African Court ruling: Mali’s child marriage laws violate human rights

reprohealthlaw blog

Many thanks to George Sakyi Asumadu, an LL.M student in Sexual and Reproductive Rights in Africa at the Centre for Human Rights in the University of Pretoria’s Faculty of Law, for summarizing and commenting on the significance of this landmark decision on age of marriage, gender discrimination, and violations of rights through customary law. We are pleased to excerpt this overview of the Court ruling and provide links to the full Case C.

APDF & IHRDA v Republic of Mali(Association pour le Progrés et la Défense des Droits des Femmes Maliennes (APDF) and The Institute For Human Rights and Development in Africa (IHRDA) v. Republic Of Mali), Application No. 046/2016, African Court on Human and Peoples’ Rights. (2018)  Decision of May 11, 2018  PDF.  Decision online . Case Comment by George Sakyi Asumadu.

COURT HOLDING: The African Court on Human and Peoples’ Rights (The…

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Botswana High Court decriminalizes homosexuality

reprohealthlaw blog

Many thanks to Kutlwano Pearl Magashula, an LL.M. student in the Sexual and Reproductive Rights in Africa program at the University of Pretoria’s Centre of Human Rights, for her summary and analysis of the recent judgment in Letsweletse Motshidiemang v Attorney General [2019] MAHGB-000591-16 (High Court of Botswana)Decision of June 11, 2019, in which the Court struck down sections of the Penal Code that criminalized same-sex sexual intercourse.

(Cite as:) Kutlwano Pearl Magashula, “Botswana High Court decriminalizes homosexuality: Letsweletse Motshidiemang v Attorney General, 2019” online at: “Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts” 5-page case summary and comment

We are pleased to excerpt her comments about the significance of this ruling:

The case made a watershed finding that recognized the rights of LGBT persons in Botswana. The Court found that sodomy laws do not serve any useful public purpose and in fact ‘deserve archival…

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Extending sexual health and reproductive rights through the Court: Analysis and lessons from FIDA – Kenya & Ors v The Attorney General & Ors High Court Petititon No 266 of 2015

Author: Nimrod Muhumuza
Lawyer and LLD candidate, Dullah Omar Institute, University of Western Cape

On 3 December 2013 and 24 February 2014, the Kenyan Director of Medical Services respectively withdrew the 2012 Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion in Kenya, and the National Training Curriculum for the Management of Unintended, Risky and Unplanned Pregnancies.

In June 2018, JMM, at just 18 years of age, died as a result of a botched abortion in an attempt to terminate a pregnancy resulting from rape. Activists and JMM’s mother petitioned the High Court of Kenya linking the withdrawal of the guidelines to JMM’s death which they argued was a violation of her right to life, and her right to health. It would be first time under the new 2010 Constitution of Kenya that Court would flesh out the application of sexual and reproductive health rights, particularly the right to abortion, to a particular demographic: teenage girls from economically and socially impoverished backgrounds. The Court also had to determine, if it found that JMM’s rights had been violated, the appropriate remedies available to the petitioners.

While the petition was in relation in to JMM’s unfortunate and unnecessary death, the Court found that abortion is permissible, if in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law. The application of these rights would apply to women and girls in Kenya. In determining the what amounted to ‘health,’ the Court provided an expansive definition stating that ‘health’ entails a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.

1. Facts, arguments and the decision

JMM was defiled at the age of 14. She did not find out that she was pregnant as a result of the assault until after two months when she missed her menstrual cycle and started feeling nauseous. She also did not inform anyone about either the assault or the pregnancy for fear of being blamed and ostracised by her family members. In December, 2014, she was introduced to an individual whom she thought was a doctor. The individual advised JMM that she could terminate the pregnancy. The individual did not examine JMM, nor did he carry out any test before he gave JMM an injection and advised her to return home and wait for the foetus to be expelled the next day. The foetus was not expelled and JMM returned to the pharmacy where the individual who had administered the injection, inserted a metallic object in her vagina and advised her, yet again, to return home and wait for the foetus to be expelled.[1]

JMM was taken to Kisii Teaching and Referral Hospital where the foetus was removed. However, Kisii Hospital could not treat JMM’s renal failure caused by the heavy bleeding she had suffered from. JMM’s mother, PKM was advised to transfer JMM to a hospital with better facilities. JMM ended up at Kenyatta Hospital. At Kenyatta Hospital, JMM was diagnosed with and treated for septic abortion and hemorrhagic shock and had also developed chronic kidney disease. Following treatment, JMM was detained at the hospital for failure to pay her bills during which she fell ill again and stayed at the hospital for two extra weeks until the bill was waived by the hospital.[2] JMM died before she could undertake dialysis treatment for kidney failure suffered as a result of excessive bleeding from the attempted, botched abortion.

These facts highlight several issues that plague the guarantee of sexual and reproductive health rights not just for women but for girls. JMM was afraid of informing her immediate family about her condition, she did not know that she was pregnant until two months after she was defiled. The institutions, particularly the hospitals both private and public did not, for the most part have skilled staff or equipment to attend to her condition. Where these were available, such as ambulances, they came at a prohibitive cost for JMM and her mother. JMM’s mother and the petitioners lay blame on the respondents: that in the absence of information on how safe abortions would or could be procured, chances are that many women and adolescent girls would not know how to secure a safe abortion thus imperiling the lives of many women and adolescent girls.[3]

The major issues of contention could be reduced to four: a) is abortion permitted; b) if so, under what circumstances; c) what amounts to ‘health’ under Article 26(4) of the 2010 Kenyan Constitution; d) who should make the determination under Article 26(4) regarding the conduct of an abortion procedure.

1.1 Petitioners’ arguments

The Petitioners contended that a number of rights had been violated by the Respondents as a result of the withdrawal of the Guidelines and that JMM’s death is linked to the withdrawal of the Guidelines. These included the right to life, the right to reproductive health, the right to equality, and non-discrimination, and the right to dignity. The petitioners argued that there is need for the government to provide information to the public on the circumstances in which abortion is allowed in Kenya and who can offer legal abortion services.  Without information on how or where to access abortion services in cases of sexual violence such as rape or defilement, the respondents jeopardised JMM’s rights and as a result, she and other minors similarly situated, could not access timely and necessary post-rape care including emergency contraceptives and post-exposure prophylaxis. They argued that the Constitution allows abortion where both the physical and psychological health of the mother is endangered by the pregnancy. The Petitioners were of the view that the determination of whether a pregnancy was a health-risk to the mother should be made by a trained health professional which they argued includes nurses, midwives and clinical officers and not necessarily a medical doctor.[4]

1.2 Respondents’ case

The respondents made the case for another set of victims, that of unborn children, who are protected by the 2010 Constitution. They argued that the reinstatement and implementation of the Guidelines would sound the death knell for these children. They further contended that the documents would open a get-way for ‘abortion on demand.’ They also prayed that Court declare abortion permissible only in the narrowest of circumstances, that is, when the physical health of the mother is in danger. The respondents argued that the term ‘trained health professional’ should be construed to mean only medical doctors.[5]

1.3 Judgment

Court was cognisant of the social context in which abortion takes place noting that ‘there is a high incidence of sexual violence amongst the poor women and girls. [A] large proportion of those who procure abortions in unsafe environments are from the lower echelons of society.’[6] The Court noted ‘the reality, which is acknowledged by the Ministry of Health, is that the bulk of those who seek abortion in unsafe environments seek treatment in public health institutions.’[7]JMM is the face and the name of many girls who die in the process of trying to get rid of unwanted pregnancies, failed by the deliberate actions and omission of the very entity supposed to protect and care for her. JMM’s case was a microcosm of what many children in Kenya endure: unwanted pregnancies as a result of sexual violence which too often leads to death due to unsafe, botched abortions.

1.3.1 Is abortion permitted?

The Court held that the general rule is that abortion is not permitted under Article 26. However, the Court found that Article 26(4) only creates exceptions to the general rule.[8] Article 26(4) provides circumstances and exceptions under which abortion is permissible. The Court also found that by virtue of Article 26(4), and section 35(3) of the Sexual Offences Act women and girls in Kenya who find themselves pregnant as a result of sexual violence have a right to an abortion if the pregnancy resulting from rape or defilement endangers their lives.[9] This construction turned on the Court’s interpretation of the right to life and the right to health which includes reproductive health care which the Court found were at the core of the petition. The Court found abortion was permissible in a situation in which emergency treatment is required, or where the life of the mother is in danger. One would, therefore, extrapolate that the Court’s rationale for this holding was the protection of the life and health of the mother.

1.3.2 Under what circumstances?

The judgment was unequivocal that abortion is permissible if in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by written law.[10] To arrive at this conclusion, the Court had to determine what amounts to ‘emergency treatment’ and what amounts to ‘health’ under Kenyan law. ‘Emergency treatment’ refers to necessary immediate health care that must be administered to prevent death or worsening of a medical situation.’[11] The Court clarified the question of what amounted to ‘health’ under the Constitution. It provided an expansive and women and girl-child-friendly definition when it stated that health is a state of complete, mental and social well-being and not merely the absence of disease or infirmity.[12] This definition has to be read disjunctively and only one of these conditions need to be present for one to have the right to an abortion.[13] While the case before the Court concerned a pregnancy arising from sexual violence, the Court seemed to go further in stating that ‘it is not the cause of the danger that determines whether an abortion is necessary but the effect of the danger.’[14] In other words, interpreted liberally, a pregnancy that is a result of consensual sexual intercourse that impairs the health, expansively defined, of the mother gives her a right to terminate it subject to the determination of a trained health professional. This particular finding is revolutionary given that health includes the mother’s psychological health.

1.3.3 Who should make the determination that a mother’s life is in danger?

The Court was cognisant of the fact that there is a shortage of qualified medical doctors in many Kenyan facilities.[15] It was also alive to the fact that many health facilities that are the first port-of-call for women and girls seeking reproductive health services are manned by nurses and clinical officers.[16] To hold that only qualified medical doctors could make this determination would be detrimental to individuals like JMM who, due to socio-economic reasons are unable to access and/or afford the services of a qualified medical doctor. In other words, ‘It would mean that women in poor rural communities without [the services of qualified medical doctors] would be unable to procure abortions with potentially serious or fatal repercussions for some poor women.’[17]

1.4 Impact of the decision

The decision is one of a handful of Court cases that make pronouncements on the constitutionality of sexual and reproductive health rights, particularly the right to abortion, on the continent.[18] The Court’s liberal interpretation of the right to health, and who should make that determination should be lauded given the political, legal and socio-economic circumstances in which the right to health in general, and abortion in particular, is situated. Only three countries on the continent permit abortion without any restrictions.[19] While holding that abortion remains illegal in Kenya, the Court in the instant case seems to have put Kenya on the right direction in a bid to reduce maternal mortality arising from unsafe abortions. In clarifying the law on abortion in Kenya, the decision holds out hope for women and girls who need these services, as well as health care providers who offer them.[20] It is also a very useful precedent for advocates and jurists in countries with similar

[1] See paras 1-4 of judgment.

[2] Ibid paras 5-11.

[3] Ibid para 12.

[4] Ibid paras 14-23.

[5] Ibid paras 24-33.

[6] Ibid paras 319-320.

[7] Ibid paras 354-356.

[8] Ibid para 356 of the judgment. Article 26(4) provides that ‘abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

[9] Ibid paras 397-398 of the judgment.

[10] Ibid paras 397-398, 271.

[11] Section 2 of the Health Act, No 21 of 2017 cited at para 356 of the judgment.

[12] Para 361 of the judgment.

[13] Ibid para 362 of the judgment.

[14] Ibid para 399.

[15] Ibid para 358. Court notes that the use of the term ‘trained health professional’ was a ‘concession to the dearth of qualified medical doctors in many of our health facilities.’

[16] Ibid.

[17] Ibid.

[18] Two decided cases are available and both were heard and determined in South Africa. In 1998, the Christian Lawyers’ Association sought to have the Choice of Termination of Pregnancy Act declared unconstitutional on grounds that it violated a foetus’ right to life under section 11 of the 1996 South Africa Constitution in Christian Lawyers’ Association of South Africa and others v Minister of Health and others 1998 (4) 1113 (T) (10 July 1998).  Court found that a foetus is not a person and does not have a right to life, and that the right to make decisions concerning reproduction, contained in section 12 of the Bill of Rights, protects a woman’s right to decide whether or not to have an abortion. In 2004, Christian Lawyers Association of South Africa v National Minister of Health and others 2004 (10) BCLR 1086 (T), the petitioners challenged the constitutionality of an amendment to the Choice of Termination of Pregnancy Act that allowed minors above the age of 12 to terminate their pregnancies without informing or seeking the consent of their parents. The case was also dismissed. Court found that the Constitution protects the right of a woman to determine the fate of her own pregnancy and that the State may not unduly interfere with a woman’s right to choose whether or not to undergo an abortion.

[19] See Guttmacher Institute ‘Abortion in Africa: Incidence and Trends’ March 2018 accessed at https://www.guttmacher.org/fact-sheet/abortion-africa 22 August 2019.

[20] Centre for Reproductive Rights ‘The Center wins a major victory for abortion rights in Africa’ 12 June 2019 accessed https://reproductiverights.org/story/center-wins-major-victory-abortion-rights-africa at on 27 August 2019.

About the Author:
Nimrod Muhumuza is a lawyer and LLD candidate at the Dullah Omar Institute, University of Western Cape

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The Global Compact on Refugees: A breakthrough opportunity in addressing the protracted refugee crises in East Africa

Author: Juliet Nyamao
Human Rights Attorney, Kenyan Bar

In recent years, the world has witnessed an explosive increase in the number of refugees and internally displaced persons. The upsurge in forced displacement has increased the demand for humanitarian assistance and strained the limited resources of host nations, majority of which are developing economies. The resulting economic strain compelled the international community to develop sustainable mechanisms for protecting refugees and displaced persons in alignment with the 2030 Agenda for Sustainable Development.

According to the UN refugee agency report, 9 out of 10 refugees live in developing countries, with limited access to basic services like health, education and food. Sub-Saharan Africa hosts the largest proportion of refugees and displaced persons globally. The East Africa region hosts a large proportion of refugees in Africa. Kenya, Uganda and Ethiopia collectively host over 2.2 million refugees, many of whom are fleeing war, human rights violations and adverse climate changes. Despite the tremendous hospitality of these host countries and generous donations towards humanitarian funding, the gap between needs and humanitarian funding has continuously widened.

On 19 September 2016, world leaders  at a United Nations Summit for Refugees and Migrants in New York, United States, unanimously adopted the New York Declaration for Refugees and Migrants. This declaration was adopted specifically to address the plight of thousands of refugees and migrants confined in refugee camps with little hope of returning to their home countries. The  Declaration  reaffirmed the principles of refugee protection enshrined in the 1951 United Nations Convention on the Rights of Refugees. During the Summit, Member States further agreed to work towards the adoption of two critical documents: a global compact on refugees, and a global compact for safe, orderly and regular migration.

The Global Compact on Refugees was premised on four key objectives:

  • easing pressure on host countries,
  • enhancing refugee self-reliance,
  • expanding access to third-country solutions and
  • supporting conditions in countries of origin to enable safe, voluntary, and dignified returns.

The Compact was founded on principles of sovereign equality of Statesresponsibility-sharing, non-discrimination, and realisation of human rights. This Compact acknowledges a collaborative strategy in enhancing and improving livelihoods, while tackling challenges for communities in countries of origin, transit and destination. The Compact is consistent with the purpose and object of the United Nations Charter, which emphasises international co-operation in solving global problems, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

The Compact will hugely and desirably aid the response to the protracted refugee crises in the Eastern Africa region, as it would translate the principles of international cooperation and responsibility-sharing into practice. Despite East Africa bearing the greatest burden of the refugee crises and shouldering much of the responsibility, the international response has often remained insufficient and underfunded to the detriment of the refugees. Many host countries, majority of whom are developing economies, continue to face portentous humanitarian challenges as well as perennial food insecurity.

The protracted refugee crises has been exacerbated by the lack of political will, donor fatigue and inadequate funding. However, the Compact provides a basis for reliable and reasonable burden- and responsibility-sharing  commitments among all United Nations Member States, to include hosting and supporting the world’s refugees. Several mechanisms have been endorsed to facilitate burden- and responsibility-sharing. Firstly, through a periodic Global Refugee Forum, UN Member States have the opportunity to make both financial and non-financial pledges towards the implementation of the compact. The forums are crucial to ensuring accountability and compliance by Member States. Secondly, host countries may establish national leaderships to coordinate and facilitate the efforts of all relevant stakeholders working to achieve a comprehensive refugee response. The national leadership would guide the development of comprehensive refugee response plans to align with the national policies and priorities. Thirdly, the establishment of a Support Platform would facilitate precise support for refugees, host countries and communities, in line with the host country’s ownership and governance of the process. This would be fulfilled through implementation of a comprehensive policy initiative to ease pressure on host countries and build self-sufficiency among the refugees.

Additionally, in order to achieve the 5th UN Sustainable Development Goal, the Compact establishes a program of action that specifically targets women in conflict and seeks to promote gender equality and empowerment. Sexual and gender-based violence, trafficking in persons, and sexual exploitation and harmful practices experienced by women in refugee settings will be addressed by this program. Women living in refugee camps disproportionately face grievous human rights violations simply due to their gender. The program seeks to ensure these vulnerable women are protected, and able to seek redress for human rights violations.

Therefore, the Global Compact on Refugees has provided a breakthrough  opportunity to reinforce a global comprehensive response to the protracted refugee crises in East Africa. Proper implementation and enforcement of the recommendations of the Compact portends to improve livelihoods and protect the plight of refugees in the region. However, the success of the Compact will rely on successful mobilisation of political will, and sustainability of political engagement in addressing the widening gap between humanitarian needs and humanitarian funding. By emphasising on international co-operation, and burden and responsibility-sharing commitments, the Compact has the prospect of transforming lives and offering better protection for refugees as well as the residents of host countries.

About the Author:
Juliet Nyamao is a Human Rights Attorney admitted to the Kenyan Bar. She received her LLB from Moi University School of Law (Kenya) and LLM from Georgetown University Law Centre (USA). Juliet completed her fellowship in Leadership and Advocacy for Women in Africa at Georgetown University Law Center. She is currently a fellow at the American Bar Association-USA.

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A human rights approach to internet taxes in Africa

Author: Tomiwa Ilori
HRDA Alumni Coordinator/Researcher: Democracy, Transparency and Digital Rights Unit, Centre for Human Rights, University of Pretoria

Due to increasing underdevelopment in sub-Saharan Africa, many governments have looked towards several means to make up for deficits in domestic fiscal planning. One of the means through which governments have financed their budgets is by levying higher taxes on companies and individuals to be able to raise revenue.

While there may be legitimate reasons for states to levy taxes, in order for a tax system to be regarded as good and effective it needs to comply with at least five basic conditions: ensure a beneficial system; transparent in collection and use; less bureaucratic and equitable – every person should pay a fair amount of taxes not injurious to their well-being. While Information and Communications Technologies (ICTs) potentially impact the global economy, not all economies have thrived equally. In most sub-Saharan African countries, the impacts of ICTs have been least felt which damages the prospects of democratic development in the region.

Considering the wave of African countries now keen on legislating on internet taxes, there seems to be more justification for these taxes than improving revenue generation. Sections 18, 20 and 22 of the Tanzanian Constitution provides for the rights to freedom of expression association and work. The Tanzanian government levies a registration fee of more than US$900 for bloggers and other online content producers. The Electronic and Postal Communications (Online Content) Regulations of 2018 prescribes this fee in its Second Schedule. According to Sections 7(1) and (2) of the Regulation, this fee must also be paid by non-citizens of Tanzania who have their content accessed in Tanzania and refusal to pay such amount results in a fine of US$2200 and/or a minimum imprisonment of 12 months which depending on the case at hand, could be more. All of these regulations exist notwithstanding fact that 7.8% of Africa’s young population lives in Tanzania – making up 35% of its population which could benefit from the booming global e-commerce economy.

In Uganda, several online users have fallen by the sides after the introduction of internet taxes in the country. More than a year after the introduction of the tax, more than three million users (30% of those connected to the internet in Uganda) have stopped using the internet. The tax has also generated just 17% of the estimated revenue it was calculated to generate while more urban connected users are less affected compared to those who live in the rural areas. The tax increased broadband cost by 10%.

Despite strong opposition from stakeholders in 2018, the Zambian government also introduced internet taxation which has since denied access to more than 1.5 million internet users. Zambia has an internet penetration rate of only 40% which the introduction of the tax may further reduce.

The Finance Act of 2018 of Kenya has also been amended to introduce taxation of internet data services and fixed line telephone services by 15% with an already existing Value Added Tax (VAT) of 16% being paid by consumers. However, due to the large internet penetration base in Kenya at 85%, this increase may not have any meaningful negative impact on broadband access in Kenya.

In Ghana, the government recently increased the Communication Service Tax (CST) from 6% to 9% which is levied on consumers who use communication services of telecommunication providers that operate in the country. The new increase was made without the due process which requires stakeholders’ deliberations on the proposed increase.   Benin and Nigeria have also at some point in time considered internet taxation but dropped it.

However, while Nigeria may have dropped its own policy towards internet taxes, it has come up with another means of levying such taxes by focusing on online advertisements. It intends to do this by relying on Article 21 and 80 of the Nigerian Code of Advertising Practice which allows the Advertising Practitioners Council of Nigeria (APCON) to vet advert materials. Expedited vetting will cost between US$450 and US$800 while regular vetting will cost US$70. Failure to comply with these requirements may incur a fine of US$1400. Even though the Courts have ruled that levying of fees on adverts are only limited to advertising practitioners, the Council seem bent on implementing the policy even though it does not seem to be in its purview to do so.

Given the high poverty rates in some of these countries where internet taxes are being introduced, digitisation provides prospects for e-commerce and more vigorous online debates on driving people-focused public policy. Also, in each of these countries, the Laffer curve theory which postulates that an introduction of tax will not necessarily yield the desired amount of revenue is evident. Tax experts in Ghana have specifically warned that the new increase in CST may not yield the desired revenue projections.  In Uganda, the internet penetration may reduce drastically if the taxation continues for five years before it is reviewed. This is same for Tanzania whose government demands fees just about its GDP per capita as registration fees from bloggers. The amount to be realised by the state with this fee is not only negligible in contributing to Tanzania’s revenue generation, it seems more like a means of silencing the growing strength of online press in the country.

Countries like Tanzania will completely stamp out online freedom of expression and association online if the obnoxious registration levy for bloggers and internet taxes are not revised. This is also bearing in mind the rights to dignity, work and freedom of expression of these journalists and online bloggers have been adversely affected while also denying the public’s right to access information in Tanzania. These taxes are not only evidence of a bad tax system by not complying with the criteria above, they also adversely impacts on the fundamental human rights of the online public in Tanzania and Zambia as protected under national and international laws.

Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the right to gain living by work. Article 15 of the African Charter on Human and Peoples’ Rights (the African Charter) also provides for the right to work ‘under equitable and satisfactory’ conditions. This same right is guaranteed under Article 22 of the Tanzanian Constitution. Articles 40(1)(a) & (2) of the Ugandan Constitution also provides for the right to work under ‘satisfactory… conditions’ and ‘has the right to practice his or her profession…’

In the United Nations’ Guiding Principles on Extreme Poverty, States are advised that ‘Fiscal policies, including in relation to revenue collection, budget allocations and expenditure, must comply with human rights standards and principles, in particular equality and non-discrimination.’

All these provisions, together with the right to human dignity which being able to earn a living affords, are being violated by the introduction of these taxes in these countries. The right to freedom of expression is also under serious threats online as most of these taxes are targeted to reduce the impacts of deregulated public access to government policy making challenges through online platforms.

While it is not clear how the Nigerian advert regulating agency intends to collect the levies on online adverts, it is clear that such levy will not only affect small businesses that are teeming in the country, it will also raise questions as to whether it is a good tax system given no clear mode of collection. It also raises important questions on the propriety of licensing internet services which has been regarded as violating international norms and standards on protecting internet rights.

Facts have emerged that levying of internet taxes do not achieve the desired outcome of revenue generation but most African governments seem to continue with it given that it also helps to chill the enjoyment of human rights online. Also, given the Nigerian example of regulating online adverts, most of these regulations are already being carried out by these online platforms through their community guidelines and policies therefore such regulation by the agency is a waste considering the several adverse effects it would have on small businesses and the rights of many to work in the country.

The Kenyan example of internet taxation and the effect it has on users ought to show that it is best to develop broadband infrastructure that encourage affordability and access before introducing taxes. As most African countries are in the most expensive half of the table of countries with costly broadband access, countries that introduced internet taxes have had more people who no longer have access because the tax has become an unbearable burden making already expensive broadband even more expensive.

These issues show that African governments must take a human rights approach to internet taxes by respecting human rights, building proper broadband infrastructure and allowing businesses to thrive before milking them through counterproductive taxes. It is also an opportunity for many African states levying these taxes and those with plans to, to pay more attention to their obligations under international law. There is no point in levying taxes where not only the standard of living drastically reduces but also where there are hardly any results in improvement in public utilities and governance.

About the Author:

Tomiwa Ilori is an LLD Candidate and Researcher at the Democracy, Transparency and Digital Rights Unit of the Centre for Human Rights, University of Pretoria where he is also the Coordinator of the Centre’s LLM/MPhil in Human Rights and Democratisation in Africa (HRDA) alumni network.

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African Colloquium: Overcoming Barriers to Safe Abortion, Jan. 16-17, 2020, University of Pretoria

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Colloquium on Overcoming Barriers to Safe Abortion in the African Region, 16-17 January 2020 at the Centre for Human Rights, University of Pretoria, South Africa. Details, funding, topics, and Call for Abstracts

The Centre for Human Rights, University of Pretoria, South Africa, will host a colloquium on #SafeAbortion and realising women’s human rights from 16 to 17 January 2020. The colloquium is about developing responses to the persistence of unsafe abortion in the African region. The Centre invites abstracts on overcoming barriers to safe abortion in the #African region. The focus is two-fold: critically exploring laws, policies and practices that serve as barriers to access to safe abortion; and suggesting reforms to overcome the barriers in consonance with women’s human rights. The colloquium seeks to bring together scholars, practitioners and researchers from the African region and beyond working on various aspects of abortion.

Abstracts must be sent by email to

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The perpetual endeavour: Gender-mainstreaming and sustainable development in Kenya

Author: Juliet Nyamao
Human Rights Attorney, Kenyan Bar

According to Amnesty International’s Africa 2017/2018 report, women disproportionately bear the brunt of poverty. Persistent discrimination, marginalisation and abuse of women and girls, have systematically become institutionalised by unjust laws. Although the Constitution of Kenya guarantees equal rights and freedoms for both men and women, long-standing gender inequalities have significantly impeded the overall contribution of women and girls in achieving Kenya’s sustainable development agenda.

Women have not only been subjected to the worst forms of human rights violations, but they have also been consistently denied their right to active participation in the country’s growth and development, simply because of their gender. Women’s lack of socio-economic independence, as well as a prejudiced Kenyan society, both highlight gross violations of their inherent human rights including equal protection of the law. Addressing the longstanding gender inequalities and promoting women’s economic empowerment would be pivotal in accelerating achievements of the sustainable development goals in Kenya, and globally.

Kenya has one of the world’s highest rates of population growth, with half of its population living below the national poverty line. Consequently, many Kenyans lack access to quality education, health services, food, water and other important social services. After the promulgation of Kenya’s Constitution in 2010, women were determined to take up political and other leadership roles like their male counterparts. During the August 2017 general elections, many women aspirants vied for various political positions. This resulted in an increase in women’s representation in parliament, from 16 to 22 following the 2012 and 2017 general elections, respectively. Despite this milestone, women aspirants and politicians continue to face constant criticisms, hate speech and gender-based violent attacks from members of the public. The electioneering period is among the worst times for women in Kenya. Violence has been used to deter many women from seeking political and other leadership positions, as well as exercising their voting rights. Despite the milestones so far achieved, Kenyan women’s representation in leadership and politics falls short of the global average.

A 2011 International Foundation for Electoral Systems (IFES)/Bardall study on violence against women in elections established that women and men encounter electoral violence divergently, with women experiencing more than twice as much violence as their male counterparts. Thwarting women’s political participation greatly undermines their social, civil and political rights as enshrined in the Constitution as well as international conventions on women’s rights. Violence against women in politics also threatens to perpetuate gender inequality and human rights violations. Therefore, it is in the interests of the State to adequately take measures to address violence against women in politics and leadership positions to accelerate gender equality and the political empowerment of women.

Women make up a greater percentage of the workforce in the agricultural sector as well as other informal employment sectors.  However, majority do not have access and control over land and other properties.  Gender inequality in access and control of land and property is rampant owing to discriminatory inheritance and succession practices, disproportionate access to land and unfair land and property rights reforms.  Despite legislative reforms bestowing women the same rights as men in ownership of land and property, women are disproportionately disadvantaged due to the persistent discriminatory customary practices that are patriarchal in nature. Although, women are the pillar of agriculture in Kenya, which is a great source of income, for the most part, land is left to the male members of the family to inherit or own. These unjust customary laws and practices contribute to persistent gender inequality and give poverty a predominantly female face, since many women are dependent on men for financial support.  Insignificant proportion of women in Kenya have registered titles to land. Similarly, women have access to less than 10% of available credit, and less than 1% of agricultural credit. To improve the gender inequality, action must be taken to accelerate women’s access to resources by addressing persistent barriers that hinder realization of their land and property rights. Increasing women’s access to credit facilities, will likely  improve food security and alleviate poverty. Economically empowered women actively participate in decision making, which is significant in addressing the diverse growth and developmental challenges that have rocked Kenya and the African continent at large.

Nevertheless,  Kenya  has made great strides in improving the status of women and girls. The 2016 report of the African Human Development Index, ranked Kenya 18th in Africa, and 145th globally, in enhancing gender equality. The report highlighted that sub-Saharan Africa was losing an average of $95 billion a year due to gender inequality.  Kenya was also recognised at the Assembly for Women Conference in 2016 for prioritising girl child education and women’s political participation as drivers of change.  Implementation of gender equality laws, however, still remains a challenge. Although the government of Kenya has passed land laws to protect inheritance rights and eradicate customary practices that impede women’s access to property, many women continue encountering challenges to accessing the legal justice system for enforcement of these rights. It will require substantial effort and political will to ensure existing laws are applied entirely in all the counties in the country.

The United Nations’ 2030 Agenda for Sustainable Development sets gender equality as one of the most crucial goals that countries must aim to achieve. Kenya must commit to take positive measures to ensure indiscriminate and effective access to resources and services. Promoting women empowerment is also an ideal model of addressing gender inequality. For Kenya to achieve the 5th Sustainable Development Goal, the government, civil society organisations, development partners, women leaders and other stakeholders must collaborate to protect women from discrimination, eradicate persistent discriminatory practices that hinder the realisation of women’s human rights, and ensure women’s equal protection under the law. Additionally, Kenya must formulate gender-mainstreaming policies to correct the historical gender inequalities and accelerate sustainable development goals spearheaded by women.

About the Author:
Juliet Nyamao is a Human Rights Attorney admitted to the Kenyan Bar. She received her LLB from Moi University School of Law (Kenya) and LLM from Georgetown University Law Centre (USA). Juliet completed her fellowship in Leadership and Advocacy for Women in Africa at Georgetown University Law Center. She is currently a fellow at the American Bar Association-USA.

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#IAmToufah makes the message clear: We are not going to wish the rape crisis away

Author: Satang Nabaneh
Project Officer, Women Rights Unit, Centre for Human Rights, University of Pretoria

In dealing with past human rights abuses and upholding standards of respect for human rights, The Gambia’s transition from an abusive regime to democracy must also entail justice for victims of gender-based violence. Consequently, the most illustrative example of addressing sexual violence being part of the democratisation of society happened last month when 23-year-old former beauty queen, Fatou ‘Toufah’ Jallow accused former President Jammeh of rape.

Toufah detailed her story from the starting point of winning the state-sponsored beauty pageant in 2014 when she was 18 years old. Over the next few months, Jammeh lavished her with cash gifts and other favors including installation of running water in her family house. She was offered a position as a “protocol girl,” to work at the State House, which she declined. She also turned down his marriage proposal. During a pre-Ramadan Quran recital at State House, Jammeh locked her in a room and told her: “There’s no woman that I want that I cannot have.” She said that he then hit and taunted her, injected her with a liquid, and raped her. Days later, she fled to neighboring Senegal.

Fatoumatta Sandeng, the spokesperson of the  “Campaign to Bring Yahya Jammeh and his Accomplices to Justice”  (#Jammeh2Justice campaign), and daughter of Solo Sandeng, whose murder in custody in 2016 led to a rallying call against Jammeh was also confined to a hotel in his home village Kanilai for several days. She was a well-known band singer and had caught Jammeh’s eye when she performed on TV. She was released unharmed due to Jammeh having to attend a funeral.

These public allegations against Jammeh, of coercing and forcing young women to have sex with him, form part of a core focus of spotlighting the issue of rape and other sexual crimes during his rule from July 1994 to January 2017, in efforts to prosecute him. The Gambia Truth, Reconciliation and Reparations Commission, which is currently establishing the nature, causes and extent of violations and abuses of human rights committed during the period July 1994 to January 2017 will be a vital platform to establish the systemic abuse of young women by Jammeh.

The Creation of a Movement

Following the public rape allegations against Jammeh, The Gambia’s #MeToo has been triggered. The overdue public reckoning of sexual violence led to the social media hashtag #IAmToufah.  Women, both in and outside the country, shared their own experiences of sexual assault leading to other hashtags such as #SurvivingMelville. This widespread response highly accentuates the demand for accountability and justice. The Women’s Act 2010 defines violence against women to mean:

all acts perpetrated against women which cause or could cause them physical, mental and emotional, sexual, psychological or economic harm or suffering to women, including the threat to take such acts, or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life, in peace time and during situations of armed conflicts or of wars.

The #IAmToufah movement displays the incredible strength and courage of women and girls to talk about sexual violence. However, the public debate about sexual assault quickly led to denunciation by rape apologists of the “so-called victims” as “liars and people to be blamed, not the rapist”. The urge to brand the victim as a willing collaborator is unfortunate but not bewildering, especially given the Gambian context. What the harsh judgment and victim blaming show is society’s complicity in silencing and stigmatising victims of gender-based violence, including rape.

The Movement’s Oppressors

Ironically enough, some of the fiercest denialists are actually women/young women. This conformity to societal expectations is illustrative of the way systematic domination renders these women incapable of understanding their participation in and reinforcement of their own oppression.

The denialist attitudes held by people in The Gambia reflects the national rhetoric on rape, contested understanding of ‘consent’ and the patriarchal nature of the society. Rape should be understood not just in terms of the harm that individual victims suffer, but as a pillar of patriarchy: a central part of many cultures in The Gambia. Patriarchy is “the systematic, structural, unjustified domination of women by men. It consists of those institutions, behaviours, ideologies, and belief systems that maintain, justify and legitimate male gender privilege and power.” (Braam & Hessini 2004). Rape is not just about sexual desire; it becomes a way of discipling women when men believe there is a challenge to their masculinity or when women do not exercise their traditional female roles.

Photo credit: STS Pictures

Gender-based violence is one of the most pervasive forms of human rights violations perpetrated, mostly against women and girls. It is therefore appropriate that we demand for justice. According to the 2013 Gambia Demographic and Health Survey (DHS), 4.6% of people aged 15–59 had experienced sexual violence in the 12 months preceding the report.

On July 4, 2019, hundreds of women and men, boys and girls marched in solidarity demanding that government and society take concrete action to end gender-based violence in The Gambia. What was out there on the streets was a moving mass of action giving voice to rage. They carried placards with words that seethed.

“No means No”

“No more rape.”

“We are coming for you.”

This national discourse and reflection on the ongoing problem begs the question:

Why does the culture of rape continue?

The culture of impunity that has perpetuated our society for the past two decades serves as the foundation for the lack of justice for survivors of sexual violence. Although, The Gambia currently has a regulatory framework that addresses GBV including the Children’s Act 2005, Women’s Act 2010, Tourism Offences Act 2003 and Sexual Offences Act 2013, sexual violence remains unabated. While there is no national figure on the prevalence, we do know that sexual abuse is often commonplace for women and girls in The Gambia.

Reporting and much less, prosecution hardly takes place. Victims maybe afraid to report violence, especially if the person who has hurt them is more powerful or is in a position of trust and authority and could harm them again. Given the nature of Gambian society, victims are afraid of societal condemnation and stigma making them reluctant to report.

The state is deemed to condone or perpetuate violence when it does not effectively implement laws that protect women and girls from violence, effectively allowing impunity. When the state does not hold perpetrators accountable, it sends a signal that male violence as a mechanism of control over women is acceptable, thereby leading to normalisation of the violence.

The socio-cultural system serves as the foundation that entrenches and perpetuates these sexual crimes. There is a general social acceptance of violence and perpetuation of inequality. The Gambia is a deeply patriarchal society, which creates unequal power relationships between men and women and maintains gender stereotypes. Gender stereotype is defined as “a generalised view or preconception about attributes, or characteristics that are or ought to be possessed by women and men or the roles that are or should be performed by men and women.(Cook and Cusack, 2010, p.9). Rape is part of the patriarchal system in the Gambia that promotes low status of women. Whilst women constitute more than half of the Gambian population, society does not equally value women and girls. As noted elsewhere “[a]t the heart of gender inequality lies unequal power relations between women and men in our societies, where men control and dominate over women’s lives.”

What will it take to address the issue?

While we have laws and policies in place, it is vital that we ensure effective. enforcement mechanisms are in place. This would include the strengthening of the justice system and the police to deal with cases expediently as victims need to be provided with just and effective remedies. Perpetrators of all forms of sexual violence should be prosecuted and punished.

In addition to the provisions in the above mentioned laws, the new Gambian constitution must constitutionalise the prohibition of violence against women and girls in both the private and public spheres). Constitutions serve as important frameworks for articulating a State’s condemnation of violence against women in line with international standards. The inclusion of such a constitutional protection will be premised on the basis that gender-based violence violates the fundamental rights of women and limits their opportunities and choices. The state is also obligated to prevent women’s rights violation by state (such as the police or military) and non-state actors (such as spouse, partner or employer) for the attainable of equality in all spheres.

Equally important, civil society organisations need to collectivise efforts and continue to challenge attitudes and stereotypes that engender GBV and perpetuate the subordination of women and the unequal distribution of power between women and men. Assertions of culture and religion cannot be continually used to justify violations of women’s rights.

What the #IAmToufah brings to the table is not just a viewing of women and girls as victims of violence but spotlighting the abusers who must be named, shamed and brought to face justice. #TimeIsUp as Gambia makes the choice by taking a stance to not tolerate, condone or excuse sexual violence committed against women and girls. It is time we stop finding excuses for rapists. Rape is never acceptable, and perpetrators will not go unpunished!

This article is republished from Impakter. Read the original article.

About the Author:
Satang Nabaneh is a Gambian feminist, human rights defender and researcher. She is currently a Doctoral Candidate and Project Officer, Women Rights Unit, Centre for Human Rights, University of Pretoria. Her research interests include a broad range of issues related to human rights, democracy and constitutionalism.

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Embracing teenage sexuality: Let’s rethink the age of consent in Kenya

Author: William Aseka
Human Rights Lawyer

When the Court of Appeal in Eliud Waweru Wambui v Republic Criminal Appeal No 102 of 2016, raised the issue of reducing the age of consent for adolescent, there was panic in the whole country. Everyone including leading renowned children rights advocates rejected this idea even without reading the judgment of the court. The judges in this case stated it is rather immature for adults to think that ‘teenagers and maturing adults, do not engage in, and often seek sexual activity with their eyes fully open’. The judges were of the opinion that even though teenagers might not have attained the age of majority, they may have ‘reached the age of discretion’. However, before this case, the High Court in CKW v Attorney General & Director of Public Prosecution stated that the offense of defilement under the Section 8 of the Sexual Offences Act is for the best interest of the child. In CKW case, unlike the Eliud Waweru the accused was a teenager like the victim. In fact, at the time of the offense occurring, both parties were sixteen years of age. The stark reality is that a consensual sexual relationship between two 16-year-olds is a criminal offense in Kenya. These draconian and puritanical laws are largely the product of a conservative political culture that has transformed the fight against child molestation into a full-blown war on teenage sexuality. We now live in a moral milieu so toxic and muddled that we lump together as “sex offenders” teenagers who send nude photos to each other with clergymen who rape toddlers. A first step toward reversing this madness — and actually protecting the health and safety of teenagers — would be to revise the age of consent downward to a threshold in accordance with those of other nations.

Different countries have reduced the age of consent. For instance, Great Britain, after considerable national debate, chose 16 at its magic number in 2003, although a minority of liberal Britons, led by gay rights activist Peter Tatchell, continue to push for a cut-off at 14 years. In 2008, Canada has also settled upon 16. French law sets the age of majority, in matters of romance, at 15. Other countries like Belgium (16), Denmark (15), Germany (14-16), Greece (15), Holland (16), Italy (14), Norway (16) and Sweden (15). Similarly, different African countries have lowered the age of consent. Nigeria at 11 is lowest, while countries like Ghana (16), Zambia (16), Zimbabwe (16), Comoros (13), Burkina Faso (13) Alegria (16), Guinea Bissau (16), and South Africa (16) have a lowered the age of consent. In fact, out of 54 African countries, only 23 have 18 years as age of consent. The list is not exhaustive, but importantly, the idea of lowering age of consent is not a western idea as majority of Kenyans are made to believe. In addition, it is not a way to allow pedophiles to thrive, rather it is a way of embracing teenage sexuality.

The average of first sexual intercourse remains well below 18 in Kenya. A recent report revealed that there were over 8300 adolescent pregnancies in Makueni in 2018 alone. Furthermore, media reports during last year’s national exams indicated that majority of female students sat their exams while pregnant. Additionally, when it comes to older teens, it is not at all clear why safe sexual relationships should be deterred. If a 16-year-old can enjoy sex responsibly — using birth control, taking measures to prevent the spread of disease — and he or she wishes to add sexual pleasure to the rich tapestry of adolescent life, why shouldn’t we encourage that individual to do so?

The purpose of “age of consent” statutes is presumably to prevent the exploitation of children who are not yet mature enough to make wise decisions or who do not understand the implications and consequences of sex. Of course, one could apply that same reasoning to many other potentially-corrupting activities — attending church or synagogue, for example. Yet, nobody argues we should shield children from religion until they reach 18 and are thus old enough to understand the implications and consequences of religious practice. Another justification for age-of-consent laws is that the sort of adults who prey upon young children sexually are also likely to harm them in other ways, including violently — to cover up their deeds, if for no other reason. These concerns for the safety and welfare of minors justify legal regulation, but only up to a point. A sixteen year old who asks a seventeen year old on a date poses little threat to commonweal — even if that date ends in bed. Statutes criminalising such behavior are far more likely to harm teenagers than to help them — whether by denying them access to necessary information, deterring them from sharing their experiences with teachers and counselors for fear that they or their partners will be reported to authorities, or driving them to have sex in parked cars and dark alleys rather than safe, warm bedrooms.

The Christian right and its political allies have similarly co-opted efforts to crack down on child pornography as part of their drive to suppress teenage sexuality.  Child pornography statutes, which were initially designed to prevent predators from exploiting children, are now increasingly being used to prosecute or intimidate teenagers who receive sexually explicit photos of their boyfriends or girlfriends. The problem is not with these teenagers. The problem is with the statutes.  While sexual images of 16- and 17 year old may of course be used inappropriately — as may those of adults, for that matter — the individuals who should be punished are those offenders who misuse these images, not the teenagers who take them or the romantic partners who savor them. Exploitation is wrong. Neither sex nor nudity are inherently wrong or inherently exploitative. Alas, we appear to have forgotten how to tell the difference.

Teenagers are smart.  They understand that sex can be pleasurable and that it can enhance the intimacy of their relationships. Telling them otherwise — by insisting, for example, that “sex is for adults only” — defies their lived reality. We should instead be emphasising safe sex practices, open communication, and gender equality. We should not tolerate, for example, any double standard that winks at teenage boys for having multiple partners but disparages girls who do so. We should take a warning from the old joke: What do you call teenagers who receive abstinence-only sex education? Answer:  Mothers and fathers. I look forward to the day when those adults who preach an anti-sex philosophy to teenagers become as unpopular as the teens who embrace it.

That is not to say that some teenagers won’t choose to remain celibate. I cannot imagine why they would, but I respect their right to do so. However, those 16- and 17-year-olds who want to indulge in one of life’s great pleasures should not have to worry about the long arm of the law coming after them or their partners. Even more important, our society needs an open debate on this question. For far too long, those progressive voices who would bring common sense to the issues of teenage sexuality have been afraid to speak out for fear of being branded sympathetic to pedophiles and sex predators. The reality is that a reasonably lower age of consent, and a frank national discussion of adolescent sexuality, would serve the interests of the very minors that current laws are supposedly trying to protect. Pro-sex is Pro-safety. Conservative parents are certainly entitled to encourage their teenage daughters to keep their legs crossed, much as they may tell their sons that masturbation causes blindness. What they do not have a right to do is to lock the rest of our society in a chastity belt by fighting a war on sexuality under the specious guise of protecting teens from themselves.

About the Author:

William Aseka is a human rights lawyer with a keen interest in minority rights.

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UToronto Law seeks Director, International Human Rights Program

reprohealthlaw blog

Apply before July 20, 2019 at 3:59 a.m. EST.
Director, International Human Rights Program (Job #1902704)
Faculty of Law, University of Toronto, Canada
Official Job Details and application info online here.

About IHRP:

The International Human Rights Program enhances the legal protection of existing and emerging international human rights obligations through advocacy, knowledge-exchange, and capacity-building initiatives that provide experiential learning opportunities for students, and legal expertise to civil society, through the following programs and initiatives:

The Director of the International Human Rights Program (“IHRP”) provides clinical, educational, and administrative leadership and support to the IHRP. The Director is the primary contact and responsible for all matters related to the IHRP.  The Director oversees all of the IHRP’s advocacy initiatives, including the clinic, working groups, speaker series, Rights Review magazine, internships, and the mentorship program.  …

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