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

the workplaces. The scope of Zimbabwean law on harassment is even narrower
than its Kenyan counterpart in that it only applies to the workplace.
2.14 CONCLUSIONS
[111] African jurisdictions take their lead from United Nations instruments in
guaranteeing rights to equality and non-discrimination in their constitutions.
[112] Ratified United Nations treaties do not automatically acquire the status of law
that is higher in status than a domestic constitution in African jurisdictions even
in jurisdictions that purportedly follow a monistic approach to the incorporation
of international treaties into domestic law. Ultimately, it is the domestic
constitution that has the highest status. The approach of the Court of Appeal in
Kenya in Mary Rono v Jane Rono and Another 369 is atypical in treating a ratified
instrument – the Women’s Convention – as law that is incorporated into
domestic law and has higher status than domestic law, notwithstanding that lack
of express incorporation and legislative intention to the effect by the Kenyan
legislature.
[113] United Nations treaties are generally recognized as useful aids to constitutional
and legislative interpretation.
[114] ‘Sex’ is a universally protected ground in African jurisdictions, and gender can
generally be read into ‘sex’.
[115] Though protection of ‘sex’ exists at a constitutional level, African jurisdictions
generally lack legislative provisions that are designed to implement
constitutional equality and non-discrimination. South Africa provides
benchmarks in adopting comprehensive legislation that is designed to protect
constitutional equality and non-discrimination.
[116] Only a minority of jurisdictions recognize marital status as a protected ground.
Though the Constitutional Court of South Africa has progressive human rights
jurisprudence on marital status cases such as Volks v Robinson 370 show that
marriage remains a privileged institution.
[117] Some but not all jurisdictions specifically recognize HIV status as ground
protected against discrimination. The decision of the Constitutional Court of
South Africa in Hoffmann v South African Airways 371 provides the African region
369 Mary Rono v Jane Rono and Another, Civil Appeal No 66 of 2002 (Court of Appeal of Kenya),
370 Volks v Robinson 2005 (5) BCLR 466 (Constitutional Court of South Africa).
371 Hoffmann v South African Airways 2001 (1) SA 1 (Constitutional Court of South Africa).
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