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

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separately the regional system under the African Charter. All things being equal, sub-regional systems will, in general, be closer to aggrieved parties than the regional system. • The Court condemned the slavery that had been perpetrated against the applicant. • The Court found that the applicant had not consented freely to a marriage, and, instead, she had been subjected to slavery through the practices of Wahiya and Sadaka and in the process she had suffered physical and psychological harm. • The Court also found that the applicant has been discriminated against on the grounds of gender and social origin. • The Court held that the Court of First Instance of Niger had failed to condemn the enslavement of the applicant and by its actions and decisions had, instead, had implicitly accepted or tolerated the crime of slavery. On the negative side, the following observations can be made by way of impressing especially on the gaps the Court demonstrated in its understanding of international human rights as well as inconsistencies in its approach: • Whilst holding that the human rights of the applicant had been violated, the Court said that the violations were not attributable to the state of Niger and were, instead, only attributable to Souleymane. 81 In holding that only Souleymane was responsible for the violation, the Court singularly failed to avail itself of a now well accepted principle of human rights protection that holds the state accountable for the actions of third parties. 82 Though the ‘obligation to protect’ seeks to primarily hold the state accountable for violation of human rights by the state directly or by its agents, it is now accepted that where the state fails to take all reasonable measures to prevent, investigate, punish of redress violations of human rights by third parties, the state will be held accountable as if the state or its officials had committed the violations. 83 • Though the Court observed that the marriage laws of Niger, inter alia, require the consent of the parties for the marriage to be valid and that in this instance, the applicant had not consented, the Court failed to put under more focused and comprehensive human rights scrutiny Wahiya and Sadaka as customs that were still practiced in Niger and the degree to which the customs blatantly flout a catalogue of human rights include the liberty to choose when and whom to marry, sexual autonomy and 81 Hadijatou Mani Koraou v Republic of Niger, para 71. 82 M Scheinin ‘Characteristics of Human Rights Norms’ in Krause C & Scheinin M International Protection of Human Rights: A Textbook (2009) 19-38 at 28. 83 Human Rights Committee, General Comment No 31 on the nature of the general legal obligation imposed on State Parties to the Covenant, UN Doc. HRI/GEN/1/Rev.9 (2004); 36
eproductive autonomy. The fact that the applicant began to be subjected to these customs when she was only twelve years of age deserved a more deliberate inquiry on the part of the Court, not least because of the prevalence of child marriages in many parts of Africa. Child marriages are not merely a violation of liberty and self determination. They also impact adversely on sexual and reproductive health. • The applicant had argued that her arrest, detention and imprisonment for bigamy following conviction by the Criminal Court of First Instance were arbitrary and unlawful. Whilst holding that the applicant has been enslaved under the customs of Wahiya and Sadaka, the Court inexplicably found that the applicant had been lawfully arrested and detained and imprisoned in connection with the crime of bigamy. The court said: Detention is arbitrary if it is not founded on any legal basis. In this particular case the applicant’s arrest and detention intervened to implement a judicial decision rendered by the criminal court. The decision whether ill-founded or not, constitutes a legal basis that is not for the Court to assess. 84 1.10 Southern African Development Community [24] Southern African Development Community (Southern African Community): The Southern African Community was formed in 1980 as the Southern African Development Co-ordination Conference. Initially, the Southern African Community was formed as a sub-regional body for reducing economic dependence on economically dominant South Africa. At the time, South Africa was a pariah state on account of its apartheid system of government. The Southern African Development Coordination Conference became the Southern African Development Community in 1993, 85 and its members include countries that are part of the sample of this study. It comprises of 15 countries, namely Angola, Botswana, Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. [25] Though primarily concerned with economic and political integration, the Southern African Community is also concerned with the achievement of uniform protection and promotion of human rights. The Southern Africa Community has shown some signs of being a progressive sub-regional body in terms of the development and/or adoption of human rights instruments that directly or indirectly impact on sexual health. Among the objectives of the Southern African Community Treaty is alleviating poverty, enhancing the standard and quality of 84 Hadijatou Mani Koraou v Republic of Niger, para 91. 85 O Osode ‘The Southern African Development Community in Legal Historical Perspective’ (2003) 28 Journal for Juridical Science 1. 37
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 and 24: • receive information; 18 • bes
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: said that while the requirement of
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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