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

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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. 226
Nigeria 851 and Uganda 852 have state directive principles that whilst not necessarily founding justiciable right to health and/or education could, nonetheless, be interpreted as supporting a state duty to provide information and/or educate about health The Constitution of Uganda also guarantees a substantive right to education. 853 [20] Kenya, Tanzania and South Africa have legislative provisions that require the state to provide information about health. The Kenyan HIV/AIDS Control and Prevention Act of 2006 seeks, inter alia, to: promote public awareness about the causes, modes of transmission, consequences, means of prevention and control of HIV and AIDS; protect the human rights of persons living with HIV/AIDS; ensuring the provision of basic health care and social services for persons; to promote utmost safety and universal precautions in practices and procedures that carry the risk of HIV transmission. 854 The Act makes the promotion of awareness and education about HIV/AIDS a centerpiece of the strategy against HIV/AIDS. 855 The Act charges he state with and its organs and agencies with the duty to secure these objectives. The health and educations sectors are crucial delivery sites. The Act promotes voluntary counseling and testing as part of education about HIV/AIDS. 856 The Tanzanian HIV/AIDS (Prevention and Control) Act of 2008, which has similar objectives to its Kenyan counterpart, adopts the same approach to the promotion of awareness and educations about HIV/AIDS. [21] At a policy level, African jurisdictions have generally adopted policies on raising awareness about HIV/AIDS. 857 African jurisdictions have also generally adopted policies lifeskills education as a strategy for educating children about HIV/AIDS. 858 All the African countries have policies to ‘family planning’ information and services but with same having services for the youth as well. 859 851 Articles 17 and 18 of the Constitution of Nigeria contain state directive principles on health and education respectively. 852 Articles XVIII and XX of the Constitution of Uganda contain state directive principles on education and health respectively. 853 Article 30 of the Constitution of Uganda. 854 Article 4 of the HIV/AIDS Prevention and Control Act (Kenya). 855 Sections 4-7 ibid. 856 Sections 13-19 ibid. 857 Ethiopia ; Eritrea ; Cameroon ; Kenya: Kenya National HIV/AIDS Strategic Plan ; Malawi: Lesotho: National AIDS Policy; Nigeria National Policy on HIV/AIDS ; Tanzania ; ; South Africa: ; Uganda ; Zimbabwe: Zimbabwe National HIV/AIDS Plan; National Behaviour Change Strategy. 858 Ethiopia ; Eritrea ; Cameroon ; Kenya ; Malawi: Lesotho: National School Health Policy (?2002); Nigeria National Family Life and HIV Education for Junior and Secondary Schools (2003); Tanzania; South Africa: National Policy on HIV/AIDS for Learners and Educators in Public Schools, and Students and Educators in Further Education and Training Schools (1999); Uganda ; Zimbabwe. 859 Ethiopia ; Eritrea ; Cameroon ; Kenya: National Policy on Gender and Development (2000); National Policy for Sustainable Development; Malawi: National Health Policy (2008); Malawi Reproductive Health 227
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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
Page 39 and 40:
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
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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
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[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
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of gay and lesbian couples, paved t
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Safiyyatu Husseini 534 an alleged a
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5 VIOLENCE: SEXUAL VIOLENCE AND GEN
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5.2 SEXUAL VIOLENCE: REGIONAL FRAME
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the southern part of Nigeria is rep
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without her consent involving penet
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definition of rape should extend in
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human dignity, privacy and freedom
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A male person commits the offence o
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and if accepted concludes the matte
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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 and 204: failed to adopt a reasonable measur
Page 205 and 206: Nigerian constitution make referenc
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: the application of this Act the con
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: SELECT BIBLIOGRAPHY Banda F Women,
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