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

arising from domestic law but also from international obligations. It observed
that South Africa has ratified international agreements with anti-discrimination
provisions, including the African Charter, the Women’s Convention, the
Covenant on Civil and Political Rights, the International Convention of the
Elimination of All Forms of Racial Discrimination, the International Labour
Organization Convention 111 on Discrimination (Employment and Occupation)
Convention. It noted, in particular, that the International Labour Organization’s
Convention 111 proscribes discrimination such as HIV-related discrimination,
which has the effect of nullifying or impairing equality of opportunity or
treatment in employment or occupation. The Constitutional Court noted that
South Africa was party to the Southern African Development Community and
that in 1997, the Council of Ministers of the Southern African Development
Community, had formally adopted an code of conduct on HIV/AIDS and
employment – Southern African Development Community Code of Conduct on
HIV/AIDS and Employment – which, inter alia, provides that HIV status should
not be a factor in job status, promotion or transfer, discourages HIV testing 269
and requires that there should be no compulsory HIV testing in the workplace. 270
[67] Unlike the approach of the South African Court in Hoffman, the High Court of
Nigeria has interpreted the equality and non-discrimination grounds that are
listed in article 42 of the Nigerian Constitution narrowly. Article 42 protects
citizens of Nigeria from discrimination on the grounds of ‘ethnic group, place of
origin, sex, religion or political opinion’. In terms of drafting style, the grounds
are listed as a closed category rather than an inclusive one. In Festus Odaife v
Attorney General of the Federation and Others 271 the question arose whether HIV
status was implicitly protected against discrimination. The question arose in the
context of a challenge by prisoners living with HIV against the refusal by the
Nigerian Prison officials to provide medical treatment. It was held that article 42
does not provide protection against HIV-related discrimination as it does not
cover discrimination on the grounds of health or disease status. By way of a
shortcoming, the High Court interpreted article 42 literally and narrowly,
without regard to its purpose, as if article 42 was a parliamentary instrument
rather than a provision of Bill of Rights guaranteeing fundamental freedoms. 272
269 Item 4 of Southern African Development Community Code of Conduct on HIV/AIDS and
Employment
270 Item 5 of the Southern African Development Community Code of Conduct on HIV/AIDS and
Employment.
271 Festus Odaife and others v Attorney General of the Federation and others 2004) AHRLR 205 (NgHC 2004)
High Court of Nigeria.
272 E Durojaye ‘Discrimination based on HIV/AIDS Status: A Comparative Analysis of the Nigerian
Court’s decision in Festus Odaife and others v Attorney General of the Federation and others with other
Commonwealth Jurisdictions’ (2007) 11 Law, Democracy ad Development 133-151.
94