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

changing nature of rape law under international criminal law. 703 The same
applies to the move away from an emphasis on physical violence as a necessary
part of the actus reus of rape to focus, instead, on coercive circumstances.
[100] Criminalization of marital rape remains the exception rather than the rule in the
African region.
[101] Eritrea is exceptional in retaining its Penal Code immunity against prosecution
for rape upon agreement to marry.
[102] The imposition of state civil liability for failure to prevent sexual violence under
South African law in Carmichelle v Minister of Safety and Security and Another, 704 is a
new and significant development in the African region.
5.16 Conclusions on Trafficking
[103] The majority of African jurisdictions do not have trafficking specific legislative
provisions. Ethiopia, Nigeria, Tanzania and South Africa are exceptions.
[104] The Palermo Protocol has been influential in guiding the form and substance of
Nigerian, Tanzanian and South African trafficking-specific legislation.
5.17 Conclusions on Domestic/Partner Violence
[105] There is a conspicuous gap in the adoption of domestic violence-specific laws at
the domestic level in the African region. Among the sampled countries only
three countries – Malawi, South Africa and Zimbabwe – have domestic violence
specific legislation.
[106] Malawi, South Africa and Zimbabwe have formulated their laws to reflect a
progressive approach to regulating domestic violence as primarily gender-based
violence. The laws of these three countries protect people who are inside as well
as outside of a marital relationship, do not require the use of physical violence as
a necessary element of domestic violence, and provide remedies, including the
grant of protection orders, in a manner that is intended to respond to the
peculiarities of domestic violence. The Malawian, South African and
Zimbabwean approaches domestic violence are cognizant of its gender-violence
dimension
[107] The establishment of Anti-Domestic Violence Counsellors and the Anti-Domestic
Violence Council are important innovations in the African region in terms of
703 Articles 7(1)(g) 1 and 8(2)(e) (vi) 1 of the Rome Statute for the International Criminal Court;Prosecutor v
Ayekesu Case ICTR-96-4-T para 597 (1998) (International Criminal Tribunal for Rwanda); Prosecutor v
Furundzija Case No ICTY-95-17/1 para 174 (1998) (International Criminal Tribunal for Yugoslavia)
704 2001 (4) SA 938 (Constitutional Court of South Africa).
196