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

orientation explicitly. By way of analogy with the approach adopted by United
Nations treaty bodies, it can be argued that ‘other status’ or its equivalents in
African Charter-based instruments. 305
[73] With one exception – the South African Constitution – African Constitutions do
not protect sexual orientation explicitly. In those constitutions where analogous
grounds can be ‘read in’ on account of use of ‘other status’ or its equivalents, it
can be argued that sexual orientation is an implicitly protected ground. The
majority of constitutions would seem to allow this save for jurisdictions such as
Nigeria where a High Court has interpreted section 42 of the Nigerian
Constitution as a closed category of protected grounds that does not permit
reading in. 306 At the same time, the general antipathy against recognizing the
right to sexual orientation in several African countries that is from time to time
expressed at the highest political levels 307 counsels that it would be more prudent
not to assume that African domestic courts will be slow to be persuaded to ‘read
in’ sexual orientation. In all countries, with the exception of South Africa, sex
between men remains a criminal offence under common law and/or statute
inherited from colonial regimes. 308 Homosexuality is an offence regardless of
whether it takes place freely and in private between two persons with a capacity
to consent. Whilst the official campaigns against HIV/AIDS have not prevented
governments from acknowledging the reality of homosexuality, campaigns
targeted against gay and lesbian sexuality, and the laws rendering
homosexuality a criminal offence convey a different message. The decisions of
the Supreme Court of Zimbabwe in S v Banana 309 , and the Court of Appeal of
305 R Murray & F Viljoen ‘Towards Non-Discrimination on the Basis of Sexual Orientation: The Normative
Basis and Procedural Possibilities before the Africa Commission on Human and Peoples’ Rights and the
Africa Union’ (2007) 29 Human Rights Quarterly 86.
306 Festus Odaife and others v Attorney General of the Federation and others 2004) AHRLR 205 (NgHC 2004)
High Court of Nigeria.
307 In countries such as Gambia, Malawi, Namibia, Nigeria, Uganda, and Zimbabwe political leaders have
from time to time used strong, if not virulent rhetoric, to disavow the notion of recognizing the right to
sexual orientation. CG Ngwena ‘Sexuality Rights in Southern Africa with a Particular Reference to South
Africa’ (2002) 15(2) SA Public Law 1 ; E Cameron ‘Constitutional Protection of Sexual Orientation and
African Conceptions of Humanity’ (2001) 118 South African Law Journal 642; JD Mujuzi ‘Absolute
Prohibition of Same-Sex Marriages in Uganda’ (2009) 23 International Journal of Law, Policy and the Family
277; AJGM Sanders ‘Homosexuality and the Law: A Gay Revolution in South Africa’ (1997) 41 Journal of
African Law 100; O Phillips ‘Discontinuities of Custom in Zimbabwe and South Africa: The Implications
for Gendered and Sexual Rights’ (2004) 7(2) Health and Human Rights 82; EK Quansah ‘Same-sex
Relationships in Botswana: Current Perspectives and Future Prospects’ (2004) 4 African Human Rights
Journal 201; Murray & Viljoen ‘Towards Non-Discrimination on the Basis of Sexual Orientation: The
Normative Basis and Procedural Possibilities before the Africa Commission on Human and Peoples’
Rights and the Africa Union’, supra note; Smith D ‘Tutu Leads Fights to Halt Anti-Gay Terror Sweeping
Africa’ Mail & Guardian’ April 4, 2010.
308 Criminalisation of same-sex is discussed in Chapter 3 of this study.
309 S v Banana 2000 3 SA 885 (Supreme Court of Zimbabwe).
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