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

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penalization of same sex activities under African customary law as evidence that such activities are not indigenous to Africa. The Court said that same-sex activities offend African morality, were introduced by white people from the West as part of a colonial importation, and ought to be penalized in African settings. In the course of deliberating on whether penalization of sex between men constituted unfair discrimination on the ground of sex and gender under the Constitution of Botswana, Justice Mwaikasu said: …offences like ‘unnatural offence’ or sodomy’ or bestiality’, though among offences under many African Penal Codes introduced during colonial times, are generally uncommon among indigenous African societies. They are the types of offences that have their origin and are predominant practices among White societies in the West and migratory White communities from here. That is why, in Africa, unlike in a country like Botswana, we find this more pronounced in countries like South Africa and Zimbabwe where White settlers have imported their influence in planting such practices. 376 [6] Initially, colonial criminal provisions were directed at punishing male perpetrators or only sexual activities between males, the underlying censured conduct being anal penetration by a penis. In practice, however, the provisions have been used by law enforcement agencies to punish both males and females whether the acts be homosexual or lesbian. In the post-colonial era, some jurisdictions, like Botswana, have taken steps to reform the law but only to ‘level down’ by clearly indicating that the offences net both males and females. 377 Prior to its amendment, section 164 of the Penal Code of Botswana said: Any person who- (a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature is guilty of an offence and is liable to imprisonment for a term not exceeding seven years. 378 The Penal Code (Amendment) Act of 1998 reformed section 164 by leveling it down so that the perpetrator can be male or female. It substituted ‘any other’, for male. Prior to its amendment section 167 of the Botswana Penal Code said: Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with on Human Rights 466, 468-469; Quansah EK ‘Same-Sex Relationships in Botswana: Current Perspectives and Future Prospects’ (2004) 4 African Human Rights Law Journal 201. 376 Kanane v The State BLR 94 (High Court of Botswana); Bojosi ibid 468-469; Quansah ibid 205. 377 Kanane v The State Criminal Appeal 9 of 2003 (2003) 2 BLR 67 (Court of Appeal of Botswana). This case was discussed in Chapter 2 of this study. 378 For statutes that implicitly anticipate anal penetration by a male see also: Section 162 of the Penal Code of Kenya 116
him, or attempts to procure the commission of any such act by any male person with himself or another male person, whether in public or in private, is guilty of an offence. The Penal Code (Amendment) Act of 1998 ‘levelled down’ section 167 by deleting ‘male’. [7] Some statutes use simple language to denote the prohibited language such as section 347 of the Penal Code of Cameroon. It says that ‘whoever has sexual relations with a person of the same sex shall be punished…’. It is left to the court to interpret what constitutes ‘sexual relations’ with a person of the same sex. [8] The majority of statutes, however, tend to use language that has its origins in colonial jurisprudence and is intended to convey moral censure. The prohibited conduct is described as an offence ‘against the order of nature’ or an ‘unnatural’ sex’, leaving it to the courts to read in homosexual or lesbian sexual acts. An example is section 145 of the Penal Code Uganda says: ‘any person who-(a) has carnal knowledge of any person against the order of nature; …or (c) permits a male person to have carnal knowledge with him or her against the order of nature, commits an offence and is liable to imprisonment for life’. 379 The criminalization of sex between males tends to be found alongside provisions that criminalize bestiality. Section 153 of the Penal Code of Malawi is an example. It says: ‘Any person who (a) has carnal knowledge of any person against order of nature; or (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature, shall be guilty of the felony and shall be liable to imprisonment for fourteen years, with or without corporal punishment’. [9] Some jurisdictions use language that conflates a homosexual act with indecency or gross indecency. Article 600(1) of the Penal Code of Eritrea is an example. It prohibits and punishes ‘whosoever performs with another person of the same sex an act corresponding to the sexual act, or any other indecent act’. 380 Section 156 of the Penal Code of Malawi describes criminalized activities between males that fall short of ‘carnal knowledge’ (which is criminalized by section 153) as ‘indecent assault’. It says: ‘any male person who with, whether in public or in private commits any act of indecency assault with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, shall be guilty of a felony and shall be liable to imprisonment for five years with or without corporal punishment.’ 379 See also: section 164 of the Penal Code of Botswana; section 153 of the Penal Code of Malawi; Section 154 of the Sexual Offences Special Provisions Act of Tanzania; Section 162 of the Penal Code of Kenya. 380 See also Article 629 of the Criminal Code of Ethiopia; Section 217 of the Criminal Code of Nigeria. 117
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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
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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 and 114: the workplaces. The scope of Zimbab
Page 115: 3 PENALIZATION OF SEXUALITY AND SEX
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
Page 165 and 166: 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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