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

newer African constitutions such as the South African and Malawian
constitutions have drawn from a wider base such the Covenant on Economic,
Social and Cultural Rights and the Women’s Convention in providing equality
and non-discrimination guarantees.
[34] The preponderance of African constitutions protect the category of ‘sex’
expressly in a clause that is dedicated to equality and non-discrimination. It is
significant that even the two countries in the two WHO African region countries,
namely Algeria and Mauritania, in which religious law in the form of Islamic law
enjoys the status of being the religion of the state and necessarily provides the
basis for conflict of laws with human rights-treaty based jurisprudence on
equality, discrimination on the basis of sex is prohibited. ‘Sex’ is the preferred
category rather than gender. Only the Constitutions of Ghana, 217 South Africa
and Swaziland 218 use gender in their equality and non-discrimination clauses.
Ghana and Swaziland’s constitutions only use ‘gender’ while South Africa is a
lone exception is using both ‘sex’ and ‘gender’ as protected categories. The use of
gender as a protected category under the South African Constitution is designed
to reflect constitutional consciousness of sex as a biological category and gender
as a social category so as to align with an equality clause that envisages
substantive equality rather than merely formal equality. As a social category,
gender is a more encompassing category for promoting and protecting equality
for historically disadvantaged and marginalized groups.
[35] Constitutions that do not refer to ‘sex’ explicitly are a rare exception to the rule
and reflect an antiquated approach to drafting rather than a conscious decision
by the drafters to omit sex from protected categories. The Constitution of
Tanzania of 1977 is a case in point. Section 13(5) did not include ‘sex’ until it was
amended in 2000. It is significant, however than even before the amendment
definition of discrimination in article 13(5) of the Tanzanian Constitution
implicitly alluded to sex or gender as a protected category through its allusion to
stereotyping of members of certain social groups as conduct falling within the
meaning of unlawful discrimination. From the outset, Tanzanian courts
proceeded on the assumption that ‘sex’ was implicitly provided in article 13, as a
protected ground under the Tanzanian Constitution. 219 Article 9(f) of the
Tanzanian Constitution treats the Universal Declaration of Human Rights as an
integral part of its substantive provisions. ‘Sex’ is a protected ground under
217 Article 12(2) of the Constitution of Ghana of 1992.
218 Section 20(2) of the Constitution of Swaziland of 2005.
219 See also the approach adopted by the Court of Appeal in Attorney-General of Botswana v Unity Dow
(2001) AHRLR 99 (Court of Appeal of Botswana) when it read ‘sex’ into section 15 of the Constitution of
Botswana which is silent on this ground. This case was discussed earlier in this chapter. The difference,
however between the two cases is that the Tanzanian case, the constitution was completely silent, but in
the Tswana case, the constitution through silent on sex in section 15 – the main equality clause – at least
mentions sex in section 3.
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