Supporting the response
to the HIV epidemic in
Eastern and Southern Africa
through the international
human rights framework
Supporting the response to HIV through human rights
AIM OF THE PRESENTATION
To inform change agents, potential change agents and
those involved in the ‘business of law’ about:
• relevant human rights documents,
• the obligations that arise from them and
• the steps required for their implementation
and to assist them in their response to HIV and AIDS.
Supporting the response to HIV through human rights
OVERVIEW OF THE PRESENTATION
A. Introduction
B. Background to international human rights law
C. International human rights standards at three levels
(global, regional, sub-regional)
D. Domestication of international human rights law in
Eastern and Southern Africa
E. Conclusion and recommendations
Part A:
Introduction
THE HIV EPIDEMIC
Introduction
•
•
•
Since 1981, HIV has rapidly become the most
devastating epidemic of our time.
2006 UNAIDS epidemic update:
- approximately 39.5 million people living with HIV in
2006.
- 2.9 million people died of AIDS-related illnesses
worldwide.
Countries in Southern Africa continue to show
exceptionally high levels of HIV incidence and
prevalence.
HUMAN RIGHTS AND HIV
Introduction
•
The HIV epidemic has been viewed as a strongly
gendered health, development and human rights issue.
•
The HIV epidemic causes human rights violations and is
also driven by human rights violations.
•
The promotion and protection of human rights must
therefore be at the centre of all aspects of an effective
response to the epidemic.
•
This is known as a human rights-based approach.
WHAT IS A HUMAN RIGHTS-BASED APPROACH?
Introduction
•
It is one that focuses on empowering people
(especially the most vulnerable and marginalised) with
the knowledge and resources to understand and assert
their rights.
•
Simultaneously, it focuses on capacity building of dutyholders (government) to be able to protect and
promote human rights.
HUMAN RIGHTS UNDER THREAT
Introduction
•
After 1996: ARVs and the resurgence of biomedicine.
•
Call for a return to “traditional public health” response:
- Routine testing
- Compulsory disclosure / shared confidentiality
HUMAN RIGHTS NOT FULLY EXPLORED
Introduction
•
Failure to fully implement eg. VCT, access to treatment,
education should not be equated to failure of human
rights-based approach.
•
Despair leads to symbolic actions and HIL.
•
Coercion will have very limited success.
•
Individual autonomy is the basis of a human rightsbased approach.
Part B:
Background to
International
Human Rights Law
WHAT ARE HUMAN RIGHTS?
Human rights
• Human rights are universal - the birth right of all human
beings.
• Human rights focus on the inherent dignity and equal
worth of all human beings.
• All human rights are equal, indivisible and
interdependent.
WHAT IS HUMAN RIGHTS LAW?
Human rights
• A set of performance standards for duty-bearers at all
levels of society, but especially organs of the state.
• It serves as a basis for accountability.
• It grants justiciable legal guarantees to every
individual as a rights-holder.
• It is codified in international, regional and national legal
systems.
JUSTICIABLE GUARANTEES
Human rights
• Are legal entitlements.
• They may be invoked in a court of law.
• If violated, a court may order a remedy such as
compensation.
HUMAN RIGHTS VIOLATIONS
Human rights
• Undermine attempts to protect people from becoming
HIV positive.
• Example: Women, and particularly young women, are
more vulnerable to infection if they lack access to
information, education and services necessary to ensure
sexual and reproductive health and prevention of
infection. Human rights violations due to societal
conditions such as violence against women, lack of
education, harmful cultural practices and restrictions on
property and inheritance exacerbate inequalities.
HUMAN RIGHTS VIOLATIONS
Human rights
• Prevent people living with HIV from receiving needed
services.
• Example: If the existence of men who have sex with
men (MSM) or sex workers is denied or criminalised,
awareness and education programmes may not reach
them.
LAW: A TOOL FOR SOCIAL CHANGE (eg. South Africa)
Human rights
• Social engineering: Apartheid legislature was a tool in
structuring society along racial lines.
• Social (re)engineering: After Apartheid, laws became a
tool to restructure society, hence Affirmative Action,
Black Economic Empowerment, and other
transformative laws based on values of equality and
human dignity.
HUMAN RIGHTS OBLIGATIONS OF STATE
Human rights
4 categories of obligations:
• Respecting a right means that a state must not violate a
particular right.
• Protecting a right means that a state has to prevent
violations of that right by non-state actors.
• Fulfilling a right means that a state has to take all
appropriate measures, like allotting budgetary resources,
to the realisation of that right.
• Promoting a right means that a state must educate the
public and raise awareness about that right.
INTERNATIONAL HUMAN RIGHTS LAW SERVES AS:
Human rights
• A beacon - pulling states towards accepting human rights.
• A safety net - to supplement the national legal system.
• A basis - to ‘mobilise shame’ of the international
community.
INTERNATIONAL HUMAN RIGHTS
Human rights
In the context of HIV and AIDS, an application of
international human rights frameworks transforms the
needs of the individual into entitlements and ensures that
governments are accountable for their actions.
INTERNATIONAL HUMAN RIGHTS NORM
Human rights
• Increasingly regarded as a defining element of a modern
statehood.
• States need to engage in various processes before they
accept international human rights treaties, as the treaties
create obligations and states must be ready for them.
THE LINK BETWEEN INTERNATIONAL
AND NATIONAL LAW
Human rights
• HIV and AIDS are generally not mentioned by name, but
many of the treaty provisions are of relevance.
• Treaties should also be read with the ‘General
Comments’, adopted by the various treaty bodies.
DOMESTICATION
Human rights
•
The process that makes international commitments a
reality in the national legal system of a country.
•
Benefits the people of that country.
•
Brings national law in line with the standards of
international law.
DOMESTICATION OF A TREATY
Human rights
•
Signature (state not bound to treaty provisions).
•
Ratification / Accession (state becomes bound).
•
Legislative conversion (‘enabling legislation’).
•
Implementation in practice.
OBLIGATIONS UNDER HUMAN RIGHTS TREATIES:
Human rights
States should:
•
Domesticate treaties.
•
Give effect to treaty provisions.
•
Submit state reports to treaty bodies.
•
Involve civil society.
MECHANISMS OF MONITORING
Human rights
Fulfillment of commitments to treaties is monitored by
independent expert committees called treaty bodies.
EXAMINATION OF STATE REPORTS
Human rights
•
Independent external inspection by treaty body
•
Concluding observations which
•
Highlight positive and negative developments and
•
Make recommendations which the state should
implement.
INDIVIDUAL COMMUNICATIONS
Human rights
•
Generally optional: states must specifically accept this
procedure before an individual can use it.
•
In some treaties such as the African Charter on Human
and Peoples’ Rights, the individual communication
mechanism applies automatically to all states parties.
Part C:
International Human
Rights Standards at Three
Levels
THREE LEVELS OF INTERNATIONAL LAW
Standards
Global
UN
Regional
AU
Sub-regional
SADC, EAC, COMSA, IGAD
GLOBAL LEVEL
Standards:
Global
UN TREATIES AND TREATY BODIES
RELEVANT TO HIV AND AIDS
Standards:
Global
•
International Covenant on Civil and Political Rights
(ICCPR) 1966/1976.
•
International Covenant on Economic, Social and
Cultural Rights (ICESCR) 1966/1976.
•
Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) 1979/1981.
•
Convention on the Rights of the Child (CRC) 1989/1990.
•
Website: www.ohchr.org
RELEVANCE OF UN HUMAN RIGHTS TREATIES
TO HIV AND AIDS
Standards:
Global
•
HIV and AIDS are not mentioned by name, but many of
the treaty provisions are of relevance.
•
Treaties should also be read with the ‘General
Comments’, adopted by the various treaty bodies. Some
General Comments deal with HIV-related issues.
ICCPR (examples of provisions
relevant to HIV and AIDS)
Standards:
Global
•
Right to life (art 6).
•
Right to privacy (art 17).
•
Right to non-discrimination and equality before the law
(arts 2 & 14).
•
Right to liberty and security of the person (art 9).
•
Right to free movement (art 12).
•
Right to freedom of expression (art 19).
•
Right to be free from torture and cruel treatment (art 7).
ICESCR (examples of provisions
relevant to HIV and AIDS)
Standards:
Global
•
Right to equality and non-discrimination (art 2).
•
Right to work (art 6).
•
Right to social security (art 9).
•
Right to adequate standard of living, including food,
clothing and housing (art 11).
•
Right to highest attainable standard of health (art 12).
•
Right to enjoy the benefits of scientific progress (art
15(1)(b)).
•
Right to education (art 13).
CEDAW (examples of provisions
relevant to HIV and AIDS)
Standards:
Global
•
Right to equality and non-discrimination based on sex
(arts 2 & 3).
•
States must modify and abolish laws, customs and
practices that discriminate against women (art 2(f)).
•
Protection of women against trafficking and sexual
exploitation (art 6).
•
Right to appropriate health care services including
during pregnancy and postnatal period (art 12).
•
Non-discrimination in matters of marriage (art 16).
CRC (examples of provisions
relevant to HIV and AIDS)
Standards:
Global
•
Right to equality and non-discrimination (art 2).
•
Protection against abuse, neglect and sexual
exploitation (art 19).
•
Right to state assistance and protection for children
deprived of family environment (art 20).
•
Right to the highest attainable standard of health (art
24)
•
Right to benefit from social security (art 26).
•
Right to education (art 28).
EXAMPLE OF GENERAL COMMENTS
Standards:
Global
General Comments are issued by treaty bodies to elaborate
upon treaty provisions.
Example: General Comment 3 on the Convention on the
Rights of the Child: HIV/AIDS and the Rights of the Child
• Respect - no mandatory HIV testing.
• Protect - no exploitation of trial participants by
pharmaceutical companies in HIV trials.
• Fulfill - make resources available to prevent HIV
transmission from mother to child.
EXAMPLES OF CONCLUDING OBSERVATIONS
Standards:
Global
Example 1: Concluding Observations of the Committee on
Economic, Social and Cultural Rights
- Zambia (UN Doc E/C.12/1/Add.106)
EXAMPLES OF CONCLUDING OBSERVATIONS
Standards:
Global
“The Committee is deeply concerned that the extent of
extreme poverty in the state party has negatively affected
the enjoyment of economic, social and cultural rights as
enshrined in the Covenant, especially by the most
disadvantaged and marginalised groups, including girlchildren and those affected by HIV/AIDS...”
“...the Committee is deeply concerned about the high
incidence of child-headed households, a phenomenon that
is linked to the HIV/AIDS pandemic, and which negatively
impacts on children’s access to education...”
EXAMPLES OF CONCLUDING OBSERVATIONS
Standards:
Global
“The Committee recommends that the state party intensify
its efforts to control the spread of HIV/AIDS, including by
strengthening the policy of both providing and encouraging
the use of condoms.
The Committee also recommends that the state party
continue with its prevention and care efforts in the field of
health by providing sexual and reproductive health services,
particularly to women and young people.”
EXAMPLES OF CONCLUDING OBSERVATIONS
Standards:
Global
Example 2: Committee on the Rights of the Child –
Concluding Observations: second periodic report of the
Republic of Mauritius, 2006
EXAMPLES OF CONCLUDING OBSERVATIONS
Standards:
Global
“The Committee recommends that the state party integrate
respect for the rights of the child into the development and
implementation of its HIV/AIDS policies and strategies,
taking into account its general comment No. 3 (2003) on
HIV/AIDS and the rights of the child.”
INTERNATIONAL GUIDELINES ON HIV/AIDS AND HUMAN
RIGHTS (not strictly legally binding, but persuasive)
Standards:
Global
Guideline 1: States should adopt multi-sectoral
approaches to establish an effective national framework for
the response to the HIV epidemic.
Guideline 2: States should enable community
organisations to carry out activities in the field of ethics,
human rights and law. States should also consult widely
with such organisations in drafting all HIV policies.
INTERNATIONAL GUIDELINES ON HIV/AIDS AND
HUMAN RIGHTS (not strictly legally binding, but
persuasive)
Standards:
Global
Guideline 5: States should enact or strengthen antidiscrimination laws to protect vulnerable groups. States
should also ensure privacy, confidentiality and ethical
behaviour in research involving human subjects.
INTERNATIONAL GUIDELINES ON HIV/AIDS AND
HUMAN RIGHTS (not strictly legally binding, but
persuasive)
Standards:
Global
Guideline 6 (revised): States should enact legislation to provide for
the regulation of HIV-related goods, services and information in
order to ensure widespread availability of quality prevention
measures and services, adequate HIV prevention and care
information, and safe and effective medication at an affordable price.
States should ensure that all persons have access to quality goods
on a sustained and equal basis.
INTERNATIONAL GUIDELINES ON HIV/AIDS AND
HUMAN RIGHTS (not strictly legally binding, but
persuasive)
Standards:
Global
Guideline 7: States should implement legal support services to
educate people who are affected by the HIV epidemic about
their rights. States should also develop expertise on HIV-related
legal issues and use means other than courts, such as human
rights commissions, to protect the rights of people who are
affected by the epidemic.
Guideline 9: States should promote the distribution of creative
education, training and media programmes that are designed to
change discriminatory attitudes associated with HIV and AIDS
to reflect greater understanding and acceptance.
INTERNATIONAL GUIDELINES ON HIV/AIDS AND
HUMAN RIGHTS (not strictly legally binding, but
persuasive)
Standards:
Global
Guideline 10: States should translate human rights principles
into codes of conduct, which should be accompanied by
mechanisms to implement and enforce these codes.
Guideline 11: States should ensure monitoring and
enforcement mechanisms to guarantee and protect HIVrelated human rights.
UN MILLENNIUM DEVELOPMENT GOALS
Standards:
Global
Goal 6: States must halt and begin to reverse the spread of
HIV by 2015.
UN DECLARATION OF COMMITMENT ON HIV/AIDS
Standards:
Global
Contains a checklist with questions concerning national
compliance with the MDGs.
For instance, countries have to adopt “laws and regulations
that protect against discrimination of people living with HIV”,
and “laws and regulations that protect against
discrimination of people identified as being especially
vulnerable to HIV/AIDS”.
INTERNATIONAL LABOUR ORGANISATION (ILO)
Standards:
Global
The ILO, a specialised agency of the UN seeks to promote
decent conditions of work and internationally recognised
human and labour rights. All the states included in Eastern
and Southern Africa are members of the ILO.
ILO CONVENTIONS AND DOCUMENTS MOST
RELEVANT TO HIV AND AIDS
Standards:
Global
•
Discrimination (Employment and Occupation)
Convention, 1958 (No. 111)
•
Occupational Safety and Health Convention,
1981 (No. 155)
•
ILO Code of Practice on HIV/AIDS and the World of
Work (2001)
WORLD TRADE ORGANISATION (WTO)
Standards:
Global
Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS)
‘Flexibilities’ allow:
• Compulsory licensing (permits local manufacture or
importation of patented medicines without the
authorisation of patent holder)
• Parallel importation (permits importation of patented
medicines that are sold in another country at a better
price)
REGIONAL LEVEL
Standards:
Regional
AFRICAN UNION (AU) HUMAN RIGHTS INSTRUMENTS
Standards:
Regional
•
African Charter on Human and Peoples’ Rights
(1981/1986)
•
Protocol (to African Charter) on the Rights of Women in
Africa (2003/2005)
•
African Charter on the Rights and Welfare of the Child
(African Children’s Charter) (1990/1999)
Full texts and status of ratification: www.africa-union.org
AFRICAN CHARTER ON HUMAN
AND PEOPLES’ RIGHTS
Standards:
Regional
•
Right to non-discrimination and equality before the law
(arts 2 & 3).
•
Right to life (art 4).
•
Right to dignity (art 5).
•
Right to liberty and security of the person (art 6).
•
Right to work (art 15).
•
Right to health (art 16).
•
Right to education (art 17).
PROTOCOL ON THE RIGHTS OF WOMEN IN AFRICA
Standards:
Regional
•
Prohibition of discrimination against women (art 2).
•
Right to dignity (art 3).
•
Elimination of harmful practices (art 5).
•
Equal rights in marriage (art 6).
•
Health and reproductive rights (art 14).
•
Right to inheritance (art 21).
PROTOCOL ON THE RIGHTS OF WOMEN IN AFRICA
ARTICLE 14: HEALTH AND REPRODUCTIVE RIGHTS
Standards:
Regional
1. States parties shall ensure that the right to health of
women, including sexual and reproductive health is
respected and promoted. This includes:
(a) the right to control their fertility;
(b) the right to decide whether to have children; the number
of children and the spacing of the children;
(c) the right to choose any method of contraception
(d) the right to self-protection and to be protected against
sexually transmitted infections, including HIV/AIDS.
AFRICAN CHILDREN’S CHARTER
Standards:
Regional
•
Right to non-discrimination (art 3).
•
Right to education (art 11).
•
Right to health, including obligation of government to
reduce child mortality (art 14).
•
Protection against harmful practices including child
marriages (art 21).
•
Right to special protection and assistance for children
deprived of family environment (art 25).
AU DECLARATIONS
Standards:
Regional
Abuja Declaration, 2001:
• 15% of government budget to be devoted to healthcare.
Africa’s Common Position to the UN General Assembly
Special Session on AIDS, 2006:
• 80% ARV coverage by 2010.
NEPAD AND APRM
Standards:
Regional
•
Scrutiny by peers.
•
Direct reference to HIV and AIDS in, for example, the
Rwanda Country Review Report.
SUB-REGIONAL LEVEL
Standards:
Sub-regional
COMMON MARKET FOR EASTERN AND
SOUTHERN AFRICA (COMESA)
Standards:
Sub-regional
•
COMESA Treaty: States undertake to cooperate in
respect of health.
•
Gender Policy (2005): AIDS and human rights should be
mainstreamed into gender programmes.
EAST AFRICAN COMMUNITY (EAC)
Standards:
Sub-regional
EAC Treaty, article 118:
•
States undertake to prevent and control HIV and AIDS
•
East African Integration Diseases Surveillance Network
(EIDSNet)
•
Regional HIV and AIDS Strategic Plan 2007-2012
(2007)
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
(SADC)
Standards:
Sub-regional
SADC Treaty Article 5(1):
“The objectives of SADC shall be to:
(a) promote sustainable and equitable economic growth
and socio-economic development that will ensure
poverty alleviation with the ultimate objective of its
eradication, enhance the standard and quality of life of
the people of Southern Africa and support the socially
disadvantaged through regional integration;
(b) consolidate, defend and maintain democracy, peace,
security and stability;
(e) achieve complementarity between national and regional
strategies and programmes;
SOUTHERN AFRICAN DEVELOPMENT COMMUNITY
(SADC)
Standards:
Sub-regional
SADC Treaty Article 5(4):
“The objectives of SADC shall be to:
(f) combat HIV/AIDS and other deadly or communicable
diseases;
(k) mainstream gender in the process of community
building.”
OTHER SADC INSTRUMENTS
Standards:
Sub-regional
•
Maseru Declaration on HIV and AIDS (2003)
•
SADC Code on HIV/AIDS and Employment (1997)
•
HIV and AIDS Strategic Framework (2003 - 2007)
INTER-GOVERNMENTAL AUTHORITY
FOR DEVELOPMENT (IGAD)
Standards:
Sub-regional
IGAD Agreement Article 7(a):
“The aims and objectives of the Authority shall be to:
a) Promote joint development strategies and gradually
harmonise … programmes in the social … and strategic
fields”
Declaration of Ministers in charge of HIV/AIDS (2007)
Part D:
Domestication of
International
Human Rights Laws
RELATIONSHIP BETWEEN INTERNATIONAL
AND NATIONAL LAW
Domestication
Domestication
Dualism
Monism
DUALISM
Domestication
Example:
Article 111(b) of the Constitution of Zimbabwe:
(a) Except as otherwise provided by this Constitution or by
or under an Act of Parliament, any convention, treaty or
agreement acceded to, concluded or executed by or
under authority of the President with one or more
foreign states or governments or international
organisations (...)
(b) shall not form part of the law of Zimbabwe unless it has
been incorporated into the law by or under an Act of
Parliament.”
EXAMPLE OF ENABLING LEGISLATION
Domestication
Nigeria is the only dualist country in Africa that has made
the African Charter part of national law through the “African
Charter on Human and Peoples’ Rights (Ratification and
Enforcement) Act”.
MONISM
Domestication
Example:
Article 9(4) of the Constitution of Ethiopia:
“All international agreements ratified by Ethiopia are an
integral part of the law of the land”.
SELF-EXECUTING TREATY PROVISIONS
Domestication
Treaty provisions that courts may apply as they are
provided for in an international treaty without any
domestication of that provision.
B. ANTI-DISCRIMINATION
Domestication
Burundi: Law 1/018 (2005) on the Legal Protection of
People Living with HIV creates an obligation on public
authorities to respond to HIV-related discrimination.
C. PROPERTY AND INHERITANCE
Domestication
Botswana: Abolition of Marital Power Act 34 of 2004
provides for equal power of spouses who are married in
community of property.
Lesotho: Legal Capacity of Married Persons Act of 2006
provides for equality of spouses in respect to the disposal
of assets.
D. CUSTOMARY PRACTICES
Domestication
Eritrea: Female Circumcision Abolition Proclamation 158 of
2007.
Uganda: Domestic Relations Bill of 2003 prohibits female
genital mutilation and criminalises widow inheritance.
E. DOMESTIC VIOLENCE
Domestication
South Africa: Prevention of Family Violence Act 133 of
1993 (section 5):
“Notwithstanding anything to the contrary contained in any
law or in the common law, a husband may be convicted of
the rape of his wife”.
F. CHILDREN’S PROTECTION
Domestication
Kenya: Children’s Act of 2001 guarantees free primary
school education, criminalises forced marriages and female
genital cutting.
Malawi: Child (Care, Protection and Justice) Bill (2005)
provides for child care and protection, improves the
protection for orphans and vulnerable children.
G. VULNERABLE GROUPS
Domestication
Protocol to the African Charter on the Rights of Women in
Africa, article 6:
“States Parties shall ensure that women and men enjoy
equal rights and are regarded as equal partners in
marriage. They shall enact appropriate national legislative
measures to guarantee that:
• no marriage shall take place without the free and full
consent of both parties;
• the minimum age of marriage for women will be 18
years...”
G. VULNERABLE GROUPS
Domestication
Djibouti: Law 48 of 1999 gives children, mothers, the
physically handicapped, victims of natural disasters, and
vulnerable groups generally, the right to state assistance in
matters of health.
G. VULNERABLE GROUPS:
LACK OF PROTECTIVE MEASURES
Domestication
Prisoners
• Often denied access to condoms and HIV treatment.
Intravenous Drug Users (IDUs)
• Needle and syringe exchange often not provided in order
to avoid ‘aiding and abetting’ a crime.
Refugees, Asylum Seekers and Undocumented Migrants
• Often have no access to health care and social security.
H. SOCIO-ECONOMIC RIGHTS (IN LEGISLATION)
Domestication
Kenya: HIV and AIDS Prevention Control Act 14 of 2006
(art 19(2)) binds the government to take reasonable steps
to ensure access to treatment at affordable prices.
Angola: Law 8/04 on HIV and AIDS of 2004 sets
guarantees for public health care and confidentiality in the
health care system.
I. DISCLOSURE OF STATUS
Domestication
It seems that international law accepts that a medical officer
may disclose a patient’s HIV status to someone who
clearly is at an immediate risk of HIV transmission under
strict conditions.
This position is, for example, set out in ethical guidelines of
the South African medical profession.
For proper regulation of disclosure of HIV status, see
International Guidelines on HIV/AIDS and Human Rights,
Guidelines 3(g), p 28.
J. CRIMINAL LAW
Domestication
International Guideline 4:
States should review and reform criminal laws and
correctional systems to ensure that they are consistent with
international human rights obligations and are not misused
in the context of HIV/AIDS.
J. CRIMINAL LAW: Tanzania
Domestication
HIV and AIDS (Prevention and Control) Bill 2007 of
Tanzania, Section 47:
“Any person who willfully and intentionally transmit HIV to
another person commits an offence, and upon conviction
shall be liable to life imprisonment. “
J. CRIMINAL LAW: KENYA
Domestication
Kenya Sexual Offences Act 2006:
Deliberate HIV transmission: offence, minimum sentence
of 15 years
Rape survivors: free medical care and access to PostExposure Prophylaxis (PEP) and counselling
J. CRIMINAL LAW:
PROBLEMS OF CRIMINALISATION
Domestication
• Not frequently used, largely symbolic – government seen
to be doing ‘something’!
• Criminalisation provisions are generally overbroad and
badly drafted
• For example, in rape cases: focus should be on rape
victim (immediate access to PEP) and NOT on the HIV
status of perpetrator.
• For guidelines on drafting criminalisation provisions, see
UNAIDS (2002) Criminal law, public health and HIV
transmission: A policy options paper pp 39-40 or also art 27
of HIV Control Bill 2007 of Uganda.
3. LEGISLATION
Domestication
While it is crucial to focus on the employment and criminal
spheres, legislation concerning HIV and AIDS should also
look at the root causes driving the epidemic, such as
gender inequality and poverty.
4. JUDGMENTS/CASE LAW
Domestication
Judges should rely on international treaties as interpretive
tools to respond to HIV by taking ‘ judicial notice’ of
treaties when dealing with HIV and AIDS-related cases.
4. JUDGMENTS/CASE LAW
Domestication
Example:
•
Hoffman v SAA (South Africa, 2000): an HIV positive
applicant was refused a job as cabin attendant for South
African Airways (SAA). The SA Constitutional Court
found that this amounted to unfair discrimination, and
ordered SAA to employ the applicant. The Constitutional
Court also prohibited pre-employment testing for HIV.
4. JUDGMENTS/CASE LAW
Domestication
Example:
•
Minister of Health and Others v TAC and Others (South
Africa, 2002): The South African government had a very
limited programme to provide Nevirapine in order to
prevent HIV transmission from mother to child. The
Constitutional Court of South Africa found in favour of
the TAC and decided that the government should make
the treatment available to all pregnant mothers who
need it.
4. JUDGMENTS/CASE LAW
Domestication
Example:
•
NM and Others v Smith and Others (South Africa,
2007): The Constitutional Court found that the author
and publisher violated a the right to privacy of several
women by revealing their HIV status in a book. They
were required to compensate the victims of the violation.
4. JUDGMENTS/CASE LAW
Domestication
Example:
•
EN and Others v Government of the RSA and Others
(South Africa, 2006): The High Court found that the
government’s delay in delivering ARV treatment to a
number of prisoners amounted to a violation of the
Constitution.
4. JUDGMENTS/CASE LAW
Domestication
Examples:
•
Nanditume v Minister of Defence (Namibia, 2000): The
Namibia Labour Court found that the exclusion of HIV
positive soldiers from the armed forces was
unconstitutional.
•
Midwa v Midwa (Kenya, 2000): The Kenya Court of
Appeal decided that a husband could not treat his wife
in a degrading manner on the basis of her HIV status.
4. JUDGMENTS/CASE LAW
Domestication
Example:
•
Jimson v Botswana Building Society (Botswana, 2003):
As a result of the case, the plaintiff - who was required,
by her employer, to undergo an HIV test - was
reinstated to her position at the Botswana Building
Society and received four months salary as
compensation.
5. INSTITUTIONS
Domestication
National institutions coordinating national responses to HIV
and AIDS (such as National AIDS Councils) should not only
be established, but should also function effectively.
6. EDUCATION, SENSITISATION AND PARTNERSHIPS
Domestication
For example:
•
The Treatment Action Campaign (TAC) in South Africa
•
The AIDS Support Organisation (TASO) in Uganda
7. LEGAL CAPITAL: BEYOND LEGISLATION TO
IMPLEMENTATION
Domestication
States should ensure:
•
Awareness and knowledge of rights
•
Access to lawyers and legal services - legal aid and
paralegals
•
That standing (locus standi) is not a hurdle
•
A functioning police investigation and court system
•
An independent judiciary
•
That delays in court processes are reduced
6. TRIPS FLEXIBILITIES
Domestication
•
Declaration of medical emergency
•
Parallel importation
•
Compulsory licensing
6. TRIPS FLEXIBILITIES
Domestication
Few states have made use of flexibilities, for example:
Mozambique: Industrial Property Code, approved by
Decree No. 18/99 of May 4
6. TRIPS FLEXIBILITIES
Domestication
Compulsory Licensing No. 01/M10/04 (Mozambique):
“(...) considering that antiretroviral drugs are readily available, and
that until now, the international patent owners have failed to make
such drugs accessible at affordable prices to most of the
Mozambican people, (...) the Ministry of Commerce and Industry,
making use of the provision of the Decree of 4 May, has decided to
grant the company Pharco Mozambique Lda, which has already
presented a project for local manufacture of the mentioned triple
compound under the names PHARCOVIR 30 and PHARCOVIR 40.
(...) The Government of Mozambique reserves the right to review this
compulsory license in case the conditions in which it was issued
are changed”.
Part E:
Conclusions and
Recommendations
CONCLUSIONS
Conclusions &
recommendations
•
HIV and AIDS have exposed pre-existing human rights
violations, stigma and inequalities in the region.
•
Addressing human rights violations, stigma and gender
inequality will both address the immediate problem of
HIV/AIDS, but also the long-standing inferiority of
women.
•
AIDS can leave us with a more equal, just and tolerant
society - if we focus on human rights and the schisms
that exist.
CONCLUSIONS
Conclusions &
recommendations
International law has an important role to play in this quest provided that international law becomes part of national law
CONCLUSIONS
Conclusions &
recommendations
Sustained improvement of domestic human rights
conditions requires the domestication of international norms
so that norm compliance becomes a commonly accepted
practice.
RECOMMENDATIONS:
STATES IN THE REGION SHOULD –
Conclusions &
recommendations
•
•
•
•
•
•
RATIFY all the mentioned UN, AU and sub-regional
treaties
ACCEPT the OPTIONAL COMPLAINTS mechanism to
allow for individual’s complaints
SUBMIT their state reports regularly
DOMESTICATE the treaty norm by adopting LAWS and
programmes in line with treaty provisions
ENSURE that the laws are made accessible through
information campaigns and legal aid
MAINSTREAM women’s equality: Women’s equality should
be part of all national laws, policies and programmes
dealing with HIV and AIDS.
OTHER RELEVANT TOOLS
Conclusions &
recommendations
For more information and assistance, make use of other
UNDP tools:
• Guide to an effective human rights response to the HIV
epidemic
• Checklist: Human rights obligations to effectively
address HIV and AIDS in Eastern and Southern Africa.
• Compendium of key documents on human rights and
the HIV epidemic in Eastern and Southern Africa.
• CD-Rom documents on human rights and the HIV
epidemic in Eastern and Southern Africa.
How to get hold of the tools
For more information, or to obtain copies of any of
the tools, please contact:
Shivaji Bhattacharya, Senior Policy Advisor, UNDP
Email: shivaji.bhattacharya@undp.org
or
United Nations Development Programme
Regional Services Centre
7 Naivasha Road
Sunninghill 2157
Johannesburg
South Africa
Tel: +27 11 603 5000