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

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een withdrawn. 194 Upon ratifying the Women’s Convention, like Malawi, Lesotho also entered a reservation that was also later to be withdrawn, to give precedence to Lesotho customary law where it is in conflict with the Women’s Convention. 195 Algeria, Egypt, Mauritania, Morocco, Niger and Tunisia entered reservations to accept the obligations under the Women’s Convention subject to domestic Shar’iah. 196 [6] According to the Vienna Convention on the Law of Treaties, a reservation should not be incompatible with the objects and purpose of the treaty. 197 The type of reservations that Malawi and Lesotho once entered in order to ring-fence customary law, are illustrations of reservations that would negate the very essence of a universal guarantee of equality and non-discrimination. The same applies to the reservations entered by Algeria, Egypt, Mauritania, Morocco, Niger and Tunisia in order to ring-fence Shar’iah. The right to equality has a foundational status in that it is essential to the enjoyment of equal protections of the guarantees that a human rights instruments provides. For a State to purport to enter a reservation that allows the states to be absolved from discharging human rights obligations in respect of a section of the population such as women on the ground of domestic customary law or religious law that treats women differently and less favourably than men negates the very essence of the universal nature of human rights. If given legal validity such a reservation would effectively constitute giving international validity to a regressive domestication of international human rights. In respect of historically marginalized and disadvantaged groups such as women, such reservations serve to maintain the status quo rather than promote human rights. 198 [7] The primary objective of the Women’s Convention, especially, is to eliminate all forms of discrimination that are sex or gender-based. Reservations that undermine the provisions such as articles 2 and 16 of the Women’s Convention that are crucial to sustaining the rationale of the Convention would be regarded as incompatible with the Convention at least by the Committee on the Women’s Convention. 199 It would follow, therefore, that the type of reservations entered in order to provide immunity to the patriarchal traditions of customary law and 194 Ibid 127. 195 Ibid 127. 196 Ibid 128. 197 Article 19 of the Vienna Convention on the Law of Treaties (1980). 198 RJ Cook ‘Reservations to the Convention on the Elimination of All Forms of Discrimination against Women’ (1990) 30 Virginia Journal of International Law 643. 199 Concluding Comments of the Committee on the Elimination of Discrimination against Women: Singapore, UN Doc. CEDAW/C/SGP/CO/3, 10 August 2007, paras 5 and 11. 62
Shar’iah leave no room for compatibility with the object and purpose of the Women’s Convention. 200 2.3 African Charter on Human and Peoples’ Rights [8] The African Charter, which has been ratified by every African country, 201 explicitly guarantees equality and non-discrimination on the ground of ‘sex’ as a fundamental right in more than one provision. The main equality and nondiscrimination provision is article 2 of the African Charter. It provides that: Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. 202 The equality and non-discrimination guarantee in article 2 is supplemented by articles 3 and 18 of the African Charter. Article 3 says: 1. Every individual shall be equal before the law. 2. Every individual shall be entitled to equal protection of the law. Women are accorded additional equality guarantees by article 18(3) which provides that: The State shall ensure the elimination of every distinction against woman and also to ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions. [9] As alluded to in Chapter 1, African Charter-based jurisprudence is in many respects at a nascent stage in respect of the adjudication of fundamental rights that bear on sexual health. As yet, there is no jurisprudence from either the African Commission on Human and Peoples’ Rights or the African Court on Human and Peoples’ Rights on the interpretation and application of ‘sex’ as a protected ground under the equality and discrimination clauses of the African Charter. Subject to this limitation, it is arguable that the implicit intention of the 200 S Cusack & R Cook ‘Combating Discrimination Based on Sex and Gender’ in C Krause & M Scheinin ‘International Protection of Human Rights: A Textbook (2009) 205-226 at 209-210; AE Mayer ‘Religious Reservations to the Convention on the Elimination of All Forms of Discrimination against Women: What Do They Really Mean? In CW Howland (ed) Religious Fundamentalisms and the Human Rights of Women (1999) 105-116. 201 African Commission on Human and Peoples’ Rights. Available at 202 Emphasis added. 63
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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 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: • Covenant on Economic, Social an
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
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care services, employment, or educa
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Special Provisions Act of 1998 394
Page 123 and 124:
[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
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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
Page 193 and 194:
way of inference, are even more rea
Page 195 and 196:
same time, Nigeria has federal poli
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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
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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
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
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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
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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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