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Sexual Violence As a Violation of Sexual and Reproductive Health Rights: a Case Study of South African and Nigerian Law on Sexual Violence Against Women

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Sexual Violence As a Violation of Sexual and Reproductive Health Rights: a Case Study of South African and Nigerian Law on Sexual Violence Against Women SEXUAL VIOLENCE AS A VIOLATION OF SEXUAL AND REPRODUCTIVE HEALTH RIGHTS: A CASE STUDY OF SOUTH AFRICAN AND NIGERIAN LAW ON SEXUAL VIOLENCE AGAINST WOMEN. OYEBANKE TAIWO YEBISI 215082170 Dissertation submitted for the Degree of Master of Laws in the College of Law and Management Studies, University of KwaZulu-Natal, Pietermaritzburg Campus. October 2016 Supervisor: Ms V. Balogun DECLARATION I, Oyebanke Taiwo Yebisi, hereby declare that the work on which this thesis is based is my original work (except where acknowledgements indicate otherwise) and that neither the whole work nor any part of it has been, is being, or is to be submitted for another degree in this or any other university. .......................................... 15th December, 2016 SIGNATURE DATE SUPERVISOR: Ms V. Balogun …………………………. …………………………. SIGNATURE DATE ii DEDICATION I dedicate this thesis to my family, my loving and ever-supportive parents Dr. & Mrs Tunde and Folake Yebisi, my brothers Bode Yebisi and Boluwatife Yebisi, and my fiancé Oluwademilade Apara. Thank you for your words of encouragement and prayers, financial and moral support all the way. I love you. This thesis is also dedicated to women and girls who have been sexually violated at one point or the other and those who are in potentially violent relationships who do not have the courage and confidence to voice out. iii ACKNOWLEDGEMENT To start with, I wish to thank the Almighty and All-sufficient God for seeing me through the process of putting this thesis together. Times when I had little or no clue as to what to write, He never failed to show up for me. For this, I am immensely grateful. Secondly, I appreciate my supervisor, Ms. Victoria Balogun, who throughout the process of putting together this thesis never stopped believing in me and my ability. Thank you for seeing the best in me when I failed to see it, for your guidance, support and for the constructive criticisms you provided throughout. Special thanks to my big sister, Mrs Bolanle Eniola for always assisting and giving me a shoulder to lean on. I am grateful ma. I also thank the members of Rabboni House of Missions, especially Dr. Oye Akinola, Pastor and Mrs Mowoe for their prayers, love and support throughout my study period. I want to say a big thank you to my friends, Bimpe, Lekan, Lungi, Sne, Charity and Priscilla who made my study period quite exciting. May God bless you. My very special gratitude goes to my entire family for their unrelenting prayers, encouragement, support and love. I am deeply grateful to my parents, Dr. & Mrs Yebisi who provided the financial and moral support I needed throughout my study period. I also thank my fiancé and my brothers, the men in my life as I fondly call them, for inspiration and words of wisdom at every turn, for financial support and love. God bless you. And my uncle, Yomi Ajayi and his family, I say God will never stop being your shield and great reward. To all others who I have failed to mention but who in one way or the other contributed to the success of my study, I say a big thank you and may the good Lord in His infinite mercy bless you all. iv ABSTRACT The right to sexual and reproductive health is a right which finds footing in other rights including that of the right to life and survival, which is necessary for the fulfilment of other human rights such as the right to health; the right to freedom from sexual violence; and the right to freedom from torture, cruel, degrading or inhuman treatment. However, violations of the right to sexual and reproductive health, especially for women, occur in various forms; including that of sexual violence. There are various manifestations of sexual violence, including child marriage, marital rape, sexual abuse of children, female genital mutilation, and virginity testing, among others. At international and regional levels, various instruments have been adopted through the passing of resolutions and adoption of declarations at conferences and summits for the protection of sexual and reproductive health rights of women and protection from sexual violence. At the national level also, Nations all over the world have enacted various laws and introduced various policies to ensure that the right to sexual and reproductive health is protected and prohibit various forms of sexual violence against women. This thesis focuses on South African and Nigerian laws on the protection of sexual and reproductive health rights, particularly protection of this right in relation to sexual violence against women. International, regional and sub-regional instruments are used as a framework for the protection of women against sexual violence and the efforts of the selected countries are analysed based on this. This dissertation is based on the following questions: a. What legal and regulatory frameworks have been provided by South Africa and Nigeria for the protection of women and girls against child marriage and marital rape? b. How do international and regional instruments confront the problem of sexual violence, especially issues such as marital rape and child marriage; and how can this impact on Nigeria? c. How can the mechanisms available for the protection of women against sexual violence in South Africa be adopted in Nigeria to prevent and punish acts of sexual violence such as child marriage and marital rape and what adjustments should be made? d. What is the impact of practices such as child marriage and marital rape on the promotion and fulfilment of sexual and reproductive health rights in Nigeria? v At the conclusion of the analysis of the various laws and policies in place in the selected countries, reforms and adjustments are proposed for Nigeria, which will ensure better protection of sexual and reproductive health rights, especially with protection from the forms of sexual violence discussed. vi TABLE OF CONTENTS DECLARATION ............................................................................................................................ ii DEDICATION ............................................................................................................................... iii ACKNOWLEDGEMENT ............................................................................................................. iv ABSTRACT .................................................................................................................................... v TABLE OF CONTENTS .............................................................................................................. vii CHAPTER ONE ............................................................................................................................. 1 1.1 INTRODUCTION ............................................................................................................ 1 1.1.1 South Africa .............................................................................................................. 3 1.1.2 Nigeria....................................................................................................................... 6 1.2 AIMS AND OBJECTIVES ............................................................................................ 10 1.3 PROBLEM STATEMENT ............................................................................................ 10 1.4 RESEARCH QUESTIONS ............................................................................................ 11 1.5 SIGNIFICANCE AND LIMITATIONS OF RESEARCH ............................................ 12 1.6 RESEARCH METHODOLOGY ................................................................................... 13 1.7 HISTORICAL BACKGROUND OF THE CONCEPT OF SEXUAL AND REPRODUCTIVE HEALTH RIGHTS AND SEXUAL VIOLENCE ............................ 14 1.8 DEFINITION OF TERMS ............................................................................................. 23 1.8.1 Sexual and Reproductive Health Rights ................................................................. 23 1.8.2 Sexual Violence ...................................................................................................... 26 1.8.3 Marital Rape............................................................................................................ 26 1.8.4 Child Marriage ........................................................................................................ 27 1.8.5 Consent ................................................................................................................... 27 CHAPTER TWO .......................................................................................................................... 30 vii SEXUAL AND REPRODUCTIVE HEALTH RIGHTS, SEXUAL VIOLENCE AND THE PROTECTION OF WOMEN‟S RIGHTS .................................................................................... 30 2.1. INTRODUCTION .......................................................................................................... 30 2.2 INTERNATIONAL RESPONSES ............................................................................... 31 2.2.1 Universal Declaration of Human Rights (UDHR) 1948 ......................................... 31 2.2.2 International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 .. ................................................................................................................................. 33 2.2.3 International Covenant on Civil and Political Rights (ICCPR), 1966 .................... 36 2.2.4 Convention on the Elimination of All Forms of
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