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

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and, of course, murder where the person dies as a result of the infection. 412 Where the transmission is done recklessly, not caring whether HIV will be transmitted to another person, culpable homicide would be an appropriate charge. Also, assault with intent to cause grievous bodily harm is an option. 413 In this respect, African jurisdictions are unexceptional and not different from their counterparts elsewhere. [36] But notwithstanding that criminal law offences already in existence at the time that the pandemic took root were amenable to rendering deliberate or reckless transmission of HIV a criminal offence, several African countries have over the years been persuaded to pass new laws that are specifically directed at HIV. Deterrence, retribution, prevention and rehabilitation have been advanced as the penological justifications. The underlying deterrent rationale is that creating a specific offence would serve to protect health and life by impressing upon potential perpetrators the importance of avoiding conduct that injures others for fear of punishment by the state. By punishing the offender, criminal law expresses societies abhorrence of the selfish motives of those that knowingly or reckless expose others to a life-threatening infection and sends a message that such conduct cannot be indulged in with impunity. Punishing the offender allows the victim and society to feel that justice has been done and that the state is discharging its duty to protect its citizens from harmful conduct. From a human rights perspective, the state has a duty to respect, protect and fulfil the realizations of human rights including the rights to health and life. All things being equal, the duty of the state to protect human rights justifies, or even mandates, the creation of specific offences to deter and punish and rehabilitate perpetrators of deliberate or reckless transmission of HIV. [37] Being the epicenter of the HIV pandemic, the African region has a compelling need to explore all effective means of checking the spread of HIV including criminal law measures. Evidence in some settings that some males were deliberately transmitting HIV through consensual sex and/or rape in order ‘not to suffer and die alone’ gave impetus to creating special offences to regulate HIV, and so did reports that some males were raping young girls in the belief that sexual intercourse with a virgin would cure them of HIV. 414 412 JM Burchell & J Milton Principles of Criminal Law (2005) 413 Ibid. 414 S Leclerc-Madlala ‘Crime in an Epidemic: The Case of Rape and AIDS’ (1996) 9 Acta Criminologica 31; S Leclerc-Madlala ‘Infect One, Infect All: Zulu Youth Response to the AIDS Epidemic in South Africa’ (1997) 17 Medical Anthropology 363; M Earl-Taylor ‘HIV/AIDS, the stats, the virgin cure and infant rape’ (2002) Science in Africa. Available at www.scienceinafrica.co.za/2002/april/virgin.htm; Population Council Sexual and Gender Based Violence in Africa: A Literature Review (2008) § 1.4; JC Kim, LJ Martin & L Denny ‘Rape and HIV Post-exposure Prophylaxis: Addressing the Dual Epidemics in South Africa’ (2003) 11 Reproductive Health Matters 101. 126
[38] The other side of the argument is that criminalization of HIV as a routine response to HIV, is counterproductive as it raises more problems than it solves. Criminalization has no proven efficacy and has a tendency to undermine public health in that it creates an environment that promotes the further stigmatization of HIV/AIDS and the violation of human rights of people living with HIV/AIDS. 415 A focus on criminalization of HIV creates an impression of doing something about the HIV pandemic but without making any significant public health impact. The argument is not that criminal law has no role to play, but that it is highly questionable whether adding HIV-specific offences to the traditional repertoire of criminal law offences would be conducive to promoting public health. A focus on criminalization is unlikely to complement a strategy of encouraging voluntary uptake HIV testing and counseling. Fear of prosecution is apt to alienate people from accessing health care services. Special criminalization, it has been argued, detracts from public health as it is apt to accentuate HIVrelated stigma and discrimination. It is apt to encourage the breach rather than the protection of human rights generally. [39] The South African Law Commission considered whether it would be desirable to recommend the creation of a new HIV-related offence over and above the existing common law and come to the view that: 416 • criminal law is not the best way of combating the spread of the epidemic; • the HIV pandemic is a public health issue and that non-coercive measures stand the best chance of reducing the spread of the pandemic through voluntary modification of behaviour; • individuals who deliberately or recklessly infect others can, and indeed, should be punished by law using existing criminal law principles, that it is questionable whether creating a new offence adds anything of substance to existing applicable offences other than clarifying the criminal nature of deliberate or reckless transmission of HIV; and • that exceptionally the creation of a new offence may be justified where existing laws prove inadequate may be warranted 415 Z Lazzarini, S Bray & Burris ‘Evaluating the Impact of Criminal Laws on HIV Risk Behaviour’ (2002) 30 Journal of Law, Medicine & Ethics 239; E Cameron, S Burris & M Clayton ‘HIV is a Virus, not a Crime: Ten Reasons against Criminal Statues and Criminal Prosecutions’ (2008) 11 Journal of International AIDS Society 1; Klitzman R, Exner TE, Correale J, Kirshenbaum SB, Remien RH, Ehrhardt AA, and Rotheram- Borus, M.J. ‘Naming Names: Perceptions of Name-Based Reporting, Partner Notification and Criminalisation of Non-Disclosure Among People Living with HIV’ (2004) 1 Sexuality Research and Social Policy 38R Klitzman et al ‘Naming Names: Perceptions of Name-Based Reporting, Partner Notification and Criminalisation of Non-Disclosure Among People Living with HIV’ (2004) 1 Sexuality Research and Social Policy 38. 416 South African Law Commission Discussion Paper No 80. Aspects of Law Relating to AIDS: The Need for Statutory Offence Aimed at Harmful HIV-related Behaviour Pretoria: South African Law Commission (1998) 127
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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
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The Commission shall also take into
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d) take corrective and positive act
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their children that were born durin
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The Court said that, as far as poss
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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 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 female victims. Sixteen years i
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.
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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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