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

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precautions or disclosing her status to her lover fell within the prohibited conduct. The Act punishes not just intentional conduct, but also doing ‘anything’ that the defendant knows ‘involves a real risk or possibility of infecting another person with HIV’. 425 Also, it is not a requirement that the defendant must be HIV-positive. It is sufficient that the defendant knows there is a ‘real risk or possibility’ that he or she has HIV. 426 If the defendant was, in fact, HIV-positive, the Act provides a defence of consent. It is a defence that the other person knew about the defendant’s HIV status and consented. 427 A conviction under the Zimbabwean Act carries a maximum of twenty years in prison. [46] The purview of the Zimbabwean Act is extremely wide. Whilst the charge under the Act is one of ‘deliberate’ transmission of HIV, the Act in practice punishes not only reckless but also, more worryingly behavior that is negligent or even below the threshold for negligence. A mere ‘possibility’ of infecting the other person is sufficient to constitute the offence. In this respect the Act uses criminal law to do the work that is normally done by delict or the tort of negligence. But even more disconcerting, punishing for a ‘mere possibility’ of transmitting HIV lowers the threshold of criminal liability to a standard that is even lower than its delict or tort of negligence counterpart. Using criminal law in this manner renders it a blunt instrument that is apt to engender contempt for the law as well as repression. It is anomalous that the Act also punishes a person who is not carrying the HIV on the ground that there is a possibility that the person might have HIV. In this respect, the Act creates a crime of ‘fear and possibility’ and not of ‘effect and consequence’. 428 An offence is committed even if the defendant has no HIV or there is no transmission of HIV. By implication, the Zimbabwean Act also criminalizes mother-to-child transmission or the possibility thereof, where the mother knew that she had HIV or feared that she may have HIV. 429 While informed consent is a defence where the defendant was a person living with HIV, the defence does not apply to an HIV-negative defendant. [47] The Kenyan and Tanzanian laws on criminalization of HIV transmission are similar in one respect. Both countries have an HIV/AIDS Prevention Control Act that has broadly the same objectives. The Kenyan Act was passed in 2006 430 while the Tanzanian Act was passed in 2008. 431 Criminalization of HIV under these Acts is part of a broader HIV/AIDS strategy. Over and above criminalizing HIV 425 Section 79(1)(b) of the Zimbabwean Criminal Law (Codification and Reform) Act of 2004. 426 Ibid. 427 Ibid section 2(b) of the Zimbabwean Criminal Law (Codification and Reform) Act. 428 Cameron et al, ‘HIV is a Virus, not a Crime: Ten Reasons against Criminal Statues and Criminal Prosecutions’ supra at 2. 429 Ibid. 430 HIV/AIDS Prevention and Control Act of 2006 of Kenya. 431 HIV/AIDS (Prevention and Control Act of 2008 of Tanzania. 130
transmission, the Acts seek to: 1) raise awareness about HIV and educate the populace about its modes of transmission and prevention; 2) regulate HIV testing and prohibit compulsory testing subject to certain exceptions; 3) generally promote public health; and 4) protect the human rights of people living with HIV/AIDS, including the rights to equality, non-discrimination, and privacy. 432 [48] In respect of the criminalization provisions, section 24 of the Kenyan HIV/AIDS Prevention Act says: 24. Prevention of transmission (1) A person who is and is aware of being infected with HIV or is carrying and is aware of carrying the HIV virus shall- (a) Take all reasonable measures and precautions to prevent the transmission of HIV to others; and (b) Inform, in advance, any sexual contact or person with whom needles are shared of that fact. (2) A person who is and is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knew that fact and voluntarily accepted the risk of being infected. (3) A person who contravenes the provisions of subsections (1) or (2) commits an offence and shall be liable upon conviction to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding seven years, or to both such fine and imprisonment. Section 47 of The Tanzanian HIV/AIDS (Prevention and Control Act says: Any person who intentionally transmits HIV to another person commits an offence and shall on conviction be liable to imprisonment to a term not less than five years and not exceeding ten years. [49] In addition to special HIV/AIDS legislation, Kenya criminalises HIV in the Sexual Offences Act. Section 26 of the Kenyan Sexual Offences Act provides that: 26. (1) Any person who, having actual knowledge that he or she is infected with HIV or any other life threatening sexually transmitted disease intentionally, knowingly and willfully does anything or permits the doing of anything which he or she knows or ought to reasonably know - (a) will infect another person with HIV or any other life threatening sexually transmitted disease; (b) is likely to lead to another person being infected with HIV or any other life threatening sexually transmitted disease; (c) will infect another person with any other sexually transmitted disease, shall be guilty of an offence, whether or not he or she is married to that other person, and shall be liable upon conviction to imprisonment for a term of not less than fifteen years but which may be for life. [50] To a large extent, section 24 of the Kenyan HIV/AIDS Prevention and Control Act and section 26 of the Kenyan Sexual Offences Act are regulating the same conduct – transmission of HIV and yet punish the prohibited conduct differently. 432 Section 3 of the Kenyan Act; Preamble to the Tanzanian Act. 131
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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
Page 35 and 36:
said that while the requirement of
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eproductive autonomy. The fact that
Page 39 and 40:
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
Page 45 and 46:
anchored in development, New Partne
Page 47 and 48:
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
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with respect to that matter which i
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(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 126: and female victims. Sixteen years i
Page 127 and 128: [38] The other side of the argument
Page 129: een conducted to ascertain whether
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,
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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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