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Unformatted text preview: Strengthening the protection of sexual and reproductive health and rights in the African region through human rights Editors Charles Ngwena Professor of Law, Centre for Human Rights, University of Pretoria Ebenezer Durojaye Associate Professor of Law, University of the Western Cape 2014 Strengthening the protection of sexual and reproductive health and rights in the African region through human rights Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see Printed and bound by: BusinessPrint, Pretoria To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 12 362 5125 [email protected] Cover: Yolanda Booyzen, Centre for Human Rights ISBN: 978-1-920538-31-6 © 2014 TABLE OF CONTENTS v Acknowledgments Foreword: Commissioner Soyata Maiga (Special Rapporteur on the Rights of Women in Africa) viii INTRODUCTION 1 PART I: 2 3 4 5 Part II: Strengthening the protection of sexual and reproductive health and rights in the African region through human rights: An introduction Charles Ngwena and Ebenezer Durojaye 1 REPRODUCTIVE AUTONOMY, ACCESS TO SAFE ABORTION AND EMERGENCY OBSTETRIC CARE Reducing abortion-related maternal mortality in Africa: Progress in implementing Objective 5 of the Maputo Plan of Action on Sexual and Reproductive Health Rights Eunice Brookman-Amissah and Tinyade Kachika 31 Access to legal abortion for rape as a reproductive health right: A commentary on the abortion regimes of Swaziland and Ethiopia Simangele Mavundla and Charles Ngwena 61 Abortion and the European Convention on Human Rights: A lens for abortion advocacy in Africa Christina Zampas and Jaime Todd-Gher 79 Accountability for non-fulfilment of human rights obligations: A key strategy for reducing maternal mortality and disability in sub-Saharan Africa Onyema Afulukwe-Eruchalu 119 HIV/AIDS FOCUS 6 7 8 Adolescent girls, HIV, and state obligations under the African Women’s Rights Protocol Karen Stefiszyn 155 Advancing a feminist capabilities approach to HIV/AIDS in sub-Saharan Africa Rebecca Amollo 181 The right to health and AIDS medicines in sub-Saharan Africa: Assessing the outcomes of a human rights-based approach to medicines Lisa Forman 211 iii PART III: SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS: INTERSECTIONS WITH ADOLESCENCE, EARLY MARRIAGE, GENDER-BASED VIOLENCE AND POVERTY 9 Sexual health and rights of adolescents: A dialogue with sub-Saharan Africa Godfrey Kangaude and Tiffany Banda 251 10 Promoting sexual and reproductive rights through legislative interventions: A case study of child rights legislation and early marriage in Nigeria and Ethiopia Ayodele Atsenuwa 279 Gaps in gender-based violence jurisprudence of international and hybrid criminal courts: Can human rights law help? Susana Sácouto 305 Women, sexual rights and poverty: Framing the linkage under the African human rights system Fana Hagos Berhane 331 11 12 351 Contributors iv ACKNOWLEDGMENTS In October 2011, we convened an international colloquium at the University of the Free State in Bloemfontein, South Africa, where we were based at the time. The theme of the colloquium was Strengthening Protection of Reproductive and Sexual Health in the Sub-Saharan Region through Human Rights. It put a spotlight on identifying persistent gaps or challenges in the realisation of reproductive and sexual health as human rights in the African region, and advancing arguments for addressing the gaps and challenges. The present edited volume has been developed from the theme and proceedings of the colloquium. At the same time, this volume is much more than the product of the authors and editors. Rather, it is an outcome of the collective inputs of many people who, in various ways, have played a part in its creation. We take this opportunity to convey our deepest appreciation to all who had a hand in the making of the volume. We begin by taking a step backwards to recall the broader context in which the colloquium leading to this volume was conceived. In our view, this is a more fitting way of expressing our appreciation not just to those immediately associated with the publication of this volume, but also to people as well as institutions that played a significant role in creating the space and academic foundation for this volume. The colloquium proceedings, from which chapters in this volume were developed, were a byproduct of an LLM programme in Reproductive and Sexual Rights offered in the Department of Constitutional Law and Philosophy of Law, Faculty of Law, University of the Free State. With the generous support of the Ford Foundation, this LLM programme, the first of its kind on the African continent, trained twenty-five graduates from the Eastern, Southern and Western regions of Africa over a course of four years, covering Cameroon, Eritrea, Ethiopia, Kenya, Lesotho, Malawi, Tanzania, Uganda and Zimbabwe. Among other objectives, the programme sought to promote and disseminate discourses at the intersection between reproductive and sexual health and African human rights systems. It sought to: • • • raise public awareness about a type of human rights that are often contested and marginalised; build capacity among role players whose work impacts on reproductive and sexual health, including advocates, activists, policymakers, and civil society organisations at both regional and country levels; and ultimately influence domestic and regional policy and law. The colloquium and this volume were conceived with a view to advancing these objectives. Against this backdrop, we wish to thank Rebecca Cook for nurturing with one of us (Charles Ngwena) the idea of establishing an LLM programme in sexual and reproductive health and rights to serve the African region and subsequently supporting the programme through teaching. Rebecca offered her enormous intellectual wisdom and teaching time generously and with characteristic modesty. The LLM programme v could not have been established without the financial support of the Ford Foundation. We are grateful to the Ford Foundation for its generosity in steadfastly supporting the LLM programme through scholarships and for funding the colloquium and publication of this volume. Barbara Klugman and her successor Lourdes Rivera, as programme officers at the Ford Foundation, were the programme’s immediate listening ears. They championed the programme’s cause and lent unrelenting support. Equally, the LLM programme could not have been established without an academic home. We thank the Faculty of Law of the University of the Free State and its Department of Constitutional Law and Philosophy of Law for providing an academic home for the LLM programme and hosting the colloquium which led to this volume. We are grateful to successive Chairs of the Department of Constitutional Law and Philosophy of Law – Loot Pretorius, Shaun DeFreitas and Ilze Keevy – for welcoming and supporting the programme as an important addition to postgraduate learning and research in a novel and often contested discipline. The organisation of the colloquium itself was a mammoth administrative task. The organisation fell mostly on the shoulders of Lizelle Petersen in the Department of Constitutional Law and Philosophy of Law. The colloquium brought together delegates from across the African continent and beyond. We are grateful to Lizelle for selflessly working round the clock to ensure that all the logistical pieces of the colloquium were in place. Needless to say, we could not have been able to prepare this volume without the contributions of the participants who travelled far and wide to present papers that addressed the theme of the colloquium. Although not all the papers that were presented made it to this volume for reasons of space, we are grateful to all participants who sacrificed their academic time to write and present papers and enrich the colloquium discussions. In this regard, we say thank you to the following colleagues: Onyema AfulukweOruchalu, Rebecca Amollo, Ayo Atsenuwa, Victoria Balogun, Tiffany Banda, Fana Hagos Berhane, Eunice Brookman-Amissah, Mosope Fagbongbe, Lisa Forman, Olaide Gbadamosi, Michelo Hansungule, Aniekwu Nkolinka Ijeoma, Godfrey Kangaude, MaryFrances Lukera, Grace Malera, Flora Manyasa, Simangele Mavundla, Annie Mumbi, Patience Sone Munge, Babafemi Odunsi, Uju Okeke, Tolulope Oluwaranti, Timothy Omorodion, Doris Owoh, Susana SáCouto, Chrispine Sibande, Karen Stefiszyn, Jaime Todd-Gher and Christina Zampas. In the same breath, we express our gratitude to the following participants who served as lead discussants and commented on written papers, bringing much focus and insight to the discourse: Gina Bekker, Michelo Hansungule, Tinyade Kachika, Nomafrench Mbombo, Stella Nyanzi, Agnes Odhiambo and Elisa Slattery. We also express our appreciation to Mosope Fagbongbe, Ilze Keevy, Babafemi Odunsi, Bella Rametse and Christina Zampas who served as moderators for the colloquium sessions and to Toun Adebanjo who served as rapporteur. The editing of the manuscripts comprising this book received inputs beyond those of the editors. In the initial editing of the manuscripts, we were assisted by Toun Adebanjo, a doctoral candidate in the Faculty of Law of the University of the Free State. Toun went beyond the call of duty in meticulously reading the first crop of the manuscripts, ascertaining the vi overall readability of narratives and suggesting language changes. In the final stages of the book, Pretoria University Law Press (PULP) assisted with its language editing and housestyling of manuscripts. We are grateful to Lizette Hermann at PULP and PULP’s language editors for bringing to bear technical editing skills we could not have otherwise mustered. The quality of the manuscripts benefitted immensely from the suggestions and recommendations made by independent reviewers who were appointed by PULP to anonymously review the manuscripts. We are grateful to PULP for agreeing to publish this volume. It has been our enormous pleasure and privilege to work with such a highly committed set of authors on this volume. We apologise profusely to authors for the fact that the book took much longer to publish than we had planned. Initially we had anticipated that the book would be published at the end of 2012. Be that as it may, we extend our greatest appreciation to contributing authors and we thank you for your inordinate patience in waiting to see the fruits of your intellectual labour. Charles Ngwena and Ebenezer Durojaye Editors vii FOREWORD Twenty years ago, at the International Conference on Population and Development, the global community affirmed that realising sexual and reproductive health and rights of women and girls is essential for their wellbeing. This commitment was reaffirmed a year later at the Fourth World Conference on Women. Today, the sexual and reproductive health and rights of millions of Africans remain unmet. Indeed, the African region continues to bear the greatest burden of sexual and reproductive ill health, including high HIV/AIDS prevalence, high infant and maternal mortality rates, high incidence of unsafe abortion and high rates of sexually transmitted infections. More than 1 million HIV-related deaths and about 85 per cent of all maternal deaths that occur yearly are in the region. In addition, harmful cultural practices have continued to endanger the health and well-being of women and girls in the region. African governments have begun to take steps to address the region’s sexual and reproductive health challenges. For instance, in 2001 during the Abuja Declaration on HIV, Malaria, Tuberculosis and other related diseases, African governments agreed to commit at least 15 per cent of their annual budgets to addressing HIV/AIDS and other health challenges. A few years later, in 2006, the African Union adopted the Maputo Plan of Action of the Continental Policy Framework for the Operationalisation of Sexual and Reproductive Health and Rights. The Continental Policy Framework calls for the strengthening of the health systems in order to ensure universal access to basic health services, including sexual and reproductive health care services. It also calls on African governments to commit more resources to the health care sector and develop equitable healthcare systems that will eliminate barriers to sexual and reproductive health services for women and young people. More importantly, in 2003 the African Union adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (Maputo Protocol). The Maputo Protocol contains a number of landmark provisions, including the explicit recognition of women’s sexual and reproductive health and rights, women’s protection from HIV, access to contraceptive information and services and the right to abortion on limited grounds. More recently, the African Union has launched the Campaign for the Accelerated Reduction of Maternal Mortality in Africa (CARMMA) in a bid to address high maternal mortality in the region and ensure that African countries are on track in meeting Millennium Development Goal no 5. On its part, the African Commission on Human and Peoples’ Rights has continued to play a crucial role in advancing sexual and reproductive rights of women in the region. The Commission has adopted important resolutions and General Comments relating to sexual and reproductive health and rights of women in the region. For instance, in 2008 the Commission adopted two resolutions: one on access to medicines and another on maternal mortality as a human rights challenge in Africa. In 2012, during its 52nd Ordinary Session held in Yamoussoukro, Côte d’Ivoire, the Commission for the first time adopted a General Comment clarifying the nature of states’ obligations in article 14(1)(d) and (e) of the viii Maputo Protocol. This has been followed by General Comments on article 14(1)(a), (b), (c) and (g) and article 14(2)(a) and (c) of the Protocol which was adopted during the Commission’s 55th Ordinary Session which was held in Luanda from 28 April to 12 May 2014. Also, the Commission has adopted a resolution on the human rights implications of forced sterilisation of women living with HIV in Africa. In addition, the activities of two of the special mechanisms of the Commissionthe Special Rapporteur on the Rights of Women in Africa and the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and those at Risk, Vulnerable to and Affected by HIV– are directly related to advancing the sexual and reproductive health and rights of women. Despite efforts by African governments to address the sexual and reproductive health challenges in the region, some countries are not on track in meeting the health-related Millennium Development Goals, particularly goals 4 and 5. Lack of political will and poor implementation, inadequate allocation of resources to sexual and reproductive health issues, deep-rooted cultural practices and stereotypes have continued to hinder efforts at advancing sexual and reproductive health and rights of Africans. It is important to note that ensuring universal access to sexual and reproductive health is essential not only in achieving MDGs 4 and 5 but also goal 3 on promoting gender equality and goal 6 on combating HIV/AIDS and other diseases. In the light of the foregoing, this book could not have come at a better time as it addresses some of the serious sexual and reproductive health challenges our continent is currently facing. More importantly, the book provides insightful and useful discussions on how these challenges can be overcome. It is the first of its kind in our region and will definitely be useful to researchers, academics, policy makers, civil society organisations, students and other persons interested in the subject of sexual and reproductive health and rights. Soyata Maiga Special Rapporteur on the Rights of Women in Africa August 2014 ix CHAPTER 1 STRENGTHENING THE PROTECTION OF SEXUAL AND REPRODUCTIVE HEALTH THROUGH HUMAN RIGHTS IN THE AFRICAN REGION: AN INTRODUCTION Charles Ngwena and Ebenezer Durojaye 1 Introduction The human rights relating to sexual and reproductive health typify unmet human rights needs in the African region. Despite drawing sustenance from international human rights jurisprudence, their realisation at a domestic level is often precarious. In developing countries, especially, the domestic political, legal, economic, social and policy environment has often appeared particularly unwilling to yield to the imperatives of respecting sexual and reproductive health and rights in all their manifestations. In the African region, there are good reasons to take the challenge of realising rights for protecting sexual and reproductive health seriously. There is ample evidence to suggest that such rights are being denied on a significant scale. The region’s current challenges in effectively realising sexual and reproductive health for its people include: unmet needs in access to contraception; high levels of maternal mortality and morbidity, including mortality and morbidity from unsafe abortion and lack of access to obstetric care; the persistence of pandemic levels of HIV; early and/or coerced marriages; harmful cultural practices such as female genital mutilation; sexual violence and exploitation; and endemic discrimination on the basis of age, marital status, sexual orientation, disability and other vectors of discrimination. Though unmet sexual and reproductive health and rights are experienced across the gender divide, it is women who are at the receiving end of most deprivations. It is essential to transcend the rhetoric of rights so as to ensure that sexual and reproductive rights are in practice secured for all. Commitments made by governments to respect, protect and fulfil sexual and reproductive health under human rights instruments as well as nontreaty global and regional consensus statements are meaningless without effective implementation at the domestic level. Where there is a failure to implement, there must be state accountability. As part of promoting accountability, it is essential to engage in concerted efforts to ensure that 1 2 Chapter 1 governments that have not committed themselves to respecting, protecting and fulfilling rights related to sexual and reproductive health are persuaded and, ultimately, required to do so. This purpose can be achieved partly through optimal utilisation of available human rights systems, including the regional system. It is a truism that in the African region, international human rights have been woefully slow in filtering to the domestic sphere. This applies to rights emanating from the region’s human rights treaties as well.1 Compared to its European counterpart under the European Convention of Human Rights (European Convention),2 for example, the regional system of human rights protection under the African Charter on Human and Peoples’ Rights (African Charter)3-based system is still far from achieving the same resonance at the domestic level in terms of both visibility and implementation. But the picture has not remained bleak or static. The African human rights landscape has been undergoing transformation in recent years, including in the area of sexual and reproductive health as human rights. In this regard, more than any other recent regional development, the adoption of the Protocol to the African Charter on the Rights of Women in Africa of 2003 (African Women’s Protocol)4...
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