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

epresentative. Cameroon and Nigeria represent West Africa, Eritrea, Ethiopia,
Kenya, Tanzania, and Uganda represent East Africa, Malawi represents Central
Africa, and Lesotho, South Africa and Zimbabwe represent Southern Africa. The
absence of North Africa and, indeed, the general absence of Francophone
countries in the sample is not an oversight, but a consideration that was
prompted by the limitation in French language proficiency on the part of the
researcher. North African countries generally employ French as their official
language. Mapping jurisprudence from primary legal sources is not an exercise
that can be competently discharged without the ability to understand and
synthesize legal documents, including legislation and cases, in the language in
which they are published.
In respect of legal traditions as a factor influencing, the study’s point of
departure is that Africa’s colonial history is closely tied with the legal systems
and cultures of African countries. 2 At the time of independence, African
countries largely inherited the legal systems that were in place in the colonizing
countries. For example, French colonies inherited the French penal and civil
codes to regulate criminal and civil matters, whereas former British colonies
inherited the English common law tradition. Although post-colonial reforms
aimed at imprinting indigenous ownership on legal culture, and adopting bills of
rights to entrench fundamental rights that draw UN international human rights
instruments, the influence of colonial jurisprudence remains visible today in
virtually all the African countries. One of the considerations for selecting the
sample of countries, therefore, has been to include both civil law and common
law legal traditions.
However, in seeking to explain colonial legal heritage as a criterion for selecting
countries, it is important to highlight an important limitation. Owing to a lack of
capacity to access language other than the English language on the part of the
researcher, it has not been possible to achieve parity in terms of the colonial
heritage representativeness of the sample. Rather, the aim has been to at least
ensure that both the civil law tradition and the common law tradition are
represented. Among the sample, only Cameroon a partly French and partly
British former colony represents the civil law tradition inherited from the French,
whereas the rest to the sample represents the common law tradition inherited
from the British.
The colonial legal heritage aside, the recognition of customary law and religious
law as sources of law are also factors that have informed the choice of the
sample. The sample represents countries with plural legal systems in the sense of
countries in which legal norms emanating from customary law or religious law
run side by side with norms emanating from civil law, common law, statutory
2 F Viljoen International Human Rights Law in Africa, supra at 531-538.
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