New book: Advancing SRH and Rights in Africa

Congratulations to Ebenezer Durojaye, Gladys Mirugi-Mukundi, and Charles Ngwena, whose co-edited book, was recently published by Routledge. Ebenezer Durojaye is Professor and Head of the Socio-Economic Rights Project at the Dullah Omar Institute, University of the Western Cape, South Africa; Gladys Mirugi-Mukundi is a researcher in the same project; and Charles Ngwena is Professor of Law, Center for Human Rights, University of Pretoria. We are pleased to circulate the abstract and Table of Contents of this open-access book, showing the wide range of authors and subjects covered.

Ebenezer Durojaye, Gladys Mirugi-Mukundi and Charles Ngwena, eds., Advancing Sexual and Reproductive Health and Rights in Africa: Constraints and Opportunities (Routledge, 2021), 268 pages. Entire book is online and downloadable.

This book explores recent developments, constraints and opportunities relating to the advancement of sexual and reproductive health and rights in Africa.

Despite many positive developments in relation to sexual and reproductive health in recent years, many Africans still encounter challenges, for instance in poor maternity services, living with HIV, and discrimination on the basis of age, gender, sexual orientation or identity. Covering topics such as abortion, gender identity, adolescent sexuality and homosexuality, the chapters in this book discuss the impact of culture, morality and social beliefs on the enjoyment of sexual and reproductive health and rights across the continent, particularly in relation to vulnerable and marginalized groups. The book also explores the role of litigation, national human rights institutions and regional human rights bodies in advancing the realization of sexual and reproductive health and rights in the region. Throughout, the contributions highlight the relevance of a rights-based framework in addressing topical and contentious issues on sexual and reproductive health and rights within Sub-Saharan Africa. This book will therefore be of interest to researchers of sexuality, civil rights and health in Africa.

The Open Access version of this book, available online here, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

Table of Contents

1. Introduction
Ebenezer Durojaye, Gladys Mirugi-Mukundi and Charles Ngwena

2. Abortion and ‘conscientious objection’ in South Africa: The need for regulation
Satang Nabaneh

3. Addressing Maternal Mortality through decriminalizing abortion in Nigeria: Asking the “Woman Question”
Ibrahim Obadina

4. Mainstreaming the ‘Abortion Question’ into the Right to Health in Uganda
Robert Nanima

5. Barriers to Access to Contraceptives for Adolescent Girls in Rural Zimbabwe as a Human Rights Challenge
Michelle Rufaro Maziwisa

6. It Takes Two to Tango! – The Relevance and Dilemma of Involving Men in the Realisation of Sexual and Reproductive Health and Rights in Africa
Sibusiso Mkwananzi

7. Positive Approaches to Childhood Sexuality and Transforming Gender Norms in Malawi
Godfrey Dalitso Kangaude

8. Addressing Female Genital Cutting/Mutilation (FGC/M) in The Gambia: Beyond Criminalisation
Ebenezer Durojaye and Satang Nabaneh

9. In Search of a Middle Ground: Addressing Cultural and Religious Influences on the Criminalisation of Homosexuality in Nigeria
Adetoun T Adebanjo

10. A Case for Removing Barriers to Legal Recognition of Transgender Persons in Botswana
Kutlwano Pearl Magashula

11. Advancing the Rights of Sexual and Gender Minorities under the African Charter on Human and Peoples’ Rights: The Journey to Resolution 275
Berry D. Nibogora

12. Lessons from Litigating for Sexual and Reproductive Health Rights in Southern Africa
Tambudzai Gonese-Manjonjo and Ebenezer Durojaye

13. Experiences from the Kenya National Commission on Human Rights KNCHR) on the Promotion and Protection of Sexual and Reproductive Health and Rights
Shatikha S. Chivusia

14. Monitoring implementation of the sexual and reproductive health and rights of adolescent children: the role of the African Committee of Experts on the Rights and Welfare of the Child
Ayalew Getachew Assefa

Open Access Book:
Read Full Book – Open Access Opens in new tab or window

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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Research resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

REPROHEALTHLAW Updates – Autumn 2020

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS
Amnesty International’s new institutional policy on abortion, released Sept 28, 2020, has been endorsed by the International Federation of Gynecologists and Obstetricians (FIGO). Amnesty Abortion Policy.
Press release. Explanatory note. Key messages. FAQ.

[Poland] Constitutional Tribunal ruled that abortion on grounds of congenital fetal defects is unconstitutional. Sygn. akt K 1/20, October 22, 2020. Decision in Polish. News report in English.

[The Philippines] PINSAN (network of NGOs and individuals) released proposed text of a “decriminalization bill” and an international petition to decriminalize abortion in the Philippines, September 28, 2020.
Proposed legislation. International petition. Bill launch on Facebook with Q & A.

SCHOLARSHIP
Access to Abortion: An Annotated Bibliography of Reports and Scholarship. (Toronto: International Reproductive and Sexual Health Law Program, 2020) 44 pages. Abortion access bibliography.

[abortion] “Why self-managed abortion is so much more than a provisional solution for times of pandemic,” by Mariana Prandini Assis & Sara Larrea, Sexual and Reproductive Health Matters, 28:1 (2020) Article online.

[Africa] “Adolescent sexual and reproductive health and universal health coverage: a comparative policy and legal analysis of Ethiopia, Malawi and Zambia,” by Godfrey Kangaude, Ernestina Coast & Tamara Fetters (2020) Sexual and Reproductive Health Matters, 28:2, 1-15. Abstract and article. Policy briefs: Ethiopia brief, Malawi brief. Zambia brief.

[Argentina] “A Case for Legal Abortion: The Human Cost of Barriers to Sexual and Reproductive Rights in Argentina,” (Human Rights Watch, 2020) 77-page report in English. Overview in English. Informe en Espanol.

[Australia] “Advancing Reproductive Rights through Legal Reform: The Example of Abortion Clinic Safe Access Zones,” by Ronli Sifris, Tania Penovic and Caroline Henckels, University of New South Wales Law Journal 43.3 (2020): 1078-1097. Abstract and Article.

[Belgium, Ireland] “Abortion law reform in Europe: The 2018 Belgian and Irish Acts on termination of pregnancy,” by Fien De Meyer – Medical Law International 20.1 (2020): 3-30. Abstract and article.

[India-abortion law] “The MTP 2020 Amendment Bill: anti-rights subjectivity,” by Alka Barua, Anubha Rastogi, V. Deepa, Dipika Jain, Manisha Gupte, and Rupsa Mallik. Sexual and Reproductive Health Matters 28.1 (2020). Commentary online.

[India] “Reimagining Reproductive Rights Jurisprudence in India: Reflections on the Recent Decisions on Privacy and Gender Equality from the Supreme Court of India,” by Dipika Jain and Payal K. Shah, Columbia Journal of Gender and Law 39.2 (2020): 1-53. Abstract and PDF access.

[Mexico] “Bioethics training in reproductive health in Mexico,” by Gustavo Ortiz-Millán and Frances Kissling, International Journal of Gynecology and Obstetrics 151.2 (November, 2020): 308-313  PDF free access for 12 months.  Submitted Text. 

[Nigeria] “The Conflict in Northeast Nigeria’s Impact on the Sexual and Reproductive Rights of Women and Girls.” by Onyema Afulukwe and Chinonye Obianwu (Nairobi: Center for Reproductive Rights and Legal Defence and Assistance Project, 2020) 26 page report.

[Philippines] “Reasons Why We Need to Decriminalize Abortion” by Clara Rita A. Padilla (of EnGendeRights and PINSAN).
Seven reasons op-ed, 22 reasons – full report.

[Surrogacy] “Paid surrogacy abroad does not violate public policy: UK Supreme Court,” by Bernard M. Dickens, International Journal of Gynecology and Obstetrics 150.1 (July 2020): 129-133 PDF- Free Access till July 2021.  Submitted Text.

“Transsexuality:  Legal and Ethical challenges,” by Bernard M. Dickens.  International Journal of Gynecology and Obstetrics 151.1 (October, 2020): 163-167 PDF free access for 12 months.   Submitted Text.

US-focused news, resources, and legal developments are available  on Repro Rights Prof Blog. View or subscribe.

JOBS
Links to employers in the field of Reproductive and Sexual Health Law are online here.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Information resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Nigerian Court denies lesbian group registration

Many thanks to Obiagbaoso Maryanne Nkechi, an LL.M student in Sexual and Reproductive Rights in Africa, at the Center for Human Rights of the University of Pretoria’s Faculty of Law. We thank her for summarizing and commenting on this 2018 High Court decision for our online updates to the three-volume series: Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts, available here.

We are pleased to circulate excerpts from her overview and some of her comments on the decision.

Pamela Adie v. Corporate Affairs Commission, Suit No. FHCI ABJICSI82712018, Decision of November 16, 2018 Federal High Court of Nigeria (Abuja Judicial Division)  Decision online.  6-page overview and comments by Obiagbaoso Maryanne Nkechi.

COURT HOLDING                          
The Court dismissed the case of the Applicant on the ground that the existing and operative Same Sex Marriage (Prohibition) Act of 2013 (SSMPA) does not support such association and for as long as the Act has not been repealed, the case of the Applicant failed.

Summary of Facts
In October 2017, the Applicant [Pamela Adie] founded an association with the name ‘Lesbian Equality and Empowerment Initiatives’ with the main objective of advocating for the rights of sexual minority women in Nigeria. She had sought to register the name of the association with the Corporate Affairs Commission, but was refused registration on the ground that the proposed name violated section 30 of the Companies and Allied Matters Act (CAMA) for being misleading, offensive and contrary to public policy. Additionally, registration was refused on the basis that the association violated the SSMPA, which prohibits same sex marriages and associations in Nigeria. The Applicant undertook her right of appeal as provided in section 36(2) of CAMA by petitioning the Registrar General of the Corporate Affairs Commission to overrule the decision. The Registrar General declined to do so, making the rejection final.

Dissatisfied with the decision of the Corporate Affairs Commission, Pamela Adie applied to the Federal High Court of Nigeria, seeking redress. She alleged that the refusal to register her association violated her fundamental rights to freedom of expression and association as contained in section 39 and section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (CFRN) and Articles 9(2) and 10(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (ACHPRA) of 1986 respectively.

“The case of the Applicant failed because Section 45(1)(a) [of the Nigerian Constitution] provides for the limitation of a right where the right is in conflict with public safety, public order and public morality . . . [and] the exercise of fundamental rights is not absolute — these rights can be curtailed by relevant laws. The Court . . . [noted] section 4 of the SSMPA is an example of the laws that prohibit the registration of same-sex associations in Nigeria. . . . “

Significance (excerpts):
The Court chose to remain within the confines of its own Constitutional jurisprudence . . . that allows for the overriding of rights in certain circumstances as an acceptable limit on the human rights of Nigerians. . . . It missed an opportunity to look more broadly into the realm of international law . . . [and] also did take cognizance of the ACHPRA that was brought to its attention by the Applicant’s counsel. . . .

The Court did not align with international human rights standards that protect the rights of all persons, irrespective of gender identity or sexual orientation [although] Nigeria had ratified African Charter of Human and Peoples’ Rights in 1986 and its Maputo Protocol in 2004, as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) in 1993. Nigeria is therefore bound by CESCR’s General Comment 20 and ICCPR Article 17, which, according to the Human Rights Committee’s decision in Toonen v. Australia (1994), is violated by laws criminalizing homosexual activity between consenting adults, and more recently, the African Commission on Human and Peoples’ Rights Resolution 275, which notes that acts of violence against an individual as a result of gender identity or sexual orientation violates a person’s right to dignity and right to be free from discrimination.

The full text of this commentary is online here: Case comment by Obiagbaoso Maryanne Nkechi.
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RELATED RESOURCES:
“Nigeria avoided constitutional scrutiny of anti-gay laws,” Teriah Joseph Ebah v. Federal Government of Nigeria, Suit No. FHC/ABJ/CS/197/2014.  Decision of October 22, 2014 (Federal High Court of Nigeria at Abuja) Overview on Reprohealthlaw Blog.   Case comment by Ovye Affi.

Successful LGBT registration cases from other African courts:

• Eric Gitari v Non-Governmental Organizations Co-Ordination Board & 4 Others [2015] eKLR, Petition No. 440 of 2013 (High Court of Kenya at Nairobi)  [LGBT organizations can be registered.]  Decision online.
• Thuto Rammoge & 19 Others v The Attorney General of Botswana [2014] MAHGB-000175-13 (High Court of Botswana). [Homosexual rights advocacy society received official recognition.]  Decision online.
• Attorney General of Botswana v. Thuto Rammoge & 19 Others [2016]  CACGB-128-14 (Botswana Court of Appeal at Gaborone)  [Appeal dismissed]  Decision online
• Republic v Non-Governmental Organizations  Co-ordination Board & another ex-parte Transgender Education and Advocacy & 3 Others [2014] eKLR, JR Miscellaneous Application No. 308a of 2013 (High Court of Kenya at Nairobi (Milimani Law Courts) [Ordered transgender organization to be registered]. Decision online.

For overviews of African jurisprudence. see Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts, freely available and updated here.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Information resources, and Reprohealthlaw Commentaries Series.  TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Nigerian High Court avoided constitutional scrutiny of anti-gay laws

Many thanks to Ovye Affi, an LL.M student of Sexual and Reproductive Rights in Africa, in the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa. He kindly contributed a 6-page case summary to the updated edition of Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts., online here. We are pleased to circulate a few excerpts about this “first suit in a Nigerian court which specifically sought the protection of the rights of homosexuals.”

Cite as: Ovye Affi, “Nigerian High Court avoided constitutional scrutiny of anti-gay laws : Mr. Teriah Joseph Ebah v. Federal Republic of Nigeria (2014),” Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, Reprohealthlaw Blog, Dec. 10, 2019 Decision online.  6-page Case Comment by Ovye Affi.

“Court Holding: The Court held that the Applicant in this case has no legal standing to bring an action against the Nigerian Government on the constitutionality of the prohibition of same-sex conduct, marriages and associations, because the Applicant did not claim to be a homosexual. Furthermore, the Court held that the Applicant, who claims to have instituted the suit on behalf of the ‘Gay Community in Nigeria’, had no legal standing to so institute the action because there is no such body or organization in Nigeria.

“Summary of Facts: Statutes in Nigeria have long criminalised ‘offences against the order of nature,’ which were interpreted to include same-sex conduct. In 2013, the Federal Republic of Nigeria, in an attempt to further clamp down on actual or perceived homosexuals, enacted the Same Sex Marriage (Prohibition) Act (SSMPA), which confirms the criminalization of homosexual activities by expressly criminalizing marriages between homosexuals, as well as support for homosexuals or homosexual associations. The Applicant instituted this suit at the Federal High Court, Abuja Division, seeking answers as to whether the provisions of the SSMPA infringe the constitutionally guaranteed rights of members of the LGBT+ community to [1] freedom from discrimination on grounds of sex; [2] liberty; [3] freedom of association; [4] dignity; and [5] privacy and whether the provisions of the SSMPA are null and void to the extent of their inconsistency with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (The Constitution).”

“Court’s Analysis: In determining the preliminary objection, the Court observed that, according to Section 46(1) of the Constitution, an applicant in a fundamental rights action must establish that his rights had been contravened or threatened. The Court conceded that it is aware of the fact that the Preamble to the Fundamental Rights Enforcement (Procedure) Rules, 2009 (FREP Rules) provide that ‘no human rights case may be dismissed or struck out for want of locus standi [legal standing]’. However, the Court concluded that this Preamble to the FREP Rules, which was written by the Chief Justice of Nigeria pursuant to Section 46(3) of the Constitution, is contrary to Section 46(1) of the Constitution and consequently void.

“The Court upheld the preliminary objection of the Respondent and held that since the Applicant failed to show that he is a homosexual, the Applicant lacks legal standing under Section 46(1) of the Constitution. The Court also held that the Applicant cannot be heard to claim that he represents the LGBT+ community because there is no person or association known to law in Nigeria as the LGBT+ community. Consequently, the Court made an order striking out the Applicant’s suit, without considering the merits of the suit.

Significance: As Ovye Affi explains, flaws in the Court’s ruling on legal standing suggest that the Court “was influenced by the moral and cultural sentiments against homosexuals in Nigeria. . . . Since 1987, the Supreme Court of Nigeria had noted that courts need to allow a broader interpretation of the legal standing provisions of the Constitution in order to allow for public interest litigation. In a 2018 decision, the Court of Appeal of Nigeria upheld the Preamble to the FREP Rules and held that courts should allow individuals or organizations to institute fundamental rights enforcement actions on behalf of others.”

The entire case-comment, including endnotes and cited cases, is online here. As Ovye Affi demonstrates, future challenges to Nigeria’s anti-gay laws could ensure legal standing, and invoke not only the Constitution, but international human rights treaties. These include the African Charter of Human and Peoples’ Rights, and, more recently, the African Commission’s Resolution 275* of 2014, which he considers”a good starting point for the recognition and protection of the rights of LGBT+ persons by the apex human rights body in Africa. It could help ensure a progressive recognition and protection of the rights of homosexuals in Africa.”

RELATED RESOURCES
Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts (Pretoria: PULP, 2017) Printed edition PDF. Updated edition online.

African Commission on Human and Peoples’ Rights, Resolution 275 on protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity adopted at the 55^th Ordinary Session held in Luanda, Angola, from 28^th April to 12^th May 2014. 12-page resolution.

See also: “RESOLUTION 275 – What it means for state and non-state actors in Africa,” (Pretoria: Centre for Human Rights, University of Pretoria and AmSHER, [2018]) 12-page interpretation.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our Publications,  Information resources, and Reprohealthlaw Commentaries Series.
TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.

Africa (Nigeria): ECOWAS Court challenges vagrancy laws that target women

Many thanks to Benson Chakaya, an M.Phil candidate in the LL.M./M.Phil (Sexual & Reproductive Rights in Africa) degree program at the Center for Human Rights, Faculty of Law, University of Pretoria.  He also serves as National Coordinator for Right Here Right Now Kenya ​hosted by the ​Network for Adolescents and Youth of Africa.  We thank him for abstracting and commenting on the significance of this case:

Dorothy Njemanze & 3 Ors V Federal Republic of Nigeria, Suit No.: ECW/CCJ/APP/17/14  (ECOWAS Court, Abuja, Nigeria)  Decision of October 12, 2017.

Many countries in Africa have criminal law targeting sex workers, often accompanied by administrative law in many cases municipal bylaws against vagrancy that facilitate arbitrary arrests of women at night. Suspected sex workers (in many cases women) are rounded up by law enforcers and charged with non-criminal offenses such as loitering, vagrancy, congregating for the purposes of prostitution, public indecency, or disorderly behavior.  The recent ruling by Economic Community of West African States (ECOWAS) Court of Justice in the case of Dorothy Njemanze & 3 Ors v. Federal Republic of Nigeria,[1] is significant as it successfully mounts a challenge to vagrancy laws.

On different occasions, Dorothy Njemanze and three other women were abducted, assaulted sexually, physically and verbally, and unlawfully detained by Nigerian law enforcement officers.  They were arrested and accused of being prostitutes on the grounds that they had been found on the streets at night.  The four women, led by Njemanze, a Nollywood actress, filed a case at the West African Regional Court which centered on the violent, cruel, inhuman, degrading and discriminatory treatment the women suffered at the hands of law enforcement agents in Abuja, Nigeria.

The Njemanze case bears some similarities to the Kenyan High Court case of Lucy Nyambura & Another v. Town Clerk, Municipal Council of Mombasa & 2 Others (2011)[2] in that the petitioners in the Kenyan case were also arrested and charged with the offence of “loitering in a public place for immoral purposes,” simply because they were found on the streets at night. The charges essentially criminalize any woman who ventures outdoors after dark. However, in the Kenyan case, the High Court failed to find the action of law enforcers as discriminatory and a violation of the petitioners’ rights.

By contrast, the ECOWAS Court found the arrest of the four petitioners to be unlawful and violated their rights to dignity and liberty, and their right to be free from cruel, inhuman or degrading treatment. The Court affirmed the provisions of the United Nations’ Convention on Elimination All Forms of Discrimination Against Women (CEDAW), when it found that the action of Nigerian law enforcement officers constituted gender-based discrimination. The Court determined from the submissions showing that the operation was systematically directed against only the female gender an indication and evidence of discrimination.   The finding is significant for women because it reiterates State Parties’ obligation and responsibility as codified in CEDAW to adopt laws, administrative and policy measures to prevent gender based discrimination.

According to the Court, “Prostitution is claimed to be a crime in the laws of the Defendant. However, it takes two persons to engage in such criminal activity. There is no law that suggest[s] that when women are seen on the streets at midnight or anytime thereafter, they are necessarily idle persons or prostitutes.  If it were so, it ought to apply to all persons irrespective of sex”.  In this quote, a blow to the discriminatory application of prostitution and vagrancy laws, the Court rejects the narrative, fostering gender inequality, that female commercial sex workers are directly criminally liable, while their male counterparts, if liable at all, can only be so indirectly as accomplices or conspirators. This narrative has often reinforced harmful social prejudices against women.

The judgment also affects commercial sex workers, especially those who work at night. Although the Court did not make a pronouncement on the legality or illegality of commercial sex work, it is significant that it found no crime in women being on the street at night, whether they are sex workers or not.  The Court found the arrest a violation of the Plaintiffs’ right to liberty or free movement which is a fundamental human right.  The Court denounced the gender stereotyping of women found on the street at night as prostitutes and declared that such verbal abuses violated the right of these women to dignity. This denunciation unfortunately perpetuates the stigma that has traditionally been directed against sex workers.

In this context, the Court did not issue a direct order regarding existing laws prohibiting prostitution.  In finding that the Defendant failed to provide sufficient evidence linking the Plaintiffs with prostitution, the Court exposes the difficulty of collecting evidence for the crime of prostitution.  This suggests an opportunity to challenge the law on prostitution in the fact that the law violates the right to privacy.  Given the intimate nature of sex, privacy is a major issue in criminalizing sex work.  Collecting evidence to support sex-work-related charges often involves bedroom snooping and interfering with the privacy of the sex workers and their clients.

A significant milestone that sets the ECOWAS ruling apart is the pronouncement of a violation of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), is indeed a first in an International Court. The Court found that there were multiple violations of article 2 calling on States to combat all forms of discrimination against women, article 3 that provides for the right to dignity and to the recognition and protection of women human and legal rights. There was further violation of article 4 on the Rights to Life, integrity and security of the person, article 5(d) on protection of women from being subjected violence, abuse and intolerance. The denial of access to justice and equal protection before the law and access to remedy was a violation of articles 8 and 25 respectively.

This ruling by the ECOWAS Court is important to judges, lawyers and law scholars as it sets the pace for challenging the often vague vagrancy laws.  By finding the action of the law enforcement officers to have violated fundamental human rights, the Court in other words has questioned the legality of vagrancy laws.  The ruling by ECOWAS Court, therefore, piles more pressure on African States to repeal the overly vague and overbroad vagrancy laws that harass and abuse women, including female sex workers. Already, the CEDAW Committee has called upon States Parties to take appropriate measures, including legislation, to suppress exploitation of women in sex work.   Overall, the ECOWAS Court’s ruling is a clear call to these States to respect fundamental rights of women to liberty, dignity and self-determination.

[1] Dorothy Njemanze & 3 Ors V Federal Republic of Nigeria: SUIT NO: ECW/CCJ/APP/17/14  (ECOWAS Court, Abuja, Nigeria)  Decision of October 12, 2017.

[2] Lucy Nyambura & Another v. Town Clerk, Municipal Council of Mombasa & 2 Others [2011] eKLR, Petition No. 286 of 2009 Kenya, High Court. Decision online.
Case summary and analysis for Legal Grounds III

Other African cases, summarized online: 
Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts  (Pretoria, Pretoria University Law Press (PULP), 2017), and previous volumes.
Printed edition of Legal Grounds III available from PULP.
Previous volumes PDF online at CRR.
Legal Grounds III, online edition with updates and links to decisions.

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

REPROHEALTHLAW Updates — Oct 2017

SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS

[Brazil, religious education] STF Conclui Julgamento Sobre Ensino Religioso nas Escolas Públicas ADI No. 4439, September 27, 2017.    The Brazilian Federal Supreme Court dismissed, by a 6 to 5 majority, a Direct Action of Unconstitutionality in which the Public Prosecutor’s Office questioned the model of religious education in the country’s public school system.  In Portuguese: Initial question.  Conclusion of Decision
English: Comment on I-CONnect Blog.

[Europe: Italy, conscientious objectors] Confederazione Generale Italiana del Lavoro (CGIL) v. Italy (2016), Complaint No. 91/2013 (European Committee on Social Rights, Strasbourg, France)  Decision in English. 
–-which builds upon this 2014 decision:  International Planned Parenthood European Network v. Italy (2014), Complaint No. 87/2012, 10 March 2014 (European Committee on Social Rights, Strasbourg, France) Decision in English.  Both decisions summarized by Tania Pagotto.

[Kenya] – Court of Appeal acquitted Jackson Tali, a registered nurse sentenced to death on murder charges re pregnancy complications.   October 19, 2017.   Press release by the Center for Reproductive Rights  Overturns:  Republic v Jackson Namunya Tali [2014] eKLR, High Court Criminal Case No. 75 of 2009 (High Court of Kenya at Nairobi).  Overturned decision.  Overturned decision summarized in Legal Grounds III by Godfrey Kangaude and Annagrace Rwehumbiza.

[Spain, conscientious objectors] Zurich Insurance PLC, Sucursal en España v. Doña Encarnacion y don César y Servicio Galego de Saude, Sentencia 00392/2017, Apelación 43/17 (High Court of Galicia at Coruña, Spain)   Decision in Spanish.  English summary by lawyer F. F. Guillen.

[West Africa: Nigerian police abuse women] Suit no ECW/CCJ/APP/17/14. October 13, 2017, Community Court of Justice, Economic Community of West African States (ECOWAS) awarded 18 million naira as compensation to an actress Dorothy Chioma Njemanze and two other women for the violation of their human rights to dignity following the physical, sexual and psychological violence inflicted on them by agents of the Nigerian State.  Press release from ECOWAS Court.    Newspaper report.  Comment by Benson Chakaya

EDUCATIONAL OPPORTUNITY:
Africa – Doctoral Scholarships:   LL.D/D.Phil in Sexual and Reproductive Rights in Africa:
The Centre for Human Rights, University of Pretoria, calls for applications for full-time doctoral scholarships in the field of sexual and/or reproductive rights and their intersection with culture or criminalisation in the African region.  Apply by 15 Nov 2017 Scholarship details

SCHOLARSHIP:
Abortion Law in Transnational Perspective: Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens (University of Pennsylvania Press, 2014), now also in Spanish (see next entry) and in paperback, 20% discount code PH70.  English edition from U Penn Press.  Table of Contents with chapter summaries. 
Abortion Decisions Online, based on the book’s Table of Cases

El aborto en el derecho transnacional: casos y controversias,  ed. Rebecca J. Cook, Joanna N. Erdman y Bernard M. Dickens (Mexico: FCE/CIDE, 2016)   En espanol, 2016: Fondo de Cultura Económica y  Libreria CIDE.     Índice con resúmenes de capítulos 1-11
Tabla de Casos/Jurisprudencia sobre aborto en línea con enlaces a muchas de las decisiones judiciales

[abortion] “How Laws Fail the Promise of Medical Abortion: A Global Look,” by Patty Skuster, Georgetown Journal of Gender and the Law  18.379, 2017. Abstract and Article.

[abortion] “The Politics of Global Abortion Rights,”  by Joanna N. Erdman,  Brown Journal of World Affairs 22.2 (2016): 39-57.   Article online

[abortion, Central and Eastern Europe]  “Mandatory Waiting Periods and Biased Abortion Counseling in Central and Eastern Europe,” by Leah Hoctor and Adriana Lamačková, International Journal of Gynecology and Obstetrics, 139 (Nov. 2017): 253–258.    PDF at Wiley Online Library.    Submitted text online at SSRN.

“Abortion Travel and the Limits of Choice,” by Lisa Kelly, 12 FIU L. Rev. 27 (2016).
Article online.

[Africa] “Conscientious Objection to Abortion and Accommodating Women’s Reproductive Health Rights: Reflections on a Decision of the Constitutional Court of Colombia from an African Regional Human Rights Perspective,” by Charles G. Ngwena, Journal of African Law, 58 (2014): 183-209  Article now online.

[Africa]  Legal Grounds III, Reproductive and Sexual Rights in Sub-Saharan African Courts (2017)   Entire book, 228-pages, online here.
Print copies available for courses, conferences or organizations.
Legal Grounds III Online now includes searchable links to entire book, individual case summaries and decisions, plus more recent cases.

[Zika, Brasil and Human Rights Obligations]: now in Spanish, Portuguese and English:
—“Infección por el virus de Zika en Brasil y obligaciones relacionadas con los derechos humanos,” por Debora Diniz, Sinara Gumieri, Beatriz Galli Bevilacqua, Rebecca J. Cook, y Bernard M. Dickens, Boletin FLASOG 5.2( June 2017): 6-12.
En espanol Boletin FLASOG, pp 6-12
Em português do Brasil, forthcoming in Revista Uni Brasilia Direito.
—“Zika Infection in Brazil and Human Rights Obligations,” by Debora Diniz, Sinara Gumieri, Beatriz Galli Bevilacqua, Rebecca J. Cook and Bernard M. Dickens, International Journal of Gynecology and Obstetrics 136.1 (Jan. 2017) 105-110.
PDF online.   Submitted text in English at SSRN.

NEWS

International news and resources for advocacy:  International Campaign for Women’s Right to Safe Abortion.

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe.

JOBS
Links to employers in the field of Reproductive and Sexual Health Law are online here

______________
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

REPROHEALTHLAW Updates – June 2017

 SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS

[Ireland]  Siobhàn Whelan v. Ireland, Comm. No. 2425/2014:  Ireland 12/06/2017, U.N. Doc. CCPR/C/119/D/2425/2014 (UN Human Rights Committee), 12 June 2017, [Woman forced to travel to the UK for an abortion after fatal fetal abnormality diagnosis.  Abortion laws are “cruel and inhumane.”]   English decision.   Newspaper report. Press release from Center for Reproductive Rights.

[Northern Ireland]  R (on the application of A and B) v Secretary of State for Health, decision of  [2017] UKSC 41, June 14, 2017 (Supreme Court, U.K.) [ruled that girl from Northern Ireland, aged 15, was not entitled to NHS-funded abortion in England] Decision online.  Comments by Sheelagh McGuinness and Keith Syrett.  Newspaper report.

RESOURCES

[abortion law: gestational age]  “Theorizing Time in Abortion Law & Human Rights,” by Joanna N. Erdman, in: Health and Human Rights Journal 19.1 (June 2017): 29-40.  Theorizing Time text. Download PDF.  Special issue on “Abortion and Human Rights.”

Abortion Law in Transnational Perspective: Cases and Controversies” ed. Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens (University of Pennsylvania Press, 2014)  Penn Press (discount code: PH70).   Review by Francisca Pou Giménez.    Spanish edition: (FCE/CIDE, 2016)     Reseña por Diego Garcia Ricci.
Traduções para portugues:
Capítulo 2: “Aborto em Portugal: novas tendências no constitucionalismo europeu,” por Ruth Rubio-Marín, Revista Direito GV São Paulo 13.1(jan./abr. 2017): 356-379 DOI: 10.1590/2317-6172201714  Tradução para o português.
Capítulo 4: “O princípio da proporcionalidade no controle de constitucionalidade das leis sobre aborto, por Verónica Undurraga, Publicum 2.2 (2016)   Tradução para o português.

[abortion law, Spain]  “Gender in Constitutional Discourses on Abortion: Looking at Spain from a Comparative Perspective,” by Blanca Rodriguez-Ruiz, Social & Legal Studies 2016, Vol. 25(6) 699–715, DOI: 10.1177/0964663916668251. ” PDF for academic subscribers.    Submitted Version.  (from special issue on “Regulating Abortion: Dissensus and the Politics of Rights” by Siobhàn Mullally, (Introduction to special issue).

[conscientious objection, Latin America]  “Refusing Reproductive Health Services on Grounds of Conscience in Latin America:  Challenging policies and practises based on human rights standards,” by Diya Uberoi and Beatriz Galli in  SUR International Journal on Human Rights, 24 (Dec 2016)  [special issue on “Women: Movements, successes and obstacles” Overview.  English edition.    Spanish edition.    Portuguese edition.

—-See also:  Conscientious objection:  Articles and projects of the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto.  Download Conscientious objection resources.

[contraception, Uganda]  “Controlling Women’s Fertility in Uganda,” by Sylvia Tamale in SUR International Journal on Human Rights, 24 (Dec 2016)  [special issue on “Women: Movements, successes and obstacles”]  English edition.   Spanish edition.  Portuguese edition.

“Female Genital Cutting (Mutilation/ Circumcision): Ethical and Legal Dimensions,” by  R. J. Cook,  B.M. Dickens, and M.F. Fathalla (2002) 79 International Journal of Gynecology and Obstetrics : 281-287.  English abstract and article.
new Turkish translation: “Kadın Sünneti (Sakatlama/Sünnet): Etik ve Hukuki Boyutlar,” trans. Mustafa Erçakıca, in Beykent Üniversitesi Hukuk Fakültesi Dergisi 2.4 (Dec. 2016): 111-121.  Turkish download.

“Gender Stereotyping in the Military: Insights from Court Cases,” by Rebecca Cook and Cornelia Weiss, in Stereotypes and Human Rights Law, ed. Eva Brems and Alexandra Timmer (eds.), (Antwerp, Belgium: Intersentia, 2016) 175-198.  Submitted text.    PDF (online after June 2018)  About the book.

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe.

JOBS

Links to employers in the field of Reproductive and Sexual Health Law are online here

______________

Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

REPROHEALTHLAW Updates – May 2017

 SUBSCRIBE TO REPROHEALTHLAW: To receive these updates monthly by email, enter your address in upper right corner of this webpage, then check your email to confirm the subscription.

DEVELOPMENTS

Argentina:  Juzgado Nacional en lo Criminal de Instrucción 16, Secretaría 111 de la Capital Federal, causa 28.580/2015, “M.N.N.”  (28 de Junio de 2016).  National Criminal Court held a woman and the doctors who prescribed her abortion medications, not guilty of any crime because the woman’s health was at risk. The woman was pregnant because her partner raped her.  English summary.  Spanish summary.   Download decision in Spanish.

Colombia:  Constitutional Court blocked sterilization of a disabled girl who was too young to consent.   English summary.  Spanish summary with link to decision.

India:   Indu Devi v the State of Bihar [2017] No(s.) 14327, decided May 9, 2017 (Supreme Court of India). Destitute HIV+ woman, pregnant from rape, refused abortion past legal limit of 20 weeks, but State held responsible for delay that prevented legal abortion.  Summary by H. Kofman forthcoming on this blog  Judgment online.  Abstract by law student H. Kofman

Uruguay:  Woman refused legal abortion after former partner intervenes.   Summary in English.  Spanish summary with link to decision. Safe Abortion Campaign report.

CALLS

Gender Justice Uncovered Awards: Nominations for best and worst court decisions.  Many striking cases and decisions summarized, e.g., Argentina, Colombia and Uruguay decisions mentioned above.    Vote before May 31, 2017

Call for Submissions: “Gender Violence and International Human Rights Law” for the 2018 Human Rights Essay Award, organized by Academy on Human Rights and Humanitarian Law, Washington College of Law, American University, Washington DC.   Submission Information and form.

Open Call for Submissions, McGill Journal of Law and Health, peer-reviewed. Details and Editorial Guidelines.

EDUCATIONAL OPPORTUNITIES

Graduate study in Health Law now available at the Centre for Health Law, Policy and Ethics, University of Ottawa, currently accepting LLM and PhD applications on a rolling basis for the 2017-2018 academic year.    Brochure online.

RESOURCES

“Abortion by telemedicine: an equitable option for Irish women,” by Wendy V. Norman and Bernard M. Dickens,  BMJ May 16, 2017; 357 Article online.

[abortion, Canada] “A Constitutional Future for Abortion Rights in Canada,” by Joanna Erdman, Alberta Law Review 54.3(2017):727-752   Article online.

[abortion, Europe]  “Legal and Political Discourses on Women’s Right to Abortion,” by Christina Zampas,  chapter 1 in:  A Fragmented Landscape: Abortion Governance and Protest Logics in Europe, ed.  Silvia De Zordo, Joanna Mishtal, and Lorena Anton   (New York: Berghahn, 2016)  Details from Publisher

[abortion law] “Regulating Abortion: Dissensus and the Politics of Rights” by Siobhan Mullally, introduction to special issue of Social & Legal Studies: An International Journal, 2016, Vol.25(6) . Introduction online.

[abortion law]  “Book Review: Francisca Pou Giménez on Rebecca J. Cook, Joanna Erdman and Bernard M. Dickens’s Abortion Law in Transnational Perspective: Cases and Controversies”, on I-CONnect, Blog of the International Journal of Constitutional Law and Constitution Making, May 17, 2017  Book review online.   (Penn Press discount code: PH70).    Spanish edition, FCE/CIDE, 2016

[abortion law pedagogy] “The Social Life of Abortion Law: On Personal and Political Pedagogy,” by Nicky Priaulx, Medical Law Review 25.1(2017):73-98.  Download abstract and PDF.

[abortion travel]  “The Law of Stigma, Travel, and the Abortion-Free Island,” Columbia Journal of Gender & Law 33.1(2016): 29-37.  PDF online.

[conscience]  “Physicians, Not Conscripts — Conscientious Objection in Health Care,” by Ronit Y. Stahl and Ezekiel J. Emanuel, New England J Medicine 376 (April 6, 2017):  1380-85.  Full text for institutional subscribers

[Ireland]  The Citizens’ Assembly – Draft Bill [recommendations for Irish abortion law reform] by Lawyers for Choice, Human Rights in Ireland, April 25, 2017  Draft Bill online.

[Nigeria]  “Accountability for Maternal Healthcare Services in Nigeria,” by Onyema Afulukwe, International Journal of Gynecology and Obstetrics 137.2(May 2017) 220-226.  Abstract.  PDF temporarily online for 12 months   Submitted text (typescript) online.

Northern/Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity, edited by Máiréad Enright, Julie McCandless and Aoife O’Donoghue (Oxford: Hart, 2017)   re-imagines, re-writes and comments on 26 court decisions from feminist perspectives.  Our comments.  Table of Contents and details

[South Africa]  Pregnancy Law in South Africa: Between Reproductive Autonomy and Foetal Interests, by Camilla Pickles (South Africa: Juta, 2017), (based on thesis from University of Pretoria,  Thesis abstract   Book details from publisher

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog.  View or subscribe.

REPORTS

“The Law, Trials and Imprisonment  for Abortion in [individual countries].”  International Campaign for Safe Abortion.  Mexico.  Argentina,  Kenya .

JOBS

Associate Professor/Professor and Assistant Director, Center for Human Rights, Faculty of Law, University of Pretoria.  Position details.

Links to other employers in the field of Reproductive and Sexual Health Law are online here

______________
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

Nigeria: Accountability for maternal healthcare services

Many thanks to to Onyema Afulukwe-Eruchalu for writing this useful new article in the Ethical and Legal Issues section of the International Journal of Gynecology and Obstetrics.  She currently serves as Senior Legal Adviser for Africa at the Center for Reproductive Rights.

Afulukwe-Eruchalu, O. (2017), Accountability for maternal healthcare services in Nigeria. International Journal of Gynecology and Obstetrics 137.2 (May 2017); 137: 220–226.  DOI:10.1002/ijgo.12108   PDF free online for 12 months.     Submitted text online.

High maternal mortality ratios (MMRs) serve as objective indicators of the poor condition of women’s health in any country and point to violations of human rights that are entrenched in national, regional, and global laws. For more than a decade, Nigeria has consistently been one of the top five listed countries with the highest MMRs in the world; in 2015, its MMR was estimated at 814 deaths per 100 000 live births, accounting for 19% of maternal deaths worldwide and approximately 58 000 deaths each year. Accountability for preventable maternal deaths and injuries is essential to both achieve and sustain a reduction in Nigeria’s high levels of maternal mortality. The present article addresses key human rights strategies for securing accountability, and identifies opportunities for healthcare providers to have leadership roles in the fulfillment of legal and ethical obligations to preserve women’s lives.
Free access to PDF online for 12 months
Submitted text (typescript) online.

See also:

Afulukwe-Eruchalu O. “Accountability for Non-Fulfilment of Human

Rights Obligations: A Key Strategy for Reducing Maternal Mortality

and Morbidity in Sub-Saharan Africa,” in Strengthening the protection of sexual and reproductive health and rights in the African region through human rights, ed. Charles Ngwena and Ebenezer Durojaye (Pretoria: Pretoria University Law Press (PULP); 2014) 119–151.  Free PDF book.

Trends in Maternal Mortality: 1990 to 2015. (Geneva: World Health Organization, United Nations Children’s Fund, United Nations Population Fund, World Bank Group, United Nations Population Division, 2015). Free PDF report.

Ethical and Legal Issues in Reproductive and Sexual Health – Articles from previous issues of the International Journal of Gynecology and Obstetrics are all online here.
_________________________
The REPROHEALTHLAW Blog is compiled by the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto, Canada,  reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.
TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

 

 

AFRICA: Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts – 54 case summaries

by: Godfrey Kangaude, Onyema Afulukwe, Guy-Fleury Ntwari, et al.
Foreword by Prof. Charles G. Ngwena
PULP (Pretoria University Law Press) 2017
Download entire 228 page book online.
Online edition with links to decisions
Printable flyer with Table of Contents
Previous volumes.

Reproductive and sexual rights, which are guaranteed in constitutions and in international and regional human rights treaties, have no impact if they are not recognized and enforced by national-level courts. Legal Grounds: Sexual and Reproductive Rights in Sub-Saharan African Courts Volume III continues to provide much-needed information about whether and how national courts of African countries apply constitutional and human rights to protect reproductive and sexual rights. The case summaries, significance sections, and thematic highlights serve as useful resources for those seeking to further develop litigation, advocacy, and capacity- building strategies.

Like its predecessors, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts – Volume III is a tool for organizations, individuals, and institutions of learning. The scope of this third volume has been widened beyond Commonwealth African countries to include cases from Francophone countries, while focusing more exclusively on court decisions related to reproductive and sexual health. This compelling publication contributes towards a knowledge base of court decisions that bear directly or indirectly on the exercise of reproductive and sexual health as constitutional and human rights in Africa.
228 page book online.  Previous volumes.  Printable flyer with Table of Contents.

TABLE OF CONTENTS:
Foreword, Introduction, Acknowledgments
Children and Adolescents
—Child, Forced and Early Marriage
—Female Genital Mutilation legal-grounds/
—Sexual Abuse, Assault and Violence
—Consensual Sexual Conduct
—Student Pregnancy
—Maternal Health Care and Services
Abortion and Fetal Interests
—Abortion
—Wrongful Birth or Life
Adoption and Surrogacy
—Adoption
—Surrogacy
Gender, Sexuality, Women and Discrimination
—Rape
—Disability, Sexuality and Criminal Law
—Women and Criminal Law
—Legal Recognition of Intersexuality
—Gender Identity
—Sexual Orientation
—Recognition of LGBTIQ Advocacy and Groups
HIV
—Access to Treatment
—Criminalisation of Transmission
—Forced Sterilization
—Discrimination in Employment
Francophone Africa / L’Afrique Francophone
—Adultery, Polygamy, Infanticide
Appendices – Table of Cases, Online Resources, Endnotes

HIGHLIGHTS BY AFRICAN AUTHORS:
Child Marriage: Legal and Socio-Cultural Aspects, by Godfrey Kangaude
Adolescent Consensual Sexual Conduct, by Godfrey Kangaude
Sexual Abuse, Assault and Violence, by Victoria Balogun
Maternal Health Care and Services, by Tinyade Kachika
Abortion and Fetal Interests, by Onyema Afulukwe
Adoption and Surrogacy, by Ronaldah Lerato Karabo Ozah
Gender, Sexuality, Women and Discrimination, by MaryFrances Lukera
Criminalisation of HIV Non-Disclosure, Exposure and Transmission, by Jacinta Nyachae
Sexual and Reproductive Rights of Women Living with HIV, by Ebenezer Durojaye
Towards Respect for Human Diversity, by Godfrey Kangaude

COUNTRIES:  Benin, Botswana, Kenya, Namibia, Niger, Nigeria, Rwanda, South Africa, Uganda,  Zambia, Zimbabwe

228 page book online.  Previous volumes.
Printable flyer with Table of Contents.