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

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criminally prosecuted. 284 Offences under the Kenyan Prevention and Control Act carry a maximum of two years imprisonment. 285 [70] In one sense, the Tanzanian HIV/AIDS (Prevention and Control Act) of 2008 mirrors its Kenyan counterpart in prohibiting discriminatory acts and policies on the basis on HIV status. 286 In another sense, it goes beyond its Kenyan counterpart by also prohibiting discrimination on the basis of association with a person living with HIV. 287 It prohibits HIV-related discrimination in the following areas: health care provision by a health care practitioner, 288 entry and participation in institutions, 289 travel and abode, 290 and employment. 291 The Tanzanian Act imposes a maximum sentence of a year in prison for violation of its provisions. 292 The Zimbabwean Labour Act prohibits discrimination on the basis of HIV status. 293 The Zimbabwean Act applies only to the workplace. Though Malawi has no law that specifically prohibits discrimination on the basis on HIV status, it has a constitutional provision as well as legislative provisions that can be inferred as proscribing HIV-related discrimination. These are: article 31(1) of the Constitution of Malawi, inter alia, guarantees a right to ‘fair labour practices’; section 5(1) of the Employment Act which prohibits discrimination in the workplace; and sections 57(1) and (3) of the Employment Act which require reasons for dismissal from employment to be valid. [71] Outside of the surveyed countries, several other countries have adopted legislation that outlaws HIV-related discrimination. Of particular interest in this respect are a number of West African countries that have adopted HIV-related legislation using more of less the same legislative model. 294 In this respect, 284 Ibid section 44. 285 Ibid section 43. 286 Section 28 of the Tanzanian HIV/AIDS (Prevention and Control) Act of 2008. 287 Ibid section 28. 288 Ibid section 29. 289 Ibid section 30. The Act uses ‘institutions’ generically to include schools and colleges: section 3 of the Act. 290 Ibid section 30. 291 Ibid section 30. 292 Ibid section 32 293 Section 5(1) of the Labour Act of 1985 as amended (Zimbabwe). 294 The ‘model legislation’ largely derives from a model of legislation that was commended to African legislatures at a workshop that was convened in N’Djamena, Chad in 2004, Family Health International, a non-governmental organization. Although the laws exhibit some differences, they all share the same goals, namely: 1) raise awareness about HIV and educate the populace about its modes of transmission and prevention; 2) regulate HIV testing and prohibit compulsory testing subject to certain exceptions; 3) generally promote public health; and 4) protect the human rights of people living with HIV/AIDS, including the rights to equality, non-discrimination, and privacy. The workshop also explains the 96
Benin 295 and Burkina Faso 296 Guinea 297 , Guinea-Bissau, 298 Mali, 299 Niger, 300 Sierra Leone 301 and Togo 302 are examples adopted legislation that prohibits HIV-related discrimination as part of a strategy intended to protect both public health as well as the human rights of people living with HIV. 2.11 Sexual Orientation as a Protected Ground [72] In the era of the HIV/AIDS pandemic, especially, discrimination on the basis of sexual orientation has a tendency of imposing silence on acknowledging and recognizing the diversity of sexualities, and, in consequence, undermines rather than facilitates access to treatment, HIV counseling and education and prevention strategies. Though existing United Nations human rights instruments do not explicitly protect sexual orientation against unfair discrimination, at least the Human Rights Committee has adopted the approach that sexual orientation is an implicitly protected ground under the non-discrimination clause of the Covenant on Civil and Political Rights as ‘other status’. 303 The Committee on Economic, Social and Cultural Rights has clearly said that ‘other status’ in article 2(1) of the Convention on Economic, Social and Cultural Rights includes ‘sexual orientation’. 304 African Charter-based instruments do not protect sexual progeny of the Kenyan and Tanzanian HIV/AIDS prevention and control legislation. The ‘model laws’ draw their orientation from international guidelines and in particular the United Nations General Assembly Declaration of Commitment on HIV/AIDS, GA Res S-26/2 of 27 June 2001. But it does not follow that the manner in which the laws are actually drafted is necessarily human rights compliant: Canadian HIV/AIDS Legal Network A Human Rights Analysis of N’Djamena Model Legislation on AIDS and HIV-specific Legislation in Benin, Guinea, Guinea-Bissau, Mali, Niger, Sierra Leone and Togo Canadian HIV/AIDS Legal Network (2007). 295 Article 18 of Benin’s Law 2003-04 of 3 March 2003 which prohibits HIV-related discrimination in accessing sexual and reproductive services. 296 Article 4 of Burkina Faso’s Law 049-2005/AN which prohibits HIV-related discrimination in the exercise of legal rights to housing, education, employment, health and social welfare. 297 Law on Prevention, Care and Control of HIV/AIDS No 2005-25 of 2005 (Guinea). Law 2003-04 of 3 March 2003 (Benin). 298 Framework Law Relating to the Prevention, Treatment, and Control of HIV/AIDS No. 64/2006/QH11 of 29 June 2006 (Guinea Bissau). 299 Law Establishing Rules Relating to the Prevention, Care, and Control of HIV/AIDS No 06-28 of June 2006 (Mali). 300 Law Relating to the Prevention, Care, and Control of Human Immunodeficiency Virus (HIV). Law No 2007-08 of 30 April 2007 (Niger). 301 Prevention and Control of HIV and AIDS Act of 2007 (Sierra Leone). 302 Law on the Protection of People with Respect to HIV/AIDS No 2005-012 (2005) (Togo). 303 Toonen v Australia Communication Number 488/1992 (31 March 1994), United Nations Human Rights Committee Document No CCPR/C/50/D/488/1992. 304 The Committee in its General Comment 20 on Non-Discrimination in Economic, Social and Cultural Rights E/C.12/GC/20 25 May 2009, para 32. 97
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SEXUAL HEALTH AND HUMAN RIGHTS IN T
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TABLE OF CONTENTS ACKNOWLEDGMENTS
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4.9 Marriage and Sexual Orientation
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9.2 Equality and Non-discrimination
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the Universal Declaration and the C
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3.3 Ages of consent to sexual activ
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and the Sexual Offences Act of Sout
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10.3 Though access to contraceptive
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1 INTRODUCTION TO THE STUDY 1.1 Int
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epresentative. Cameroon and Nigeria
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1.5 African Regional Human Rights S
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• receive information; 18 • bes
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provisions of the African Charter,
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[15] The Protocol to the African Ch
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and the International Covenant on E
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Though Africa has, at least, fourte
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Community has largely not been acti
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said that while the requirement of
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eproductive autonomy. The fact that
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Cairo and Beijing Conferences. 96 C
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the Treaty and to adjudicate disput
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elimination of conflicts, and that
Page 45 and 46: anchored in development, New Partne
Page 47 and 48: In respect of the assumption by col
Page 49 and 50: It is significant that the above ob
Page 51 and 52: (1) In the interpretation of all la
Page 53 and 54: primogeniture rule was a violation
Page 55 and 56: Islamic Shari’ah has become an im
Page 57 and 58: 1.17 Conclusions [62] The African C
Page 59 and 60: 2 EQUALITY AND NON-DISCRIMINATION 2
Page 61 and 62: • Covenant on Economic, Social an
Page 63 and 64: Shar’iah leave no room for compat
Page 65 and 66: The Commission shall also take into
Page 67 and 68: d) take corrective and positive act
Page 69 and 70: their children that were born durin
Page 71 and 72: The Court said that, as far as poss
Page 73 and 74: We, people of Cameroon, Declare tha
Page 75 and 76: with respect to that matter which i
Page 77 and 78: (i) to a fair disposition of proper
Page 79 and 80: article 7 of the Universal Declarat
Page 81 and 82: [37] On their own, inheritance or s
Page 83 and 84: • clearly situate equality and no
Page 85 and 86: ape. In Fraser v Children’s Court
Page 87 and 88: 2.8 Marital Status and African Char
Page 89 and 90: [52] The Court said that in giving
Page 91 and 92: [59] The decision of the Constituti
Page 93 and 94: Rights ought to be interpreted to p
Page 95: [68] It is not just in constitution
Page 99 and 100: Botswana in Kanane v The State, 310
Page 101 and 102: orientation is a protected status i
Page 103 and 104: [85] In reaching its conclusion tha
Page 105 and 106: legally sanctified heterosexual heg
Page 107 and 108: [95] South Africa provides an excep
Page 109 and 110: [99] Though sexual harassment is a
Page 111 and 112: (1) Sexual harassment may include u
Page 113 and 114: the workplaces. The scope of Zimbab
Page 115 and 116: 3 PENALIZATION OF SEXUALITY AND SEX
Page 117 and 118: him, or attempts to procure the com
Page 119 and 120: care services, employment, or educa
Page 121 and 122: Special Provisions Act of 1998 394
Page 123 and 124: [25] The appellant appealed against
Page 125 and 126: and female victims. Sixteen years i
Page 127 and 128: [38] The other side of the argument
Page 129 and 130: een conducted to ascertain whether
Page 131 and 132: transmission, the Acts seek to: 1)
Page 133 and 134: HIV to another person as doing some
Page 135 and 136: Section 80 of the Zimbabwean Crimin
Page 137 and 138: 4 REGULATION OF MARRIAGE AND THE FA
Page 139 and 140: of marriage to be eighteen years an
Page 141 and 142: legislation which sought to reflect
Page 143 and 144: [16] On the one hand, the Ugandan C
Page 145 and 146: Offences Act of 1998, prescribes 18
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Though a dying practice, leviratic
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[35] The Women’s Convention requi
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therefore, invalid under the Consti
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of gay and lesbian couples, paved t
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Safiyyatu Husseini 534 an alleged a
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5 VIOLENCE: SEXUAL VIOLENCE AND GEN
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5.2 SEXUAL VIOLENCE: REGIONAL FRAME
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the southern part of Nigeria is rep
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without her consent involving penet
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definition of rape should extend in
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human dignity, privacy and freedom
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A male person commits the offence o
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and if accepted concludes the matte
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developing the common law or custom
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internal security of the Republic.
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constitutional norm of separation o
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Children’s Charter, specifically,
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(e) maintains or hires a person to
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and coordinating with other domesti
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psychological abuse; economic abuse
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time, the Zimbabwean Act is differe
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5.11 Female Genital Mutilation: Pre
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cause prolapsed and vaginal fistula
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way of inference, are even more rea
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same time, Nigeria has federal poli
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designing legislation that is inten
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physical and mental health’. 708
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[9] Whilst health care facilities m
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failed to adopt a reasonable measur
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Nigerian constitution make referenc
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contraception and other sexual heal
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The requirement to obtain consent d
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Act of 1967. 782 Under English comm
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eligion, belief and opinion 796 and
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[42] The Constitutional Court held
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[49] In EN and Others v The Governm
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[58] Termination of pregnancy remai
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sexuality. 818 Education must seek
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countries. 838 When posited in this
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the application of this Act the con
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Nigeria 851 and Uganda 852 have sta
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8 SEX WORK 8.1 Introduction [1] The
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[7] Like Zimbabwe, Kenya criminaliz
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merchant as the merchant is likely
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particular as someone who is so mor
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discharge its treaty obligations, i
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marriages generally recognize marri
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emphasis on physical violence as a
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[38] Though access to contraceptive
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245
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South Africa B and Others v Ministe
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Tanzania Chiku Lidah v Adam Omari C
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BIBLIOGRAPHY: LEGISLATIVE INSTRUMEN
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Guinea Constitution of Guinea of 19
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Female Circumcision (Prohibition) L
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Togo Constitution of Togo of 1992 L
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SELECT BIBLIOGRAPHY Banda F Women,
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