The African Commission on Human and Peoples' Rights and the promotion and protection of sexual and reproductive rights

Victoria Balogun^I; Ebenezer Durojaye^II

^IFaculty of Law and Centre for Criminal Justice, University of KwaZulu-Natal, South Africa
^IIDepartment of Constitutional Law and Philosophy of Law, University of the Free State, South Africa

ABSTRACT

The article examines the activities of the African Commission with regard to the advancement of sexual and reproductive health and rights in Africa. The article reviews the importance of applying human rights to sexual and reproductive health issues. It further discusses the promotional and protective mandates of the African Commission with a view to ascertaining whether the Commission has given attention to addressing the sexual and reproductive health challenges facing the region. In this regard, the paper focuses on two important issues - maternal mortality and same-sex relationships. Based on careful analyses of the promotional and protective mandates of the Commission, it is argued that some efforts have been made towards advancing reproductive health and rights in Africa. However, much more effort is needed with regard to sexual health and rights, especially with regard to issues such as same-sex relationships, sex work and violence against women. In conclusion, some suggestions are provided on the role of the African Commission in advancing sexual and reproductive health and rights in the region.

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* LLB (Lesotho), LLM (Free State); balogun@ukzn.ac.za
** LLM LLD (Free State); ebenezer1170@yahoo.com
1 See eg A Glasier et al 'Sexual and reproductive health: A matter of life and death' (2006) 368 Lancet 1595-1607.         [ Links ]
2 UNAIDS AIDS epidemic update (2010) 7.         [ Links ]
3 UNAIDS (n 2 above) 15.
4 As above.
5 UNAIDS (n 2 above) 28.
6 Glasier (n 1 above).
7 WHO, UNICEF, UNFPA and World Bank Trends in maternal mortality: 1990 to 2008 (2010).         [ Links ]
8 n 7 above, 17.
9 n 7 above, 18.
10 Central Intelligence Agency (CIA) The 2008 world facts book https://www.cia.gov/library/publications/the-world-factbook/ (accessed 1 March 2011).         [ Links ] The child mortality rate in the country is estimated at 94 deaths per 1 000 live births.
11 See D Smith 'South Africa gay rights activists warn of homophobic attacks after murder' The Guardian http://www.guardian.co.uk/world/2011/may/03/south-africa-homophobic-attacks (accessed 29 September 2011).         [ Links ]
12 See eg Anti Homosexual Bill No 18 of 2009, Burundi government moves to criminalise homosexuality; ''Nigerian anti-gay bill causes protests' Afrol News http://www.afrol.com/articles/24541 (accessed 26 September 2011).         [ Links ]
13 See eg sec 6(6) of the Nigerian Constitution 1999, which provides that all rights, including the right to health, listed in ch 2 of the Constitution, shall not be made justiciable; see also sec 4 of the Amended Constitution of Lesotho, which listed the various human rights guaranteed but excluding the right to health; ch 3 of the Constitution of Zimbabwe, 2000, which guarantees various human rights excluding the right to health.
14 International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966; GA Res 2200 (XXI), UN Doc A/6316 (1966) 993 UNTS 3, entered into force on 3 January 1976.
15 Convention on the Elimination of All Forms of Discrimination Against Women GA Res 54/180 UN GAOR 34th session Supp 46 UN Doc A/34/46 1980.
16 Convention on the Rights of the Child, adopted in 1989, UN Doc A/44/49 (entered into force 2 September 1990).
17 African Charter on Human and Peoples' Rights OAU Doc CAB/LEG/67/3/Rev 5, adopted by the Organisation of African Unity, 27 June 1981, entered into force 21 October 1986.
18 African Charter on the Rights and Welfare of the Child, OAU Doc CAB/LEG/24.0/49 (1990) entered into force 29 November 1999.
19 Adopted by the 2nd ordinary session of the African Union General Assembly in 2003 in Maputo, Mozambique, CAB/LEG/66.6 (2003) (entered into force 25 November 2005).
20 R Cook et al Reproductive health and human rights: Integrating medicine, ethics and law (2003) 148.         [ Links ]
21 M Tushnet 'Rights: An essay in informal political theory' (1989) 17 Politics and Society 410;         [ Links ] see also C Smart Feminism and the power of law (1989) 1-4;         [ Links ] A McColgan Women under the law: The false promise of human rights (2000) 6.         [ Links ]
22 See eg Centre for Reproductive Rights (CRR) Failure to deliver: Violations of women's human rights in Kenyan facilities (2007) 24;         [ Links ] Centre for Reproductive Rights (CRR) Broken promises: Human rights, accountability and maternal death in Nigeria (2008);         [ Links ] see also Amnesty International Out of reach: The cost of maternal health in Sierra Leone (2009);         [ Links ] Human Rights Watch Stop making excuses: Accountability for maternal health care in South Africa (2011).         [ Links ]
23 1999 1 SA 6 (CC); 1998 12 BCLR 1517 (CC).
24 DP Fidler Interna tional law and infectious diseases (1999).         [ Links ]
25 Report of the International Conference on Population and Development (ICPD) 7, UN Doc A/CONF.171/13 (1994).
26 Fourth World Conference on Women Beijing (FWCW) held on 15 September 1995, A/CONF.177/20.
27 Cook et al (n 20 above).
28 See para 7(2) of ICPD (n 25 above) and para 94 of FWCW (n 26 above).
29 UN follow-up meeting of the ICPD held in New York from March and June 1999.
30 UN Five-Year Review of the Implementation of the Beijing Declaration and Platform for Action (Beijing + 5) held in the General Assembly, 5-9 June 2000.
31 See Report of Paul Hunt, Special Rapporteur, on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, E/ CN.4/2004/49, 16 February, 2004.
32 R Petchesky 'Sexuality right: Inventing a concept, mapping international practice' unpublished paper presented at the Conference on Reconceiving Sexuality, Rio de Janeiro, 14-18 April, 1996.         [ Links ]
33 For a detailed explanation of this, see R Dixon-Muller 'The sexuality connection in reproductive health' (1993) 24 Studies in Family Planning 277,         [ Links ] where the author attempts to divide the elements of reproductive health care into two categories -sexual health and reproductive health - each with specific components.
34 For more discussion on this, see AM Miller 'Sexual but not reproductive: Exploring the junction and disjunction of sexual and reproductive rights' (2000) 4 Health and Human Rights 86-87.         [ Links ] Here the author contends that a discussion on sexual health and rights goes beyond traditionally-conceived notions of reproduction and hetero-sexuality, and embraces diverse groups of people and issues, including homosexuals and heterosexuals and reproductive and non- reproductive sexual activities.
35 World Health Organisation (WHO) Defining sexual health, Report of a technical consultation on sexual health (2006) 5.         [ Links ]
36 As above.
37 Art 14 African Women's Protocol.
38 See F Banda 'Blazing a trail: The African Protocol on Women's Rights comes into force' (2006) 50 journal of African Law 72;         [ Links ] see also Centre for Reproductive Rights (CRR) Briefing paper: The Protocol on the Rights of Women in Africa: An instrument for advancing reproductive and sexual rights (2005) 4-7.         [ Links ]
39 See eg RS Mukasa The African Women's Protocol: Harnessing a potential force for positive change (2009) 5.         [ Links ]
40 This was demonstrated in cases such as Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) discussed below.
41 The African Commission has continued to received technical support from organisations such as the African Centre for Democracy and Human Rights, the Institute for Human Rights Development in Africa and the Centre for Human Rights at the University of Pretoria.
42 Resolution on the HIV/AIDS Pandemic-Threat against Human Rights and Humanity adopted at the 29th ordinary session of the African Commission held in Tripoli, Libya, ACHPR Res.53/(XXIX)01.
43 African Summit on HIV/AIDS, Tuberculosis and Other Related Infectious Diseases, Abuja, Nigeria, 24-27 April 2001, OAU/SPS/ABUJA/3. It was agreed at this meeting that African governments should at least commit 15% of their annual budget to the health sector in order to address the HIV/AIDS pandemic.
44 See eg H Hillgenberg 'A fresh look at soft law' (1999) 10 European journal of International Law 499.         [ Links ]
45 See eg AD Smith et al 'Men who have sex with men and HIV/AIDS in sub-Saharan Africa' (2009) 374 The Lancet 416-422.         [ Links ]
46 There are about 38 countries in Africa that currently criminalise same-sex relationships and intimacy, while in other countries laws relating to vagrancy and nuisance can be used to prosecute people in same-sex relationships. See S Ndashe 'The battle for the recognition of LGBTI rights as human rights' http://www.gwi-boell.de/web/lgbt-lgbti-rights-human-rights-africa-2324.html (accessed 31 October 2011).         [ Links ]
47 ACHPR/Res 141 (XXXXIIII) 08: Resolution on Access to Health and Needed Medicines in Africa.
48 ACHPR/Res 135 (XXXXIIII) 08: Resolution on Maternal Mortality in Africa.
49 A Clapham Human rights obligation of non-state actors (2006) 175.         [ Links ]
50 AE Yamin 'Not just a tragedy: Access to medication as a right under international law' (2003) 21 Boston University International Law journal 326.         [ Links ]
51 See Purohit & Another v The Gambia (2003) AHRLR 96 (ACHPR 2003).
52 The TRIPS Agreement was part of the Final Act establishing the WTO, commonly referred to as the Marrakech Agreement, attached as Annex 1C to the WTO Agreement. While it may be argued that most African countries lack the manufacturing capacity to produce life-saving medications, opportunities exist under the safeguard provisions of TRIPS, which can be explored by African governments to facilitate access to medicines to their citizens if there really is the political will.
53 See eg MA Santoro 'Human rights and human needs: Diverse moral principles justifying Third World access to affordable HIV/AIDS drugs' (2006) 31 North Carolina journal of International Law and Commercial Regulation 923;         [ Links ] see also JM Berger 'Tripping over patents AIDS, access to treatment and the manufacturing of scarcity' (2001-2002) 17 Connecticut journal of International Law 157;         [ Links ] E 't Hoen 'TRIPS, pharmaceutical patents and access to essential medicines. Seattle, Doha and beyond' (2002) 3 Chicago journal of International Law 31.         [ Links ]
54 For more on this issue, see E Durojaye 'Compulsory licensing and access to medicines in the post-Doha era: What hope for Africa?' (2008) 55 Netherlands International Law Review 33;         [ Links ] see also S Sacco 'A comparative study of the implementation in Zimbabwe and South Africa of the international law rules that allow compulsory licensing and parallel importation for HIV/AIDS drugs' (2005) 5 African Human Rights Law journal 105.         [ Links ]
55 In areas of Africa with stable malaria transmission, P falciparum infection during pregnancy is estimated to cause as many as 10 000 maternal deaths each year, 8% to 14% of all low birth weight babies, and 3% to 8% of all infant deaths. See Roll Back Malaria 'Malaria in pregnancy' http://www.rbm.who.int/cmc_upload/0/000/015/369/RBMInfosheet_4.htm 9 (accessed 29 September 2011).         [ Links ]
56 2002 5 SA 721 (CC).
57 P Barate & M Temmerman 'Why do mothers die? The silent tragedy of maternal mortality' (2009) 5 Current Women's Health Review 231.         [ Links ]
58 Resolution on Maternal Mortality (n 48 above).
59 WHO, UNICEF, UNFPA & World Bank Maternal mortality in 2005 (2007) 18.         [ Links ]
60 UN Millennium Declaration and Millennium Development Goals launched in 2000.
61 See eg RJ Cook et al Advancing safe motherhood through human rights (2001);         [ Links ] see also E Durojaye 'The Human Rights Council's Resolution on Maternal Mortality: Better late than never' (2010) 10 African Human Rights Law journal 189;         [ Links ] V Boama & S Arukumaran 'Child birth: A rights-based approach' (2009) 106 International journal of Gynaecology and Obstetrics 125-127;         [ Links ] A Yamin & D Maine 'Maternal mortality as a human rights issue: Measuring compliance with international treaty obligations' (1999) 21 Human Rights Quarterly 563;         [ Links ] F Leeuwen & R Amollo 'A human rights-based approach to improving maternal health' (2009)10 ESR Review 21.         [ Links ]
62 Human Rights Watch (n 22 above); Amnesty International (n 22 above); Centre for Reproductive Rights (n 22 above).
63 Ndashe (n 46 above).
64 R Murray & F Viljoen 'Towards non-discrimination on the basis of sexual orientation: The normative basis and the procedural possibilities before the African Commission on Human and Peoples' Rights' (2007) 29 Human Rights Quarterly 86.         [ Links ]
65 UN ESCR Committee General Comment 20 on Non-Discrimination in Economic, Social and Cultural Rights E/C.12/GC/20, 25 May 2009.
66 The African Commission took the initiative to establish other procedures to supplement its initial mandate when it appointed for the first time in 1994 the Special Rapporteur on Extra-Judicial Killings, Summary and Arbitrary Executions in Africa, http://www.achpr.org/english/_info/prison_mand..html (accessed 28 September 2011).
67 The African Commission created the position of Special Rapporteur on the Rights of Women in Africa in 1998. The first Special Rapporteur, Commissioner Julienne Ondziel Gnelenga, served from 1998 to 2001; http://www.achpr.org/english/_info/index_women_en.html (accessed 28 September 2011).
68 See eg the Inter-Session Activity Report of the Special Rapporteur on the Rights of Women in Africa, Angela Melo, submitted to the 40th ordinary session of the African Commission on Human and Peoples' Rights, Banjul, The Gambia, 15-29 November 2006, which includes promotional activities to some African countries relating to the provisions of the African Women's Protocol, particularly art 14 and the issue of female genital mutilation; see also the Intercession Activity Report of the Special Rapporteur on the Rights of Women in Africa, Angela Melo, submitted to the 41st ordinary session of the African Commission on Human and Peoples' Rights Accra, Ghana, 16-30 May 2007, which contains promotional activities relating to violence against women and on collaborations reached with other organisations to provide training for the members of the African Commission on the issue of sexual and reproductive rights; Intercession Activity Report of the Special Rapporteur on the Rights of Women in Africa, Soyata Maiga, submitted to the 45th ordinary session of the African Commission on Human and Peoples' Rights, Banjul, The Gambia, May 2009, where the Special Rapporteur enjoins African governments to ensure access to sexual and reproductive health services, including contraceptive services to girls and women in the region.
69 See JA Nel & M Judge 'Exploring homophobic victimisation in Gauteng, South Africa: Issues, impacts and responses' (2008) 21 Acta Criminologica 19.         [ Links ]
70 See eg E Durojaye 'Litigating the right to health in Nigeria: Challenges and prospects' in M Killander (ed) International human rights law and domestic human rights litigation in Africa (2010) 149.         [ Links ]
71 The Zimbabwean Supreme Court in Banana v The State (2000) 8 BHRC 345 held that homosexuality is 'unAfrican' and 'ungodly'.
72 See eg EG Krug et al World report on violence and health (2002);         [ Links ] Human Rights Watch Scared at school: Sexual violence against girls in South African schools (2001);         [ Links ] N Toubia Female genital mutilation: A call for global action (1995).         [ Links ]
73 SERAC case (n 40 above).
74 It is important to point out that, unlike the newly-established African Court on Human Rights, the decisions of the African Commission do not have a binding effect on African states.
75 Declaration on the Elimination of Violence against Women A/RES/48/104.
76 Purohit (n 51 above).
77 Purohit (n 51 above) para 80.
78 'The right to the highest attainable standard of health' UN Committee on Economic, Social and Cultural Rights, General Comment 14, UN Doc E/C/12/2000/4, para 12.
79 Purohit (n 51 above) para 84.
80 'The nature of states parties' obligations' UN Committee on Economic, Social and Cultural Rights General Comment 3, 5th session, UN Doc E/1991/23, Annex III (our emphasis).
81 General Comment 3 (n 80 above) para 10.
82 General Comment 14 (n 78 above) para 47.
83 See Transparency International Corruption Perception Index 2010 http://www.trans-parency.org/cpi (accessed on 8 May 2011) where six out of the ten most corrupt countries are from Africa.         [ Links ]
84 African Women's Protocol (n 19 above).
85 African Court on Human Rights decision in African Commission on Human and Peoples' Rights v Great Socialist People's Libyan Arab jamahiriya Application 004/2011 delivered on 25 March 2011.
86 Tavares v France App 16593/90 European Court of Human Rights.
87 CEDAW Committee Communication 17/2008 decided at the 49th session, 11-29 July 2011.
88 See eg Dudgeon v United Kingdom (1981) 4 EHRR 149.
89 Curtis Doebbler vSudan (2003) AHRLR 153 (ACHPR 2003).
90 Art 152 of the Sudanese Criminal Law of 1991 provides as follows: '1 Whoever commits, in a public place, an act, or conducts himself in an indecent or immoral dress, which causes annoyance to public feelings, shall be punished, with whipping, not exceeding forty lashes, or with fine, or with both. 2 The act shall be deemed contrary to public morality, if it is so considered in the religion of the doer, or the custom.'
91 (1978) 2 ECHR 1.
92 Tyrer (n 91 above) para 42.
93 Human Rights Committee Communication 1153/2003, decided at the 85th session of the Committee held from 17 October to 3 November 2005.
94 See eg the Concluding Observations and Recommendations of the African Commission to Egypt, adopted at the 37th ordinary session of the African Commission held from 27 April to 11 May 2005, Banjul, The Gambia, where the Commission urges the Egyptian government to address gender inequality in its laws and step up action in addressing female genital mutilation; See also the Concluding Observations and Recommendations of the African Commission to Ethiopia adopted at the 47th ordinary session of the African Commission held from 12-26 May 2010, Banjul, The Gambia, where the Commission expresses concerns about some cultural practices that continue to infringe on the rights of the girl-child, the lack of appropriate legislation to address FGM, HIV/AIDS-related stigma and discrimination and gender-based violence, high infant and maternal mortality rates and preventable deaths arising from diseases such as malaria and tuberculosis in the country. The Commission urges the Ethiopian government to adopt appropriate measures, including the enactment of legislation and the implementation of programmes and policies to address these challenges.
95 See art 5 of the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples' Rights.
96 Ndashe (n 46 above).
97 See Resolution ACHPR/Res163(XLVII)2010. The mandate of the Committee includes giving special attention to persons belonging to vulnerable groups, including women, children, sex workers, migrants, men having sex with men, intravenous drugs users and prisoners.