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

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achieve a contrary effect least serve this interest and call, instead, for regulation of sex work that promotes public health and is least restrictive of the choice to become a sex worker. [4] Given the intimate nature of sex, privacy is an issue in criminalizing sex work. Collecting evidence to support a sex work-related charges often involves bedroom snooping and interfering with the privacy of the sex workers and their clients. Laws that provide that the offence of offering sex for reward can only be committed by females implicate equality and non-discrimination. The same would apply where both females and males are implicated but in practice only one sex or gender (usually women) are prosecuted. A rule, policy or practice that is facially neutral but impacts disproportionately and adversely on a particular group that is otherwise entitled to equal protection from discrimination, is an instance of indirect discrimination. It is women who bear the brunt of criminal prosecution for sex work. 8.2 Domestic Regulation of Sex Work [5] The predominant pattern of regulating sex work among the surveyed countries is one of criminalizing soliciting for sex, living off earnings from prosecution keeping a brothel, procuring another person for sex work and coercing another person into sex. Often the laws purport not to criminalize sex work per se, but activities surrounding it. But the non-criminalization of the actual sex work in many instances tends to be only technical as sex work can hardly be conducted without infringing at least one of the surrounding acts that is prohibited. Since all laws criminalize living off the earnings from sex work, it cannot be said that in substance sex work itself is not criminalized. [6] Zimbabwean law does not criminalize sex work per se but activities around sex work. Section 81 of the Criminal Law (Codification and Reform) Act of Zimbabwe renders it an offence to ‘publicly’ solicit someone for the purpose of ‘prostitution’. 860 Soliciting in a public place is defined broadly to mean soliciting in ‘any place to which the public, or any section of the public, have access’. 861 It also includes soliciting though ‘publication in any printed or electronic medium’ that is intended for the public. 862 A person who facilitates prostitution such as by keeping a brothel or demands from the ‘prostitute’ a reward in return for facilitating ‘prostitution’ commits an offence. 863 It is also an offence to procure another for the purpose of prostitution. 860 Criminal Law (Codification and Reform) Act of 2004 (Zimbabwe) 861 Section 81(1)(a) ibid. 862 Section 81(1)(b) ibid. 863 Section 82 ibid. 230
[7] Like Zimbabwe, Kenya criminalizes the activities around sex work but not sex work itself. Its Penal Code renders it an offence for a male person to live off the earnings of ‘prostitution’ and to ‘persistently solicit’ for prostitution. 864 It is an offence for a male person to facilitate prostitution. A female person who lives of the earnings of prostitution or facilitates prostitution commits an offence. 865 Under the Kenyan Sexual Offences Act, it is an offence to procure children for the purposes of prostitution or to facilitate child ‘prostitution’. 866 [8] Malawi criminalizes coercing a person into ‘prostitution’, 867 facilitating prostitution, 868 and living off the earnings of prostitution. 869 In Republic v Kadzakumanja, 870 the High Court of Malawi said that section 13 of the Penal Code, which criminalizes living off the earnings of prostitution, is certainly violated when one person lives off the earnings of another that are derived from prostitution. At the same time the Court left open the question whether it is an offence for sex worker to live on her own earnings. In practice, however, law enforcement officers treat sex workers as offenders. 871 The Court said this was a ‘moot point’. 872 The laws of Eritrea, 873 Cameroon, 874 Lesotho, 875 Nigeria, 876 South Africa, 877 Tanzania, 878 and Uganda 879 all criminalize sex work and/or the activities around sex work. [9] With the exception of South African law, the constitutional validity of laws that criminalize sex work have not been challenged in the domestic courts. In Jordan and Others v The State, 880 the Constitutional Court of South Africa was asked to determine the constitutional validity of criminalization of sex work. The appellants, who had been convicted by a Magistrate Court under the South 864 Section 153 of the Penal Code (Kenya). 865 Section 154 ibid. 866 Section 15 of the Sexual Offences Act of 2006 (Kenya). 867 Section 143 of the Penal Code (Malawi). 868 Section 147 ibid. 869 Section 146 ibid. 870 Republic v Kadzakumanja Malawi Law Report Vol. 9, pp. 343-345 (1980). 871 Government of Malawi Combined Second, Third, Fourth and Fifth Periodic Report of States Parties to the CEDAW Committee CEDAW/C/MW1/2-5 (2004). 872 Ibid. 873 Section 604 of the Penal Code (Eritrea). 874 Sections 294(1) and 294(2), of the Penal Code (Eritrea). 875 Common law and section 10 of the Sexual Offences Act of 2003 (Lesotho). 876 Sections 255A and 255B of the Criminal Code (Nigeria). The code is applicable in the southern part of Nigeria. 877 Sections 2, 3 and 20 of the Sexual Offences Act of 1957 (South Africa). 878 Sections 139(a), 145, 146, 147, and 148 of the Sexual Offences (Special Provision) Act of 1998 (Tanzania). 879 Sections 131(1)(b), 131(1)(b), 136, 137 and 139 of the Penal Code (Uganda). 880 In Jordan and Others v The State 2002 (6) SA 642 (Constitutional Court of South Africa). 231
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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
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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
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[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
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internal security of the Republic.
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constitutional norm of separation o
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Page 181 and 182: (e) maintains or hires a person to
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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
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Page 201 and 202: [9] Whilst health care facilities m
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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: 8 SEX WORK 8.1 Introduction [1] The
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
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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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