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

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[44] In reaching its conclusion, the Constitutional Court considered international law, including a decision of the United Nations Human Rights Committee – Joslin v New Zealand. 521 In this case, the Human Rights Committee held that a New Zealand law denying marriage licences to same sex couples did not violate the Covenant on Civil and Political Rights. Article 23 of the Convention on Civil and Political Rights recognises the family as the natural and fundamental group unit in society guarantees its protection. 522 Furthermore, it guarantees the ‘right of men and women of marriageable age to marry and found a family’. 523 The Human Rights Committee said that the obligation of States Parties was to ‘recognise as marriage only the union between a man and a woman wishing to be married to each other’. The South African Constitutional Court distinguished Joslin v New Zealand on a number of grounds but most importantly on the ground that unlike the Convention on Civil and Political Rights, the South African Constitution explicitly provides for a right not to be discriminated against on the ground of sexual orientation, which the Human Rights Committee in Joslin found to lack support from a literal reading of the provisions of article 23 of the ICCPR. Furthermore, the Court said that under the South African Constitution, there is a presumption that discrimination on the basis of a listed ground such as sexual orientation is unfair. 524 [45] The Court said that it would constitute a perverse reading of the Constitution to rely upon principles in an international human rights treaty such as the Convention on Civil and Political Rights in order to take away rights that are guaranteed in a domestic constitution. In this sense, the case shows that while South Africa takes a lead from international human rights jurisprudence, it may depart from such jurisprudence where the jurisprudence provides for human rights guarantees that are less than the guarantees in the South African Constitution. International human rights norms arising from a treaty provide a persuasive framework for understanding and interpreting provisions of the South African Constitution but do not constitute binding law except where an Act of Parliament or other form of national legislation has incorporated the norms into domestic law. [46] The Fourie and the Equality Project cases along with parallel proposals of the South African Law Commission 525 to give legal recognition domestic partnership 521 Joslin v New Zealand (Communication No 902/1999) 17 July 2002 (Human Rights Committee 522 Article 23(1) of the Convention on Civil and Political Rights. 523 Article 23(2) ibid. 524 See the discussion in National Coalition for Gay and Lesbian Equality and Others v Minister of Justice and Others 1999 (1) SA 6 (Constitutional Court of South Africa) in Chapter 2 of this study. 525 South Africa Law Reform Commission Domestic Partnerships Discussion Paper 104 (Project 118) Pretoria: South African Law Reform Commission (2003); South African Law Reform Commission Summary of Report on Domestic Partnerships (Project 118) Pretoria: South African Law Reform Commission (2006). 152
of gay and lesbian couples, paved the way for the passing by the South African Parliament of the Civil Union Act of 2006. 526 [47] In essence, the Civil Union Act provides for the institution of civil union to remedy the historical exclusion of same-sex couples from recognition of formal unions. A civil union is a voluntary union between two persons who are at least 18 years which is solemnized and registered as either marriage or a civil partnership. 527 The rights and duties that obtain to couples under the Marriage Act which regulates the solemnization and registration of heterosexual marriages attach to civil unions. 528 The Act provides for a right to conscientious to allow marriage officers who object to civil unions not be compelled to partake of their solemnization and thus protect their right to freedom of conscience under section 15 of the Constitution. 529 [48] The Civil Union Act is significant for providing an administrative machinery for implementing the decision of the Constitutional Court in the Fourie case) and the Equality Project). The Civil Union Act adds South Africa to a steadily growing number of jurisdictions that recognize formally recognize marriages or unions between couples of the same sex. From a sexual health perspective, the Act constitutes a holistic recognition of the right to sexual health of couples of the same sex. [49] The cumulative effect of the decisions of the Constitutional Court in the Fourie and the Equality Project cases and the Civil Union Act of 2006 is to open access more clearly to gay and lesbian couples to socio–economic benefits arising from rights that have been historically only open to heterosexuals couples, including rights to inheritance, medical insurance coverage, adoption, wrongful death claims, spousal benefits, bereavement leave, tax advantages and rights attendant to divorce. 4.10 Adultery [50] Adultery has implications for sexual health to the extent that criminalization of adultery is a limitation of the sexual autonomy of a person who can otherwise make decision about sexual activities. Furthermore, in the instance of Islamic Shari’ah, adultery has more serious consequences as it can attract a sentence of death for adultery. Treating women differently from men in divorce cases where adultery is in issue constitutes unfair discrimination. 526 Act No 17. 527 Section 1 of the Civil Union Act (South Africa). 528 Section 13 ibid. 529 Section 6 ibid. 153
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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
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[59] The decision of the Constituti
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Rights ought to be interpreted to p
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[68] It is not just in constitution
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Benin 295 and Burkina Faso 296 Guin
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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 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: therefore, invalid under the Consti
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
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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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