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

to promote equality by recognizing equalities in different cultures in a plural
democracy. In practice, however, customary law has frequently served as a
potent instrument for perpetuating gender inequality and discriminatory
practices that disadvantage women. For the reason that customary law has
generally drawn from patriarchal traditions that countenance gender inequality,
it can be surmised that, in general, much of the existing customary law, including
customary law that is applicable especially in the field of family law
discriminates on the grounds of gender and has negative implications for sexual
health, especially to the extent that it denies agency on the part of women.
[40] On the whole, provisions of Bills of Rights in the Constitutions of African
countries forming are modeled on international human rights declarations or
instruments. At a minimum, African Bills of Rights seek to provide especially
guarantees of a civil and political nature that are broadly similar to the
guarantees in international human rights instruments, including the right to
human dignity, equality, liberty and security of the person. The potential to
guarantee maximum protection to sexual health is at its highest where customary
or religious laws are rendered ultimately subordinate to the supremacy of
constitutional rights and values.
[41] African constitutions, like their counterparts elsewhere, ultimately prescribe that
the constitution is the supreme law of the land and that any law that is
inconsistent with the constitution shall be void to the extent of the
inconsistency. 152 For this reason, as general rule, the supremacy of the bills of
rights over customary or religious laws is taken as given notwithstanding that it
is not specifically elaborated upon. The following observations of the Court of
Appeal of Botswana in Attorney-General of Botswana v Unity Dow 153 illustrate the
implicit supremacy of the Constitution over customary law:
Our attention has been drawn to the patrilineal customs and traditions of the
Botswana people to show, I believe, that it was proper for Parliament to legislate
to preserve or advance such customs and traditions. Customs and tradition have
never been static. Even then, they have always yielded to express legislation.
Custom and tradition must a fortiori, and from what I have already said about
the pre-eminence of the Constitution, yield to the Constitution of Botswana. A
constitutional guarantee cannot be overridden by custom. Of course, custom will
as far as possible be read so as to conform with the Constitution. But where this
is impossible, it is the custom and not the Constitution which must go.
152 In respect of the sampled countries, the respective provisions of their constitutions are as follows:
Ethiopia: article 9(1) of the Constitution of 1987; Eritrea: article 2(3) of the Constitution of 1996;
Cameroon: Preamble to the Constitution; Kenya: article 3; Lesotho: section 2 of the Constitution of 1993;
Malawi: section 5 of the Constitution of 1994; Nigeria: article 1 of the Constitution of 1999; South Africa:
section 2 of the Constitution of 1996; Tanzania: Constitution of 1977; Uganda: article 2 of the Constitution
of 1995; and Zimbabwe: section 3 of the Constitution of 1979.
153 Attorney-General of Botswana v Unity Dow 1992 LRC (Const) 623. This case is discussed in Chapter 2.
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