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

More documents

Recommendations

Info

[8] Though in Hadijatou Mani Koraou v The Republic of Niger the applicant had based her case, in part, on the argument that her right to enter a marriage freely and voluntarily, the judgment was a missed opportunity as was highlighted in Chapter 1 of this study. The Court missed an opportunity to address child marriages generally. Furthermore, the Court missed an opportunity to link a coerced child marriage with sexual and reproductive health. At the age of 12, the applicant has been coerced into a sexual relationship with a 46 year old man. She bore four children from the forced union. 4.4 Domestic Law, Consent and Age for Marriage [9] A distinctive feature of African marriage laws is that statutory rules for marriage run side by side with customary and religious rules. In most jurisdictions, one can choose to contract a civil marriage under civil law or a customary marriage under customary law, or a religious marriage under religious law. Marriage requirements, rights within marriage, and the dissolution of marriage are accordingly governed according to the law under which the marriage was contracted. In theory, parties are free to choose whether to marry under civil laws or under customary or religious laws. In practice, however, the entrenchment of gender inequality in the African region, determines that, generally, it is men who make the choice. Other factors also determine choice in the type of law governing marriage, including geographical location, and education. Rural-based communities and those with little or no education are more likely to opt for customary law marriages than their urban, better educated and better economically provided counterparts. [10] The legal age for civil marriages is prescribed in all the jurisdictions that were surveyed. In respect of customary law and religious law there is generally no prescribed age. Eighteen years is the age at which the majority of African jurisdictions recognize capacity of a person to enter into a civil marriage on his or her own accord without requiring the consent of parents or a legal guardian. Kenyan 461 , Malawian, 462 Nigerian 463 and Ugandan, 464 and South African 465 statutes are exceptional in prescribing 21 years as the minimum age when a person can marry on the basis of their own consent. 466 However, statutes that retain 21 years as the age of consent are better understood as a relics of colonial 461 Section 19 of the Marriage Ordinance of 1962 (Kenya). 462 Marriage Act (Malawi). 463 Section 18 of the Marriage Act (Nigeria). 464 Section 17 of the Marriage Act (Uganda). 465 Marriage Act (South Africa). 466 Section 18 of the Marriage Act of 1914 (Nigeria). 140
legislation which sought to reflect the then prevailing age of majority in the colonising countries. They are less to do with deliberate legislative efforts to be more protective by maintaining an age that is higher than the prevailing global norm. [11] Typically, the ages of consent to marriage are stipulated in parliamentary marriage or family law statutes or civil codes that govern civil marriages. 467 In addition, a minority of countries address marriage in their constitutions. The Ethiopian, Malawian and Ugandan constitutions directly address marriage. Without specifying the age, the Constitution of Ethiopia requires ‘free and full consent’. 468 In addition, the Ethiopian Constitution mandates the recognition of marriages conducted under customary law and religious law. 469 Over and above providing that marriage must be entered into freely, 470 the Malawian Constitution prescribes ages of consent. It provides that a person who is over 18 years can enter into a marriage on their own accord. 471 Furthermore, the Malawian Constitution explicitly recognizes marriages by persons who have not attained 18 years. It provides that persons between the ages of 15 and 18 years can marry, with the consent of parents or guardians. 472 The Constitution of Malawi also implicitly recognizes marriages by persons below 15 years, or at least does not rule them out by providing that ‘the state shall actually discourage’ a person of such an age from entering into a marriage. 473 [12] The Ugandan Constitution, like its Ethiopian and Malawian counterparts, requires ‘free consent’ as a requirement for the validity of a marriage. However, it departs from its counterparts by prescribing a one fixed age. It provides that a ‘man’ and a ‘woman’ are entitled to marry ‘only if they are each of the age of eighteen years and above’. 474 The implicit proscription of same-sex marriages aside, the Ugandan Constitution does not appear to countenance any exception to the prescribed age of 18 years. 467 Cameroon: Civil Code and Civil Status Ordinance: Ethiopia: Civil Code (Ethiopia); Eritrea: Transitional Civil Code (Eritrea); Kenya: Marriage Act; African Christian Marriage and Divorce Act; Mohammedan Marriage and Divorce and Succession Act; Hindu Marriage Act; Malawi: Marriage Act of 1902; Nigeria: Marriage Act of 1914, Child’s Rights Act of 2003; South Africa: Marriage Act of 1961, Recognition of Customary Marriages Act of 1998; Tanzania: Marriage Act of 1971: Uganda: Marriage Act ; Marriages of Africans Marriage Act; Hindu Marriage and Divorce Act of; Zimbabwe: Marriage Act; Customary Marriages Act. 467 Section 19 of the Marriage Ordinance of 1962 (Kenya). 468 Section 34(2) of the Constitution of Ethiopia. 469 Section 34(4) ibid. 470 Section 22(4) of the Constitution of Malawi. 471 Sections 22(6) ibid. 472 Section 22(7) ibid. 473 Section 22(8) ibid. Emphasis provided. 474 Article 31 of the Constitution of Uganda. 141
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 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 and 136: Section 80 of the Zimbabwean Crimin
Page 137 and 138: 4 REGULATION OF MARRIAGE AND THE FA
Page 139: of marriage to be eighteen years an
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?