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

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the study is dominated by South Africa. As indicated earlier, South Africa was included primarily for the reason that its jurisprudence overwhelmingly provides illustrations of human rights best practices in the African region in almost all the components of the study. The pride of place that South African jurisprudence occupies in terms of human rights compliant jurisprudence is a direct consequence of the fact that in the post-apartheid era, South Africa has been a global leader in developing, through the adoption of a constitution, constitutional interpretation and legislation, progressive jurisprudence that has the capacity to maximally protecting human rights, including rights that impact on sexual health as will be apparent from sexual-orientation-related South African jurisprudence, for example. 174 In contrast, the preponderance of South Africa’s counterparts in the African region have largely lagged behind with some jurisdictions even falling far short of incorporating human rights norms into domestic law in spheres that are crucial for the respect, protection and fulfillment of human rights. However, it does not follow that South African necessarily enjoys better sexual health in practice as the realization of sexual health is contingent upon other factors, including effective implementation of jurisprudence that impacts on sexual health. 1.16 Structure of the Study [61] The study comprises nine chapters. Chapter 1, the present chapter, is the introduction to the study. Chapters 2 to 8 map the jurisprudence of the African region as it pertains to the following topics: • Non-discrimination (Chapter 2) • Penalization of sexuality/sexual activities (Chapter 3) • State regulation of marriage and the family (Chapter 4) • Violence (Chapter 5) • Access to health services related to sex and sexuality (Chapter 6) • Information, education and expression related to sex and sexuality (Chapter 7) • Sex work (Chapter 8) Each of the above topics, as indicated in parenthesis, constitutes a separate chapter. However, many of the chapters closely overlap on account of the pervasive relevance of the right to equality and non-discrimination. Chapter 9 is the concluding chapter. It summarises the best practices as well as the gaps. It seeks to pull the findings of the study together with a view to illustrating a regional picture of sexual health jurisprudence together with regional trends, strengths or best practices, and gaps. 174 South African jurisprudence on sexual orientation is discussed in Chapter 2 and Chapter 3 of this study especially. 56
1.17 Conclusions [62] The African Charter on Human and Peoples’ Rights and African-Charter basedtreaty jurisprudence has implications for sexual health. [63] Though the provisions of the African Charter are applicable to sexual health in much the same way as counterpart United Nations and regional treaties, save for the decision of the African Commission on Human and Peoples’ Rights in Doebler v Sudan, 175 there are no decided cases directly impacting on sexual health that emanate from the African Charter-based treaty bodies. [64] The Protocol to the African Charter on the Rights of Women in Africa has several provisions that directly apply to sexual health. The focus of the Women’s Protocol on equality and non-discrimination is cross-cutting. The provisions that address marriage, violence in armed conflict, sexual harassment, health, including reproductive and sexual health are particularly applicable to sexual health. [65] Sub-regional organizations, including sub-regional economic entities, have a role to play in protecting and promoting sexual health. The decision of the Court of Justice of the West African Community in Hadijatou Mani Koraou v The Republic of Niger 176 is a significant development for sexual health jurisprudence. The decision shows both the strengths as well as weakness of a sub-regional court in dealing with sexual slavery. [66] The decision of the Tribunal of the Southern African Development Community in Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe 177 , though not directly relevant to sexual health, is, nonetheless, significant for demonstrating both the capacity as well as judicial willingness of sub-regional tribunal to protect human rights under a sub-regional treaty that is primary designed to secure sub-regional economic and political integration. [67] The mapping of sexual health jurisprudence in the African region must take into account the plural nature of African legal systems as systems in which customary laws and religious law also constitute recognized law. [68] The general approach in the African region in terms of the application of domestic law is that customary laws and religious laws are subordinate to constitutions as well as to statutes that are adopted by the legislature. However, an exception must be made for jurisdictions in which religious law in the form of 175 Doebbler v Sudan (2003) AHRLR 153 (ACHPR 2003). Decision of the African Commission on Peoples’ and Human Rights. 176 Hadijatou Mani Koraou v Republic of Niger ECW/CCJ/JUD/06/08, October 28, 2008 (ECOWAS Community Court of Justice). 177 Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe (2008) SADCT 1, Case No 2/2007. 57
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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 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: Islamic Shari’ah has become an im
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
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the workplaces. The scope of Zimbab
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3 PENALIZATION OF SEXUALITY AND SEX
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him, or attempts to procure the com
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care services, employment, or educa
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Special Provisions Act of 1998 394
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[25] The appellant appealed against
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and female victims. Sixteen years i
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[38] The other side of the argument
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een conducted to ascertain whether
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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
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4 REGULATION OF MARRIAGE AND THE FA
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of marriage to be eighteen years an
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legislation which sought to reflect
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[16] On the one hand, the Ugandan C
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Offences Act of 1998, prescribes 18
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Though a dying practice, leviratic
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[35] The Women’s Convention requi
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therefore, invalid under the Consti
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of gay and lesbian couples, paved t
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Safiyyatu Husseini 534 an alleged a
Page 157 and 158:
5 VIOLENCE: SEXUAL VIOLENCE AND GEN
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5.2 SEXUAL VIOLENCE: REGIONAL FRAME
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the southern part of Nigeria is rep
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without her consent involving penet
Page 165 and 166:
definition of rape should extend in
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human dignity, privacy and freedom
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A male person commits the offence o
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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,
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(e) maintains or hires a person to
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and coordinating with other domesti
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psychological abuse; economic abuse
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time, the Zimbabwean Act is differe
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5.11 Female Genital Mutilation: Pre
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cause prolapsed and vaginal fistula
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way of inference, are even more rea
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same time, Nigeria has federal poli
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designing legislation that is inten
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physical and mental health’. 708
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[9] Whilst health care facilities m
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failed to adopt a reasonable measur
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Nigerian constitution make referenc
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contraception and other sexual heal
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The requirement to obtain consent d
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Act of 1967. 782 Under English comm
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eligion, belief and opinion 796 and
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[42] The Constitutional Court held
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[49] In EN and Others v The Governm
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[58] Termination of pregnancy remai
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sexuality. 818 Education must seek
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countries. 838 When posited in this
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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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