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

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African Union in July 2004, but the Protocol on the merger of the two courts and Rules of Procedure of the new court have yet to be adopted. The Protocol on the African Court of Justice is not yet in force. [13] In terms of decided cases, it is important to state that as yet, there is no established jurisprudence on sexual health emanating from the African Commission or the African Court on Human and Peoples’ Rights. Though the African Commission has received communications and issued decisions, save for the decision in Doebbler v Sudan 28 , which is discussed in this section, no communication or decision has turned directly on sexual health or even women’s rights. Below is an overview of the decisions of the African Commission that have a bearance on sexual health. At best the decisions demonstrate that the African Charters jurisprudence on sexual health is still a nascent stage. All the decisions, with the exception of Doebbler v Sudan require generous extrapolation in order to link them with sexual health. • Achuthan and Another (on behalf of Banda and Others) v Malawi (2000) AHRLR 144 (ACHPR 1995). This is a case where the African Commission, inter alia, confirmed that subjecting a political detainee to the following conduct: excessive solitary confinement; shackling within a cell; extremely poor quality of food; and denial of access to medical care, constitutes a violation of article 5 of the African Charter. Article 5 guarantees the right to human dignity and prohibits all forms of torture, cruel, inhuman or degrading treatment. Although the case does not address sexual health, it, nonetheless, illustrates that under the African Charter the right to human dignity and the right not to be subjected to cruel, inhuman or degrading treatment can be understood as expansive concepts that are capable of application to all those situations where a human being is denied basic necessities which could logically include necessities necessary for the realization of sexual health. • Democratic Republic of the Congo v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR 2003): This was the first inter-state communication to the African Commission. It found that the killings, massacres, rapes, mutilations and the stopping of essential services in hospitals committed by the armed forces of the respondent states whilst they were in occupation of the eastern provinces of the Democratic Republic of Congo constituted not only violations of Part III of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949 and Protocol 1 of the Geneva Convention, but also violations of several 28 Doebbler v Sudan (2003) AHRLR 153 (ACHPR 2003). Decision of the African Commission on Peoples’ and Human Rights. 24
provisions of the African Charter, including: article 4 which guarantees the right to life and integrity of the person; article 5 which guarantees the right to human dignity; and article 16 which guarantees the right to the best attainable state of physical and mental health. Though the violations found by the Commission include sexual violence, the decision did not specifically focus on sexual violence. • Doebbler v Sudan (2003) AHRLR 153 (ACHPR 2003): As alluded to earlier, this is the only case where the African Commission has adjudicated a matter that has a direct relationship with sexual health. The case was brought before the African Commission by eight students who had been subjected to corporal punishment under the Shari’ah Law-related provision in the Criminal Code of Sudan for acting in a manner considered ‘immoral’ and comprising of girls kissing, wearing trousers, dancing with men, crossing legs with men, and sitting with and talking with boys. The African Commission held that the application of lashes was contrary to article 5 of the African Charter which guarantees the right to human dignity and inter alia prohibits cruel, inhuman or degrading punishment. It is particularly significant that the Commission ordered Sudan to amend its Criminal Code to bring it into line with the country’s obligations under the African Charter, thus asserting the supremacy of regional human rights law over domestic law and implicitly condemning, as a human right violation, the proscription and punishment of sexual expression in public spaces under Shari’ah. At the same time, it is significant that the African Commission refrained from questioning directly the human rights legitimacy of Shari’ah. The decision refrained from pronouncing on whether the provision in Sudan’s Criminal Code that was based on Shari’ah Law was, itself, a violation of the Charter. The decision confined itself to pronouncing on the inappropriateness of the mode of punishment. While this case emanated from a jurisdiction outside of the WHO African region, namely Sudan, nonetheless, it illustrates a strength as well as a gap or even a weakness in the jurisprudence of the African Charter as it applies to sexual health. • Purohit and Another v The Gambia (2003) AHRLR 96 (ACHPR 2003): The African Commission held that the Lunatics Detention Act of Gambia which authorized the detention of patients on the ground of mental health but did not define who a ‘lunatic’ was or provide for safeguards in respect of the diagnosis, certification and detention, consent to treatment and review of treatment, constituted, inter alia, a violation of the following provisions of the African Charter: article 2 which guarantees equality; article 5 which guarantees human dignity; and article 16 which guarantees the right to the best attainable state of physical and mental health. Though the case does not address sexual health directly, it is 25
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 and 22: 1.5 African Regional Human Rights S
Page 23: • receive information; 18 • bes
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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