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

[20] African customary laws and Islamic Shar’iah are decidedly patriarchal in
orientation. They entrench gender inequality by envisaging a subordinate role
for women, including in respect of decision-making about entry into marriage
and power relations within marriage.
[21] Customary and religious laws and practices of African countries create space for
coercing children into marriage and facilitating children into becoming sexual
partners and mothers at a premature age violate multiple human rights,
including the rights to liberty and self-determination, including sexual
autonomy, dignity, freedom from inhuman an degrading treatment, health, life,
and education. Early/child marriages are responsible for serious health and
psychological consequences, including deaths and disability among children.
[22] African jurisdictions have an obligation to bring the current operation and
application of their customary and Islamic Shari’ah laws and practices into line
with the obligations that they have assumed under United Nation and regional
treaties, including the Women’s Convention and the African. Women’s Protocol.
In particular, Articles 2(f) and 5(a) and 16 of the Women’s Convention, and
article 2, 5 and 6 of the African Women’s Protocol require African countries that
have ratified these instruments to take appropriate steps to render customary
practices that violate the right to choose whether to marry, and are
discriminatory on the grounds of gender as well as patently harmful to physical
and mental health.
[23] Criminalization of adultery especially under Islamic Shari’ah where stoning by
death is permitted negates human rights in a stark manner.
9.5 Violence: Rape
[23] The majority of African countries still adhere to the traditional formulation of
rape which requires vaginal penetration by a penis without the consent of the
woman.
[24] A few jurisdictions have reformed the elements of rape to reflect global
developments in the reconceptualization of rape. The broad and gender neutral
conceptualization of sexual violence under the Sexual Offences Act of Lesotho
and the Sexual Offences Act of South Africa and to a lesser extent under the
Sexual Offences Act of Kenya complement the changing nature of rape law
under international criminal law. 895 The same applies to the move away from an
895 Articles 7(1)(g) 1 and 8(2)(e) (vi) 1 of the Rome Statute for the International Criminal Court;Prosecutory
v Ayekesu Case ICTR-96-4-T para 597 (1998) (International Criminal Tribunal for Rwanda); Prosecutor v
Furundzija Case No ICTY-95-17/1 para 174 (1998) (International Criminal Tribunal for Yugoslavia)
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