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

February 14, 2017

2017_legal_grounds

by: Godfrey Kangaude, Onyema Afulukwe, Guy-Fleury Ntwari, et al.
Foreword by Prof. Charles G. Ngwena
PULP (Pretoria University Law Press) 2017
228 page book onlinePrevious volumes.
Printable flyer with Table of Contents

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 onlinePrevious 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.


African Courts recognize sexually diverse persons and LGBTI advocates

December 20, 2016

Many thanks to Godfrey Kangaude, author of a highlight commentary “Towards Respect for Human Diversity,” in  Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts (forthcoming February 2017).  We are pleased to provide the following excerpt for REPROHEALTHLAW subscribers:

. . . Many governments have adopted constitutions that recognise human dignity and equality. Yet in The Attorney General of Botswana v. Thuto Rammoge and 19 Others, the Attorney General of Botswana tried to argue that the Constitution of Botswana did not apply to persons of non-heterosexual orientation. This reflects a pervasive attitude in governments driven by politicians who do not believe in the human dignity and equality stipulated by their own constitutions.

Persons of non-heterosexual orientation, or whose gender identity and expression does not conform to some traditional gender notions, continue to face government-sponsored hate and victimization.  Sometimes this has been indirect, for instance through a refusal to recognise the rights to association and expression such as in the Thuto Rammoge cases in Botswana [1, 2], the Gitari case [3] and Ex-parte Transgender Education and Advocacy case [4] in Kenya, and the Kasonkomona case [5] in Zambia. Apart from criminalizing sexual conduct, governments deploy other laws to prevent LGBTI persons from enjoying their right to association and expression. In the Kasonkomona case, the government used vagrancylaws to try and deny persons the right to talk freely about LGBTI rights.

In all the above mentioned cases, however, the courts applied human rights norms to the issues raised before them and vindicated the claims that LGBTI persons are deserving of human rights because they are in the first place, human beings. However, the case of C.O.L. & G.M.N.,[6] where the Kenyan Court upheld the constitutionality of the law compelling anal examinations in order to prove homosexual behaviour, indicates that there is a great deal that has to be done to secure enjoyment of rights of all persons including decriminalization of sexual conduct involving non-heterosexual intimacy, and also recognition of gender diversity.  The victories in these cases are significant as they are beacons of light in the midst of pervasive discrimination against LGBTI persons. The positive judgments refresh the obligations of governments to be faithful to their own constitutions to respect the fundamental values of human dignity and equality of all persons, regardless of sexual orientation, gender identity and expression. This negative judgement, though, calls for vigilance to realise human rights for everyone.

[1]  Thuto Rammoge & 19 Others v. The Attorney General of Botswana  [2014] MAHGB-000175-13  (Botswana, High Court). [Homosexual rights advocacy society received official recognition.]   Decision online.   Short abstract by Michelle HaymanCase summary for Legal Grounds III.

[2] Attorney General of Botswana v. Thuto Rammoge & 19 Others  [2016] CACGB-128-14 (Botswana, Court of Appeal at Gaborone).  [Appeal dismissed]   Decision onlineCase summary for Legal Grounds III.

[3] Eric Gitari v. Non-Governmental Organizations Co-Ordination Board & 4 Others, [2015] eKLR, Petition No. 440 of 2013  (Kenya, High Court at Nairobi).  [LGBT organizations can be registered.]  Decision online.   Case summary and analysis for Legal Grounds III.

[4] 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 (Kenya, High Court). [Transgender organization can be registered].   Decision onlineCase summary and analysis for Legal Grounds III.

[5] People v. Paul Kasonkomona [2015] HPA/53/2014  (Zambia, High Court).[Freedom of expression: HIV/LGBT activist acquitted for remarks made on television.]   Decisions and documents onlineCase summary and analysis for Legal Grounds III.

[6]  C.O.L. & G.M.N. v. Resident Magistrate Kwale Court & Others, Petition No. 51 of 2015 (Kenya, High Court –Constitutional and Judicial Review Division).  [Court allowed medical examinations including anal exams to prove crime of homosexuality].  Decision online.   Case summary and analysis for Legal Grounds III.

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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: Developments, Resources & Jobs

March 10, 2016

REPROHEALTHLAW Blog
March 10, 2016

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

General Comment 22”  United Nations – Committee on Economic, Social and Cultural Rights (CESCR) adopted a new General Comment 22 (E/C.12/GC/22)  on Article 12 (Health) of the International Covenant on Economic, Social and Cultural Rights.  This new General Comment highlights the numerous legal, procedural, practical and social barriers people face in accessing sexual and reproductive health care and information, and the resulting human rights violations.  It codifies wide-ranging state obligations regarding quality maternal health care, non-discrimination, contraception, safe abortion care, sex education, disabilities, infertility care, STIs and HIV/AIDS.  It also discusses conscience issues and rural, regional or cultural disparities.  Full text of General Comment No.22.     UN Press release.

Guyana: Midwives, nurses and pharmacists can provide abortion pill.  Guyana details..

Kenya:  AIDS Law Project v Attorney General and 3 Others [2015] eKLR, Petition No. 97 of 2010 (High Court of Kenya at Nairobi). [Criminal provisions of HIV/AIDS law held unconstitutional.]  Decision online.    Case Summary by Godfrey Kangaude.  

Kenya: duty to protect rights of intersex persons (2 cases)
Baby “A” (suing through her mother, E.A.) and The Cradle the Children Foundation v Attorney General, Kenyatta National Hospital, and the Registrar of Births and Deaths [2014] eKLR, Petition No. 266 of 2013 (High Court of Kenya at Nairobi, (Constitutional and Human Rights Division)). Decision onlineFull Case Summary.
RM v The Hon. Attorney General & 4 Others, [2010] eKLR Petition no 705 of 2007 (High Court of Kenya at Nairobi, Nairobi Law Courts). R.M. Decision online.   Case summary of R.M

Uganda.  “African Commission on Human and Peoples’ Rights Calls on Uganda to Ensure The Right to Legal Abortion and Access to Reproductive Health Services.”  Recommendations call for Uganda to implement the Maputo Protocol—the only treaty, at both the international and regional levels, that explicitly guarantees the right to legal abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health or life of the woman or in cases of fatal fetal impairments.  CRR Press Release Mar.7, 2016
Background from CRR:  74-page report 2013 .  46-page guide to Ugandan abortion law/policy 2012CRR/CEHURD Shadow report 2014.

U.S.   Whole Woman’s Health v. Hellerstedt: Hearings were held in the US Supreme Court on Mar 2, 2016. The judgment is anticipated in June 2016, and it will determine whether women will have access to abortion services in Texas, and in other states with laws comparable to the restrictive Texas law.   Case history from CRR.  Official transcript, Mar 2, 2016.   Reports of the hearing: Slate article: Oral arguments.   Slate blog: “Most important question.”   Comment:  When “protecting health” obstructs choice :  SCOTUS blog.   Scholarship:  Linda Greenhouse and Reva Siegel, “Casey and the Clinic Closings: When ‘Protecting Health’ Obstructs Choice,” 125 Yale Law Journal 1428-1480 (2016) Greenhouse & Siegel article.

Zimbabwe:  Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs (N.O.) & Others (Const. Application No. 79/14) [2015] ZWCC 12 (20 January 2016);  Constitutional Court outlawed child marriage under 18 years old.  Decision online.   News report.

COURSES

Advanced Human Rights – short courses at the Centre for Human Rights, University of Pretoria, South Africa.
♦  Disability Rights in an African Context  March 14-18, 2016.  Disability Rights Course.
♦  Judicial Enforcement of Socio-Economic Rights in Africa,  Socio-Economic Rights
May 16-20, 2016
♦  Civil Society Law in Africa, June 8-10, 2016  Civil Society Law Course

RESOURCES

[abortion]  Common Law Fundamentals of the Right to Abortion, by Anita Bernstein. Buffalo Law Review Vol. 63, p. 1141, 2015; Brooklyn Law School, Legal Studies Paper No. 438. Bernstein article.

[abortion, Ireland]  The Geography of Abortion (December 11, 2015). by Fergus W. Ryan.  Ryan working paper.

[abortion, Latin America, Caribbean] Investigación sobre aborto en América Latina y el Caribe: Una agenda renovada para informar políticas públicas e incidencia (Research on abortion in Latin America & the Caribbean: A renewed agenda to inform public policy and incidence) Published by CLACAI (Latin American Consortium against Unsafe Abortion) with the support of CEDES Argentina, Population Council USA, and Promsex Peru.   Investigación en EspanolAlternative download link.

[abortion – UK]  British Abortion Law: Speaking from the Past to Govern the Future (March 2016). The Modern Law Review, Vol. 79, Issue 2, pp. 283-316, 2016.
Sheldon article.

Engendering Reproductive Rights in the Inter-American System (2016), by Ciara  O’Connell,  in Gender, Sexuality and Social Justice: What’s Law Got to Do With It?, ed. Kay Lalor, Elizabeth Mills, Arturo Sánchez García and Polly Haste. p. 58, Institute of Development Studies, 2016 . O’Connell chapter

NEWS

Malawi – homosexuality: “Malawi government challenges the clergy on gay rights.”  The real issue is whether the pending Judicial Review should declare the anti-homosexuality law invalid under the Constitution.   News report.

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

Zambia:    Chief Justice launched the first-ever gender-based violence (GBV) fast track court in Kabwe.  News report.

JOBS

Director, new Human Rights Institute, Oxford University, UK  Oxford Directorship

Director of Programs, International Planned Parenthood Federation, Western Hemisphere Region. Apply by March 15, 2016.  IPPF Director.

Lecturer / Senior Lecturer in Gender Studies @ SOAS Centre for Gender Studies, London, UK.    Apply by March 21, 2016.  Lecturer at SOAS.

Postdoctoral research fellow, 3 years, new “Political Determinants of S&R Health” project based at University of Bergen, Norway.  Apply by March 31, 2016.  Postdoc job.

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 hereTO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.


Calls, Resources, News and Jobs

June 25, 2012

REPROHEALTHLAW-L
June 25, 2012

CALLS

Call for papers: “Making progress in realizing women’s human rights: the role of the CEDAW Commitee and other international human rights monitoring bodies’,  Call for articles for the Tijdschrift voor Genderstudies  (Journal for Gender Studies). Send outlines for articles in English or Dutch (400 – 500 words) before 15 July 2012 to Fleur van Leeuwen (FC_van_Leeuwen@hotmail.com) \
For details in English, click here, then click “Oproep door artikelen” and scroll to the bottom.

RESOURCES

[abortion -adolescents] Parental Involvement Laws and New Governance  Rachel Rebouché, 34 Harv. J. L. & Gender 175 (2011).     Abstract online.

[abortion & prenatal genetic testing] Mixed Messages: The Intersection of Prenatal Genetic Testing and Abortion, by Rachel Rebouché & Karen H. Rothenberg,  Howard Law Journal, Vol. 55, No. 3, 2012; U of Maryland Legal Studies Research Paper No. 2012-26.  Abstract online.

[abortion & prenatal protections] “Whose Right to Life?: Women’s Rights and Prenatal Protections under Human Rights and Comparative Law. Toolkit from the Center for Reproductive Rights.

[abortion – Dominican Republic] “Resolving Conflicts of Constitution: Inside the Dominican Republic’s Constitutional Ban on Abortion” by Mia So (2011) 86:2 Indiana Law Journal 714-32.  Article online.

[abortion, Uruguay] “The Politics of Reproductive Health Rights in Uruguay: Why the Presidential Veto to the Right to Abortion is Illegitimate” Oscar A. Cabrera, Martin Hevia, Fanny Gómez-Lugo & Analia Banfi-Vique,  (2011). Revista de Direito Sanitário, São Paulo – Journal of Health Law, July 2011.  Article online.

[adolescents] United Nations Commission on Population and Development, Draft Resolution on “Adolescents and Youth”,  April 27, 2012.   Draft Resolution, online here, includes:

  •   the ICPD list of reproductive health services including safe abortion (OP27);
  •   ICPD language on reproductive rights (PP15)
  •   Sexual Rights” as adopted in Beijing para 96 (human rights and sexuality) applied to adolescents and youth (OP7)
  •   Eliminating harmful traditional practices, including early and forced marriages (OP9)
  •   Access to contraception for women living with HIV and AIDS (PP17)
  •   Gender equality (PP13, OP16)

[Africa: HIV & stigma]  “The Impact of Routine HIV Testing on HIV-Related Stigma and Discrimination in Africa” by Ebenezer Tope Durojaye(2011). International Journal of Discrimination and the Law, Vol 11, No. 4, pp. 187-200, 2011. Abstract online.

Stereotyping Updates newsletter, by Simone Cusack, May 2012,
is now online.
Significant decisions on gender stereotyping over recent months include:

  •  European Court of Human Rights (Konstantin Markin v. Russia), Parental leave for servicemen
  •  Inter-American Court of Human Rights (Atala Riffo and daughters v. Chile), Lesbian mother allowed custody of children after divorce
  •  U.S. Equal Opportunity Commission (Macy v. Holder). Transgender employee discrimination

NEWS:

Chile:  Review of a Study by Koch et al. on the Impact of Abortion Restrictions on Maternal Mortality in Chile,  Guttmacher Advisory,
May 2012.  Online here.

Chile, anencephaly:  Women forced to be ‘human coffins’ – new campaigns to change legislation.  News item.

China: one-child policy leads to forced abortions, mothers’ deaths.
News item.

Nepal:  “Safe and affordable abortion: Women’s right”  by Melissa Upreti.  News item.

Rwanda: MPs to Harmonise Abortion Act with Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (“Maputo” Protocol).  News item.

Rwanda: MPs passed the draft Penal Code. Majority voted in favour of legal abortions in cases of rape, incest, forced marriage, or jeopardy to health of the woman or the fetus. Code now goes to the Senate for approval.  News item.

Sri Lanka:  Abortion laws – another view  – authorities considering abortion law reform for cases of ‘underage’ rape and incest.
Published letter by Ramya Kumar et al.

Turkey:  Europe must fight Turkish abortion restrictions, by Lilian Sepulveda.  Article online

Zambia:  The term “conception” in the Zambian constitution is ambiguous. News item.

JOBS

Associate, O’Neill Institute for National and Global Health Law, Georgetown University, Washington DC USA.  Apply by July 31, 2012.  More information online

Links to employers in the field of Reproductive and Sexual Health Law
are online in right sidebar of this blog.

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For Program publications and resources, see our website, online here.