treatment. 350 In respect of an application on the ground of intersex, there must be two reports. One of the reports must be from a medical practitioner corroborating that the applicant is intersexed, and the other must be from a psychologist or social worker corroborating that the applicant is living and has lived in the gender role corresponding to the intersex for a period of at least two years. 351 For the purposes of the Act, a medical practitioner is a person providing health services in terms of laws that govern the provision of allied, nursing, pharmaceutical, dental and mental health care. 352 [97] Ugandan law permits a limited scope for sex alteration. Under the Ugandan Birth and Death Registration Act, there is a duty to register the birth of a child, including the ‘sex’ of the child within three months of the birth of the child. However, prior to the attainment of 21 years, a parent or guardian can apply to the Registrar General to change of the child, providing that the child ‘after being registered, either through an operation or otherwise, changes from a female to a male or from a male to a female and the change is certified by a medical doctor’. 353 2.13 Sexual Harassment [98] Sexual harassment can cause severe psychological distress and embarrassment to its victims. It is intimidating and can compel the victim surrender to the harassment. When harassment is resisted in a context where the perpetrator has power over the victim, it can lead to loss of employment and employment benefits. 349 Section 2(b) ibid. 350 Section 2(c) ibid. 351 Section 2(d) ibid. 352 Section 1 ibid. 353 Section 14 of the Ugandan Birth and Registration Act. 108
[99] Though sexual harassment is a form of discrimination under the Women’s Convention, African jurisprudence is generally characterized by the absence rather than presence of specific legal protections against sexual harassment. [100] In terms of African-Charter based treaties, to the extent that the African Women’s Protocol emulates the Women’s Convention in its antidiscrimination clause 354 as well as specifically protects women against ‘all forms of violence including sexual and verbal’ 355 it can be surmised that sexual harassment is within the contemplated prohibited conduct. At a sub-regional level, the Protocol on Gender and Development of the Southern African Development Community sets 2015 as the year by which member states are required to have enacted laws prohibiting sexual harassment. 356 [101] Malawi is the only example of an African country with a constitutional provision that is explicitly directed at protecting persons from sexual harassment. Section 24(2)(a) of the Malawian Constitution prohibits sexual harassment and enjoins the legislature to adopt legislation to combat, inter alia, sexual harassment. It provides that: (2) Any law that discriminates against women on the basis of gender or marital status shall be invalid and legislation shall be passed to eliminate customs and practices that discriminate against women, particularly practices such as- (a) sexual abuse, harassment and violence; [102] But despite a clear mandate and even injunction in the Constitution to legislate against sexual harassment, Malawi does not yet have legislation that directly addresses sexual harassment. 357 Though the Malawian Employment Act, inter alia, prohibits discrimination on the ground of sex, there is yet no case in which sex discrimination has been interpreted to include sexual harassment. 358 Sexual harassment is a particular challenge for women as workers in the workplace and as learners in the education sector. 359 354 Articles 1(f) and 2 of the African Women’s Protocol 355 Article 3(4) of the African Women’s Protocol. 356 Section 22(1) of the Protocol on Gender and Development of the Southern African Development Community. 357 C Ng’ong’la ‘Recent Labour Law Reforms in Malawi’ (2002) 46 Journal of African Law 167; HM Kayani ‘The Challenge of Studying Sexual Harassment in Higher Education: An Experience from the University of Malawi’s Chancellor’s College’ (2009) 2 Journal of International Women’s Studies 83. 358 O Nyamulani The Need for Express Proscription of Sexual Harassment in the Workplace Unpublished, Bachelor of Law (Honors) Degree dissertation, University of Malawi, Chancellor College (2006). Cited in Kayani ibid at 88. 359 Kayani ibid. 109
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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
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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 and 106: legally sanctified heterosexual heg
Page 107: [95] South Africa provides an excep
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
Page 157 and 158: 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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