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

More documents

Recommendations

Info

dealing with young persons, it is not so much an arbitrary chronological age that is determinative but developmental maturity. 386 Any prescribed age for competence to consent to sexual intercourse that assumes that all persons that have not reached a prescribed age of majority and ignores the evolving capacities of the child will affront the rights to equality, non-discrimination and human dignity of children. 387 Equally, prescribing differential ages for sexual consent as between males and females constitutes a violation of the rights to equality and non-discrimination. 388 The same would apply to prescribing differential age for heterosexual and non-heterosexual activities. 389 Any prescribed ages for consent should reflect the evolving capacities of children and young persons and not assume that maturity begins at eighteen years. 390 [17] The picture among the surveyed countries is that of ages of consent to sexual intercourse that are discriminatory of the grounds of age, sex or gender, and sexual orientation. Many jurisdictions describe the offence as defilement and others as statutory rape. Consent is not a defence to defilement. Only South Africa has taken judicial as well as legislative steps to render the ages for consent to sexual intercourse human rights compliant. [18] A number of countries prescribe expressly or by implication 18 years as the age for consent for sexual intercourse. The Eritrean Penal Code prescribes eighteen years as the age of consent for sexual intercourse through the route of punishing a person who has sexual intercourse with a person below eighteen years. 391 Ethiopian Criminal Code adopts the same approach. 392 However, in terms of punishment, a distinction is made between having sexual intercourse with a person below thirteen years of age and person between thirteen and eighteen years. The former fetches a more severe sentence. Cameroon prescribes differential ages for sexual intercourse through the route of regulating the ages for marriage. The Ethiopian Criminal Code prescribes fifteen years for females and eighteen years for males 393 as the ages of marriage. Section 346 of the Code renders sexual intercourse with persons below these ages a criminal offence. [19] Tanzanian law, which prescribes eighteen years as the age of consent, appears to prescribe the age of consent for females only. The Tanzanian Sexual Offences 386 Committee on the Rights of the Child General Comment 4 on Adolescent Health and Development (2003), para 2. 387 Ibid para 6. 388 Ibid. 389 Ibid. 390 Article 5 of the Convention on the Rights of the Child; Committee on the Rights of the Child General Comment 4, (Adolescent Health) para 9. 391 Article 595 of the Penal Code of Eritrea. 392 Sections 620(2) and 627 of the Criminal Code of Ethiopia. 393 Section 52(1) of the Penal Code of Cameroon. 120
Special Provisions Act of 1998 394 makes it an offence for a male person to have sexual intercourse with a female below eighteen years of age. The same position used to apply in Uganda under section 129 of the Ugandan Penal Code which also prescribes eighteen as the age of consent. However, in 2007, Uganda amended its Penal Code to accommodate both sexes as potential perpetrators and potential victims, and thus render the age of consent sex or gender neutral. [20] In countries that prescribe eighteen years as the age of consent, the tendency is, nonetheless, to prescribe a differentiated regime for punishing offenders taking into account the age of the victim. In this respect, section 8 of the Kenyan Sexual Offences Act of 2006 is broadly representative of the approach in African jurisdictions. Section 8 says: 8.(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. [21] In terms of jurisdictions that prescribe ages of consent below eighteen years, the Nigerian Criminal Code prescribes differential ages of consent that are below 18 years. The age for girls is sixteen 395 while it is fourteen for boys. 396 Under the Zimbabwean Criminal Law (Codification and Reform) Act of 2004, sixteen years is the competent age. 397 The Sexual Offences Act of Lesotho prescribes fifteen as the age of consent for both boys and girls. 398 The Penal Code of Malawi prescribes thirteen years as the age of consent for girls. 399 [22] While one of the purposes of a prescribed age of consent is to protect young persons from sexual exploitation and abuse, some jurisdictions allow for exceptions that undermine this purpose. Cameroon is a case in point. Section 296 of the Penal Code of Cameroon absolves the offence of having sexual intercourse or an indecent act if the perpetrator and victim agree to marry. [23] Over and above discriminating on the ground of sex, by prescribing different ages of consent for males and females, a feature of African domestic laws with the exception of South Africa, is that they not prescribe, at all, an age of consent 394 Section 130 (2) (e) Sexual Offences Special Provisions Act of 1998 (Tanzania). The section provides an exception where the girl is aged fifteen and is married. 395 Section 222 of the Criminal Code (Nigeria). 396 Section 216 of the Criminal Code (Nigeria). 397 Section 70 of the Criminal Law (Codification and Reform) Act of 2004 (Zimbabwe). 398 Sexual Offences Act of 2003 (Lesotho). 399 Section 138(1) of the Penal Code (Malawi). 121
Page 1 and 2:
SEXUAL HEALTH AND HUMAN RIGHTS IN T
Page 3 and 4:
TABLE OF CONTENTS ACKNOWLEDGMENTS
Page 5 and 6:
4.9 Marriage and Sexual Orientation
Page 7 and 8:
9.2 Equality and Non-discrimination
Page 9 and 10:
the Universal Declaration and the C
Page 11 and 12:
3.3 Ages of consent to sexual activ
Page 13 and 14:
and the Sexual Offences Act of Sout
Page 15 and 16:
10.3 Though access to contraceptive
Page 17 and 18:
1 INTRODUCTION TO THE STUDY 1.1 Int
Page 19 and 20:
epresentative. Cameroon and Nigeria
Page 21 and 22:
1.5 African Regional Human Rights S
Page 23 and 24:
• receive information; 18 • bes
Page 25 and 26:
provisions of the African Charter,
Page 27 and 28:
[15] The Protocol to the African Ch
Page 29 and 30:
and the International Covenant on E
Page 31 and 32:
Though Africa has, at least, fourte
Page 33 and 34:
Community has largely not been acti
Page 35 and 36:
said that while the requirement of
Page 37 and 38:
eproductive autonomy. The fact that
Page 39 and 40:
Cairo and Beijing Conferences. 96 C
Page 41 and 42:
the Treaty and to adjudicate disput
Page 43 and 44:
elimination of conflicts, and that
Page 45 and 46:
anchored in development, New Partne
Page 47 and 48:
In respect of the assumption by col
Page 49 and 50:
It is significant that the above ob
Page 51 and 52:
(1) In the interpretation of all la
Page 53 and 54:
primogeniture rule was a violation
Page 55 and 56:
Islamic Shari’ah has become an im
Page 57 and 58:
1.17 Conclusions [62] The African C
Page 59 and 60:
2 EQUALITY AND NON-DISCRIMINATION 2
Page 61 and 62:
• 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 and 114: the workplaces. The scope of Zimbab
Page 115 and 116: 3 PENALIZATION OF SEXUALITY AND SEX
Page 117 and 118: him, or attempts to procure the com
Page 119: care services, employment, or educa
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
Page 167 and 168: human dignity, privacy and freedom
Page 169 and 170: A male person commits the offence o
Page 171 and 172:
and if accepted concludes the matte
Page 173 and 174:
developing the common law or custom
Page 175 and 176:
internal security of the Republic.
Page 177 and 178:
constitutional norm of separation o
Page 179 and 180:
Children’s Charter, specifically,
Page 181 and 182:
(e) maintains or hires a person to
Page 183 and 184:
and coordinating with other domesti
Page 185 and 186:
psychological abuse; economic abuse
Page 187 and 188:
time, the Zimbabwean Act is differe
Page 189 and 190:
5.11 Female Genital Mutilation: Pre
Page 191 and 192:
cause prolapsed and vaginal fistula
Page 193 and 194:
way of inference, are even more rea
Page 195 and 196:
same time, Nigeria has federal poli
Page 197 and 198:
designing legislation that is inten
Page 199 and 200:
physical and mental health’. 708
Page 201 and 202:
[9] Whilst health care facilities m
Page 203 and 204:
failed to adopt a reasonable measur
Page 205 and 206:
Nigerian constitution make referenc
Page 207 and 208:
contraception and other sexual heal
Page 209 and 210:
The requirement to obtain consent d
Page 211 and 212:
Act of 1967. 782 Under English comm
Page 213 and 214:
eligion, belief and opinion 796 and
Page 215 and 216:
[42] The Constitutional Court held
Page 217 and 218:
[49] In EN and Others v The Governm
Page 219 and 220:
[58] Termination of pregnancy remai
Page 221 and 222:
sexuality. 818 Education must seek
Page 223 and 224:
countries. 838 When posited in this
Page 225 and 226:
the application of this Act the con
Page 227 and 228:
Nigeria 851 and Uganda 852 have sta
Page 229 and 230:
8 SEX WORK 8.1 Introduction [1] The
Page 231 and 232:
[7] Like Zimbabwe, Kenya criminaliz
Page 233 and 234:
merchant as the merchant is likely
Page 235 and 236:
particular as someone who is so mor
Page 237 and 238:
discharge its treaty obligations, i
Page 239 and 240:
marriages generally recognize marri
Page 241 and 242:
emphasis on physical violence as a
Page 243 and 244:
[38] Though access to contraceptive
Page 245 and 246:
245
Page 247 and 248:
South Africa B and Others v Ministe
Page 249 and 250:
Tanzania Chiku Lidah v Adam Omari C
Page 251 and 252:
BIBLIOGRAPHY: LEGISLATIVE INSTRUMEN
Page 253 and 254:
Guinea Constitution of Guinea of 19
Page 255 and 256:
Female Circumcision (Prohibition) L
Page 257 and 258:
Togo Constitution of Togo of 1992 L
Page 259:
SELECT BIBLIOGRAPHY Banda F Women,
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?