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

the Universal Declaration and the Covenant on Civil and Political Rights, and
contain Bills of Rights. To this extent, given judicial and political willingness,
African constitutions are capable of yielding the type of sexual health rights that
are associated with the Universal Declaration and the Covenant on Civil and
Political Rights. The adoption of Bills of Rights means that while for the
preponderant of African jurisdictions customary law and religious law continue
to be sources of law, they are of diminishing legal importance and subordinate to
constitutional law norms.
1.5 On the negative side, however, the African region is marked by a general
absence of visible development of jurisprudence on sexual health. Though the
African region has generally been a diligent and willing party to ratification of
United Nations treaties, including the Women’s Convention, it has been slow to
discharge its treaty obligations, including in adopting appropriate legal
protective measures. Even for jurisdictions that follow a monist tradition,
ratification is not a reliable indicator of the domestic enforceability of state
obligation that are the state has committed itself to. In the absence of domestic
laws incorporating state obligation in a ratified instruments, ratified instruments
promise much more than they can deliver. The enormous challenges that the
African region faces in respect of HIV/AIDS, early/child marriages, sexual
violence for example, have not been matched by a commensurate development
of responsive jurisprudence.
1.6 Case-law on sexual health at the regional level is generally conspicuous by its
absence. The African-Charter treaty bodies have yet to contribute tangibly
towards sexual health jurisprudence, not least because communications on issues
that have a sexual health dimension have not been forthcoming save for the
Sudanese case - Doebbler v Sudan – that was decided by the African Commission
on Human and Peoples’ Rights. Where there is visible domestic jurisprudence,
the African region has generally followed a pattern of uneven development with
South Africa taking the lead in almost all the major areas of sexual health. The
potential of many of the domestic constitutional provisions in protecting and
promoting sexual health, including the rights to equality and non-discrimination,
has remained dormant and untested. Constitutional rights which guarantee
fundamental rights that are consonant with universal human rights protections
have tended in many areas to remain as paper rights rather than tangible rights
that are fulfilled in practice. Furthermore, in those areas where African
jurisdictions have intervened to regulate on matters that bear on sexual health,
with a few exceptions, a human rights-based approach has generally not been
systematically integrated as to create an enabling domestic legal environment in
which the state has a duty to respect, protect and fulfil sexual health.
2 Equality and Non-Discrimination
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