South African rulings uphold rights of HIV+ employees

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Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), now an LL.D. candidate with the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for composing and/or editing summaries of 54 recent African court decisions for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published in 2017 by Pretoria University Law Press (PULP).  All three volumes in the series are freely available in print or electronic form.

Two of the court decisions summarized in Legal Grounds III clearly upheld the rights of HIV-positive persons against discrimination, including  unjust dismissal, and exclusion from certain job opportunities.

Gary Shane Allpass v Mooikloof Estates (Pty) Ltd. [2011], Case No. JS178/09, a Labour Court of South Africa upheld the rights to equality and non-discrimination of HIV-positive persons in the workplace.  The Court ruled that a horse-riding instructor’s dismissal from employment for HIV-positivity was…

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94 mental health patients in Gauteng: A lesson for State parties to the CRPD – A classic case of a poor deinstitutionalisation process

Author: Patricia Mwanyisa
Consultant – Human Rights and Access to Justice

As South Africa took time to celebrate its annual human rights day on March 21, this year (2017) the deaths of the 94 patients in Gauteng Province in a space of under a year should not be forgotten. The provincial government of Gauteng took the decision to remove persons with psychosocial and intellectual disabilities from government health institutions to reduce spending on their healthcare. The implementation process was poorly planned, rapidly executed and chaotic.  The move had fatal and disastrous consequences as it not only contravened national and international law, but also proved cruel and inhumane. The record shows 94 lives were lost, families have been severely traumatised and a healthcare support system regardless of whether it was the most ideal or not was shaken to its knees.

Apart from violating domestic law – the National Health Act 61 (2003) and the Mental Health Care Act 17 (2002)) – as a State party to the UN Convention on the Rights of Persons with Disabilities (CRPD) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), among other international instruments, there are several frameworks that were contravened by South Africa. This case provides an opportunity for some serious learning for South Africa (SA) as well as other African States. Learning from previous mistakes is vital for progress. Focus should be directed on how to avoid making similar mistakes in the future. It is probably more important to provide guidance to State parties or governments when they have made mistakes as opposed to the naming and shaming – particularly after the fact. To be productive, however requires the state or those in power to accept responsibility, acknowledge their mistakes and be receptive to the guidance. Ultimately, objectively and substantively unpacking the critical aspects or points at which things went wrong in the Gauteng saga from an international human rights perspective would be beneficial for the planning and implementation of these types of projects or programmes in the future.

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Stripped of Dignity: The Struggle for LGBT Rights in Tanzania

rodger_owisoAuthor: Daniel Marari
LLM, International Human Rights Law, Lund University, Sweden

Although the Tanzanian Constitution (1977) guarantees the right to equality and prohibits discrimination based on gender and sex, lesbian, gay, bisexual and transgender (LGBT) people still face deeply rooted hostility, prejudice and widespread discrimination in the Tanzanian society.  Threats of criminal penalty, social exclusion, harassment and violence make it particularly unsafe for one to come out as an LGBT person.

At present, certain homosexual acts between consenting adult males are criminalized under the Penal Code (Chapter 16 of the laws). Under section 154 of the Penal Code, committing or attempting to commit “unnatural offences” are crimes punishable with a maximum sentence of life imprisonment and twenty years’ imprisonment, respectively. “Unnatural offence” is defined as (1) sexual intercourse with any person “against the order of nature” as well as (2) consensual sexual intercourse between a man and man or woman “against the order of nature”.  The words “against the order of nature” are not statutorily defined. Also, under section 157 of the Penal Code, it is an offence punishable with a maximum of five years imprisonment for any male person, whether in public or private, to commit an act of gross indecency with another male person.  By section 3 of the Sexual Offences Special Provisions Act, “gross indecency” is defined as “any sexual act that is more than ordinary but falls short of actual intercourse and may include masturbation and indecent physical contact or indecent behavior without any physical contact”.  Consent is no defense to any of these offences and no distinction regarding age is made in the text of the law. As the consequence of the existence of these laws criminalizing private consensual homosexual acts, LGBT people in Tanzania live in psychological stress and unceasing fear of prosecution and imprisonment.
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AFRICA: Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts – 54 case summaries

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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…

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South Africa: Genetic-link requirement for surrogacy is constitutional

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Congratulations to Ronaldah Lerato Karabo Ozah and the Centre for Child Law at the University of Pretoria, a law clinic which was accepted and thanked as amicus curiae in this recent decision:

AB and Surrogacy Advisory Group v. the Minister of Social Development (Centre for Child Law as Amicus Curiae)  CCT 155/15, decided November 29, 2016 (Constitutional Court of South Africa) Decision online.

On 29 November 2016, the South African Constitutional Court found that the “genetic-link requirement” for surrogate motherhood agreements is constitutionally valid and does not unjustifiably limit the rights of persons who cannot contribute their own gametes for surrogate motherhood agreements. The decision follows the challenge by the Applicants to section 294 of the Children’s Act (38 of 2005) which requires that the gametes of at least one of the commissioning parents must be used for the conception of a child to be born from a surrogate…

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Tanzanian Court: Third party consent to marriage of girls under 18 is unconstitutional

Tanzanian Court: Third party consent to marriage of girls under 18 is unconstitutional

reprohealthlaw

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), an LL.D. candidate at the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for summarizing this decision for REPROHEALTHLAW subscribers.  He is also Chief Editor of Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, forthcoming 2017.

Rebeca Z. Gyumi v. Attorney General, Miscellaneous Civil Cause No 5 of 2016 decided on July 8, 2016.   (High Court of Tanzania, unreported)  Decision online.

Abstract: The Court considered whether by permitting girls under the age of 18 to marry by third party consent, Sections 13 and 17 of the Marriage Act CAP R.E. 2002 (Marriage Act) violate the right to equality, the right to expression and receipt of information as provided for under Articles 12, 13, 18 and 21 of the Constitution of the United Republic of Tanzania…

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South Africa’s intention to withdraw from the Rome Statute of the International Criminal Court: Time to seriously consider an African alternative?

rodger_owisoAuthor: Rodger Owiso
LLB – Nairobi, PGD Law – KSL

While the decision by South Africa to commence the formal process of withdrawing from the Rome Statute of the International Criminal Court is shocking, honest observers will admit it was not entirely unforeseen. African countries through the African Union (AU) have long voiced misgivings about the International Criminal Court (ICC) and it was just a matter of time before the usually slow-moving AU clock started ticking. The AU had earlier this year urged its members to consider withdrawing from the Rome Statute.[1] This was triggered by the refusal by the United Nations Security Council and the ICC to accede to the AU’s requests for suspension or termination of the cases against Sudan’s president Omar al-Bashir and his Kenyan counterpart Uhuru Kenyatta and his deputy William Ruto.

While South Africa’s decision should be condemned, nothing much is likely to come of such condemnation. Treaties are a product of state consent[2] and it follows that withdrawal is equally a unilateral act of the state.[3] Even if an argument could be advanced against such unilateralism, the process is still a political one which rests almost entirely with the political class, at least in imperfect democracies. South Africa’s move is likely to embolden other African countries to commence similar processes. South Africa is Africa’s biggest economy and the AU’s largest member contributor. It is also arguably one of Africa’s better-off imperfect democracies. For these reasons, it is often the case in continental affairs that other African countries hold on to their cards until South Africa plays after which they emerge from their cocoons and play theirs in more or less similar fashion. With the possible exception of ‘righteous’ Botswana and perhaps Mauritius that considers itself African only when the situation suits it, the possibility that other African countries will follow South Africa’s lead on the ICC cannot be ruled out. In light of such possibility, how then does Africa assure its citizens that the fight against impunity as is entrenched in its founding instrument[4] is still top of its agenda, if at all it ever was?

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