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

2.8 Marital Status and African Charter-Based Jurisprudence
[46] Article 2 is the general the equality and non-discrimination clause of the African
Charter. It does not list ‘marital status’ explicitly as a protected ground.
However, article 2 is drafted in an inclusive manner. It uses the term ‘other
status’ to denote grounds that are not listed but are implicitly protected. Marital
status fits comfortably into this implicit category not least because it is a ground
that is now clearly protected by United Nations human rights instruments,
including the Women’s Convention. 250 Furthermore, the listing of ‘marital status’
in article 1 of the African Women’s Protocol in the context of defining what
constitutes discrimination, puts the matter beyond doubt that marital status is a
protected ground under the equality and non-discrimination provisions of
African-Charter-based human rights treaties.
2.9 Marital Status and Domestic Jurisprudence
[47] Generally, constitutions of African countries do not explicitly list ‘marital status’
as a ground protected against discrimination. Section 9(3) of the South African
Constitution is an exception to the rule in listing ‘marital status’ as one of the
protected grounds. At the same time, ‘marital status’ is a ground that can be
assumed to being amenable to being read into equality clauses of African
Constitutions, not least because many African Constitutions list protected
grounds in an inclusive manner using terms such as ‘other status’, ‘social status’,
or ‘station in life’ or their equivalents. 251
[ 48] In addition to being an exception in listing marital status as a protected ground
under the equality and non-discrimination clause of the constitution, the South
African jurisdiction has also taken a lead in developing a judicial test for
determining whether a ground that is not listed as a protected ground is,
nevertheless, to be regarded as implicitly protected. Section 9(3) of the South
African Constitution lists the protected ground inclusively by saying: ‘The state
may not unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender, sex…’ The Constitutional Court of South
Africa has said that implicit grounds are ‘analogous’ grounds. They are those
ground that, in terms of the impact on persons and social groups who are the
object of discrimination, have an analogous effect. The Court has developed a
test for determining unfair discrimination which focuses on the impact of the
discriminatory conduct and its capacity to impair human dignity. It has used the
same test to determine what constitutes an analogous ground. A ground is
250 Articles 1 of the Women’s Convention.
251 See for example: article 25 of the Constitution of Ethiopia; article 14 of the Constitution of Eritrea;
article 20(1) of the Constitution of Malawi; Article 21(3) of the Constitution of Uganda.
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