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

[9] Whilst health care facilities may not be immediately realizable in their entirety on
account of constraints in available resources, it is accepted under African
Commission jurisprudence that, as part of progressive realization, fulfilling a
right means, at a minimum, taking concrete and targeted steps towards the
realization of the right, including expending resources. 718 By providing in Article
26(2), especially, that ‘States Parties undertake to adopt all necessary measures
and in particular shall provide budgetary resources for the full and effective
implementation of the rights herein recognized’ 719 the African Women’s Protocol
implies that the right sexual health takes the form of a socio-economic right. In
this way, the African Women’s Protocol develops synergy with the approach of
the African Commission to the interpretation and application of the right to
health under article 16 of the African Charter.
6.3 Domestic Law
[10] At a domestic level, access to health services related to sex and sexuality in the
African region tends to be governed by non legislative administrative directives
and policy. Countries that have constitutional provisions and legislation that
addresses access to health are the exception to the rule. Also, litigation relating to
access to health services has generally not been pursued in the African region
with the result that court decisions on access to health services are still few and
far between.
[11] South Africa represents the only jurisdiction where there have been significant
developments in jurisprudence relating to access to health services. The South
African Constitution has several provisions that bear on access to health services.
The more direct provisions are: the right to an environment that is not harmful to
one’s health or well-being; 720 the right of access to health care services, including
reproductive health care; 721 the right not to be refused emergency medical
treatment; 722 the right of every child to basic nutrition, shelter, basic health care
services and social services; 723 and the right of an incarcerated person to
adequate accommodation, nutrition, reading material and medical treatment. 724
718 SERAC case para 47; Purohit and Another v The Gambia paras 80, 83.
719 Emphasis provided.
720 Section 24 of the South African Constitution.
721 Sections 27(1) and (2) ibid.
722 Section 27(3) ibid.
723 Section 28(1)(c) ibid.
724 Section 35(2)(e) ibid.
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