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

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limited utility to the extent that they do not always capture how domestic courts relate to international law in practice. In this connection, for example, though Francophone countries, such as Cameroon, purport to follow a monistic tradition, provisions of ratified treaties are not necessarily given direct effect. 10 1.6 African Charter-based human rights system [8] The jurisprudence emanating from the African Charter on Human and Peoples’ Rights (African Charter) 11 and the related treaties and protocols constitutes the most significant regional jurisprudence for the countries that fall under the African region. The relevant treaties, protocols, and legislation are summarized in this section. [9] The African Charter is the most important human rights instrument of the African Union (and formerly the Organization of African Unity). It has been ratified by all the fifty-three states that comprise the African Union. 12 One of the distinctive features of the African Charter recognizes not just civil and political rights, but also socio-economic rights and collective ‘peoples’ rights. Provisions of the African Charter that are a potential source of jurisprudence on sexual health include, but are not limited to rights to: • equality and non-discrimination; 13 • equality before the law; 14 • respect for life and integrity of the person; 15 • human dignity; 16 • liberty and security of the person; 17 10 Senegal provides an example. Article 98 of the Constitution of Senegal of 2001 provides for monism. However, in Guengueng and Others v Habré (2002) AHRLR 183, the Cour de Cassation held that provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that Senegal had ratified were not enforceable because the Senegalese legislature had not adopted domestic legislative measures. Kenya follows a dualistic tradition, but in Mary Rono v Jane Rono and Another, Civil Appeal 66 of 2002, Court of Appeal of Kenya (2005) the court gave direct effect to ratified provisions of the Convention on the Elimination of All Forms of Discrimination against Women. The Mary Rono case is discussed in Chapter 2 of this study. 11 African Charter on Human and Peoples’ Rights OAU Doc CAB/LEG/67/3 REV. 5. Adopted on 27 June 1981, and entered into force on 21 October 1986. 12 List of countries that have signed, ratified or acceded to the African Charter: http://www.africaunion.org/root/au/Documents/Treaties/List/African%20Charter%20on%20Human%20and%20Peoples %20Rights.pdf (Accessed December 22, 2009). 13 Article 2 of the African Charter. 14 Article 3 ibid. 15 Article 4 ibid. 16 Article 5 ibid. 17 Article 6 ibid. 22
• receive information; 18 • best attainable state of physical and mental health; 19 • non-discrimination against women and protection of the rights of the woman and the child 20 [10] The African Charter is supervised by the African Commission on Human and People’s Rights and the African Court on Human and Peoples’ Rights. The African Commission on Human Rights (the African Commission) was established to promote and protect human rights. 21 Its mandate is, inter alia, to promote and protect human rights and to interpret provisions of the African Charter. 22 As part of its protective function, the African Commission has a quasijudicial mandate to receive and adjudicate on communications alleging violations of human rights by the state or organs of the state. The communications can be submitted by States Parties, non-governmental organizations or individuals. 23 [11] The African Court of Human Rights (the African Court) is a newly established court. It was established by the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. 24 The jurisdiction of the African Court of Human Rights is to interpret and apply the Charter and any other instruments ratified by Member States. 25 The African Court has contentious jurisdiction as well as advisory jurisdiction. 26 In its contentious jurisdiction, thus far, the African Court has only adjudicated on one case. 27 [12] A resolution to merge the African Court on Human and Peoples’ Rights with the African Court of Justice of the African Union was adopted by the Summit of the 18 Article 9 ibid. 19 Article 16 ibid. 20 Article 18 ibid. 21 Article 30 ibid. 22 Article 45 ibid. 23 Articles 47 and 55 ibid. 24 Adopted on 10 June 1998 and entered into force on 25 January 2004. 25 Article 3 of the Protocol to the Africa Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. 26 Articles 3 and 4 ibid. 27 In December of 2009, the African Court issued its first ruling in the Matter of Michelot Yogogombaye v The Republic of Senegal. In this case, the Court dismissed a petition asking the Court to intervene in legal matter brought against former President of Chad, Habre, in Senegal, where Habre was facing a trial for alleged war crimes and crimes against humanity committed in Chad. The Court dismissed the petition on the ground that Chad has not entered a declaration accepting the Court's jurisdiction to hear individual petitions as required by article 34(6) of the Protocol establishing the Court: . 23
Page 1 and 2: SEXUAL HEALTH AND HUMAN RIGHTS IN T
Page 3 and 4: TABLE OF CONTENTS ACKNOWLEDGMENTS
Page 5 and 6: 4.9 Marriage and Sexual Orientation
Page 7 and 8: 9.2 Equality and Non-discrimination
Page 9 and 10: the Universal Declaration and the C
Page 11 and 12: 3.3 Ages of consent to sexual activ
Page 13 and 14: and the Sexual Offences Act of Sout
Page 15 and 16: 10.3 Though access to contraceptive
Page 17 and 18: 1 INTRODUCTION TO THE STUDY 1.1 Int
Page 19 and 20: epresentative. Cameroon and Nigeria
Page 21: 1.5 African Regional Human Rights S
Page 25 and 26: provisions of the African Charter,
Page 27 and 28: [15] The Protocol to the African Ch
Page 29 and 30: and the International Covenant on E
Page 31 and 32: Though Africa has, at least, fourte
Page 33 and 34: Community has largely not been acti
Page 35 and 36: said that while the requirement of
Page 37 and 38: eproductive autonomy. The fact that
Page 39 and 40: Cairo and Beijing Conferences. 96 C
Page 41 and 42: the Treaty and to adjudicate disput
Page 43 and 44: elimination of conflicts, and that
Page 45 and 46: anchored in development, New Partne
Page 47 and 48: In respect of the assumption by col
Page 49 and 50: It is significant that the above ob
Page 51 and 52: (1) In the interpretation of all la
Page 53 and 54: primogeniture rule was a violation
Page 55 and 56: Islamic Shari’ah has become an im
Page 57 and 58: 1.17 Conclusions [62] The African C
Page 59 and 60: 2 EQUALITY AND NON-DISCRIMINATION 2
Page 61 and 62: • Covenant on Economic, Social an
Page 63 and 64: Shar’iah leave no room for compat
Page 65 and 66: The Commission shall also take into
Page 67 and 68: d) take corrective and positive act
Page 69 and 70: their children that were born durin
Page 71 and 72: The Court said that, as far as poss
Page 73 and 74:
We, people of Cameroon, Declare tha
Page 75 and 76:
with respect to that matter which i
Page 77 and 78:
(i) to a fair disposition of proper
Page 79 and 80:
article 7 of the Universal Declarat
Page 81 and 82:
[37] On their own, inheritance or s
Page 83 and 84:
• clearly situate equality and no
Page 85 and 86:
ape. In Fraser v Children’s Court
Page 87 and 88:
2.8 Marital Status and African Char
Page 89 and 90:
[52] The Court said that in giving
Page 91 and 92:
[59] The decision of the Constituti
Page 93 and 94:
Rights ought to be interpreted to p
Page 95 and 96:
[68] It is not just in constitution
Page 97 and 98:
Benin 295 and Burkina Faso 296 Guin
Page 99 and 100:
Botswana in Kanane v The State, 310
Page 101 and 102:
orientation is a protected status i
Page 103 and 104:
[85] In reaching its conclusion tha
Page 105 and 106:
legally sanctified heterosexual heg
Page 107 and 108:
[95] South Africa provides an excep
Page 109 and 110:
[99] Though sexual harassment is a
Page 111 and 112:
(1) Sexual harassment may include u
Page 113 and 114:
the workplaces. The scope of Zimbab
Page 115 and 116:
3 PENALIZATION OF SEXUALITY AND SEX
Page 117 and 118:
him, or attempts to procure the com
Page 119 and 120:
care services, employment, or educa
Page 121 and 122:
Special Provisions Act of 1998 394
Page 123 and 124:
[25] The appellant appealed against
Page 125 and 126:
and female victims. Sixteen years i
Page 127 and 128:
[38] The other side of the argument
Page 129 and 130:
een conducted to ascertain whether
Page 131 and 132:
transmission, the Acts seek to: 1)
Page 133 and 134:
HIV to another person as doing some
Page 135 and 136:
Section 80 of the Zimbabwean Crimin
Page 137 and 138:
4 REGULATION OF MARRIAGE AND THE FA
Page 139 and 140:
of marriage to be eighteen years an
Page 141 and 142:
legislation which sought to reflect
Page 143 and 144:
[16] On the one hand, the Ugandan C
Page 145 and 146:
Offences Act of 1998, prescribes 18
Page 147 and 148:
Though a dying practice, leviratic
Page 149 and 150:
[35] The Women’s Convention requi
Page 151 and 152:
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 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 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:
SELECT BIBLIOGRAPHY Banda F Women,
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