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

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with an invaluable precedent for reading in analogous grounds, including HIV status, in equality and non-discrimination clauses of domestic constitutions. [118] African jurisdictions are far from recognizing sexual orientation as a protected ground, and, indeed, in many jurisdictions there if official antipathy towards such recognition. [119] The jurisprudence on gender identity hardly proceeds beyond legal requirements to indicate gender or sex as male or female on birth certificates and other documents such as identity documents and travel documents. [120] The preponderance of countries do not provide legislative protection against sexual harassment. Also, in those jurisdictions that have legislative provisions for sexual harassment, it is only South Africa that has developed a code of conduct by way of providing guidance to the workplace. [121] Relatively speaking, in virtually all the areas of non-discrimination that were considered, South Africa commands the best human rights practices. [122] The decision of the Constitutional Court in National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others 372 provides the African region with an invaluable human rights decision and benchmark for not only developing laws that respect and promote the right to equality and nondiscrimination on the basis of sexual orientation, but also other grounds, including sex, marital status, and gender identity. [123] The established trend is that whilst customary law is recognised as law, it has diminishing status. It is subordinate to constitutional norms as well as parliamentary legislation. Among the surveyed countries, Zimbabwe is an exception in having a decision – Magaya v Magaya 373 – that interprets customary law in a manner denies women the constitutional guarantee of equality and nondiscrimination. 372 National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others 1999 (1) SA 6 (Constitutional Court of South Africa). 373 Magaya v Magaya 1999 (1) ZLR 100 (Supreme Court of Zimbabwe). 114
3 PENALIZATION OF SEXUALITY AND SEXUAL ACTIVITIES 3.1 Introduction [1] This chapter maps jurisprudence in the Africa region in respect of the penal regulation of sexuality and sexual activities. The focus is on the following areas: • Criminalization of consensual same-sex activities • Ages of consent for sexual activities • Criminalization of sex outside marriage • Incest • Criminalization of HIV transmission 3.2 Criminalization of Same-Sex [2] This chapter overlaps substantially with Chapter 2. Penalization of same-sex activities is often a sign of a legal environment in which the right to sexual orientation has no adequate constitutional protection. [3] Criminalization of same-sex activities in private between persons who have capacity to consent to the acts has its origins in religious and/or moral censure of homosexuality, especially, and the valourization of heterosexual norms, including heterosexual sex. [4] Historically, the criminalization of homosexuality in the African region is essentially a colonial bequest. At time of independence, virtually all the African jurisdictions inherited statutes, mainly, in the form of penal codes that proscribed and punished sex between persons of the same sex. Colonial jurisprudence on same-sex was an importation that sought to reflect the law in the colonizing countries. There is evidence confirming that homosexuality among consenting persons was practiced in the African region in precolonial times. 374 [5] There is no record of customary law norms that penalized consensual sex between persons of the same sex. However, despite the lack of evidence about the criminalization of same-sex activities under customary law, ironically, in Kanane v The State, 375 the High Court of Botswana interpreted the absence of 374 F Viljoen International Human Rights Law in Africa (2007) 597; KN Bojosi ‘An Opportunity Missed for Gay Rights in Botswana: Utjiwa Kanane v The State (2004) 20 South African Journal on Human Rights 466, 469; BD Adam ‘Age, Structure and Sexuality: Reflections on the Anthropological Evidence on Homosexual Relations’ (1985) 11 Journal of Homosexuality 3. 375 Kanane v The State (1995) BLR 94 (High Court of Botswana). This case is discussed in KN Bojosi ‘An Opportunity Missed for Gay Rights in Botswana: Utjiwa Kanane v The State (2004) 20 South African Journal 115
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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
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1.17 Conclusions [62] The African C
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2 EQUALITY AND NON-DISCRIMINATION 2
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• 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 and 108: [95] South Africa provides an excep
Page 109 and 110: [99] Though sexual harassment is a
Page 111 and 112: (1) Sexual harassment may include u
Page 113: the workplaces. The scope of Zimbab
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
Page 159 and 160: 5.2 SEXUAL VIOLENCE: REGIONAL FRAME
Page 161 and 162: the southern part of Nigeria is rep
Page 163 and 164: 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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