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

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minor who has not attained the statutory age of consent and laws, mostly customary and religious laws that recognize the capacity of a person below that statutory age to marry and by implication partake of marital sex. [64] South Africa provides important human rights benchmarks in rendering ages of consent responsive to the eradication of discrimination based on age, sex and sexual orientation. The decision of the Constitutional Court in National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others, 442 is the benchmark on sexual orientation generally. The decision of the South African Supreme Court of Appeal in Geldenhuys v The State 2008 ZACC 21 443 , and the reform of ages of consent by the Criminal Law (Sexual Offences and Related Matters) Amendment Act No 32 of 2007 are useful benchmarks for the African region in the specific area of reforming ages of consent for young persons. [65] Regulating sexual activities between persons that are closely related is particularly important where the relationship gives rise to opportunities for sexually abusing a person who by reason of young age is in a position of dependency and is unable to protect himself or herself from the other party. In this way, incest laws reinforce other laws that protect the young and vulnerably for forced or exploitative sexual access. However, in respect of persons that are otherwise able to decide on whether to engage in sexual activities, including second degree relatives in the category of prohibited relationships as does the Zimbabwean Criminal Law Reform Act of 2004 says more about protecting the institution of custom and tradition than protecting the vulnerable. [66] While several African jurisdictions have in recent years been persuaded to adopt laws that specifically criminalize HIV transmission, the jurisdictions already had in place laws that could be used for the same purpose notwithstanding they were not HIV-specific. There is no evidence that the HIV-specific laws are being actively enforced or that they are making a difference by way of providing protection that would otherwise be unavailable under the ordinary laws that impose criminal and civil liability for intentional, reckless or negligent conduct that injures another person and causes them suffering and loss. [67] HIV-specific laws that criminalize HIV transmission are generally drafted very broadly in terms of conduct that constitutes the offence as to raise questions of the constitutional validity of many such laws. [68] African courts treat HIV as an aggravating factor during sentencing. 442 National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others 1999 (1) SA 6 (Constitutional Court of South Africa). 443 Geldenhuys v The State 2008 ZACC 21 (Supreme Court of Appeal of South Africa). 136
4 REGULATION OF MARRIAGE AND THE FAMILY 4.1 Introduction [1] Regulation of marriage has important connections with sexual health and human rights, not least in the African region where some customary laws or customary practices, religious laws and non-observance of the legally prescribed age of marriage condone marriages have adverse implications. The plural nature of African legal systems means that laws that require marriage to be a free and voluntary union between parties who are sufficiently mature to consent to marriage, and to be monogamous and to be an equal partnership, are juxtaposed with customary laws, religious laws, and legally as well as socially condoned social practices that depart from these premises. Early/child marriages, customary and religious laws and practices that sanction lack of autonomous decision-making when entering into marriage, gender inequality, and polygny are the main human rights and sexual health concerns in the African region. [2] This chapter maps jurisprudence in the African region in respect of the regulation of marriage and the family with a particular focus on three main issues, namely, • consent to marriage with particular reference to early marriage • polygny • discrimination on the ground of sex with particular reference to the requirement that the parties to a marriage be a male and a female • adultery • 4.2 International Human Rights Law, Consent and Age for Marriage [3] The notion of marriage as a voluntary union is well established under international human rights law. Several United Nations instruments recognize the validity of a marriage on the premises that it is a union between parties that are of a sufficiently mature age to enter into marriage, 444 and are in a position to choose to enter into the marriage freely and voluntarily, without coercion. 445 444 Article 16 of the Universal Declaration; article 23 of the Covenant on Civil and Political Rights; article 16(1) of the Convention on the Rights of Persons with Disabilities. 445 Article 16(2) of the Universal Declaration; article 23(4) of the Covenant on Civil and Political Rights; article 10 of the Covenant on Economic, Social and Cultural Rights; article 16(1)(b) of the Women’s 137
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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
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with respect to that matter which i
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(i) to a fair disposition of proper
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article 7 of the Universal Declarat
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[37] On their own, inheritance or s
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• 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 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: Section 80 of the Zimbabwean Crimin
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
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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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