Stepping up the Pace on the Removal
of Punitive Laws to Advance Human
Rights and Gender Equality
Presented By: Hon. Nana Oye Lithur
Minister of Gender, Children and Social
Protection, Ghana
4 DECEMBER 2015
HARARE, ZIMBABWE
OVERVIEW OF PRESENTATION
• ·Legal provisions which undermine human
rights and gender within the context of
HIV and STIs
• Making a case for increasing efforts in
decriminalization and respect for human
rights and gender equality in the fight
against HIV and STIs.
THE CONCEPT OF CRIMINALISATION
Legal provisions undermining human rights
and gender in the context of HIV and STI
There are three core
elements:
• Understanding
offensive conduct
• Institutional authority
to declare conduct
offensive /punishment
• Penal consequences
attached to offensive
conduct
THE LEGAL REGIME
• Implementation of a country’s
laws and policies plays a
critical role in the national
response.
• Protective legal environments
improve the lives of people
living with HIV, according to
Global Commission on HIV and
the Law’s 2012 report
• UN Member States adopted
the ‘Political Declaration on
HIV/AIDS’ in 2011, committing
to reviewing national laws and
practices that create barriers
to effective HIV responses.
THE LEGAL REGIME Cont.
• Criminalisation occurs for:
 non-consensual sex
 transmission of HIV/AIDs
 commercial sex work and soliciting
 same-sex relations and sexual relations in
close familial relations
• In Ghana, these are all criminalised under
the Criminal Offences Act, 1960 (Act 29)
EVALUATION OF CRIMINALISATION LAWS
• Laws that punish
sexual conduct have
greater negative
impact on persons
who are either
suffering from HIV and
STIs or at risk of
contracting HIV
MAPPING OF AFRICAN COUNTRIES WITH HIV
ENACTED LAWS
MAPPING OF AFRICAN COUNTRIES WITH
HIV ENACTED LAWS
• 26 African countries have overly broad
and/ or vague HIV-specific criminal laws
with other countries considering new
HIV-specific criminal laws
• Definitions of ‘wilful transmission’ in
Guinea, Guinea-Bissau, Mali and Niger
are broad and could be applied to any
kind of unprotected sexual contact
Ghana and HIV/AIDS laws
• Ghanaian criminal laws do not specifically
address the transmission of HIV
• The National HIV/AIDS Policy indicates that
the intentional transmission of the virus
may be criminalised as a generic act of
causing harm
• The law regarding the negligent
transmission of the disease is less clear
ASSESSMENT OF GHANA LEGAL REGIMES IN
RELATION TO HIV/AIDS
• Ghana has a draft HIV/AIDS Bill,
currently before Parliament, an HIV/AIDs
Policy , An HIV Strategic Plan and a
MARPS Policy
• Bill will create an enabling environment
for fighting HIV/AIDS
ASSESSMENT OF GHANA LEGAL REGIMES IN
RELATION TO HIV/AIDS
• Ghana has a Key Population Policy
• Among other objectives the policy
strives to educate the population about
the causes, consequences and
prevention of HIV/AIDS and other
sexually transmitted diseases (STDs)
Human rights and Homosexuality
Source: IRIN Africa, Uganda.
• Homosexuality abhorred
as contrary to African
traditional values and
religion
• Globally, 40 percent of
countries criminalize
same-sex sexual relations
• Sub-Saharan Africa every country has laws in
place that criminalize at
least one key population
South African Case - 2001 Court Case on
Access
• A new Section 15C was inserted into the
South African Medicines and Related
Substances Control Act (MRSCA)
• The primary purpose of this amendment
was to enable South Africa to benefit
from lower prices abroad for the same
drugs
Best Practices: Botswana
• Amendment of the Penal Code for stiffer
penalties for those charged with the
offence of rape if they have HIV/AIDS
Best Practices: Senegal
• Senegal has succeeded in maintaining
an HIV-prevalence rate of less than 1
%
• The country established the
Programme National de Lutte contre
le SIDA (National AIDS Program), 1986
under the Ministry of Health
AFRICAN LEGAL REGIME ON GENDER
EQUALITY
• National law and policy in
many African countries may
reflect the principles of
gender equality de jure but
• Women’s and girls’ rights may
lack actual protection de facto
• The Additional Protocol to the
African Charter on Human
and Peoples Rights provides a
regional framework
AFRICAN LEGAL REGIME ON HUMAN
RIGHTS PROTECTION
Gender
• Women’s and girls’ rights
in the areas of rape,
domestic violence,
property and inheritance
rights, right to education,
economic empowerment
not adequately protected.
• These rights linked up
with custom and tradition
AFRICAN LEGAL REGIME ON HUMAN RIGHTS
PROTECTION
Gender
• Women and girls are at the
greatest risk of genderbased violence, rape,
incest and other forms of
sexual abuse, more
vulnerable to HIV/AIDs,
more women HIV positive
• Situations of
discrimination and
negative perceptions of
sex workers tend to push
HIV- positive sex workers
underground
AFRICAN LEGAL REGIME ON HUMAN RIGHTS
PROTECTION
Ghana and Gender
• The Government of
Ghana is putting in place
appropriate legal regime
for mainstreaming of
gender into socioeconomic development
• Affirmative Action Bill
• Intestate Succession (30
years in existence)and
Property Rights of
Spouses Bills
ANALYSIS OF SPECIFIC GENDER ISSUES IN
AFRICA
SEXUAL VIOLENCE
• South Africa, Rwanda
and Ghana recognize
rape in marriage as a
crime.
• Research has shown
that in numerous
countries rape laws are
generally very poorly
enforced
ANALYSIS OF SPECIFIC GENDER ISSUES IN
AFRICA
Source: Africa On the Blog
DOMESTIC VIOLENCE
• Domestic violence is
poorly embodied in the
law in most African
countries with the
exception of Senegal,
South Africa and
Zimbabwe
• In countries such as Kenya
and Nigeria, there is no
provision in the law to
criminalize domestic
violence
SOCIAL AND CULTURAL CONSIDERATIONS
TO HUMAN RIGHTS PROTECTION IN
AFRICA
Harmful Social Cultural
Traditions
• Socio-cultural norms are
some of the key issues
that have rendered HIV
prevention a challenge
in most African cultures,
e.g. widowhood-related
rituals, sexual cleansing
and female genital
cutting
SOCIAL AND CULTURAL CONSIDERATIONS
TO HUMAN RIGHTS PROTECTION IN
AFRICA
Marriage
• Gender inequality in marital relations,
polygamy, especially in sexual
decision-making, increases
vulnerability to HIV transmission
• How can a married woman insist her
husband uses a condom since he is
having extra marital affairs?
SOCIAL AND CULTURAL CONSIDERATIONS
TO HUMAN RIGHTS PROTECTION IN
AFRICA
Patriarchy
• Existing social systems in Africa which
allows men to take primary
responsibility and dominate in
society and encourages multiple
sexual partners for men inside and
outside of marriage
SOCIAL AND CULTURAL CONSIDERATIONS
TO HUMAN RIGHTS PROTECTION IN
AFRICA
Influencing Culture to Enhance
HIV/AIDS Prevention
• Open dialogue with political
traditional and religious leaders
• Influencing policies and legislation
• Place priority on community-based
interventions
TOWARDS A FRIENDLY LEGAL REGIME
ON HIV AIDS
Harm Reduction Models
• Few countries in SubSaharan Africa include an
explicit supportive reference
to harm reduction in
national policies on HIV or
drug addiction
• Of the 158 countries
reporting injecting drug use
91 of these include harm
reduction in national policy
TOWARDS A FRIENDLY LEGAL REGIME ON HIV
AIDS
Needle and Syringe Exchange Programmes
(NSPs)
• In 2014, 90 countries and territories
implemented NSPs to varying degrees
• Kenya and Senegal have implemented NSPs
since 2012
Addressing Punitive Laws
• Punitive laws in addressing HIV and
STIs tend to do more harm than good
• The question remains how do we
leverage our efforts towards
decriminalisation of laws highlighted?
Source: IRIN Africa, Kenya.
RECOMMENDATIONS
• Legal Reform
• Emphasis on Public
Health and human
rights depending on
context
• Leverage efforts to
repeal punitive laws ADVOCACY
• Access to legal aid
RECOMMENDATIONS
SPECIFIC ACTION POINTS
Source: Ford Foundation.
• Address Gender
inequality as a central
element of the
HIV/AIDS Response,
Policy and programs
• Ensure women can
claim their human
rights free of
coercion,
discrimination, and
violence
RECOMMENDATIONS
SPECIFIC ACTION POINTS Cont.
Governments Must
• Conduct national legal audits of laws
and initiate action to repeal, amend
and or review laws to facilitate
decriminalization of certain acts
• Institutions in charge of coordinating
the national HIV/AIDS response must
lead this advocacy process and
present the hard evidence
Conclusion
• Criminalisation has done more harm
than good in addressing HIV/AIDS and
STIs
• Adopting a rights- based approach to
addressing HIV / AIDS is the best
approach.
• In certain national contexts, a public
health approach is more pragmatic
• African countries must therefore
commit to intensify national efforts to
create enabling legal, social and policy
frameworks to address HIV/AIDs