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

not absolute and that the Act contained a procedure for permitting the applicant
to avail themselves of the exceptions under the Act. It further observed that the
right to expression was an important part of the democratic process as it, inter
alia, facilitated respect for the moral agency of the individual and the search for
truth. At the same time, it is not an absolute right. It has to be balanced against
countervailing important interests, including protecting the dignity of children,
eradicating a market for visual images that are made from sexually exploiting
and abusing children and preventing the likelihood of the images being used to
exploit children. In this case the harm to the children outweighed the applicant’s
right expression.
7.4 Health Information and Education: The Right to Health
[17] As alluded to earlier, the realization of the right to health necessarily imposes on
the state an obligation to inform and educate the populace about health in
appropriate ways. Among the sampled countries South Africa and Ethiopia
provide for substantive rights to health. South Africa does so in the context of a
constitution which has provisions recognizing the rights to: access to health
services including reproductive health services for everyone; 847 basic health
services for children; 848 and treatment for those incarcerated by the state. 849 The
right to make decisions concerning reproduction in section 12(2(a) of the
Constitution necessarily implies a duty upon the date to fulfil this right through
inter alia, provisions of information, including information about pregnancy,
contraception and sexually transmitted infections.
[18] The duties incumbent upon the state in respect of health under the South African
Constitution are implemented through the National Health Act of 2003.
According to section 12 of the National Health Act, the national department and
every provincial department, district health council and municipality must
ensure that appropriate, adequate and comprehensive information is
disseminated on the health services for which they are responsible. The right to
education guaranteed by section 29 of the South African Constitution supports a
positive duty to provide information about health.
[19] The Ethiopian Constitution is explicit about the duty to provide information
pertinent to family planning. Article 35(9) of the Ethiopian Constitution says that
as part of preventing harm from pregnancy and childbirth, women have a ‘right
of access to family planning education, information and capacity’. Lesotho, 850
847 Section 27 of the Constitution
848 Section 28(1)(c) ibid.
849 Section 35(2)(e) ibid.
850 Articles 27 and 28 of the Constitution of Lesotho are state directive principles on health and education
respectively.
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