Human rights under threat: Four perspectives on HIV, AIDS and the law in Southern Africa

Frans Viljoen, Susan Precious

Description

Despite the fact that Southern Africa is the epicenter of the HIV epidemic, there is a shortage of research and reflection coming from the sub-region itself. With the support of Open Society Initiative for Southern Africa (OSISA), the AIDS and Human Rights Research Unit, based at the Centre for the Study of AIDS and the Centre for Human Rights, University of Pretoria, in 2006 engaged in a research project to give a voice to Southern African perspectives on issues pertaining to HIV, AIDS, law and human rights. Four researchers were selected to address four human rights-related issues of increasing importance in the context of HIV and AIDS in the sub-region. These issues are:legislation criminalising the wilful transmission of HIV;policies aimed at routinely testing individuals attending public health facilities;policies and practices aimed at withholding or denying access to HIV- related treatment and prevention to people living with HIV, particularly men in prisons; andpolicies, practices and laws that limit access to medicines, in particular the lack of domestication and use of flexibilities allowed for under the World Trade Organisation's Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS)The researchers were hosted by four research institutions in Southern Africa, where they prepared research papers. These institutions are: the AIDS and Rights Alliance of Southern Africa (ARASA), based in Windhoek, Namibia; the Botswana Network on Ethics, Law and HIV/AIDS (BONELA), based in Gaborone, Botswana; the Law and Development Unit, Faculty of Law, University of Malawi, Blantyre, Malawi; and the AIDS and Human Rights Research Unit, University of Pretoria, Pretoria, South Africa. This publication brings together these papers, an introduction, and some useful SADC instruments. An independent peer review of the papers was conducted before publication.Information on the AIDS and Human Rights Research UnitThe AIDS and Human Rights Research Unit (AIDS Research Unit or Unit) was founded as a collaboration between the Centre for the Study of AIDS (CSA) and the Centre for Human Rights (CHR), both based at the University of Pretoria. Launched in 2005, the AIDS Research Unit promotes research that situates HIV and AIDS within a rights-based framework, adopting a rights-based approach. Through this research new questions are asked, new explanations and knowledge are sought, new understandings of the epidemic and effective responses generated and new formulation of international trade regimes, policy and programmes developed.About the Editors:Frans Viljoen is Director at the Centre for Human Rights and Professor of International Human Rights Law, University of Pretoria.Susan Precious practices civil litigation, administrative law and constitutional law for clients in the health, insurance, policing, class action and privacy contexts.

Sujets

• Droit
• JUSTICE

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2007
• Nombre de lectures: 0
• EAN13: 9780980265828
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

HUMAN RIGHTS UNDER THREAT: FOUR PERSPECTIVES ON HIV, AIDS AND THE LAW IN SOUTHERN AFRICA

Frans Viljoen and Susan Precious (eds)

2007

Human rights under threat: Four perspectives on HIV, AIDS and the law in Southern Africa

Published by:

Pretoria University Law Press (PULP)

The Pretoria University Law Press (PULP) is a publisher, based in Africa, launched and managed by the Centre for Human Rights and the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see www.chr.up.ac.za/pulp

Printed and bound by: ABC Press Cape Town

Cover design: Yolanda Booyzen, Centre for Human Rights

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.chr.up.ac.za/pulp

ISBN: 978-0-9802658-2-8

© 2007 Copyright subsists in this work. It may be reproduced only with permission from any one of the following: the AIDS and Human Rights Research Unit, University of Pretoria; ARASA; BONELA; and the Law and Development Unit, Faculty of Law, University of Malawi.

PREFACE

Table of contents

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LIST OF ABBREVIATIONSv Introduction: Human rights under threat 1 1 in attempts to address HIV and AIDS by Frans Viljoen and Susan Precious Pandora’s box: The criminalisation of HIV 13 2 transmission or exposure in SADC countries by Patrick M Eba Routine HIV testing of individuals attending 55 3 by Nyasha C Chingore public health facilities: Are SADC countries ready? The human rights and public health implications 93 4 of restricting prisoners’ access to HIV prevention and treatment in SADC countries by Babafemi Odunsi The realisation of access to HIV and AIDS- 127 5 related medicines in Southern African countries: Possibilities and actual realisation of international law obligations by Dorothy Mushayavanhu

BIBLIOGRAPHY

ANNEXURES A B C D

SADC Treaty - excerpts SADC Protocol on Health - excerpts Code on HIV/AIDS and Employment in SADC Maseru Declaration on HIV/AIDS

BACKGROUND ON AUTHORS

INFORMATION ON THE AIDS AND HUMAN RIGHTS RESEARCH UNIT

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Preface

Despite the fact that Southern Africa is the epicenter of the HIV epidemic, there is a shortage of research and reflection coming from the sub-region itself. With the support of Open Society Initiative for Southern Africa (OSISA), the AIDS and Human Rights Research Unit, based at the Centre for the Study of AIDS and the Centre for Human Rights, University of Pretoria, in 2006 engaged in a research project to give a voice to Southern African perspectives on issues pertaining to HIV, AIDS, law and human rights. Four researchers were selected to address four human rights-related issues of increasing importance in the context of HIV and AIDS in the sub-region. These issues are: (1) legislation criminalising the wilful transmission of HIV and its potential or actual impact on marginalised and vulnerable groups; (2) policies aimed at routinely testing individuals attending public health facilities; (3) policies and practices aimed at withholding or denying access to HIV-related treatment and prevention to people living with HIV and AIDS, particularly men in prisons; and (4) policies, practices and laws that limit access to medicines, in particular the lack of domestication and use of flexibilities allowed for under the World Trade Organisation’s Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS).

The four researchers were hosted by four research institutions in Southern Africa, where they prepared four research papers. The four institutions are: the AIDS and Rights Alliance of Southern Africa (ARASA), based in Windhoek, Namibia; the Botswana Network on Ethics, Law and HIV/AIDS (BONELA), based in Gaborone, Botswana; the Law and Development Unit, Faculty of Law, University of Malawi, Blantyre, Malawi; and the AIDS and Human Rights Research Unit, University of Pretoria, Pretoria, South Africa. These papers were first discussed at a regional workshop, held in Pretoria in July 2006, where various stakeholders gave constructive criticism and comments. Thereafter, the papers were further reworked and reviewed, and, in August 2006, they were presented at the International AIDS Conference in Toronto, Canada. This publication brings together these four papers, an introduction, and some useful SADC instruments. An independent peer review of the papers was conducted before publication.

This publication appears in tandem with a collection of country reports on HIV, AIDS and human rights from nine states in Southern Africa (AIDS and Human Rights Research UnitHuman rights protected? Nine Southern African country reports on HIV and the law). OSISA also sponsored this research and publication.

Thanks and appreciation go to Dr Avrhash Govindjee, of the Nelson Mandela Metropolitan University, Karen Stefiszyn of the Unit, Lizette Besaans of PULP, and Alaric Vandenberghe, for their contributions to making this publication print-ready; Daniel Muriu, for insightful comments on chapter 5; and to Michaela Clayton (Director of ARASA), Christine Stegling (Director of BONELA) and to Dr Nector Mhura (Dean, Faculty of Law, University of Malawi), for their supervision of and guidance to the researchers. Rakgadi Mohlahlane provided invaluable assistance in administering the project and coordinating activities between OSISA, the Unit and the other research institutions.

Editors July 2007

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List of acronyms and abbreviations

AHRLR AIDS ARASA ART ARVs AU AZT BCLR BLR BONELA CDC CESCR CEDAW

CIOMS CRC DRC ELISA HAART HCT HIV HDI HRC GIPA GPL ICCPR ICESCR

IPU IRIN KAP LDC MMWR MOHCW MSF MSM MSP NDI OAU OHCHR OSISA PEPFAR PCP PCR PLWHA PMTCT SA SADC SADC PF SADCC STD STI TB TAC

- - - - - - - - - - - - -

- - - - - - - - - - - - -

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African Human Rights Law Reports acquired immune deficiency syndrome AIDS and Rights Alliance of Southern Africa anti-retroviral treatment anti-retroviral medicines African Union zidovudine Butterworths Constitutional Law Reports Botswana Law Reports Botswana Network on Ethics, Law and HIV/AIDS Centers for Disease Control and Prevention (US) Committee on Economic, Social and Cultural Rights Convention on the Elimination of All Forms of Discrimi- nation against Women Council for International Organisations of Medical Sciences Convention on the Rights of the Child Democratic Republic of Congo enzyme-linked immunosorbent essay highly active anti-retroviral therapy HIV counselling and testing human immunodeficiency virus Human Development Index (UN) Human Rights Committee greater involvement of people living with HIV and AIDS Gauteng Provincial Legislature International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Inter-Parliamentary Union (UN) Integrated Regional Information Networks knowledge, attitudes and practices least developed country Morbidity and Mortality Weekly Report (CDC) Zimbabwean Ministry of Health and Child Welfare Médecins sans frontières men who have sex with men manufacturer’s selling price National Democratic Institute for International Affairs Organisation of African Unity Office of the High Commissioner for Human Rights Open Society Initiative for Southern Africa President’s Emergency Plan for AIDS Relief (US) pneumocystis carnii pneumonia polymerase chain reaction people living with HIV and AIDS prevention of mother to child transmission South African Law Reports Southern African Development Community SADC Parliamentary Forum Southern African Development Coordination Conference sexually transmitted disease sexually transmitted infection tuberculosis Treatment Action Campaign

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TRIPS

UN UNAIDS UNDP UNGASS USAID VCLT VCT WHO WIPO WTO WMA

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Agreement on Trade Related Aspects of Intellectual Property Rights United Nations United Nations Joint Programme on HIV and AIDS United Nations Development Programme United Nations General Assembly Special Session United States Agency for International Development Vienna Convention on the Law of Treaties voluntary counselling and testing World Health Organisation World Intellectual Property Organisation World Trade Organisation World Medical Association

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Introduction: Human rights under threat in attempts to address HIV and AIDS

Frans Viljoen* and Susan Precious**

Human rights are not slowing down the response

Making the same mistake twice

Towards universal standards of prevention, treatment and care

The HIV epidemic in Southern Africa

HIV, AIDS, human rights and the law in Southern Africa — new debates and strategies

SADC — towards a common approach?

At the closing session of the 16th International AIDS Conference, in Toronto, Canada, the then UN Special Envoy for HIV and AIDS in Africa 1 made the following remarks with respect to male circumcision:

Circumcision, as a preventive intervention, should not be subject to bureaucratic contemplation forever. We have enough information now to know that it is an intervention worth pursuing. What remains is a single- minded effort to get the word out, respect cultural sensitivities, and then for those who want to proceed, make certain that we have well- trained personnel to do the operating.

No one would disagree with the Special Envoy’s plea to deal with the HIV pandemic as the emergency that it is. It is clear that government response must be stepped up immediately. What appears to creep into the statement above, though, is what is becoming a widely held perception that in cases of public emergencies, human rights are secondary concerns.

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LLB, LLD (Pretoria), LLM (Cambridge), AIDS and Human Rights Research Unit, Faculty of Law, University of Pretoria. BA (Hons) (Mount Allison), MA (Queen’s), LLB (Dalhousie), LLM (LSE); AIDS and Human Rights Research Unit, Faculty of Law, University of Pretoria. Remarks by Stephen Lewis, UN Special Envoy for HIV/AIDS in Africa, to the closing session of the XVI International AIDS Conference, Toronto, Canada (18 August 2006).

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The fact of the matter is that we do not yet know enough about 2 male circumcision to warrant no further investigation on the topic, and we have certainly not fully considered the very real risk of sending out the wrong message — that circumcision alone is an adequate method of protection. This new and hasty push for circumcision as the next great HIV prevention mechanism relied primarily on figures from the Orange Farm Intervention Trial in South Africa, which showed that men who are circumcised are at least 60 3 per cent less likely to contract HIV than those who are not. The problem is that, at best, this only represents a reduced risk of 60 per cent — but what of the other 40 per cent? The unquestioned acceptance of circumcision risks creating a false sense of security and increasing the likelihood of unprotected sex and thus, HIV 4 transmission. Although this book does not deal with circumcision, the way in which it has been held out as a ‘quick fix’ without giving due consideration to human rights corresponds to the way in which criminalisation of HIV transmission and routine offers of HIV testing have been portrayed as easy solutions. These two issues are discussed 5 in great depth below.

The notion that human rights can be swept aside in cases of emergencies is not new. This was clearly seen in the ‘War on Terror’ where historically and constitutionally entrenched civil and political rights such as the right to a fair trial, to speak to a legal representative, and to be free from torture were suddenly suspended, viewed as secondary, or even as irrelevant, in the face of a threat that 6 was perceived to overshadow the risk to human rights. This same phenomenon is now gaining momentum in the case of HIV and AIDS.

This introduction attempts to show that, firstly, it is not human rights that are slowing down the response but rather: a failure on the part of many governments to take decisive action, insufficient collaboration between civil society and government, and a failure of the international community to unequivocally and unconditionally

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There are ongoing trials in Kenya and Uganda that are scheduled to end between July and September 2007, the results of which will be important in validating or disproving results from the Orange Farm Intervention Trial that was conducted in South Africa. See World Health Organisation (WHO) ‘Male circumcision update: Ongoing clinical trials are key to validating the link between male circumcision and protection against HIV infection’ (17 August 2006). As above. According to a UNAIDS country survey, http://www.unaids.org/en/Regions_ Countries/Countries/default.asp (31 January 2007), the percentage of people between 15 and 24 that reported using a condom the last time they had sex with a casual partner was as follows for a number of countries in Southern Africa (percentages are given for men and women separately): Angola (64%, 55%); Botswana (88%, 75%); Lesotho (48%, 50%); Madagascar (12%, 5%); Malawi (47%, 35%); Mozambique (33%, 29%); Tanzania (47%, 42%); Zambia (40%, 35%); and Zimbabwe (57%, 43%). Corresponding figures for the other SADC countries were not available. UNAIDS2006 Report on the global AIDS epidemic(2006) 15. See RA Wilson (ed)Human rights in ‘the war on terror’(2005).

Chapter 1 3

support attempts to effectively address HIV and AIDS. Secondly, there is a failure to recognise that side-stepping human rights risks making the same mistakes twice. We now know that HIV is not just a medical problem in need of a medical solution. The people in society that are most susceptible to infection are those that are most vulnerable to human rights violations. Thirdly, ignoring human rights in cases of public health emergencies carries the implicit conclusion that members of the developing world are somehow less worthy of human rights protection than their counterparts in the developed world. Ultimately, this introduction argues that the protection of human rights is the only real solution to this immediate and pressing crisis.

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Human rights are not slowing down the response

One of the reasons most often advanced to justify the erosion of human rights is that there is not enough time to deal with human rights issues in the face of an emergency. This reasoning is flawed on two counts. First, there seems to be a perception that the protection of human rights requires too much time. However, it is difficult to see how many of the human rights in the context of HIV and AIDS take up any time at all. A discrimination-free workplace and patient-doctor confidentiality, for example, require no time.

Second, there is an implicit assumption that skipping over the protection of human rights will mean being able to control a nd reverse the epidemic. However, the solution to the AIDS crisis is not as simple as testing every person and disclosing their status. It is a highly complex crisis that requires deep-rooted and long term changes, such as gender equality, institutional capacity and resources, and an end to poverty. Ignoring these in the short-term will only delay reversing the epidemic, cost more money, and most importantly, cost more lives.

Political leadership can, however, delay a successful response to HIV. In sub-Saharan African countries, the general population is confused because there has not been clarity in declaring HIV a national emergency. Proper responses simply cannot flow until this declaration has been made clearly and publicly and incorporated into all of the relevant national legislation and plans for strategic direction.

The international community has also failed to unequivocally recognise HIV as the human disaster that it is. International assistance

4Frans Viljoen and Susan Precious

is often short term and tied to conditions that run counter to 7 responsible HIV management programmes.

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Making the same mistake twice

The HIV pandemic is not just a medical problem, but one that cuts across gender, development and human rights issues. As Mary Crewe, Director of the Centre for the Study of AIDS at the University of Pretoria, has stated:

HIV and AIDS have brutally exposed all the fault lines of our society — poverty, gender inequality, violence, lack of access to education, health care and social service as well as the importance of employment and 8 social security. In a broader context, Christine Chinkin, professor in international law at the London School of Economics, aptly stated that the ‘denial of 9 human rights is both a cause and a consequence of being poor’. Her statement is equally applicable in the context of HIV and AIDS. While human rights violations and plummeting human development indicators are painfully visible results of the HIV pandemic, they are also among the key drivers that have caused the epidemic to have 10 spread and ravaged the sub-continent at such a rapid pace. Eroding the human rights of those living with, affected by, or vulnerable to HIV infection will only further marginalise those individuals and pro- pel the epidemic to new heights.

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Towards universal standards of prevention, treatment and care

Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides that state parties recognise ‘the right of everyone to the enjoyment of the highest attainable standard 11 of physical and mental health’. Article 12(2) of the Covenant

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Some countries have tied funding to the condition of non-discussion of condom usage, a concept nearly impossible to eliminate from any reasonable and respon- sible prevention strategy. Statement made by Mary Crewe, Director of the Centre for the Study of AIDS at the University of Pretoria during her presentation ‘AIDS — democracy, develop- ment and human rights’ given at the Stakeholder Consultation on Gender, Human Rights and HIV & AIDS: A UNDP-OHCHR Joint Initiative for Southern and Eastern Africa, Rosebank Hotel, Johannesburg, 27-29 June 2006. C Chinkin ‘The United Nations Decade for the Elimination of Poverty: What role for international law?’ (2001) 54Current Legal Problems556. AIDS and Human Rights Research Unit A review of regional and national human rights based HIV and AIDS policies and frameworks in Eastern and Southern Africa Report for the UNDP-OHCHR Joint Initiative for Eastern and Southern Africa (September 2006) 16. Art 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).