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

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[13] Different ages of consent as well as third party consent to marriages of persons below 18 years are recognized by all jurisdictions either expressly in civil law statutes or through the recognition of the validity of marriages conducted under customary law and religious law. By way of examples only, the Cameroonian Civil Status Registration Ordinance provides different minimum ages for marriage – 18 years for males and 15 for females. 475 In the case of a person below 18 years, the consent of parents is recognized. 476 The position in Ethiopia varies from region to region as regions have jurisdictions to enact family codes. Before the reform of the Family Code, the ages for consent to marriage were 18 for males and 15 for girls. Under the reformed laws of Ethiopian regional family codes, 18 years is the predominant minimum age for both males and females, but permission can be given by the Ministry of Justice to permit the marriage of a person who has attained 16 years. [14] The Tanzanian Marriage Act 477 prescribes 18 years for males and 15 for girls as the ages of consent. The Tanzanian Marriage Act must be read side by side the Penal Code which provides that a person of African or Asiatic descent may marry or permit the marriage of a girl under the age of 12 years, providing there is no intention to consummate the marriage before the girl is 12 years old. 478 The Tanzanian Marriage Act also recognizes marriages contracted under customary, Hindu and Islamic laws. [15] Though the Kenyan Marriage Act prescribes 21 years as the age of consent on one’s accord, it simultaneously prescribes 16 years as the minimum age for marriage and requires the consent of a legal guardian where the person has attained 16 and is below 21 years. The Kenyan Marriage Act does not affect marriages that are contracted under African customary law. 479 Kenyan customary, law like African customary laws generally, does not provide for a minimum age of consent save the practice among certain communities of requiring girls to have menstruated prior to marriage as a sign of showing sufficient maturity to marry. Kenya also has legislation for regulating Islamic marriages - the Mohammedan Marriage and Divorce and Succession Act. 480 This Act does not expressly provide for an age of consent. Hindu marriages are governed by the Hindu Marriage Act. 481 475 Section 52(1) of Civil Status Ordinance (Cameroon). The President of the Republic may grant an exception to this rule. 476 Ibid. 477 Marriage Act of 1971 (Tanzania). 478 Section 138(6) of the Penal Code (Tanzania). 479 Section 37 of the Marriage Act of 1962 (Kenya). 480 Mohammedan Marriage and Divorce and Succession Act (Kenya). 481 Hindu Marriage Act (Kenya). 142
[16] On the one hand, the Ugandan Constitution appears to only recognize 18 years as the minimum age for marriage. 482 On the other hand, Uganda has parliamentary legislation that cannot stand side by side with its Constitution which prescribes 18 years as the minimum age. Uganda recognizes customary law marriages under the Marriage of Africans Marriage Act, 483 and Hindu marriages under the Hindu Marriage and Divorce Act. 484 Consent to marriage by a person below 21 years can be given by parents under the Marriage of Africans Marriage Act. The Hindu Marriage and Divorce Act prescribes 18 years for males and 16 years for females as the minimum ages for entering into marriage. [17] Zimbabwean law only provides for marriages under civil law 485 and under African customary law. 486 Zimbabwe differs from all the other jurisdictions in the sample in that it does not make any provision for religious marriages notwithstanding that it has sections of the population that practice marriages under Islamic law. For marriages under civil law, females under 16 years and males under 18 years require the consent of their parents to enter into a marriage. 487 Customary law does not prescribe a minimum age for marriage but where the female is below 18 years, it requires parental consent and an agreement to pay bridewealth. 488 [18] Like most of its African counterparts, Nigerian domestic law recognises civil marriages, customary marriages and religious marriages. In respect of civil and customary marriages, Nigeria is unremarkable in the sense that it mirrors much of the law of the other African jurisdictions. What is distinctive, however, about Nigeria is the predominance of religious marriages under Islamic Shari’ah in majority of the northern states of Nigeria. Islamic Shari’ah in Nigeria subscribes to the Maliki school of thought. 489 [19] All schools of Islamic jurisprudence do not countenance the notion of forced marriage. A marriage is a contract between two parties - mithaq - that freely consent to it. According to the Qu’ran a widowcannot be compelled to marry and neither can a child. Indeed, where consent has not been obtained, the coerced party is given power to annul the marriage. 490 Under the Maliki jurisprudence, which is followed by the northern Nigerian states, mutual consent is a 482 Article 31(1) of the Constitution of Uganda 483 Marriage of Africans Act (Uganda). 484 Hindu Marriage and Divorce Act (Uganda). 485 Marriage Act (Zimbabwe). 486 Customary Marriages Act (Zimbabwe). 487 Sections 20 and 22 of the Marriage Act (Zimbabwe). 488 Sections 4 and 7 of the Customary Marriages Act (Zimbabwe). 489 See discussion in Chapter 1 of this study. 490 Ibid. 143
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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
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ape. In Fraser v Children’s Court
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2.8 Marital Status and African Char
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[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 and 140: of marriage to be eighteen years an
Page 141: legislation which sought to reflect
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
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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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