Abstract:
Articles 14(1)(d) and (e) of the Protocol to the African Charter on Human
and Peoples’ Rights on the Rights of Women in Africa specifically provide
for women’s sexual and reproductive health rights in the context of HIV. In
spite of this unique attribute, the provisions themselves are ambiguous
and require further elaboration in order to give effect to their meaning.
The article therefore builds upon the recent adoption of a General
Comment by the African Commission on Human and Peoples’ Rights
which seeks to clarify the content of the rights set out in articles 14(1)(d)
and (e) of the Protocol. The article aims to provide an expansive and
purposive meaning to the above-mentioned articles, and also sets out the
research and thinking that went into the drafting of the General Comment
prior to its adoption. In highlighting the above, the article is structured as
follows: First, it provides an introductory overview of the African Women’s
Protocol in the context of women’s sexual and reproductive health.
Second, the article motivates why it is crucial to have a strong legal
framework on women’s rights in the context of HIV, by taking into account
the actual realities faced by African women and the limitations of the
current legal framework in addressing such realities. Third, the article
examines the need for the adoption of the General Comment as opposed
to a resolution or guidelines, as has often been the practice of the African
Commission. Lastly, the article sets out the specific state obligations arising
out of articles 14(1)(d) and (e), which were drafted through guidance
from international best practices and standards whilst also bearing in
mind the practical difficulties facing women in the African context.
