n African Human Rights Law Journal - Policing bodies, punishing lives : the African Women's Protocol as a tool for resistance of illegitimate criminalisation of women's sexualities and reproduction : focus : sexual and reproductive health rights and the African Women's Protocol




Sexual and reproductive conduct and identities are all too often the target of criminal laws and policies worldwide, which disproportionately impact women and marginalised individuals in violation of their sexual and reproductive rights. Women and girls in Africa, in particular, are policed, investigated and penalised for engaging in sex work, sex outside of marriage, obtaining abortions, for HIV exposure and transmission and same-sex intimacy. While some advocates rely on international human rights norms and standards to demand that states punish and prevent certain conduct through criminal justice systems, less attention is paid to restraining states' power to police sexuality and reproduction. In fact, there is little guidance within human rights law generally regarding the legitimacy of states criminalising sexual and reproductive conduct and identities, absent harm to others. For example, similar to other human rights instruments, the African Women's Protocol calls upon states to enact legislation, policy and programmes to fulfil and realise women's rights and prevent violence and rights violations, yet it fails to explicitly address the outer limits of states' policing power. Moreover, there is little foundation for challenging states' failure to criminalise particular conduct, in accordance with their human rights obligations, yet illegitimately criminalise sexual and reproductive conduct and identities, to the detriment of women's and marginalised individuals' sexual and reproductive rights. This article explores existing normative guidance regarding the illegitimate criminalisation of women's and girls' sexual and reproductive conduct and identities, highlighting gaps in such guidance, and reviews the African Women's Protocol with an eye toward locating potential restraints on African states' police power in the realms of sexuality and reproduction. It also provides additional human rights-based arguments that can be used to constrain states' overbroad and discriminatory criminalisation of sexuality and reproduction and to potentially pave the way for further normative developments in this regard.


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