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

care services, employment, or education. In such contexts, the human rights to
heath, work, education and information are also adversely impacted upon.
[13] As alluded to in Chapter 2 of this study, only one African country – South Africa
– has taken steps to reform the law so as to decriminalize sex between males.
South Africa decriminalized same-sex sexual activities in National Coalition for
Gay and Lesbian Equality and Others v Minister of Justice and Others 384 through a
judicial ruling rendering common law and statutory same-sex offences
unconstitutional. 385
3.3 Penalization of Ages of Consent for Sexual Activities
[14] The age of consent for sexual activities, and in particular sexual intercourse, is
the subject of regulation by every African country. The state has a legitimate
interest in regulating the age of consent for sexual activities to protect young
persons from sexual exploitation, abuse and sexual violence not least rape. Rape
is clearly criminalized for the purposes of protecting the physical and
psychological integrity of an unwanted intrusion and is outside the scope of this
section. The focus in this section is on sexual activities falling outside of
conventional rape.
[15] African laws, like their counterparts, in other regions regulate sexual activities
by, inter alia, prescribing the age of consent for sexual activities that do not
necessarily involve violence for protective reasons. Engaging in sexual activities
has physical and psychological health implications some of which are positive
and some of which are negative. On the positive side is that sexual activities are
part of how human beings express their personhood, realize their sexual
identities and self-determination generally. On the negative side, sexual activities
are clearly harmful to persons that have not reached a stage of physical and
psychological maturity that allows them not only to understand what is involved
in sexual activities, but also the implications thereof so as to be in a position to
decide whether to engage in sexual activities.
[16] The state has a legitimate interest in prescribing differential ages for engaging in
sexual intercourse in order to protect the best interests of those that are not in a
position to understand what is involved in sexual intercourse or to deal with the
risks inherent in sexual intercourse, including sexually transmitted infections
and pregnancy. At the same time, the state must concede that ultimately, when
384 1999 (1) SA 6 (Constitutional Court of South Africa).
385 The decriminalization of same sex and the recognition of the right to sexual orientation in the South
African Constitution have not always translated into human rights protection for some gay men and
women on account of deep-seated societal homophobia. There have been reported incidences of
‘corrective rape’ or ‘curative rape’ as well as murder of women who have ‘come out’ as lesbians: NR
Bucher ‘Law Failing Lesbians on “Corrective Rape”. Available at
http://ipsnews.net.news.asp?idnews=48279.
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