Strategic litigation in Africa has emerged as a powerful catalyst for advancing and protecting sexual and reproductive health and rights (SRHR), by utilizing individual cases to promote the clarification, respect, protection, and realization of SRHR. From dismantling child marriage to addressing teen pregnancy, and expanding abortion access, there are several landmark court victories worth highlighting.

In Attorney General v. Rebeca Z. Gyumi (2019) the Court of Appeal in Tanzania upheld the decision of a lower court ruling that child marriage is discriminatory, and violates the Constitution, specifically, the rights of the child, principles of equality, and human dignity. In directing the Tanzanian government to amend the law, the Court held that child marriage exposes girls to significant matrimonial responsibilities as well as health risks, including gender-based violence, miscarriage, teenage pregnancies, and psychological distress. Energized by the Court’s ruling, civil society led by the Msichana Initiative Organization and the Tanzania Ending Child Marriage Network (TECMN) a coalition of over 80 civil society organizations has strategically collaborated with the Tanzania Women Parliamentary Group, resulting in 74 Members of Parliament endorsing a petition to raise the minimum age of marriage from fourteen/fifteen to eighteen years.

Because of the advocacy from civil society, and the parliamentarians, in 2023 the Tanzania Ministry of Constitution and Legal Affairs confirmed finalizing the initial processes to table the bill in the Parliament. However, the bill has not been able to move forward past deliberations at the parliamentary committee level with the cry to balance the tensions between religious and traditional groups that oppose the amendment and confirm the exact minimum age without legal exceptions. Nevertheless, civil society continues to build a strong strategy grounded in the rule of law and human rights to ensure the law is amended.

In South Africa, the courts have protected human rights from rollbacks by anti-SRHR groups, reaffirming the right to control fertility. In Christian Lawyers Association v Minister of Health (2004), the applicants challenged the Choice on Termination of Pregnancy Act (amended), which guarantees the right to access safe abortion, arguing that it violated the constitutional right to life. The High Court dismissed the case, ruling amongst other things that constitutional rights begin at birth, upholding women’s right to choose.

The Kenyan case of Federation of Women Lawyers  & 3 others v. Attorney General & 2 others (2019), examined the constitutionality of Kenya’s rollbacks of information on and access to safe abortions following the government’s withdrawal of the Standards and Guidelines for Reducing Morbidity and Mortality from Unsafe Abortion and banned training for medical professionals on safe abortion practices. During a period of uncertainty due to the ban, a minor who had an unsafe abortion was denied timely access to post-abortion care and died due to the resulting delay. The High Court subsequently ordered the reinstatement of the guidelines and training, stating that the ban was unconstitutional and discriminatory.

In Zimbabwe, the 2024 High Court ruling in the case of Women in Law in Southern Africa, Talent Forget v. Ministry of Health and Child Care, Parliament of the Republic of Zimbabwe, and the Attorney General of Zimbabwe expanded access to abortion for two previously excluded groups: survivors of marital rape and pregnant minors. The Court held that the Termination of Pregnancy Act of 1977 violated constitutional rights by excluding these two groups – ruling that marital rape and sex with a minor both constitute unlawful intercourse– warranting survivors’ access to abortion. The Act had previously allowed abortion only in limited cases, such as threats to the mother’s life, fetal abnormalities, rape, or incest.

These examples demonstrate the power and promise of strategic litigation in advancing access to abortion and protecting SRHR rights. Yet, realizing this potential is not without challenges. For example, in dualist legal systems, international treaties are not directly enforceable domestically unless incorporated into national law. However, in Gyumi, the Court held that national laws, affecting fundamental rights, must be interpreted in line with Tanzania’s international human rights obligations. The judgment referenced instruments such as the Maputo Protocol, despite its lack of formal domestication in Tanzania. The judgment echoed a longstanding rule of international treaty law (pacta sunt servanda), that a state must honor its agreements and treaty obligations in good faith. Even in the absence of full domestication, States Parties assume three core obligations under international law—to respect, protect, and fulfill human rights.

African jurisprudence offers notable court rulings that demonstrate the power of strategic litigation in countering anti-rights movements, with female-led civil society organizations leading the charge. It is not a silver bullet, but one tool within a broader ecosystem of actions encompassing advocacy, political engagement, public education, and awareness-raising, all geared toward protecting women and girls’ SRH rights and bodily autonomy.