Papers by Godfrey Kangaude
Edward Elgar Publishing eBooks, Mar 21, 2023
University of Pretoria, 2020
Pretoria University Law Press (PULP), 2017
Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts is a joint public... more Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts is a joint publication of the International Reproductive and Sexual Health Law Program of the University of Toronto, Canada; the Centre for Human Rights, Faculty of Law, at the University of Pretoria, South Africa; and the Center for Reproductive Rights, New York. It is the expanded third volume in a series originally conceived by Kibrom Isaak, LL.M., a graduate of the International Reproductive and Sexual Health Law Program, who organised and wrote the prototype, and drafted most of the first two volumes. The editors of Legal Grounds III are tremendously grateful to all those who have supported us to produce this book. The planning and execution would not have been possible without a grant from the Ford Foundation. African publication and dissemination were generously supported, through the Centre for Human Rights, by The Open Society Foundations
International Journal of Gynecology & Obstetrics
Minor girls in Africa face challenges in accessing high-quality contraceptive and abortion servic... more Minor girls in Africa face challenges in accessing high-quality contraceptive and abortion services because laws and policies are not child-friendly. Many countries maintain restrictive laws, policies, or hospital practices that make it difficult for minors to access contraception and safe abortion even when the pregnancy would risk their life or health. Further, the clinical guidelines on contraceptive and abortion care are silent, vague, or ambiguous regarding minors’ consent. African states should remedy the situation by ensuring that clinical guidelines integrate child rights principles and standards articulated in child rights treaties to enable health providers to facilitate full, unencumbered access to contraceptive and abortion care for minor girls. A sample of clinical guidelines is analyzed to demonstrate the importance of explicit, consistent, and unambiguous language about children’s consent to ensure that healthcare workers provide sexual and reproductive health care in a manner that respects child rights.
Minor girls in Africa face challenges in accessing high-quality contraceptive and abortion servic... more Minor girls in Africa face challenges in accessing high-quality contraceptive and abortion services because laws and policies are not child-friendly. Many countries maintain restrictive laws, policies, or hospital practices that make it difficult for minors to access contraception and safe abortion even when the pregnancy would risk their life or health. Further, the clinical guidelines on contraceptive and abortion care are silent, vague, or ambiguous regarding minors’ consent. African states should remedy the situation by ensuring that clinical guidelines integrate child rights principles and standards articulated in child rights treaties to enable health providers to facilitate full, unencumbered access to contraceptive and abortion care for minor girls. A sample of clinical guidelines is analyzed to demonstrate the importance of explicit, consistent, and unambiguous language about children’s consent to ensure that healthcare workers provide sexual and reproductive health care in a manner that respects child rights.
International Journal of Gynecology & Obstetrics, 2014
To assess the severity of abortion complications in Malawi and to determine associated risk facto... more To assess the severity of abortion complications in Malawi and to determine associated risk factors. Methods: Between July 20 and September 13, 2009, a cross-sectional survey was conducted at 166 facilities providing postabortion care services. Data were collected for all women with an incomplete, inevitable, missed, complete, or septic abortion. Weighted percentages were calculated to obtain national estimates. Results: In total, 2067 women met the inclusion criteria. Estimates suggest that 80.9% of women who presented for postabortion care in Malawi in 2009 were married and 64.8% were from rural areas. One-quarter (27.4%) presented with severe or moderate morbidity. Sepsis (13.7%), retained products of conception (12.7%), and fever (12.3%) were the most common complications. The case fatality rate was 387 deaths per 100 000 postabortion care procedures. Women with severe or moderate complications were significantly more likely to be from rural areas than from urban areas; to have reported interfering with their pregnancy; and to be separated, divorced, or widowed than to be single. Conclusion: In 2009, many women seeking postabortion care in Malawi presented with complications. Advocacy is needed to influence policies that will allow expanded access to safe abortion services for women of all ages and in all areas.
African Human Rights Law Journal, 2017
During colonisation Malawi received a Western penal code, which included the 'defilement' provisi... more During colonisation Malawi received a Western penal code, which included the 'defilement' provision, restricting males from sexually accessing girls below a specified age. Countries that maintain colonial age of consent provisions, including Malawi, have uncritically assumed that these laws serve the purpose of protecting girls and children from harm. This article examines the fundamental assumptions underlying the development of sections 138 and 160B of the Malawian Penal Code, and their historical and sociocultural origins. The article submits that these provisions serve the interests of adults and not those of children. They are inherently heterosexist, promote gender-stereotypical meanings of sexuality and potentially stigmatise the normative development of sexuality in children. Sections 138 and 160B need to be reviewed and aligned with Malawi's commitments to promote gender equality and sexual health and the rights of children.
Abstract: This article discusses the stigma of asexuality generally attributed to persons with di... more Abstract: This article discusses the stigma of asexuality generally attributed to persons with disabilities. It examines how this stigma posses a barrier to attainment of sexual health. It argues that health programming must treat persons with disabilities as sexual subjects who have sexual rights in order to advance their sexual health.
African Human Rights Law Journal, 2014
Sexual violence and abuse in prison are largely ignored in Malawi. There has been some advocacy f... more Sexual violence and abuse in prison are largely ignored in Malawi. There has been some advocacy focusing on HIV and AIDS in prisons, and discussions about providing condoms to prisoners, but the issue of sexual violence has for the most part been ignored. However difficult or controversial the issue of sexuality in prison might be, the government has a duty to protect prisoners from sexual violence. It is illusory to think that sexual violence in prisons may be controlled merely by repressing sexual activity. This article suggests that the best way to respond to sexual violence in prison is to follow the expert counsel of the Technical Consultation on Sexual Health convened by the World Health Organisation and World Association of Sexology in 2002. The Consultation suggested that to achieve sexual health, sexuality and sexual relationships should be approached positively and respectfully. Further, the sexual rights of every person must be protected. Sexual rights are already recogni...
Age of consent criminal laws imposed on African states during colonialism were inherently patriar... more Age of consent criminal laws imposed on African states during colonialism were inherently patriarchal and gender-stereotypic, and continue to influence country approaches toward adolescent consensual sexual conduct. There are two major policy positions: a punitive and a nonpunitive approach. Most countries adopt the punitive approach. Mostly, legislation does not explicitly criminalize consensual sexual conduct between adolescents, and this leaves a gray area to be filled in by social and cultural norms that perceive adolescent sexual conduct negatively. Punitive approaches have been justified as necessary to curb harms to adolescents resulting from sexual conduct, including teenage pregnancies and sexual abuse. Age of consent laws, especially in their original colonial formulation deny adolescents, especially girls, sexual autonomy and agency. States focus more on punishment than on taking measures to address the structural antecedents of harms associated with sexual intercourse. S...
The Review of Disability Studies: An International Journal, 2014
This article discusses the stigma of asexuality generally attributed to persons with disabilities... more This article discusses the stigma of asexuality generally attributed to persons with disabilities. It examines how this stigma posses a barrier to attainment of sexual health. It argues that health programming must treat persons with disabilities as sexual subjects who have sexual rights in order to advance their sexual health.
It is an undeniable fact that children in Africa face many challenges in their sexual health and ... more It is an undeniable fact that children in Africa face many challenges in their sexual health and development trajectories. One of the challenges that children face is ideological, that is, the social construction of childhood sexuality and the effects of that construction on law and policy and on what information and services children may access regarding sex and sexuality. Adults tend to represent children as sexually innocent and incompetent, and their actions toward children focus on preserving this sexual innocence and averting sexual risks.
Advancing Sexual and Reproductive Health and Rights in Africa
Sexual and Reproductive Health Matters
Universal Health Coverage (UHC) forces governments to consider not only how services will be prov... more Universal Health Coverage (UHC) forces governments to consider not only how services will be providedbut which servicesand to whom, when, where, how and at what cost. This paper considers the implications for achieving UHC through the lens of abortion-related care for adolescents. Our comparative study design includes three countries purposively selected to represent varying levels of restriction on access to abortion: Ethiopia (abortion is legal and services implemented); Zambia (legal, complex services with numerous barriers to implementations and provision of information); Malawi (legally highly restricted). Our policy and legal analyses are supplemented by comparative vignettes based on interviews (n = 330) in 2018/ 2019 with adolescents aged 10-19 who have sought abortion-related care in each country. We focus on an under-considered but critical legal framing for adolescentsthe age of consent. We compare legal and political commitments to advancing adolescent sexual and reproductive health and rights, including abortion-related care. Ethiopia appears to approach UHC for safe abortion care, and the legal provision for under 18-year-olds appears to be critical. In Malawi, the most restrictive legal environment for abortion, little progress appears to have been made towards UHC for adolescents. In Zambia, despite longstanding legal provision for safe abortion on a wide range of grounds, the limited services combined with low levels of knowledge of the law mean that the combined rights and technical agendas of UHC have not yet been realised. Our comparative analyses showing how policies and laws are framed have critical implications for equity and justice.
SAGE Open
Age of consent criminal laws imposed on African states during colonialism were inherently patriar... more Age of consent criminal laws imposed on African states during colonialism were inherently patriarchal and gender-stereotypic, and continue to influence country approaches toward adolescent consensual sexual conduct. There are two major policy positions: a punitive and a nonpunitive approach. Most countries adopt the punitive approach. Mostly, legislation does not explicitly criminalize consensual sexual conduct between adolescents, and this leaves a gray area to be filled in by social and cultural norms that perceive adolescent sexual conduct negatively. Punitive approaches have been justified as necessary to curb harms to adolescents resulting from sexual conduct, including teenage pregnancies and sexual abuse. Age of consent laws, especially in their original colonial formulation deny adolescents, especially girls, sexual autonomy and agency. States focus more on punishment than on taking measures to address the structural antecedents of harms associated with sexual intercourse. S...
International Journal of Gynecology & Obstetrics
Journal of Lesbian Studies
The Law Commission is an institution created by Malawi’s 1995 Constitution with the mandate to re... more The Law Commission is an institution created by Malawi’s 1995 Constitution with the mandate to review and recommend laws to be in conformity with the Constitution and international law. In 2000, the Commission recommended, for the first time in the history of Malawi, the criminalization of female same-sex sexual conduct. This was enacted into law in 2011. This article examines the role of the Commission in influencing the development of sex- and gender-related laws to address gender inequality and discrimination. It describes the historical context of legal developments since colonial times, leading to the adoption of a democratic constitution and commitment to incorporating human rights norms and standards in national laws. It argues that, in contradiction to its mandate, the Commission played an influential role in the development of a law that further marginalizes women and entrenches sex discrimination. It concludes that the Commission should therefore take responsibility for its actions and review the offending law sua sponte.
International journal of gynaecology and obstetrics: the official organ of the International Federation of Gynaecology and Obstetrics, Jan 27, 2018
Despite adopting a progressive legal and policy framework informed by internationally recognized ... more Despite adopting a progressive legal and policy framework informed by internationally recognized human rights norms and values, Malawi has not complied with the obligation to explain its abortion law in accordance with legal and human rights standards. In 1930, the colonial government adopted a Penal Code derived from English criminal law, containing provisions regulating access to abortion, but has not undertaken measures to explain when abortion is lawful. What constitutes legal abortion has never been clarified for health providers and potential clients. Consequently, eligible girls and women fail to access safe and legal abortion. The Malawi Law Commission, following its review of the colonial abortion law, has proposed liberal changes which, if implemented, would expand access to safe abortion. However, the immediate step the government ought to take is to clarify the current abortion law, and not to wait for a new law expected to materialize in the indeterminate future.
International Journal of Gynecology & Obstetrics, 2012
Malawian women in all sectors of society are suffering from social implications of unwanted pregn... more Malawian women in all sectors of society are suffering from social implications of unwanted pregnancy and unsafe abortion. Unwanted pregnancies occur among women who have limited access to family planning and safe abortion. A legally restrictive setting for safe abortion services leads many women to unsafe abortion, which has consequences for them and their families. In-depth interviews were conducted with 485 Malawian stakeholders belonging to different political and social structures. Interviewees identified the impact of unwanted pregnancy and unsafe abortion to be the greatest on young women. Premarital and extramarital pregnancies were highly stigmatized; stigma directly related to abortion was also found. Community-level discussions need to focus on reduction of stigma.
International journal of gynaecology and obstetrics: the official organ of the International Federation of Gynaecology and Obstetrics, 2016
To realize adolescents' right to sexual health, state parties' implementation of the obli... more To realize adolescents' right to sexual health, state parties' implementation of the obligations stipulated under Article 14 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa should reflect the key principles of the rights of the child, articulated under the Convention on the Rights of the Child and the African Charter on the Welfare and Rights of the Child. However, societal norms that stigmatize adolescent sexual conduct constitute barriers to adolescents' sexual health care, including their access to contraceptives to avoid unwanted pregnancies and protect themselves from STIs and HIV. States should sensitize and train health professionals to provide sexual health services and care in accordance with the principles of the rights of the child, and create enabling laws and policies to facilitate their work with adolescents.
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Papers by Godfrey Kangaude