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

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credit, inheritance and other social goods that have a bearing on socio-economic wellbeing generally. This is because access to health services is one of several determinants of health. It is well established that, over and above genetic inheritance, other determinants of health include income, education, housing, and socio-economic conditions generally. 179 The law can facilitate the promotion of health by combating rather than giving validity to social, economic or cultural factors that constitute barriers to health. Non-discrimination is one of the routes through which law can promote health, including sexual health. [3] In terms of the legal classification that is generally employed in human rights treaties as well as in domestic law, sex discrimination can classified as direct or indirect. Discrimination can be direct such as where a legislative provision, or more frequently, a policy directive requires only women to obtain the consent of their spouses as a precondition for treatment. 180 In the alternative, discrimination can be more subtle, and consequently, indirect, such as where a legislative provision or policy directive routinely requires all persons that are not adults to obtain the consent of their parents as a condition for obtaining access to contraceptive services. 181 Though outwardly neutral as between males and females, such a measure disproportionately adversely impacts on adolescent females. It is females who bear the risk of pregnancy and the burdens of bearing and raising a child. It is also females rather than males that carry the major burden of reproductive disease. Laws or policies that require everyone to pay for health services rendered are another example. They constitute indirect discrimination where women are the gender that is disproportionately underemployed and under-remunerated and thus disproportionately poor or disproportionately burdened with dependants. 182 [4] Equality and non-discrimination are principles as well as fundamental rights that are contained in the United Nations human rights treaties that have been signed ratified by the majority of African countries. The position on ratification by African countries of major United Nations human rights instruments that have non-discrimination clauses is as follows: • Convention on the Elimination of All Forms of Racial Discrimination: It has been ratified by all African countries except: Angola, Guinea-Bissau, São Tomé and Príncipe; 183 • Covenant on Civil and Political Rights: It has been ratified by all countries except Comoros, Guinea-Bissau, and São Tomé and Príncipe; 184 179 RJ Cook et al Reproductive Health and Human Rights: Integrating Medicine, Ethics, and Law (2003) at 18-19 180 Cook et al ibid at 197. 181 Ibid. 182 Ibid. 183 www2.ohchr.org/english 184 Ibid 60
• Covenant on Economic, Social and Cultural Rights: It has been ratified by all countries except: Botswana, Comoros, Mozambique, São Tomé and Príncipe, and South Africa; 185 • Women’s Convention: It has been ratified by all countries except: Somalia and Sudan; 186 • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; It has been ratified by all countries except Angola, Comoros, Eritrea, Gambia, Guinea-Bissau, Lesotho, Rwanda, São Tomé and Príncipe Seychelles, Sierra Leone, Somalia, Tanzania, and Zimbabwe; 187 • Children’s Convention: It has been ratified by all countries except Somalia; 188 and • Convention on the Rights of Persons with Disabilities: The following African countries have ratified this Convention: Algeria, Burkina Faso, Egpyt, Gabon, Guinea, Kenya, Lesotho, Malawi, Mali, Mauritius, Namibia, Morocco, Niger, Rwanda, Seychelles, South Africa, Uganda, and Zambia. 189 [5] Some African countries have, upon ratification, entered reservations 190 and/or interpretive declarations that convey an intention not to be bound by equality and non-discrimination clauses in some international treaties. In this regard, the following are noteworthy: • Covenant on Civil and Political Rights: Egypt made an interpretive declaration to accept the obligations under the Covenant on Civil and Political Rights subject to also respecting Islamic Shar’iah; 191 In respect of article 23(4) which requires states to guarantee spouses equality in marriage, Algeria made an interpretive declaration to accept the obligation under this article subject to respecting the essential foundation of the Algerian law in respect to marriage. 192 • Women’s Convention: Malawi initially entered a reservation to give precedence to domestic customary law over the provision of the Women’s Convention where the two are in conflict. 193 This reservation has since 185 Ibid. 186 Ibid. 187 Ibid. 188 Ibid. 189 http://www.un.org/disabilities/default.asp?id=257. 190 Article 2 of the Vienna Convention on the Law of the Treaties of 1980. 191 Viljoen International Human Rights Law in Africa (2007) at 102-103. 192 Ibid 103. 193 Ibid 127. 61
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SEXUAL HEALTH AND HUMAN RIGHTS IN T
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TABLE OF CONTENTS ACKNOWLEDGMENTS
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4.9 Marriage and Sexual Orientation
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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 and 56: Islamic Shari’ah has become an im
Page 57 and 58: 1.17 Conclusions [62] The African C
Page 59: 2 EQUALITY AND NON-DISCRIMINATION 2
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
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him, or attempts to procure the com
Page 119 and 120:
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
Page 127 and 128:
[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)
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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
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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
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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
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developing the common law or custom
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internal security of the Republic.
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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
Page 185 and 186:
psychological abuse; economic abuse
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time, the Zimbabwean Act is differe
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5.11 Female Genital Mutilation: Pre
Page 191 and 192:
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
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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
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merchant as the merchant is likely
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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
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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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