Legal Grounds III, Online edition, with updates and links to decisions:
Cover and preliminaries
Table of Contents
Table of Cases (2008-2016) by Country
Foreword, by Charles G. Ngwena
Child, Forced and Early Marriage
Female Genital Mutilation
Sexual Abuse, Assault and Violence
- C.K. (A Child) through Ripples International as her guardian and Next friend) & 11 Others v Commissioner of Police/Inspector General of The National Police Service & 3 Others [2013] eKLR, Petition No. 8 of 2012 (High Court of Kenya at Meru). Decision online. Decision PDF. [Court holds police accountable for inaction in child sexual assaults].
- W.J. & Another v Astarikoh Henry Amkoah & 9 Others [2015] eKLR, Petition No. 331 of 2011 (High Court of Kenya at Nairobi, (Constitutional and Human Rights Division). Decision online. Decision PDF. [high school teacher rapist].
- Women in Law in Southern Africa, Talent Forget v. Minister of Health and Child Care and the Parliament of the Republic of Zimbabwe and The Attorney General of Zimbabwe (2024), HH 552-24, HC 7364/23, 28 February & 22 November 2024 (High Court of Zimbabwe at Harare). Decision online. Backup copy. [Section 2(1) of The Termination of Pregnancy Act, which defines “unlawful intercourse” to exclude sexual intercourse with minors and marital rape, is unconstitutional because it imposes custodial sentences on women in those situations who choose to abort. This judgment awaits confirmation by the Constitutional Court to become operational.] Comment by Afya na Haki network.
- Highlight: Sexual Abuse, Assault and Violence
- For more cases of child defilement in Africa, see the forthcoming ACERWC database.
Consensual Sexual Conduct
- C.K.W. v Attorney General & Another [2014] eKLR, Petition 6 of 2013 (High Court of Kenya at Eldoret). Decision online. Decision PDF. [Court upholds criminalisation of adolescent consensual sex, ignores gender bias in the law.]
- S v. Brian M. [surname editorially abridged] [2015] ZWHHC 106, CRB No. B467/14 (High Court of Zimbabwe at Harare). Decision online. Decision PDF. [Sentence reduced for adolescent sex.]
- Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another [2013], Case No. 73300/10 [2013] ZAGPPHC 1 (North Gauteng High Court, South Africa). Decision online. Decision PDF. [High Court proposes decriminalisation of adolescent consensual sexual conduct.]
- Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another(CCT 12/13) [2013] ZACC 35; (Constitutional Court, South Africa). Decision online. Decision PDF. [Laws criminalising adolescent consensual sexual conduct suspended, pending review by Parliament.]
- *Martin C. v. Republic, Criminal Appeal No. 32 of 2015, April 26, 2016 (High Court of Kenya at Malindi). Decision online. Decision PDF. [Consensual sexual relationship between adult man of 23 and girl of 14 is not "defilement." ] Discussed in this article by Godfrey Kangaude.
- *The State v. CF (A Juvenile) HH 143-11, CRB 5,320/10 July 21, 2011 (High Court of Zimbabwe). Decision online. Decision PDF.(Adolescent male cannot be convicted of consensual sex). Discussed in this article by Godfrey Kangaude..
Highlight: Adolescent Consensual Sexual Conduct
Student Pregnancy
Abortion
- Case no. RPA 0787/15/HC/KIG (High Court of Rwanda, Kigali) [2015] Unreported, . [legal abortion allowed for raped 13-year-old]. Official English translation (redacted). Decision PDF.
- Mildred Mapingure v Minister Of Home Affairs and 2 Others [2014], Judgment No. SC 22/14, Civil Appeal No. SC 406/12 (Supreme Court of Zimbabwe). Decision online. Decision PDF. [State held liable for hindering access to emergency contraception, but not abortion]
- Republic v Jackson Namunya Tali [2014] eKLR, High Court Criminal Case No. 75 of 2009 (High Court of Kenya at Nairobi). Decision online. Decision PDF. [Court convicts nurse of murder over abortion related death].
- *Republic v. Jackson Namunya Tali, [2017] Criminal Appeal No. 173 of 2016. Decision dated October 19, 2017. Decision online. Decision PDF. Press release by CRR. [Nurse Jackson Tali is acquitted by the Court of Appeal (Kenya) after 8 years awaiting death penalty.].
- *Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] eKLR, Petition No. 266 of 2015, Decision dated June 12, 2019. (High Court of Kenya at Nairobi, Constitutional and Human Rights Division) Decision online. Decision PDF. Case Comment by Benson Chakaya** Case Comment by Nimrod Muhumuza. [Landmark Case of "JMM," wrongful withdrawal of abortion training and guidelines, clarified abortion legal after rape]
- *The State (On the Application by HM (Guardian) on behalf of CM (Minor) vs The Hospital Director of Queen Elizabeth Central Hospital & The Minister of Health [2021] Judicial Review Cause Number 03 of 2021 (unreported) (High Court of Malawi, Zomba District Registry), Decision dated June 15, 2021. Decision online (slow download). Decision PDF.. Overview on Reprohealthlaw Blog. Legal Brief by Lewis Bande and Godfrey Kangaude. [In Malawi's first abortion-related ruling, a pregnant girl is denied judicial review of oral abortion refusal by hospital staff.]
- *PAK & Salim Mohammed v. Attorney General & 3 Others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) (High Court of Kenya at Malindi) Decision online. Decision PDF. Press release by CRR. [Abortion care is a fundamental constitutional right. Arrests of patients and clinicians are illegal. Parliament is directed to align law and policy with the Constitution.]
*Women in Law in Southern Africa, Talent Forget v. Minister of Health and Child Care and the Parliament of the Republic of Zimbabwe and The Attorney General of Zimbabwe (2024), HH 552-24, HC 7364/23, 28 February & 22 November 2024 (High Court of Zimbabwe at Harare). Decision online. Decision PDF. Comment by Afya no Haki network.[Section 2(1) of The Termination of Pregnancy Act, which defines “unlawful intercourse” to exclude sexual intercourse with minors and marital rape, is unconstitutional because it imposes custodial sentences on women in those situations who choose to abort. This judgment awaits confirmation by the Constitutional Court to become operational.]
- Highlight: Abortion and Fetal Interests
Wrongful Birth or Life
Adoption
Surrogacy
Rape
Disability, Sexuality and Criminal Law
Sexual Harassment
- *Rita M Mbatha v Farai B Zizhou & Anor, [2021] HH675-21, HC 4986/14. (High Court of Zimbabwe at Harare), 20 October 2021 Decision online. Awarded damages for sexual harassment at work.
Women and Criminal Law
- Lucy Nyambura & Another v Town Clerk, Municipal Council of Mombasa & 2 Others [2011] eKLR, Petition No. 286 of 2009 (High Court of Kenya). [Conviction for loitering for purposes of prostitution held constitutional.] Decision online.
- Dorothy Njemanze & 3 Ors V Federal Republic of Nigeria: SUIT NO: ECW/CCJ/APP/17/14 (ECOWAS Court, Abuja, Nigeria) Decision of October 12, 2017. Press release. [Nigeria fined by ECOWAS Court for mistreatment of women, alleged prostitutes, by law enforcement personnel, under vagrancy laws.] Summary by Benson Chakaya.
- *Mayeso Gwanda v. the State, Constitutional Case No 5. 2015 (High Court of Malawi. Decision of January 10, 2017 [vagrancy law challenged on human rights grounds in case of male vendor], [cites unreported 2007 Malawian "Mwanza" decision about 13 women, discussed on p. 127 of Legal Grounds III.
- *Advocaid Ltd. v. Republic of Sierra Leone. Application No. ECW/CCJ/APP/18/22, Judgment No. ECW/CCJ/JUD/33/24 (ECOWAS Court) Decision of November 7, 2024. Press Release by IHRDA. [ECOWAS Court favoured Advocaid, which argued that discriminatory laws against loitering target the vulnerable and provide police with opportunities to accost, rape or sexually abuse women who cannot afford bribes.]
Gender Identity, Intersexuality, Transgender Rights
- Baby "A" (suing through her mother, E.A.) and The Cradle the Children Foundation v Attorney General, Kenyatta National Hospital, and the Registrar of Births and Deaths [2014] eKLR, Petition No. 266 of 2013 (High Court of Kenya at Nairobi, Constitutional and Human Rights Division). [Kenyan Court recognizes need to protect the constitutional rights of intersex persons] Decision online.
- R.M. v Attorney General & 4 Others [2010] eKLR, Petition No. 705 of 2007 (High Court of Kenya at Nairobi (Nairobi Law Courts)). Decision online. [Kenya does not recognize intersex persons]
- Republic v Kenya National Examinations Council & Another [2014] eKLR, JR Case No. 147 of 2013 (High Court of Kenya at Nairobi) [Ordered name and gender change on high school diploma] Decision online.
- *Ricky Nathanson v Farai Mteliso, The Officer in Charge Bulawayo Central Police Station, Commissioner of Police and the Minister of Home Affairs, Case no.HB 176/19 HC 1873/14 [2019] ZWBHC 135( (14 November 2019); (Zimbabwe, High Court) Decision online. [condemns transgender abuse; upholds constitutional rights of transgender persons] Case summary by Keikantse Phele..
Sexual Orientation
- Oloka-Onyango and 9 Others v Attorney General [2014], Constitutional Petition No. 8 of 2014,
UGCC 14 (1 August 2014) (Constitutional Court of Uganda at Kampala). [Anti-Homosexuality Act annulled due to lack of parliamentary quorum.] Decision online. - C.O.L. & G.M.N. v. Resident Magistrate Kwale Court & Others Petition No. 51 of 2015 (High Court of Kenya, Constitutional and Judicial Review Division). [Court allowed medical examinations including anal exams to prove crime of homosexuality] Decision on file.
- *Teriah Joseph Ebah v. Federal Government of Nigeria, Suit No. FHC/ABJ/CS/197/2014. Decision of October 22, 2014 (Federal High Court of Nigeria at Abuja) [Court evaded legalizing homosexuality on constitutional grounds by denying legal standing to the applicant. ] Decision online. Case comment by Ovye Affi.**
- *["Eric Gitari 2"] EG & 7 others v Attorney General; DKM & 9 others Petition 150 & 234 of 2016 (consolidated), (High Court of Kenya at Nairobi, Constitutional and Human Rights Division). Decision of May 24, 2019 [homosexuality not legalized] Decision online.
- *Letsweletse Motshidiemang v Attorney General [2019] MAHGB-000591-16, Decision of June 11, 2019. (Botswana, High Court) Decision online. Article by Prof. Frans Viljoen. Case comment by Kutlwano Pearl Magashula** [gay sex decriminalized]
- *Attorney General v. Letsweletse Motshidiemang & LEGABIBO (Amicus Curiae)[2021] CACBB-157-19, Decision of November 29, 2021. (Botswana, Court of Appeal) Decision online. .[Decriminalization of gay sex confirmed on appeal.] Article by Carmel Rickard
- *Hon. Fox Odoi & 21 Others v Attorney General & 3 Others (Consolidated Constitutional Petition 14 of 2023; Consolidated Constitutional Petition 15 of 2023; Consolidated Constitutional Petition 16 of 2023; Consolidated Constitutional Petition 85 of 2023) [2024] UGCC 10 (3 April 2024) [The Anti-Homosexuality Act 2023 is constitutional.] Comment by Nimrod Muhumuza on AFRICLAW.
Recognition of LGBTIQ Advocacy and Groups
Access to Treatment
Stigma, and Criminalisation of Transmission
Forced Sterilization
Discrimination in Employment
- [Adultery / L’adultère] Décision DCC 09-081 Decision DCC 09-081 of 30 July 2009 of the Constitutional Court of Benin (adultery law unconstitutional). Decision in French on file. Decision en ligne.
- [Polygamy / La polygamie] Décision DCC 02-144 of 23 December 2002 of the Constitutional Court of Benin (polygamy law unconstitutional) Decision in French on file. Decision en ligne.
- [Infanticide / L’infanticide] Judgment No 216 of 13 December 2005 the Court of Appeal Niamey , Niger (distinction between abortion and infanticide) Decision on file, in French.
Online Legal Resources
Full Citation Information and Case Links
*Updates, not in Legal Grounds III, are marked with one asterisk.
** We thank Prof. Ebenezer Durojaye for facilitating this case comment, and others by African law students, marked with two asterisks.
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