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

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9 CONCLUDING CHAPTER _____________________________________________________________________________ 9.1 Introduction [1] The African region displays a mixed picture regarding the development of sexual health jurisprudence. It has strengths but also weaknesses and many gaps. On the positive side, African countries have generally been ready and willing to ratify United Nations human rights instruments that impact on sexual health, including the Covenant on Civil and Political Right, the Covenant on Economic, Social and Cultural Rights, the Women’s Convention and the Children’s Convention. Furthermore, the postcolonial period has seen the African region develop its own regional human rights system. Though the system established under the African Charter on Human and Peoples’ Rights is the most significant system but there are also promising sub-regional developments. [2] The African Charter, which guarantees both civil and well socio-economic rights, including the right to health, has potential to realize sexual rights in a holistic manner. The African Children’s Charter and the African Women’s Protocol are important additions to the African Charter. The African Women’s Protocol, in particular, is highly receptive to the recognition of sexual health as a human right. The relatively recent addition of an African Court of Human Rights to the treaty bodies of the African Charter signals an intention to augment regional human rights protections and so does the transformation of the Organization of African Unity into the African Union. [3] Also on the positive side are African domestic constitutions. In the postcolonial period, African jurisdictions have invariably adopted written constitutions as supreme law of the land. African constitutions have generally been inspired by the Universal Declaration and the Covenant on Civil and Political Rights, and contain Bills of Rights. To this extent, given judicial and political willingness, African constitutions are capable of yielding the type of sexual health rights that are associated with the Universal Declaration and the Covenant on Civil and Political Rights. The adoption of Bills of Rights means that while for the preponderant of African jurisdictions customary law and religious law continue to be sources of law, they are of diminishing legal importance and subordinate to constitutional law norms. [4] On the negative side, however, the African region is marked by a general absence of visible development of jurisprudence on sexual health. Though the African region has generally been a diligent and willing party to ratification of United Nations treaties, including the Women’s Convention, it has been slow to 236
discharge its treaty obligations, including in adopting appropriate legal protective measures. Even for jurisdictions that follow a monist tradition, ratification is not a reliable indicator of the domestic enforceability of state obligation that are the state has committed itself to. In the absence of domestic laws incorporating state obligation in a ratified instruments, ratified instruments promise much more than they can deliver. The enormous challenges that the African region faces in respect of HIV/AIDS, early/child marriages, sexual violence for example, have not been matched by a commensurate development of responsive jurisprudence. [5] Case-law on sexual health at the regional level is generally conspicuous by its absence. The African-Charter treaty bodies have yet to contribute tangibly towards sexual health jurisprudence, not least because communications on issues that have a sexual health dimension have not been forthcoming save for the Sudanese case - Doebbler v Sudan. 892 Where there is visible domestic jurisprudence, the African region has generally followed a pattern of uneven development with South Africa taking the lead in almost all the major areas of sexual health. The potential of many of the domestic constitutional provisions in protecting and promoting sexual health, including the rights to equality and nondiscrimination, has remained dormant and untested. Constitutional rights which guarantee fundamental rights that are consonant with universal human rights protections have tended in many areas to remain as paper rights rather than tangible rights that are fulfilled in practice. Furthermore, in those areas where African jurisdictions have intervened to regulate on matters that bear on sexual health, with a few exceptions, a human rights-based approach has generally not been systematically integrated as to create an enabling domestic legal environment in which the state has a duty to respect, protect and fulfil sexual health. 9.2 Equality and Non-Discrimination [6] There is universal recognition of ‘sex’ as a ground protected against discrimination in regional human rights instruments as well as in domestic constitutions. However, ‘sex’ has tended to be understood narrowly as a biological category only but not as social category. Only South Africa is systematically developing jurisprudence that is inspired by gendered understanding of sex. Furthermore, save in the selected area of inheritance, sex and gender have generally not been the subject of litigation before African domestic courts. [7] Though customary law stands in conflict with constitutional guarantees of equality on the ground of sex on account of its patriarchal orientation, domestic 892 Doebbler v Sudan (2003) AHRLR 153 (ACHPR 2003). Decision of the African Commission on Peoples’ and Human Rights. 237
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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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Children’s Charter, specifically,
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(e) maintains or hires a person to
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and coordinating with other domesti
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Page 189 and 190: 5.11 Female Genital Mutilation: Pre
Page 191 and 192: cause prolapsed and vaginal fistula
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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
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Page 215 and 216: [42] The Constitutional Court held
Page 217 and 218: [49] In EN and Others v The Governm
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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
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Page 235: particular as someone who is so mor
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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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