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

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customary law is subordinate to common law where it is found by the court to be ‘repugnant to natural justice, equity and good conscience’ (the repugnancy test). 155 In Mojekwu v Mojekwu, 156 the Court of Appeal of Nigeria held that a customary law rule that recognized the right of a surviving male relative to inherit the estate of the deceased at the exclusion of closely related female relatives was repugnant to natural justice, equity and good conscience. 157 [45] In other jurisdictions, and Kenya is an example, parliamentary legislation, also provides authority for the invalidation of customary law, where such law is found to be ‘repugnant to justice’. Section 3(2) of the Kenyan Judicature Act says: The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay. Although this is a legislative rather than a constitutional rule, it nonetheless provides enabling jurisprudence for willing courts to uphold women’s equality and non-discrimination rights in those cases where customary laws are discriminatory. [46] Furthermore, in some of the more recent constitutions, the development of customary law to render it consonant with the constitutional values is expressly required as by the constitution as a positive duty incumbent on the courts that are charged with interpreting and applying law. Section 39(2) of the South African Constitution of 1996 exemplifies this approach when it says: When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the bill of rights. [47] Article 66(2) of the Namibian Constitution anticipates the supremacy of the Constitution when it says: Subject to the terms of this Constitution, it shall be competent by Act of Parliament for any part of such common or customary law to be repealed or modified, or for the application thereof to be confined to particular parts of Namibia or for particular periods. [48] Equally section 10 of the Constitution of Malawi of 1994 enjoins legislatures and the courts to treat the Constitution as ultimately determinative where for example, a rule of customary law is in dispute. It provides that: 155 Mokekwu v Mojekwu NWLR 283 (1997) (Court of Appeal, Nigeria). 156 Ibid. See also Nzekwu v Nzekwu (1989) 2 NWLR 373 (Supreme Court, Nigeria); Muojekwo and Others v Ekijeme and Others (2000) 5 NWLR 402 (Court of Appeal, Nigeria). 157 Section 252 of the Constitution of Swaziland of 2005 has constitutionalised this repugnancy test. 50
(1) In the interpretation of all laws and in the resolution of political disputes the provisions of this Constitution shall be regarded as the supreme arbiter and ultimate source of authority. (2) In the application and formulation of any Act of Parliament and in the application and development of the common law and customary law, the relevant organs of State shall have due regard to the principles and provisions of this Constitution. [49] Some African jurisdictions like Zimbabwe 158 and Kenya 159 are good examples promote a hybrid approach where customary law like all non constitutional laws is subordinate to the constitution, but it is concomitantly protected from the application of the equality and non-discrimination clauses of the constitution. The Zimbabwean Constitution, or at least the interpretation thereof by the Supreme Court of Zimbabwe exemplifies a jurisdiction in the WHO African region that has a constitution that not only recognizes legal pluralism, but even more significant expressly limits the reach of the constitution in customary law. 160 Section 23(1) of the Constitution of Zimbabwe guarantees a right to nondiscrimination. Section 23(2) articulates the prohibited grounds as well as what constitutes discrimination on the following way: (2) For the purposes of subsection (1), a law shall be regarded as making a provision that is discriminatory and a person shall be regarded as having been treated in a discriminatory manner if, as a result of that law or treatment, persons of a particular description by race, tribe, place of origin, political opinions, colour, creed, sex, gender, marital status or physical disability are prejudiced— (a) (b) by being subjected to a condition, restriction or disability to which other persons of another such description are not made subject; or by the according to persons of another such description of a privilege or advantage which is not accorded to persons of the first-mentioned description; and the imposition of that condition, restriction or disability or the according of that privilege or advantage is wholly or mainly attributable to the description by race, tribe, place of origin, political opinions, colour, creed , sex, gender, marital status or physical disability of the persons concerned. However, section 23(3) permits discrimination in areas that have historically been governed by customary law when it says: (3) Nothing contained in any law shall be held to be in contravention of subsection (1)(a) to the extent that the law in question relates to any of the following matters— (a) matters of personal law; (b) the application of African customary law in any case involving Africans or an African and 158 Section 23 of the Constitution of Zimbabwe which is discussed in this chapter. 159 Section 82(4) of the Constitution of Kenya which is discussed in Chapter 2. 160 See also: article 15(4)(c) of the Constitution of Botswana of 1966; article 33(5)(c) and (d) of the Constitution of Gambia of 1996; article 17(4)(b) of the Constitution of Ghana of 1992; section 82(4) of the Constitution of Kenya of 1992; section 27(4)(d) of the Constitution of Sierra Leone of 1991; and section 23(4)(c) of the Constitution of Zambia of 1991. 51
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 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: It is significant that the above ob
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:
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