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

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children concerned were, on the whole, born to mothers who were indigent and reliant on public health sector facilities as private care was beyond their means. 736 [17] The Constitutional Court upheld the decision of the High Court but modified the order. It ordered the state forthwith to: 737 (a) remove the restrictions that prevent nevirapine from being made available for the purpose of prevention of mother-to-child transmission at public health facilities outside the pilot sites; (b) permit, facilitate and expedite use of nevirapine for prevention of mother-tochild transmission at public health facilities when in the judgment of the attending medical practitioner acting in consultation with the medical superintendent of the facility nevirapine is medically indicated, and if necessary, the mother concerned has been appropriately tested and counseled; and to (c) make provision if necessary for training of counsellors for counselling for prevention of mother-to-child transmission outside the pilot sites. [18] Unlike the Grootboom case, Minister of Health and Others was decided without explicit recourse to international law. This is regrettable. While invoking relevant international law would not have altered the outcome of the case, it would have, nonetheless, provided the Court with a template for not only reinforcing its reasoning, but also explicitly mapping out the parameters of the normative content of section 27. Equally, given that women and children were at the centre of Minister of Health and Others, it is unfortunate that the Court did not consider deriving any assistance from the Women’s Convention and the Children’s Convention as part of reinforcing the principle that to meet substantive reasonableness under section 27, that access to health care services must be sensitive to the needs of groups that are most vulnerable sections of society. [19] In Minister of Health and Others the Constitutional Court followed its own decision in Grootboom in refusing to endorse the notion of a minimum core obligation as a “self-standing independent positive right”. 738 The Court reiterated the “reasonableness” approach as the Court’s preferred approach. The notion of a minimum core is at best relevant to determining reasonableness. 739 The Court said that socio-economic rights could not be interpreted as conferring on everyone a right to demand a minimum core service or good from the state. 740 [20] Among the countries surveyed South Africa is the only jurisdiction where a right to health is constitutionally guaranteed. Though the Ethiopian, Malawian and 736 Ibid para 79. 737 Ibid para 135. 738 Minister of Health and Others v Treatment Action Campaign and Others para 39. 739 Ibid para 34. 740 Ibid. 204
Nigerian constitution make reference to the provision of health care services, they only do so in the context of directive state principles rather than the imposition of state duty with a corresponding individual right that is justiciable. 741 The decision of a Federal High Court of Nigeria in Festus Odaife v Attorney General of the Federation and Others 742 that was discussed in Chapter 2, in part, stands for the proposition that access to health services has not been judicially interpreted as a constitutional right. In response to a claim by prisoners seeking to challenge refusal to provide HIV treatment, it was held that the equality clause of the Nigerian Constitution – article 42 - does not provide protection against HIV-related discrimination as it does not cover discrimination on the grounds of health or disease status. [21] With specific references to contraceptive services, the general position is that access is impliedly permitted as there are generally no laws prohibiting access to contraception in the majority of countries. Licensing requirement of medicinal products aside, access to contraception is governed more by policies on family planning than by legislation for most countries. Without exception, all countries have reproductive and HIV/AIDS policies that promote the use by, and supply of contraception and condoms to, the public. 743 But whilst policies generally promote universal access without unfair discrimination for adult women, the actual practices are discriminatory on the basis of both age and marital status. 744 Unmarried minors, especially, are not catered for in the majority of African countries. [22] Some countries have legislation that specifically addresses contraception and HIV/AIDS. Cameroon uses legislation to permit sale of contraceptives by pharmacies. 745 Kenya 746 and Tanzania 747 have legislation that prohibits HIV- 741 Article 41 (3) and (4) of the Constitution of Ethiopia; Section 13(c) of the Constitution of Malawi; Section 30(2)(b) of the Constitution of Tanzania; Article 17(3)(d) of the Constitution of Nigeria. 742 Festus Odaife and others v Attorney General of the Federation and others (2004) AHRLR 205 (NgHC 2004) (Federal High Court of Nigeria). 743 For example: Ethiopia: Health Policy of Transitional Government of Ethiopia (1993); Kenya: National Population Policy for Sustainable Development (2000); National Reproductive Health Policy (2007); Family Planning Guidelines (2005); Adolescent Reproductive Health and Development Policy (2000) National HIV/AIDS Strategic Policy; Lesotho: National AIDS Policy; Malawi: Reproductive Health Policy (2002); Reproductive Health Strategic Plan; National AIDS Policy; Nigeria: National Policy on HIV/AIDS (); National Policy on Health and Development of Adolescents and Young People in Nigeria (2007); South Africa: Operational Plan for Comprehensive HIV/AIDS Care, Management and Treatment for South Africa (2003). Tanzania: National Population Policy (2006); Uganda: National Adolescent Health Policy for Uganda (2004); Zimbabwe: National HIV/AIDS Policy; National HIV/AIDS Strategic Plan (2006). 744 Centre for Reproductive Rights & Child and Law Foundation State of Denial: Adolescent Reproductive Rights in Zimbabwe (2002). 745 National Policy on Family Planning Act of 1980 (Cameroon). 746 Section 19 of the HIV/AIDS Prevention and Control Act of 2006 (Kenya). 747 Sections 19 and 24 of the HIV/AIDS (Prevention and Control Act of 2008) (Tanzania) 205
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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
Page 57 and 58:
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
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Rights ought to be interpreted to p
Page 95 and 96:
[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
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orientation is a protected status i
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[85] In reaching its conclusion tha
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legally sanctified heterosexual heg
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[95] South Africa provides an excep
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[99] Though sexual harassment is a
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(1) Sexual harassment may include u
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the workplaces. The scope of Zimbab
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3 PENALIZATION OF SEXUALITY AND SEX
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him, or attempts to procure the com
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care services, employment, or educa
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Special Provisions Act of 1998 394
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[25] The appellant appealed against
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and female victims. Sixteen years i
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[38] The other side of the argument
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een conducted to ascertain whether
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transmission, the Acts seek to: 1)
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HIV to another person as doing some
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Section 80 of the Zimbabwean Crimin
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4 REGULATION OF MARRIAGE AND THE FA
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of marriage to be eighteen years an
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legislation which sought to reflect
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[16] On the one hand, the Ugandan C
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Offences Act of 1998, prescribes 18
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Though a dying practice, leviratic
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[35] The Women’s Convention requi
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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
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
Page 203: failed to adopt a reasonable measur
Page 207 and 208: contraception and other sexual heal
Page 209 and 210: The requirement to obtain consent d
Page 211 and 212: Act of 1967. 782 Under English comm
Page 213 and 214: eligion, belief and opinion 796 and
Page 215 and 216: [42] The Constitutional Court held
Page 217 and 218: [49] In EN and Others v The Governm
Page 219 and 220: [58] Termination of pregnancy remai
Page 221 and 222: sexuality. 818 Education must seek
Page 223 and 224: countries. 838 When posited in this
Page 225 and 226: the application of this Act the con
Page 227 and 228: Nigeria 851 and Uganda 852 have sta
Page 229 and 230: 8 SEX WORK 8.1 Introduction [1] The
Page 231 and 232: [7] Like Zimbabwe, Kenya criminaliz
Page 233 and 234: merchant as the merchant is likely
Page 235 and 236: particular as someone who is so mor
Page 237 and 238: discharge its treaty obligations, i
Page 239 and 240: marriages generally recognize marri
Page 241 and 242: emphasis on physical violence as a
Page 243 and 244: [38] Though access to contraceptive
Page 245 and 246: 245
Page 247 and 248: South Africa B and Others v Ministe
Page 249 and 250: Tanzania Chiku Lidah v Adam Omari C
Page 251 and 252: BIBLIOGRAPHY: LEGISLATIVE INSTRUMEN
Page 253 and 254: Guinea Constitution of Guinea of 19
Page 255 and 256:
Female Circumcision (Prohibition) L
Page 257 and 258:
Togo Constitution of Togo of 1992 L
Page 259:
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