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

of marital status constituted unfair discrimination because the Act treated a
relationship that fulfilled the same function as marriage differently and less
favourably. The Act failed to take into account that there is gendered division of
labour even between cohabitants and that women are vulnerable after the death
of their partners whether they are married or cohabiting. Justice Sachs in his
dissenting judgment said that marriage was not a mere matter of choice as
suggested by the majority, and that the reality in many women’s lives is that they
cannot freely choose whether to marry or become a cohabitant. According to
Justice Sachs, it was for the Constitution to vindicate equality and nondiscrimination
by transforming the systemic pattern of privileging marriage over
other institutions that serve the same social functions.
2.10 HIV Status as a Protected Ground
[62] Discrimination on the ground of HIV status is stigmatizing. It is a deterrent to
voluntary testing and counseling as well as access to treatment. HIV is a
pandemic in the African region such that discrimination on the ground of HIV
status is apt to undermine public health strategies to combat the spread of the
infection. Though not explicitly protected against discrimination by current
international human rights treaties, it is generally accepted that such
discrimination is implicitly prohibited under international human rights
instruments through ‘reading’ into the equality and non-discrimination clauses,
HIV status. Treaty bodies of United Nations human rights instruments have
from time to time issued General Comments that affirm the right to nondiscrimination
on the basis of HIV status. 265 Likewise, though African Charterbased
instruments do not list HIV in their equality and non-discrimination
clauses, HIV can be surmised as implicitly included in ’other status’ or its
equivalents.
[63] Constitutions of African jurisdictions do not list HIV as a protected ground in
their equality and non-discrimination clauses save in one instance – the
Constitution of Burundi which lists ‘suffering from HIV/AIDS’ among the
grounds protected against unfair discrimination. 266 As submitted earlier,
constitutional provisions ought to generally allow the reading in of protected
grounds where the ground is analogous, unless such reading in cannot be
sustained by a plausible interpretation of the Constitution. Provisions of Bills of
265 Committee on Economic, Social and Cultural Rights, General Comment 14 (The Right to the highest
Attainable Standard of Health) paras 28-29 (2000); Committee on the Convention on the Rights of the
Child, General Comment 3 (HIV/AIDS and the Rights of the Child) (2003) paras 7-9; The Committee in
its General Comment 20 on Non-Discrimination in Economic, Social and Cultural Rights E/C.12/GC/20
25 May 2009, especially paras 15, 27 and 33.
266 Article 22 of the Constitution of Burundi of 2004.
92