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 www.pulp.up.ac.za 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] www.pulp.up.ac.za Cover: Yolanda Booyzen, Centre for Human Rights ISBN: 978-1-920538-31-6 © 2014 TABLE OF CONTENTS Acknowledgments v Foreword: Commissioner Soyata Maiga viii (Special Rapporteur on the Rights of Women in Africa) INTRODUCTION Strengthening the protection of sexual and reproductive 1 1 health and rights in the African region through human rights: An introduction Charles Ngwena and Ebenezer Durojaye PART I: REPRODUCTIVE AUTONOMY, ACCESS TO SAFE ABORTION AND EMERGENCY OBSTETRIC CARE Reducing abortion-related maternal mortality in Africa: 31 2 Progress in implementing Objective 5 of the Maputo Plan of Action on Sexual and Reproductive Health Rights Eunice Brookman-Amissah and Tinyade Kachika Access to legal abortion for rape as a reproductive 61 3 health right: A commentary on the abortion regimes of Swaziland and Ethiopia Simangele Mavundla and Charles Ngwena Abortion and the European Convention on Human 79 4 Rights: A lens for abortion advocacy in Africa Christina Zampas and Jaime Todd-Gher Accountability for non-fulfilment of human rights 119 5 obligations: A key strategy for reducing maternal mortality and disability in sub-Saharan Africa Onyema Afulukwe-Eruchalu Part II: HIV/AIDS FOCUS Adolescent girls, HIV, and state obligations under the 155 6 African Women’s Rights Protocol Karen Stefiszyn Advancing a feminist capabilities approach to 181 7 HIV/AIDS in sub-Saharan Africa Rebecca Amollo The right to health and AIDS medicines in 211 8 sub-Saharan Africa: Assessing the outcomes of a human rights-based approach to medicines Lisa Forman iii PART III: SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS: INTERSECTIONS WITH ADOLESCENCE, EARLY MARRIAGE, GENDER-BASED VIOLENCE AND POVERTY Sexual health and rights of adolescents: A dialogue 251 9 with sub-Saharan Africa Godfrey Kangaude and Tiffany Banda Promoting sexual and reproductive rights through 279 10 legislative interventions: A case study of child rights legislation and early marriage in Nigeria and Ethiopia Ayodele Atsenuwa Gaps in gender-based violence jurisprudence of 305 11 international and hybrid criminal courts: Can human rights law help? Susana Sácouto Women, sexual rights and poverty: Framing the 331 12 linkage under the African human rights system Fana Hagos Berhane Contributors 351 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 Afulukwe- Oruchalu, 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.