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

[10] Some penal statutes like section 20A of the South African Sexual Offences Act of
1957, which has since been repealed following the decision of the South African
Constitutional Court in National Coalition for Gay and Lesbian Equality and Others v
Minister of Justice and Others, 381 have only a male offender in mind. 382 Section 20A,
inter alia, provided that ‘a male person who commits with another male person
at a party any act which is calculated to stimulate sexual passion or to give sexual
gratification, shall be guilty of an offence’.
[11] In Chapter 2 of this study, the following were noted;
• that non-recognition of sexual orientation, and of necessity, same-sex, is
not conducive to the protection of public health to the extent that it is apt
to exclude or alienate persons with different sexualities other than
heterosexuality from accessing health services and from strategies to
prevent the spread of sexually transmitted infections;
• that the African Charter-based system, does not yet command
jurisprudence that directly relates to criminalization of same-sex activities;
• that given judicial willingness, same-sex, as an integral part of sexual
orientation, is implicitly protected against discrimination in equality and
non-discrimination clauses that envisage an open rather than closed list of
protected grounds; and
• that the strong official political antipathy towards homosexuality that
currently prevails in several African countries militates against liberal
reforms to the detriment of creating synergy between human rights and
public health.
[12] In the discussion on the decision of the Constitutional Court of South Africa in
National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and
Others 383 in Chapter 2 of this study, it was noted that discrimination on the
ground of sexual orientation constitutes a most serious erosion of personhood as
it goes to core of denying human dignity. The following human rights are
infringed as a result of non-recognition of sexual orientation:
• right to equality and non-discrimination
• right to privacy
• right to human dignity
• right to family life
Penalization of same-sex has far-reaching effects. Penalisation can be used to
prohibit not just same-sex activities, but also to deny a person access to health
381 1999 (1) SA 6 (Constitutional Court of South Africa).
382 See also section 217 of the Criminal Code of Nigeria which confines itself to a male perpetrator; See
also section 73 of the Zimbabwean Criminal Law (Codification and Reform) Act of 2004.
383 1999 (1) SA 6 (Constitutional Court of South Africa).
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